Punjab-Haryana High Court
Bansi And Others vs Gram Panchayat Village Atterna on 6 July, 2012
Author: Rajive Bhalla
Bench: Rajive Bhalla, Rakesh Kumar Jain
Civil Writ Petition No. 4333 of 1985 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
(1) Civil Writ Petition No. 4333 of 1985
Date of Decision:6th July, 2012
Bansi and others ...Petitioners
versus
Gram Panchayat Village Atterna,
Tehsil and District Sonepat and others ..Respondents
(2) Civil Writ Petition No. 884 of 2007
Suraj Bhan Chauhan and another ..Petitioners
versus
State of Haryana and others ..Respondents
CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA
HON'BLE MR. JUSTICE RAKESH KUMAR JAIN
Present: Mr. Arun Jain, Senior Advocate
with Mr. Amit Jain, for the petitioners
(CWP No. 4333 of 1985).
None for the petitioners (CWP No. 884 of 2007)
Mr. Vikram Dhakla, Advocate
for respondent No.1.
Mr. D.Khanna, Addl.A.G., Haryana
for respondents No. 2 to 5.
RAJIVE BHALLA, J.
By way of this order, we shall dispose of two writ petitions, namely, CWP No.4333 of 1985 titled as "Bansi and others Vs. Gram Panchayat Village Atterna, Tehsil and District Sonepat and others" (hereinafter referred to as "Ist Petition") and CWP No. 884 of 2007 titled as "Suraj Bhan Chauhan and another Vs. State of Civil Writ Petition No. 4333 of 1985 2 Haryana and others" (hereinafter referred to as "IInd Petition"), as they involve adjudication of similar questions of law and facts.
The petitioners challenge orders dated 23.2.1985 (Annexure P-2) and dated 2.7.1985 (Annexure P-3) passed by the Assistant Collector Ist Grade, Sonepat and the Collector, Sonepat, respectively, whereby their suit and appeal filed under Section 13-A of the Punjab Village Common Lands (Regulation) Act, 1961 as applicable to the State of Haryana, (hereinafter referred to as the "1961 Act"), have been dismissed.
The petitioners claim ownership of land measuring 2593 Kanals 10 Marlas, situated in Village Hanspur, by alleging that as "Shamilat Deh", of the village is already in excess of 25% of the total area of the village, the land in dispute does not vest in the Gram Panchayat. The petitioners, in essence, invoke the proviso to section 2(g)(5) of the 1961 Act.
The Gram Panchayat filed an application, under section 7 of the 1961 Act, for eviction of the petitioners. The petition was allowed by the Assistant Collector Ist Grade, Sonepat, on 23.2.1985. The petitioners filed an appeal before the Collector, Sonepat, which was dismissed on 2.7.1985 but the penalty imposed, by the Assistant Collector 1st Grade, Sonepat, was set aside. The petitioners, thereafter, filed a suit under section 13-A of the 1961 Act, claiming that as the Collector, Sonepat, has, in his order,already held, on the basis of a report prepared by the Patwari, that the area of the Panchayat is more than 25% of the land of the village, the land does not vest in the Gram Panchayat. The suit was contested by the Civil Writ Petition No. 4333 of 1985 3 Gram Panchayat, issues were framed and both parties led oral as well as documentary evidence. The Assistant Collector Ist Grade, Sonepat, dismissed the suit on 2.7.1985. Aggrieved by this order, the petitioners filed an appeal. The Collector, Sonepat, dismissed the appeal by affirming findings recorded by the Assistant Collector. The petitioners, thereafter, filed a revision before the Commissioner, which was dismissed in limine, but the petitioners have neither appended a copy of this order, nor has any relief been sought with respect to the said order.
Counsel for the petitioners submits that the proviso to section 2(g)(5) of the 1961 Act, clearly provides that land described as "Banjar Qadim" and used for common purposes of the village, shall be "Shamilat Deh" only if "Shamilat Deh", at least, to the extent of 25% of the total area of the village, does not exist, in the village. The Collector, Sonepat, has already recorded a positive finding, though, in eviction proceedings, that area of the panchayat is 40% of the total land of the village, i.e., 90% more than 25%. The Assistant Collector and the Collector have committed an error in ignoring this finding and holding that proviso to Section 2(g)(5) of the 1961 Act, does not apply and the land, in dispute, vests in the Gram Panchayat. It is further submitted that as the land, in dispute, is recorded as "Kharaj Asbach", it does not fall within the definition of "Shamilat Deh".
Counsel for the Gram Panchayat, on the other hand, submits that land, in dispute, is Shamilat Deh of village Hanspur, a "Becharag Mauza" and the land is attached to Village Atterna. The Civil Writ Petition No. 4333 of 1985 4 land, therefore, vests in the Gram Panchayat of Village Atterna. The petitioners have failed to prove that "Shamilat Deh" of village Atterna was in excess of 25% of the total area of the village on the relevant date. The finding recorded by the Collector, Sonepat, in proceedings under section 7 of the 1961 Act, does not operate as res judicata. Even otherwise, the order passed by the Collector pertains to Village Hanspur and not to the entire land of village Atterna. The petitioners have not produced any evidence about the total land and "Shamilat land" of villages Atterna and Hanspur. The Assistant Collector, the Collector and the Commissioner, Sonepat, have, therefore, rightly held against the petitioners. It is also pointed out that as per "Sharat Wazib-Ul-Aarz for the year 1909-10, Village Hanspur is a "Becharag Mauza" and land measuring 1559 Bighas-17 Biswas, is reserved for "Charand". The land being "Banjar Qadim", and reserved as per the revenue record, as "Charand" vests in the Gram Panchayat. The proviso to section 2(g)(5) of the 1961 Act, does not apply to the present controversy.
We have heard counsel for the petitioners, perused the impugned orders, and the statutory provisions, invoked in support of the pleas raised by the petitioners.
The petitioners, while contending that the land, in dispute, is not "Shamilat Deh" seek refuge, under the proviso to section 2(g)(5) of the 1961 Act. Section 2(g)(1) & (5) of the 1961 Act, reads as follows:
"2(g)"shamilat deh" includes -----
(1) lands described in the revenue records as [Shamilat Civil Writ Petition No. 4333 of 1985 5 deh or Charand] excluding abadi deh;
(2) XXX XXX XXX
(3) XXX XXX XXX
(4) XXX XXX XXX
(5) lands in any village described as banjar qadim and used for common purposes of the village according to revenue records;
Provided that shamilat deh at least to the extent of twenty- five per centum of the total area of the village does not exist in the village - (in Haryana only.)"
Section 2(g)(5) of the 1961 Act provides that land described as banjar qadim shall be included in "Shamilat Deh", if it is used for common purposes of the village, according to the revenue records. The proviso to section 2(g)(5) of the 1961 Act, however, provides that in case "Shamilat Deh" of a village is already 25% or more than the total land of a village, banjar qadim land shall not vest in a Gram Panchayat. The proviso was deleted by the State of Haryana by Act No.9 of 1992, but as it was in existence during pendency, of the suit, appeal and revision, the proviso has to be taken into consideration, while deciding the petition.
A party claiming benefit of the proviso to section 2(g)(5) of the 1961 Act, is required to prove that "Shamilat Deh" of a village is already 25% more than the total land of such village. The Gram Panchayat, in present case, consists of two villages, namely, village Atterna, an inhabited village and village Hanspur, a "Becharag Mauza", i.e., an uninhabited village. Admittedly, the land of village Civil Writ Petition No. 4333 of 1985 6 Hanspur is cultivated by inhabitants of village Atterna. As a "Becharag Mauza" is not inhabited, it is always attached to the Gram Panchayat of an adjoining village. It is not denied that the Sabha area of Gram Panchayat Atterna includes the revenue estate of village Hanspur. Thus, while calculating the extent of "Shamilat Deh"
and the total land for determining whether "Shamilat Deh" is 25% in excess of the total land, the petitioners were required to prove the total land of villages Atterna and Hanspur. We have perused the paper book but are unable to discern any evidence as to the total land of villages Atterna and Hanspur or the total "Shamilat Deh" so as to record a finding in favour of the petitioners' plea that "Shamilat Deh" of village Atterna (including village Hanspur) was 25% more than the total area of the village.
The petitioners rely upon a finding recorded by the Collector, Sonepat, in his order dated 2.6.1976, in proceedings under section 7 of the 1961 Act. Apart from the fact that these findings were recorded in summary proceedings and do not operate as res judicata, it appears that the Collector sought a report from Patwari with respect to Shamilat land of village Hanspur and in that context recorded a finding that the total area of Shamilat Deh is 40% over and above the area of the village. The learned Collector did not take into consideration the land of village Atterna. We, therefore, find no reason to place reliance upon these findings and reject the same. Even if we were to accept the petitioners' plea that land is not included in "Shamilat Deh", the petitioners can not draw any benefit in view of the 3rd proviso to sub section (1) of section 5 of the 1961 Civil Writ Petition No. 4333 of 1985 7 Act, which reads as follows:
"5 Regulation of use and occupation, etc., of lands vested or deemed to have been vested in Panchayats.- (1) All lands vested or deemed to have been vested in a Panchayat under this Act, shall be utilised or disposed of by the Panchayat for the benefit of the inhabitants of the village concerned in the manner prescribed:
XX XX XX
XX XX XX
Provided further that where the area of land in shamilat deh of any village so vested or deemed to have been vested in Panchayat is in excess of twenty-five per cent of the total area of that village (excluding abadi deh) then twenty-five per cent of such total area shall be left to the Panchayat and out of the remaining area of shamilat deh an area up to the extent of twenty five per cent of such total area shall be utilised for the settlement of landless tenants and other tenants ejected or to be ejected of that village and the remaining area of shamilat deh, if any, shall be utilised for distribution to small land owners of that village subject to the provisions relating to [permissible area under the Haryana Ceiling on Land Holdings Act, 1972, by the Assistant Collector of the first grade] in consultation with the Panchayat [in such manner and on payment of such amount as may be prescribed]."
A perusal of the above proviso clearly reveals that Civil Writ Petition No. 4333 of 1985 8 even if the land is in excess of 25% of the total area of a village (excluding abadi deh), the land in excess has to be utilised for settlement of landless labourers and other tenants ejected or to be ejected of that village and the remaining area of Shamilat Deh, if any, for distribution amongst small land owners of that village. By virtue of proviso to section 2(g)(5) of the 1961 Act, the petitioners would have no right to claim ownership or possession of this land, as the land has to be disposed of in accordance with the 3rd proviso to sub- section (1) of section 5 of the 1961 Act.
Another aspect of this case, that would require pointed reference, is that the Assistant Collector and the Collector have recorded concurrent findings of fact, based upon "Sharat Wazib-Ul- Aarj" for the year 1909-10 that Banjar Qadim land of village Hanspur a "Becharag Mauja" measuring 1559 Biswas-17 Biswas is reserved for "charand". The land being reserved for "charand" vests in the Gram Panchayat, by virtue of section 2(g)(1) of the 1961 Act.
In view of our above findings, we find no reason to interfere with the impugned orders or to hold that the land, in dispute, does not vest in a Gram Panchayat.
As a consequence, both writ petitions are dismissed, with no order as to costs.
( RAJIVE BHALLA ) JUDGE ( RAKESH KUMAR JAIN ) 6 July, 2012 th JUDGE Vivek/VK