Punjab-Haryana High Court
Date Of Decision: 20.12.2012 vs The State Of Punjab And Others on 20 December, 2012
Author: Rajive Bhalla
Bench: Rajive Bhalla, Rekha Mittal
CIVIL WRIT PETITION NO. 3193 of 1986 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
1. CIVIL WRIT PETITION NO. 3193 of 1986
Date of Decision: 20.12.2012
Gram Panchayat/Gram Sabha of village Bhattian, Tehsil
and District Patiala through its Sarpanch.
..Petitioner
Versus
The State of Punjab and others ..Respondents
2. Civil Writ Petition No. 3378 of 1986
Gram Panchayat/Gram Sabha of village Bhattian, Tehsil
and District Patiala through its Sarpanch.
..Petitioner
Versus
The State of Punjab and others ..Respondents
And
3. Civil Writ Petition No. 3379 of 1986
Gram Panchayat/Gram Sabha of village Bhattian, Tehsil
and District Patiala through its Sarpanch.
..Petitioner
Versus
The State of Punjab and others ..Respondents
CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA
HON'BLE MRS. JUSTICE REKHA MITTAL
CIVIL WRIT PETITION NO. 3193 of 1986 2
Present: Mr. H.R.Bhardwaj, Advocate for the petitioner
Mrs. Vandana Malhotra, Addl.A.G., Punjab
for respondent nos. 1 to 3.
Mr. Sarjit Singh, Senior Advocate
with Ms. I.K.Pannu, Advocate
for respondent nos. 4 and 5.
RAJIVE BHALLA, J.
By way of this order, we shall dispose of Civil Writ Petition Nos. 3193, 3378 and 3379 of 1986 as they involve adjudication of common questions of law and fact and have been filed to challenge the same impugned orders.
The Gram Panchayat of Village Bhattian has filed three separate petitions, praying for issuance of a writ of certiorari quashing orders dated 16.4.1985 (Annexure P-12) and 29.1.1986 (Annexure P-13) passed by the Collector/DDPO, Patiala and the Joint Director, Panchayat, Punjab, (exercising the powers of `Commissioner'), respectively.
Counsel for the petitioner submits that the land, in dispute, is, admittedly, recorded as "Shamilat Deh". The Collector allowed the petition for eviction against Jamna Dass and Behal Singh, but wrongly dismissed the petition against Dalbir Singh. The Appellate Authority has dismissed the appeal filed by the Gram Panchayat and allowed the appeals filed by Dalbir Singh, Jamna Dass and Behal Singh (the respondents in the other writ petitions) on the ground that as the land was "Banjar Qadim" on 9.1.1954, and not used for any common purpose, on the date of the coming into force of the Pepsu Village Common Lands (Regulation) Act, 1954, CIVIL WRIT PETITION NO. 3193 of 1986 3 (hereinafter referred to as the "1954 Act"), it does not vest in the Gram Panchayat. The Appellate Authority has also recorded a finding that the land, in dispute, was in cultivating possession of Nand Singh before 26.1.1950 and, therefore, does not vest in the Gram Panchayat. It is further submitted that the finding that Banjar land was not used for common purposes of the village is contrary to the Wazib-Ul-Arz, which clearly records that banjar land can be used for grazing of cattle (a common purpose). The finding that the land, in dispute, was in cultivating possession of Nand Singh is contrary to the finding that the land is "Banjar Qadim", i.e., land that has remained fallow for eight harvests. It is also argued that Dalbir Singh draws his title from a collusive civil court decree suffered in his favour by his father. The decree is, even otherwise, null and void, as it was passed after Section 13 of the Punjab Village Common Land (Regulation) Act, 1961 (hereinafter referred to as the "1961 Act"), was enacted, prohibiting a civil court from entertaining a suit relating to any right, title or interest in "Shamilat Deh". The decree does not bind the Gram Panchayat as the Gram Panchayat was not arrayed as a party. It is further submitted that decree dated 25.5.1982, obtained by Dalbir Singh against the Gram Panchayat, was collusive as the Sarpanch had no authority to admit the rights of Dalbir Singh. The decree has to be ignored in view of Sections 13 and 13-A of the 1961 Act. It is further submitted that order dated 29.1.1986 passed by the Joint Director Panchayats ordering the eviction of Joginder Singh has been ignored.
Counsel for the private respondents submit that the land, CIVIL WRIT PETITION NO. 3193 of 1986 4 in dispute, does not belong to the Gram Panchayat. The orders passed under Section 7 of the 1961 Act, do not operate as res judicata. The civil suit filed by Dalbir Singh was decreed by holding that the land does not vest in the Gram Panchayat. The decree operates as res judicata. It is also pointed out that the Gram Panchayat has failed to prove that the land, which was, admittedly, "Banjar Qadim" in 1954, was used and reserved for any common purpose as per the revenue record and is, therefore, excluded from "Shamilat Deh", by virtue of Section 2(g)(5) of the 1961 Act. The other findings recorded by the Collector and the Appellate Authority are also legal and valid.
We have heard counsel for the parties, perused the impugned orders, judgments and decrees, various orders passed under section 7 of the 1961 Act.
The facts of the case require a detailed narration so as to chart out the course of this long drawn out litigation. For the sake of berevity, facts are being taken from Civil Writ Petition No. 3193 of 1986.
Joginder Singh son of Nand Singh, respondent No.4, filed a civil suit against the Gram Panchayat, for a permanent injunction, to restrain the Gram Panchayat from interfering in his possession and for a declaration of his ownership. The suit was decreed on 21.1.1976 with respect to the prayer for injunction, alone. The judgment reads as follows:-
" When the case has been called today, the learned counsel for the parties have come forward with the CIVIL WRIT PETITION NO. 3193 of 1986 5 statement to the effect that the plaintiff is in possession of the land in dispute and that leaving the question of title open, the defendant Gram Panchayat shall not evict the plaintiff by force and shall eject him only by proceedings under section 7 of the Punjab Village Common Lands (Regulations) Act, 1961. I convert this concurrence of the learned counsel for the parties into the Court order, and decree the suit of the plaintiff in these terms with no order as to costs." With concurrence of the parties, the question of title was not decided."
A perusal of this judgment reveals that the suit was decreed with respect to an injunction and the question of title was not decided. Joginder Singh, however, managed to get a mutation of ownership, recorded in his name on 04.9.1979.
The Gram Panchayat, filed a petition under section 7 of the Punjab Village Common Lands (Regulations) Act, 1961 (hereinafter referred to as the "1961 Act"), for eviction of Joginder Singh, who filed a reply averring that as he is in legal possession since 26.1.1950, the land, in dispute, does not vest in the Gram Panchayat. The Collector dismissed the petition on 27.11.1981. The Gram Panchayat filed an appeal which was allowed by the Joint Director, Panchayats, Punjab (exercising powers of `Commissioner') on 29.1.1986 by holding that the land belongs to the Gram Panchayat. The said order has attained finality as Dalbir Singh did not challenge it any further.
During pendency of the above appeal, Joginder Singh CIVIL WRIT PETITION NO. 3193 of 1986 6 suffered a collusive decree, dated 25.5.1982, in favour of his son Dalbir Singh. The Gram Panchayat was not arrayed as a defendant. Daljit Singh also managed to get a mutation of ownership recorded in his name on 13.9.1982. Joginder Singh had, in the meanwhile, sold 12 Kanals-14 Marlas to Jamna Dass on 7.7.1982 and 23 Kanals-14 Marlas to Behal Singh etc. (the contesting respondents in the other petitions).
Dalbir Singh filed a civil suit on 23.8.1983 praying for a declaration of his ownership with respect to land measuring 62 Kanals-10 Marlas and for a permanent injunction to restrain the Gram Panchayat from interfering in his possession. The then Sarpanch put in appearance, filed a written statement admitting the claim of Dalbir Singh and made a statement that the Gram Panchayat shall not dispossess the plaintiff forcibly but the trial Court decreed the suit in its entirety on 12.9.1983 The Gram Panchayat filed an application for execution of eviction order dated 29.1.1986, passed by the Joint Director, Panchayats but the Collector dismissed the application by directing the Gram Panchayat to file a fresh petition against transferees from Joginder Singh.
The Gram Panchayat filed a fresh petition under Section 7 of the 1961 Act against Dalbir Singh, Jamna Dass and Behal Singh. The Collector ordered the eviction of Jamna Dass and Behal Singh but dismissed the petition with respect to Dalbir Singh by holding that though the land is "shamilat Deh", Dalbir Singh is in legal possession, of the land, in dispute. The Gram Panchayat, CIVIL WRIT PETITION NO. 3193 of 1986 7 Dalbir Singh, Jamna Dass and Behal Singh filed separate appeals. The appeal filed by Gram Panchayat was dismissed whereas appeals filed by Dalbir Singh etc. were allowed by the Joint Director, Panchayat, by holding that on the date of coming into force of the 1954 Act, the land was 'Banjar Qadim" and as it was not used for any common purpose, it does not vest in the Gram Panchayat. The Joint Director also held that the land, in dispute, was in cultivating possession of Nand Singh, grand-father of Dalbir Singh and is, therefore, excluded from "Shamilat Deh".
The land, in dispute, is, recorded in relevant jamabandis as "Shamilat Deh". The Appellate Authority has, as referred to earlier, held that as the land was "Banjar Qadim in 1954 and not used for common purposes as per the revenue record, it does not vest in the Gram Panchayat, by apparently relying upon Section 2(g) (5) of the 1961 Act. The Appellate Authority has also held that as the land, in dispute, was in cultivating possession of Nand Singh, grand-father of Dalbir Singh before 1950, it is excluded from "Shamilat Deh" by placing reliance upon Section 2(g)(viii) of the 1961 Act.
The findings recorded by the Appellate Authority and the order passed by the Collector dismissing the petition against Dalbir Singh, in our considered opinion, are contrary to law. In order to supplement our conclusion, it would be necessary to refer to the statutes, that govern the vesting of "Shamilat Deh" in a Gram Panchayat.
The "Shamilat Deh" of a village was owned and CIVIL WRIT PETITION NO. 3193 of 1986 8 possessed by proprietors. The Pepsu Village Common Land (Regulation) Act, 1954, came into force in 1954 and declared that "Shamilat Deh" of a village shall vest in a Gram Panchayat. Section 3 of the 1954 Act reads as follows:
"3 Vesting of rights in panchayat and in non- proprietors Notwithstanding anything to the contrary contained in any other law for the time being in force, and notwithstanding any agreement, instrument, custom, or usage or any decree or order of any court or other authority, all right, title and interest whatever in the land-
(a) which is included in the Shamilat Deh of any village, shall, on the appointed date, vest in a panchayat having jurisdiction over the village;
(b) which is situated in the Abadi Deh of a village and which is under the house owned by a non-proprietor, shall at the commencement of this Act vest in the said non-proprietor."
Section 3 of the 1954 Act, declares that "Shamilat Deh" of a village shall vest in a Gram Panchayat. Section 3 of the 1954 Act does not make any exception, to the vesting of "Shamilat Deh", in a Gram Panchayat, whether on the basis of its quality or on account of cultivating possession of proprietors or non-proprietors. The 1954 Act was repealed and re-enacted the 1961 Act on 4.5.1961. Section 2(g)(5), of the 1961 Act, provides that "Banjar Qadim" land shall be included in "Shamilat Deh", if it is used, as per CIVIL WRIT PETITION NO. 3193 of 1986 9 the revenue record, for common purposes of the village. Section 2(g) (5) of the 1961 Act, reads as follows:
"2(g) "Shamilat deh" includes---
(1) XX XX XX
(2) XX XX XX
(3) XX XX XX
(4) XX XX XX
(5) lands in any village described as banjar qadim
and used for common purposes of the village, according to revenue records."
Section 3(1) of the 1961 Act reads as follows:
"3. Lands to which this Act applies.--
(1) This act shall apply and before the commencement of this Act the Shamilat Law shall be deemed always to have applied to all lands which are shamilat deh as defined in clause(g) of section 2."
(2) XX XX XX
(i) XX XX XX
(ii) XX XX XX (3) XX XX XX"s A perusal of Section 2(g)(5) of the 1961 Act reveals that "Banjar Qadim" land is included in "Shamilat Deh" if it is used for any common purpose, according to the revenue record. Section 2(g)(5) of the 1961 Act is worded in such a CIVIL WRIT PETITION NO. 3193 of 1986 10 fashion so as to contain inclusion and exclusion clauses, namely, if the land is used for common purposes, as per the revenue record, the land would be included in "Shamilat Deh"
but if it is not so used, the land would be excluded from "Shamilat Deh". Section 3(1) of the 1961 Act provides that land that came to vest in a Gram Panchayat under the 1954 Act shall continue to so vest except if it is excluded by the definition of "Shamilat Deh" contained in Section 2(g) of the 1961 Act. A person claiming exclusion of "Shamilat Deh" on the ground that the land is "Banjar Qadim" and not used for common purposes will have to prove these facts by reference to the date of coming into force of the 1961 Act, i.e., 04.05.1961. The question relating to the date for proving the ingredients of Section 2(g)(5) of the 1961 Act was considered in detail in Civil Writ Petition No.6727 of 2007, decided on 30.03.2012 (Gram Panchayat, Kalwa v. The Joint Development Commissioner (IRD), Punjab, Chandigarh and others). After perusing provisions of the 1954 and 1961 Acts, it was held as follows:-
" A conjoint reading of Section 2(g)(i), Section 3 and Section 4 of the 1961 Act, reveals that all land described as "Shamilat Deh" came to vest in Gram Panchayat by virtue of the 1954 Act and only such "Shamilat Deh" is excluded, from vesting in a Gram Panchayat, as it provided for by Section 2(g) or Section 4 of the 1961 Act. The 1961 Act has retrospective operation only to the extent provided CIVIL WRIT PETITION NO. 3193 of 1986 11 by Section 3. Section 3(1) and 3(2)(i) of the 1961 Act reads as follows:-
"3. Lands to which this Act applies.--
(1) This act shall apply and before the commencement of this Act the Shamilat Law shall be deemed always to have applied to all lands which are shamilat deh as defined in clause (g) of section 2".
[(2) Notwithstanding anything contained in sub-
section(1) of Section 4,--
(i) where any land has vested in a Panchayat under the Shamilat law, but such land has been excluded from shamilat deh under clause (g) of section 2 other than the land so excluded under sub-clause (ii-a) of that clause, all rights, title and interest of the panchayat in such land as from the commencement of the Punjab Village Common Lands (Regulation) Amendment Act, 1995, shall cease and all such rights, title and interest shall vest in the person or persons in whom they were vested, immediately before the commencement of the shamilat law;
(3) XX XX XX XX"
CIVIL WRIT PETITION NO. 3193 of 1986 12
A landowner, claiming that his land is excluded from "Shamilat Deh", shall be required to prove the ingredients of the exclusion clause, from the date set out, in the clause so invoked. Where, however, an exclusion clause does not set out any date, the landowner could be required to prove the ingredients, of the exclusion clause, as on the date of enactment of the 1961 Act i.e. 4.5.1961".
It is, therefore, apparent that the petitioners were required to prove that the land was "Banjar Qadim" and not used for any common purposes in the year 1961. The Appellate Authority has, however, held that as the land was "Banjar Qadim" in 1954, it is excluded from "Shamilat Deh". The Appellate Authority disregarded the fact that Section 2(g)(5) was enacted in 1961 and not in 1954, thereby rendering this finding contrary to law.
After having set out the relevant date, it would be necessary to examine whether the Gram Panchayat has proved the ingredients of Section 2(g)(5) of the 1961 Act. The land was, admittedly, "Banjar Qadim", i.e., land that has remained fallow for eight or more harvests. The user of `banjar land' is generally recorded in the "Wazib-Ul-Arz," i.e., the rules and regulations of a village. The Gram Panchayat was called upon vide order dated 17.5.2012 to produce material to prima facie prove that land, in dispute, was used according to the revenue record for a common purpose. A relevant portion of order dated 17.05.2012 reads as CIVIL WRIT PETITION NO. 3193 of 1986 13 follows:-
" The controversy in the present writ petition is whether the land was Banjar Qadim on 4.5.1961, i.e., the date of enforcement of the Punjab Village Common Lands (Regulation) Act, 1961, and used, according to the revenue record, for common purposes.
Counsel for the petitioner/Gram Panchayat prays for time to produce relevant revenue record to establish that the land was reserved/used for common purposes.
Adjourned to 12.7.2012."
Counsel for the Gram Panchayat has produced before us a certified copy of the "Wazib-Ul-Arz". Clause 5 of the "Wazib-Ul- Arz" reads as follows:
Heading Custom
Cultivation and 1. XX XX XX
maintenance of
Shamilat Deh and
utilization of income
from that.
2. XX XX XX
3. XX XX XX
4. XX XX XX
5. Any body can erect any well-Ghat with the permission of Numberdar or phuledasan in the area of Shamilat Deh. There is no specific area for the grazing of cattle but it can be used for grazing of cattle with the permission of the co sharers of the Shamlat.
A prima facie consideration of the "Wazib Ul-Arz", reveals that "Shamilat Deh" of the village could be used for grazing of cattle, a common purpose. The entry in the "Wazib Ul-Arz", if true, would CIVIL WRIT PETITION NO. 3193 of 1986 14 vest the land in dispute in the Gram Panchayat. However, this document was not produced in evidence before the Collector or the Appellate Authority. It would, therefore, not be fair for us to record any final opinion, without affording an opportunity to the respondents to lead evidence to rebut these entries. It would, therefore, be in the fitness of things to remit the matter to the Appellate Authority, to consider the "Wazib-Ul-Arz", and, thereafter, record an opinion, as to the nature and quality of the land, on the coming into force of the 1961 Act.
As regards the civil court decrees, suffice it to state that the first decree merely granted an injunction but was misused by Joginder Singh by getting a mutation of ownership recorded in his name. The second decree was a result of collusion between Dalbir Singh and Joginder Singh and was passed without impleading the Gram Panchayat and, therefore, does not bind the Gram Panchayat. The third decree was passed on a concession by the then Sarpanch after Section 13 of the 1961 Act came into force, prohibiting civil courts from entertaining any dispute regarding any right, title or interest in "Shamilat Deh". The decree is, therefore, without jurisdiction and a nullity.
The finding that the land was in cultivating possession of Nand Singh, grand-father of Dalbir Singh, the finding is contrary to the revenue record and to the plea that the land was "Banjar Qadim. Admittedly, on the coming into force of the 1954 Act, the quality of the land, in dispute, was "Banjar Qadim", i.e., land that has remained fallow for eight or more harvests. The land, in dispute, CIVIL WRIT PETITION NO. 3193 of 1986 15 therefore, could not be in the "cultivating possession" of Nand Singh, grand father of Dalbir Singh, at any time before or after 1950. The finding recorded by the Appellate Authority that the land, in dispute, was in "cultivating possession" of the appellant's grandfather, is, therefore, factually incorrect and is set aside.
In view of our above findings, the writ petition is partly allowed, order dated 29.1.1986 (Annexure P-13) passed by the Joint Director, Panchayat, Punjab, (exercising the powers of `Commissioner'), is set aside and the matter is remitted to the Joint Director, Panchayats, Punjab, to decide the appeal afresh, in accordance with law, with respect to the nature and quality of the land, in dispute, on the coming into force of the 1961 Act, within three months, of parties putting in appearance before him on 22.3.2013. Parties shall be entitled to lead additional evidence, if necessary.
( RAJIVE BHALLA )
JUDGE
20.12.2012 ( REKHA MITTAL )
VK JUDGE