Punjab-Haryana High Court
Dalip Singh vs State Of Punjab And Others on 7 January, 2013
Bench: Rajive Bhalla, Rekha Mittal
CWP No.1456 of 2012 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
*****
CWP No.1456 of 2012
DATE OF DECISION : 07.01.2013
Dalip Singh ...Petitioner
Versus
State of Punjab and others ...Respondents
CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA
HON'BLE MRS. JUSTICE REKHA MITTAL
Present : Mr. Naresh Kaushal, Advocate,
for the petitioner.
Mr. Ashwani Talwar, Additional Advocate General, Punjab,
for respondent Nos.1 and 2.
Mr. A.P.Kaushal, Advocate,
for respondent No.3.
RAJIVE BHALLA, J. (ORAL)
The petitioner prays for quashing orders dated 02.04.2008 and 01.06.2005 passed by the Joint Development Commissioner (IRD), Punjab (exercising the powers of 'Commissioner') and the Additional Deputy Commissioner (Development), Rupnagar (exercising the powers of 'Collector'), respectively, under the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as the '1961 Act').
The short point that arises for consideration, is whether the land, in dispute, is situated within Abadi Deh of the village and if so its consequence.
Counsel for the petitioner submits that the land, in dispute, is situated within the Abadi Deh and the Lal Dora of the village. The Gram Panchayat has not denied these facts. The land is, therefore, excluded from Shamilat Deh by Section 2(g)(1) of the 1961 Act. The Gram Panchayat has failed to adduce any evidence that the land is Shamilat Deh under any provision of Section 2(g) of the 1961 Act. The Collector as CWP No.1456 of 2012 -2- well as the Appellate Authority have ignored this fact and committed an error while recording a finding that the land, in dispute, vests in the Gram Panchayat.
Counsel for the Gram Panchayat submits that the land, in dispute, was reserved for common purposes of the village, i.e., for parking of vehicles, tractor trollies etc. and, therefore, vests in the Gram Panchayat under Section 2(g)(4) of the 1961 Act. The petitioner has failed to prove his possession before a Civil Court and, therefore, cannot claim ownership or possession. It is further submitted that as the Collector as well as the Appellate Authority have recorded concurrent findings of fact in favour of the Gram Panchayat, the writ petition should be dismissed.
We have heard counsel for the parties, perused the pleadings as well as the impugned orders. The petitioner filed an application under Section 11 of the 1961 Act, for declaration that the land, in dispute, does not vest in the Gram Panchayat. The petitioner pleaded that as the land is situated within the Lal Dora and the Abadi Deh of the village, and is being used as a bara for tethering of cattle, it is excluded from Shamilat Deh by Section 2(g)(1) of the 1961 Act. The Gram Panchayat opposed the application by pleading that the land vests in the Gram Panchayat as it was reserved for a common purpose, namely, parking of vehicles. The Gram Panchayat, however, did not deny that the land is situated within the Abadi Deh and the Lal Dora.
The Collector and the Commissioner have recorded findings that the land, in dispute, vests in the Gram Panchayat, but while doing so have, unfortunately, failed to consider Section 2(g)(1) and (4) of the 1961 Act.
Section 2(g)(1) and 2(g)(4) of the 1961 Act, reads as follows:
"2(g) "Shamilat deh" includes--CWP No.1456 of 2012 -3-
(1) Land described in the revenue records as shamilat deh excluding abadi deh;
(2) XXX XXX XXX;
(3) XXX XXX XXX;
(4) Lands used or reserved for the benefit of the village community including, streets, lanes, playgrounds, schools, drinking wells, or ponds within abadi deh or gora deh"
Section 2(g)(1) of the 1961 Act excludes land within Abadi Deh from Shamilat Deh. Section 2(g)(4) of the 1961 Act, however, prescribes that land within Abadi Deh or Gora Deh shall be included in Shamilat Deh if it is used or reserved for the benefit of village community including streets, lanes, playgrounds, schools, drinking wells or ponds. As a general rule, land within Abadi Deh is excluded from Shamilat Deh. The only exception being if the land is used for any public purpose, set out in Section 2(g)(4) of the 1961 Act. The onus, therefore, to prove, that the land is used or reserved for a public purpose set out in Section 2(g)(4) of the 1961 Act or for a purpose akin thereto, rests upon a Gram Panchayat. A perusal of the impugned orders reveals that neither the Collector nor the Appellate Authority have recorded any reason for holding that the land, in dispute, which is situated within the Lal Lakeer, is used or was reserved for any common purpose. In the absence of any reason arrayed by the Collector or the Appellate Authority, for holding that land, in dispute, was used or reserved for any common purpose, we partly allow the writ petition, set aside order dated 02.04.2008 and remit the matter to the Joint Development Commissioner (I.R.D.), Punjab, S.A.S. Nagar, Mohali, to decide the appeal, afresh, and in accordance with law, after recording a finding whether the land, in dispute, which is situated within the Abadi Deh, vests in the Gram Panchayat.
Parties are directed to appear before the Joint Development Commissioner (I.R.D.), Punjab, S.A.S. Nagar, Mohali, on 07.02.2013, who CWP No.1456 of 2012 -4- shall decide the matter within three months from the date of parties putting in appearance before him.
(RAJIVE BHALLA)
JUDGE
07.01.2013 (REKHA MITTAL)
adhikari JUDGE