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KASHMIR SINGH & ORS versus JOINT DEVELOPMENT COMMISSIONER (IRD), PU

High Court of Punjab and Haryana, Chandigarh

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Kashmir Singh & Ors v. Joint Development Commissioner (IRD), Pu - CWP-11722-1999 [2006] RD-P&H 2207 (31 March 2006)

In the High Court of Punjab and Haryana, Chandigarh

......

C.W.P. No.11722 of 1999 (O&M)

....

Date of decision:26.4.2006

Kashmir Singh and others

.....Petitioners

v.

Joint Development Commissioner (IRD), Punjab, Chandigarh and others

.....Respondents

.....

Coram: Hon'ble Mr. Justice Amar Dutt

Hon'ble Mr. Justice S.S. Saron

Present: Mr. Arun Jain, Advocate and Mr. Arun Jindal, Advocate for the petitioners.

Mr. Jayender S. Chandail, Assistant Advocate General, Punjab for respondents No.1 and 2.

Mr. H.S. Mattewal, Senior Advocate with Mr. R.S. Riar, Advocate for respondent No.3.

.....

S.S. Saron, J.

The documents filed by the State of Punjab i.e. details of Shamilat land and land recorded in the name of `Jumla Malkan Hasab Rasad Khewatdar' as per Jamabandi for the year 1964-65 which are filed in compliance to the order dated 2.9.2005 passed by this Court are taken C.W.P. No.11722/1999 (O&M)

[2]

on record.

C.M. No.9149-50/2005:

The documents Annexures-R.3/15 to R.3/23 attached with the C.M. are taken on record.

The C.M. stands disposed of.

C.W.P. No.11722/1999:

This petition under Articles 226/227 of the Constitution of India has been filed by the petitioners for quashing the order dated 8.10.1998 (Annexure-P.5) passed by the Joint Development Commissioner (IRD), Punjab, Chandigarh (respondent No.1) and the order dated 27.3.1998 (Annexure-P.1) passed by the District Development and Panchayat Officer (`DDPO' for short)-cum-Collector, Amritsar (respondent No.2) whereby the declaration sought by the petitioners claiming the ownership of the land in question has been declined and the ownership of the same has been found to be that of Gram Panchayat Budha Theh, Tehsil Baba Bakala, District Amritsar (respondent No.3).

The case of the petitioners is that they are right holders of Village Budha Theh, Tehsil Baba Bakala, District Amritsar and are owners in possession of the land in dispute as detailed in para 2 of the petition situated in the said village. It is stated that the Gram Panchayat (respondent No.3) in the year 1965 at the back of the petitioners got C.W.P. No.11722/1999 (O&M)

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mutation in respect of the land entered in its favour which does not confer any right on it. The said mutation, it is stated, has been sanctioned on the basis of a letter issued by the Punjab Government which has no legal value in the eyes of law and the ownership of the land cannot be transferred or changed in such a manner which is opposed to law of the land. The land in dispute, it is stated, was neither acquired by the Government nor any compensation was paid to the owners. The mode of transfer, it is alleged, is unknown to law and as such the Gram Panchayat (respondent No.3) is not the owner of the land and thus has no right or title to dispossess the petitioners who are in possession being the right holders of the village. In the year 1989, the Gram Panchayat (respondent No.3) threatened to dispossess the petitioners forcibly and illegally and they were left with no option except to approach the civil court. The petitioners filed a civil suit for permanent injunction against the Gram Panchayat (respondent No.3) which was decreed in their favour vide judgment and decree dated 28.5.1992 (Annexure-P.8) and the Gram Panchayat (respondent No.3) was restrained from dispossessing the petitioners except in due course of law. The said judgment, it is stated, clearly reveals that the petitioners are in possession and that they cannot be dispossessed from the land in dispute except in due course of law. The petitioners, therefore, filed a petition under Section 11 of the Punjab C.W.P. No.11722/1999 (O&M)

[4]

Village Common Lands (Regulations) Act, 1961 (`1961 Act' -for short) for declaring them to be the owners of the land in dispute. The said petition was contested by the Gram Panchayat (respondent no.3). The petitioners, it is stated, filed detailed written arguments as well but the DDPO-cum-Collector (respondent No.2), who was none else but an officer of the Panchayat wrongly and illegally ignored the evidence produced by the petitioners and the written arguments and vide his order dated 27.3.1998 (Annexure-P.1) dismissed the petition. The petitioners aggrieved against the said order filed an appeal before the Joint Development Commissioner (IRD) (respondent No.1). In the meanwhile the Gram Panchayat (respondent No.3) passed a resolution on 16.9.1998 (Annexure-P.2) for taking possession of the land in dispute under the garb of the order dated 27.3.1998 (Annexure-P.1) in which no order of ejectment had been passed. The dismissal of the petition under Section 11 of the 1961 Act, it is stated, does not confer any right on the Gram Panchayat (respondent No.3) to dispossess the petitioners. However, the Gram Panchayat is taking law in its own hands and is trying to dispossess the petitioners forcibly and illegally. The DDPO-cum-Collector (respondent No.2), it is alleged, without issuing any notice to the petitioners and without giving any opportunity of hearing arbitrarily, illegally and against law passed the order dated 22.9.1998 (Annexure-P.3) C.W.P. No.11722/1999 (O&M)

[5]

and directed the Tehsildar Baba Bakala to take possession of the land.

The Kanungo also, it is alleged, wrongly and illegally vide letter dated 25.9.1998 (Annexure-P.4) directed the petitioners to remain present on 28.9.1998 at the spot for delivering the possession. The petitioners filed a writ petition (i.e. C.W.P. No.15963 of 1998) in this Court challenging the order dated 22.9.1998 (Annexure-P.3). Notice of motion `was issued in the said writ petition and status quo regarding possession was ordered to be maintained. The petitioners also filed C.W.P. No.15501 of 1998 in this Court seeking mandamus/directions to the Joint Development Commissioner (IRD) (respondent No.1) and further prayed regarding dispossession of the petitioners. This Court vide order dated 29.9.1998 directed the Joint Development Commissioner (IRD) (respondent No.1) either to decide the application for stay or to decide the appeal and stayed the operation of order dated 27.3.1998 passed by the DDPO-cum- Collector, Amritsar (respondent No.2). The Joint Development Commissioner (IRD) (respondent No.1), it is stated, has wrongly and illegally and without summoning the records dismissed the appeal on 8.10.1998 (Annexure-P.5) in limine. Thus a challenge has been made to the impugned orders dated 8.10.1998 (Annexure-P.5) and 27.3.1998 (Annexure-P.1).

Notice of motion was issued in the case on 20.8.1999 and the C.W.P. No.11722/1999 (O&M)

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petition was ordered to be heard with C.W.P. No.15963 of 1998 and interim order in the same terms was ordered.

Written statement has been filed by Shri Baljit Singh Sandhu, DDPO-cum-Collector, Amritsar on behalf of respondents No.1 and 2. By way of preliminary objections, it is stated that the present writ petition is liable to be dismissed as the petitioners are rank trespassers and have no right, title or interest in the property in dispute. It is alleged that they are neither right holders nor co-sharers in Village Budha Theh and the present writ petition is an attempt to perpetuate unauthorized possession. It is further stated that the writ petition impugns the orders of the year 1965 and the proceedings under Section 11 of the 1961 Act were initiated on 20.11.1995. It is further stated that the land in dispute belongs to the Gram Panchayat (respondent No.3) and was being given on lease by it from time to time. Therefore, the petitioners have no right, title or interest in the property in dispute. On merits, it is stated that the petitioners do not have any cause or locus standi to invoke the extra ordinary writ jurisdiction of this Court. The other allegations as made have been denied as totally false and incorrect. It is stated that the petitioners are neither residents nor right holders nor co-sharers in land in Village Budha Theh. As per the revenue records, they are residents of Village Julluwal.

The possession of the petitioners is also denied. It is also stated that even C.W.P. No.11722/1999 (O&M)

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on date of sanction of mutation, the petitioners were neither co-sharers nor in possession of the land in dispute. The averments with regard to the civil suit that was filed have not been denied. It is, however, stated that the civil suit involved land measuring 54 acres but in the present writ petition land measuring 90 acres is involved. It is also stated that the Civil Court did not have jurisdiction in the matter and the order that has been passed has no value in the eyes of law. Besides, it is stated that the order dated 27.3.1998 (Annexure-P.1) is legal and valid and all the evidence was taken into account while dismissing the application under Section 11 of the 1961 Act. The passing of resolution by the Gram Panchayat, it is stated, was taken up as an application under Section 7 of the 1961 Act and consequently the order dated 22.9.1998 (Annexure-P.3) was passed as the petitioners admittedly were in unauthorized possession.

It is further stated that the order dated 25.9.1998 (Annexure-P.4) of the Kanungo regarding taking of possession is in furtherance of the order of the Collector was in accordance with the procedure prescribed under Section 7 of the 1961 Act as the petitioners have been held to be unauthorized occupants. Therefore, the writ petition, it is stated, is liable to be dismissed.

A separate written statement has been filed by the Gram Panchayat (respondent No.3). It is stated that the writ petition merits C.W.P. No.11722/1999 (O&M)

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dismissal on the ground that the petitioners who claim to be in possession as right holders/co-sharers in Village Budha Theh, have themselves stated in their petition under Section 11 of the 1961 Act and in the appeal filed by them before the Joint Development Commissioner (IRD) (respondent No.1) as also in the present writ petition that they are residents of Village Julluwal, Tehsil Baba Bakala, District Amritsar. It is stated that it is thus apparent that the petitioners are not residents of Village Budha Theh and, therefore, not co-sharers/right holders in the village. As such, it is stated that they have no right, title or interest in the land in dispute.

Consequently, the present writ petition merits dismissal. It is further stated that the writ petition merits dismissal on the ground that the petitioners have not adduced any evidence whatsoever to show that they are members of the proprietary body. It is also stated that the writ petition merits dismissal on the ground that the mutation which has been challenged was sanctioned by the competent authority in the year 1965 and the proceedings under Section 11 of the 1961 Act were initiated on 22.11.1995 i.e. after a gap of almost 30 years. It is further stated that the petitioners have averred in their petition that they have been in possession of the land in dispute for the last more than 45 years. However, it is stated that there is no evidence produced before the Courts below or referred to before this Court to indicate such a long and prolonged possession.

C.W.P. No.11722/1999 (O&M)

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Therefore, the very basis of the relief sought, it is stated, is baseless. It is also stated that with the coming into force of the Shamilat Law in 1953 all lands described as Shamilat Deh vest with the Gram Panchayat and this position is reiterated in the 1961 Act. Thus, no rights of the proprietary body in the Shamilat Deh subsisted and, therefore, the present writ petition merits dismissal. The petitioners, it is stated, are unauthorized occupants of the panchayat land being in forcible possession thereof and , therefore, in exercise of the jurisdiction under Article 226 of the Constitution of India no equities exist in their favour. This Court, therefore, it is stated, should dismiss the writ petition on the short ground that a trespasser/unauthorized occupant has no right to seek an injunction/stay against the true owner. It is also stated that the petitioners seem to be unaware of their status in respect of the land in dispute inasmuch as in the civil suit filed in the year 1989, the stand of the plaintiffs (i.e. some of the present petitioners) in that suit was that they are tenants over the land in dispute. Before this Court the land qua which the decree of the civil Court dated 28.5.1992 was being referred to consists of only 54 acres of land whereas in the present petition, the petitioners are claiming themselves to be owners of land measuring more than 90 acres.

It is also stated that all the petitioners did not file the civil suit. Besides, as to how and when the petitioners became the owners of the land in C.W.P. No.11722/1999 (O&M)

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dispute, the writ petition is silent about the same. The judgment of the civil Court, it is stated, is without jurisdiction and even otherwise the said order stated that the petitioners could be dispossessed only in accordance with law. The said order did not grant any declaration that the petitioners were right holders or that they were in possession of the land in dispute.

The petitioners, it is further alleged, have no locus standi to file the present writ petition which is totally misconceived and contains contradictory statements with regard to the status of the petitioners as made out from the decree dated 28.5.1992. It is further stated that when the land was mutated in the name of Gram Panchayat Budha Theh (respondent No.3), the said land was barren and the river Beas was passing through it. The land was not fit for cultivation and finally when the river changed its course the land became fit for cultivation. The Gram Panchayat, Budha Theh (respondent No.3) then started leasing out the same to different persons from the year 1982 onwards. The entries from the lease registers of Gram Panchayat, Budha Theh (respondent No.3) are annexed as Annexures-R.1 to R.5. It is stated that this proves beyond doubt that the Gram Panchayat (respondent No.3) has been leasing out the land in question and the petitioners have no concern whatsoever with the land. It is also denied that the DDPO-cum-Collector (respondent No.2) ignored any evidence or written arguments and the petition under Section C.W.P. No.11722/1999 (O&M)

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11 of the 1961 Act was rightly dismissed. The resolution of the Gram Panchayat, it is stated, was passed in furtherance to its right to obtain possession from the petitioners who were in illegal and unauthorized possession. The said resolution, it is stated, is legal and valid and there is no question of the Panchayat taking the law in its own hand.

Replication on behalf of the petitioners has been filed to the written statement of respondent No.3. It is stated that the petitioners are right holders in Village Budha Theh and they are annexing copies of Jambandis for the year 1954-55 (Annexure-P.6) and 1994-95 (Annexure- P.7). Besides, they seek permission to produce Jamabandi for the year 1984-85 before the Court which shows them as right holders in the village. It is stated that a perusal of the said Jamabandis show that the possession of the petitioners is duly reflected in the Jamabandi for the year 1994-95. It is also stated that the land in question is owned by the village proprietary body including the petitioners and mutation No.365 (sic. - 635) was sanctioned on 22.12.1965 on the basis of some executive instructions behind the back of the petitioners and other proprietors. It is alleged that the change of entry of 'Mustraka Malkan Hasab Rasad Raqba Khewatdar' in favour of the Gram Panchayat was totally without jurisdiction. The possession of the petitioners/their predecessors-in- interest, it is stated, is continuing for the last more than 50 years.

C.W.P. No.11722/1999 (O&M)

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Therefore, it is stated that the Gram Panchayat has no right, title or interest in the land. It is also stated that the mutation does not confer any title and as such the petitioners have rightly initiated the proceedings in accordance with law. It is also stated that sufficient evidence had been produced before the authorities below. However, the learned authorities have proceeded to decide the petition under Section 11 of the 1961 Act in a summary manner. The respondent Gram Panchayat, it is stated, has not placed on record any Jamabandi to controvert the plea of the petitioners.

The possession of the petitioners as proprietors is continuing and the petitioners are within their right to invoke the jurisdiction of this court.

Copy of the judgment dated 28.5.1992 (Annexure-P.8) has been annexed which, it is stated, clearly shows that the stand of the respondent-Gram Panchayat is not correct. The petitioners, it is stated, are proprietors in the village and the land in question has remained in their possession or in the possession of their predecessors-in-interest for the last many years. The averments as made in the writ petition have been re-asserted and those made in the written statement are denied.

Mr. Arun Jain, Advocate, learned counsel appearing for the petitioners has contended that the petitioners are the owners and in cultivating possession of the land in dispute and that the same has never been auctioned. Moreover, the petitioners are in cultivating possession of C.W.P. No.11722/1999 (O&M)

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the land in dispute without payment of any rent/lease money and they are continuing as such. Thus, the respondent-Gram Panchayat has no concern with the land in dispute in any manner and it had never been in possession of the same and has never used the land in dispute for the benefit of the common purposes of the village or for the benefit of the village community. It is also stated that the land in dispute was originally in the name of 'Shamilat Deh Hasab Hissa Andraj Shijra Nasab' and such type of land is not covered under the definition of `Shamilat Deh'. The land in dispute, it is contended, has been the ownership of the petitioners and the mutation sanctioned at their back on the basis of executive instructions has no value in the eyes of law. It is also stated that the Gram Panchayat (respondent No.3) has not initiated any proceedings for ejectment of the petitioners and no ejectment order has been passed against them by any competent Court. Besides, the authorities below have committed an error in dismissing the application under Section 11 of the 1961 Act and given a go-by to the prescribed procedure and provisions of the said 1961 Act.

The possession of the petitioners, it is stated, is for more than a period of 12 years prior to the commencement of the 1961 Act and, therefore, land did not vest in the Gram Panchayat. Besides, it is contended that it is evident from the perusal of the judgment dated 28.5.1992 (Annexure-P.8) of the Civil Court that it had granted permanent injunction in favour of the C.W.P. No.11722/1999 (O&M)

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petitioners upholding their possession and Gram Panchayat (respondent No.3) was represented in that civil litigation and it could not rebut the evidence led by the petitioners. Strong reliance is placed on a decision of the Division Bench of this Court in the case of Om Parkash v. The Assistant Collector Ist Grade, Narnaul, 1992 P.L.J. 365 to contend that mere entry in the Jamabandi of 'Shamilat Deh Hasab Hissa Malkiat Munderja Shajra Nasab' does not imply that the land vests in the Gram Panchayat unless there was material to show that the land was being used for common purposes. Dalbir Singh, petitioner in his statement (Annexure-R.3/10), it is contended, has stated that mutation in question was sanctioned in their absence and the Gram Panchayat (respondent No.3) never gave the land in question on lease and there was no basis for entry as 'Shamilat Deh Hasab Hissa Malkan'. Even Sham Lal, Sarpanch in his statement (Annexure-R.3/13), it is stated, has stated that during his tenure no auction took place in respect of the land in question. Besides, he stated that he cannot say that the petitioners have possession of the land since the last 40 years. Therefore, in terms of Section 2(g)(iii) and Section 2(g)(v) of the 1961 Act, it is contended, that unless there is evidence to show that the land in question is used for common purposes of the village, such land does not vest with the Gram Panchayat and does not come within the definition of `Shamilat Deh'. It is also contended that the C.W.P. No.11722/1999 (O&M)

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petition under Section 11 of the 1961 Act is in the nature of a title suit and no issues were framed by the authorities below so as to effectively decide the matter. Besides, the Joint Development Commissioner (respondent no.1) erred in dismissing the appeal of the petitioners in limine without issuing notice and without due consideration of the material on record.

In response, Mr. Jayender S. Chandail, learned Assistant Advocate General, Punjab appearing for the State has submitted on the basis of record tendered by him that the land in question vests in the Gram Panchayat and the petitioners have no concern with the same. He has submitted the details of land of Shamilat Deh as per Jamabandi of the year 1954-55. He has also submitted a chart giving the details of land of Shamilat land as per Jamabandi for the year 1954-55. Besides, the details of the Shamilat Deh land which vests in the Gram Panchayat in pursuance of mutation No.635 has also been given. The chart also depicts consolidation documents giving the valuation of Shamilat land i.e.

Khatauni Ishtemal and the entitlement in standard area i.e. Naqsha Haqdarwar. The details of the old Khewat Khasra numbers and new Khasra numbers, besides the Jamabandi for the year 1964-65 and details of suit land as per head note of the petition (Annexure-P.17) under Section 11 of the 1961 Act. The details of land which is recorded as 'Jumla Malkan Hasab Rasad Khewatdar' has also been indicated. On the basis of C.W.P. No.11722/1999 (O&M)

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the same it is contended that the land in question vests in the Gram Panchayat (respondent No.3).

Mr. H.S. Mattewal, Senior Advocate appearing with Mr. R.S.

Riar, Advocate, learned counsel for the respondent Gram Panchayat has contended that the authorities under the 1961 Act have held that the land in dispute is 'Shamilat Deh' and vests with the Gram Panchayat. Even otherwise by referring to the documents on record it is contended that there is nothing to dislodge the concurrent findings of fact recorded by the authorities below which have held the Gram Panchayat (respondent No.3) to be the owner of the land. The said findings, it is stated, have been reached at on the basis of evidence and material on record.

We have given our thoughtful consideration to the contentions of the leaned counsel appearing for the parties and with their assistance also perused the documents and material on record. It is appropriate to note that the proceedings in the case started with petitioners filing a petition (Annexure-P.17) before the Collector (Panchayat Lands)-cum-DDPO (respondent No.2) under Section 11 of the 1961 Act for orders that the land comprised in the head note of the said petition as per Jamabandi for the year 1989-90 does not vest in the Gram Panchayat (respondent No.3) and that the petitioners are owners in possession of the Shamilat land mentioned therein being co-proprietors of C.W.P. No.11722/1999 (O&M)

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the village. The case of the petitioners is that initially in the column of ownership `Shamilat Deh Hasab Hissa Malkan as mentioned in Shajra Nasab' was recorded and land being Shamilat Deh of village proprietors was the ownership of village proprietors including the petitioners.

Mutation No.635, it is stated, was sanctioned on 22.12.1956 on the basis of some executive instructions and column of ownership was changed to that of the Gram Panchayat. The said mutation it is stated was sanctioned at the back of the proprietors of the village on the basis of executive instructions. It is further stated that another mutation No.957 was sanctioned on 18.4.1967 regarding other piece of land and entries "Mustraka Jumla Malkan Hasab Rasad Raqba Khewatdar" were changed in the name of Gram Panchayat on the basis of letter No.1096/1105 dated 4.5.1965 as mentioned in the mutation. This it is alleged was sanctioned at the back of the proprietors of the village including the petitioners. It is stated that proprietors of the village have not so far effected any partition of the total Shamilat land and the petitioners are in possession being co- proprietors in the village since long. Their possession like other proprietors over this piece of land, it is stated, is there in their own right.

Previously, their predecessors and now the petitioners are in open, hostile, peaceful, continuous possession of the land fully described in the head note of the petition to the knowledge of the Gram Panchayat for more than C.W.P. No.11722/1999 (O&M)

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45 years. Even otherwise, it is alleged that the land in suit is in possession of the petitioners and their predecessors for more than 12 years prior to the commencement of 1961 Act and did not vest in the Gram Panchayat (respondent No.3). It is further stated that the respondent Gram-Panchayat (respondent No.3) asserted its right over the land fully described in the head note of the petition about three months prior to the filing of the petition and the petitioners denied the claim of the respondents and asserted that the land in question does not vest in the Panchayat and the petitioners are owners in possession of the same. It is also stated that in order to determine the status of the parties previous record relating to the land fully described in the head note of the petition is necessary for which Moharir Mall may be directed to prepare the history of the land Jamabandi-wise right from 1945 to upto date. It is also stated that efforts have been made to trace the record and secure the relevant copies thereof and the petitioners recently came to know regarding change of the ownership in the records from 'Shamilat Hasab Rasad Khewatdar' to Gram Panchayat which were entered and sanctioned illegally and wrongly and thus do not confer any title on the respondent- Gram Panchayat being void ab initio. It has, therefore, been prayed in the petition (Annexure-P.17) under Section 11 of the 1961 Act that necessary orders be passed recognizing the petitioners as co-proprietors/co-sharers C.W.P. No.11722/1999 (O&M)

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in possession of the land described in head note of the petition (Annexure- P.17) by declaring that mutation No.957 and 635 are void, illegal, wrong and inoperative by which the rights of the petitioners are not affected.

Besides, the entries mentioned in the column of ownership, it is stated, be scored off and restored to the previous position as they were before the sanction of such mutations and it be declared that the land fully described in the head note of the petition does not vest in the respondent Gram Panchayat and it has no concern with it.

It is appropriate to note that the petitioners have in pursuance of the petition (Annexure-P.17) sought declaration of ownership in terms of Section 11 of the 1961 Act with respect to the land as detailed in the head note thereof. In the present petition the same land as is mentioned in the head note of the petition (Annexure-P.17) has been mentioned in para

2. During the hearing of the case it is the stand of the learned counsel for the petitioners that the claim of the petitioners is with respect to the land as is detailed in head note of the petition (Annexure-P.17) filed under Section 11 of the 1961 Act. However, it has been submitted in the petition (Annexure-P.17) that the land as detailed in the head note is covered by two mutations i.e. Mutation Nos.635 and 957. Insofar as the land covered by mutation No.635 is concerned, it is recorded in the ownership column of the revenue records as 'Shamilat Deh Hasab Hissa C.W.P. No.11722/1999 (O&M)

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Munderja Shajra Nasab' and the said mutation was sanctioned on 22.12.1956. The land in respect of mutation No.957 sanctioned on 10.4.1967 is recorded as 'Mustraka Jumla Malkan Hasab Rasad Raqba Khewatdar.' The change of ownership in the name of Gram Panchayat in terms of mutation No.957 has been mentioned as per letter No.1096/1105 dated 4.5.1965. After considering the matter and the documents on record it has been brought out that in fact, mutation No.957 is not at all relevant for the purpose of the present writ petition. The stand of the petitioners is and has been that the land in dispute was recorded as 'Shamilat Deh Hasab Hissa Munderja Shajra Nasab.' This is the position averred by the petitioner in their pleadings of the writ petition. However, in the replication the stand taken by the petitioners has been changed and it is stated that change of entry of 'Mustraka Jumla Malkan Hasab Rasad Raqba Khewatdar' to Gram Panchayat was totally without jurisdiction.

Keeping in view this conflicting stand taken by the petitioners in their present writ petition and in their replication and also to ascertain the correct position on record with respect to the disputed land, this Court on 2.9.2005 passed the following order:-

"After hearing arguments for some time, we have come to the conclusion that one of the question which arises for determination in this petition is as to which of the Khasra C.W.P. No.11722/1999 (O&M)

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numbers mentioned in the head note of Annexure P.17 at page 118 of the paper-book i.e. the petition filed by Makhan Singh and 14 others against the Gram Panchayat under Section 11 of the Punjab Village Common Lands (Regulation) Act, 1961 would be covered by mutations No.635 dated 22.12.1956 and which of them by No.957 dated 18.4.1967, these are recorded in the revenue record as Shamilat Deh Hasab Hissa Malikaan and Mushtarka Jumla Malkan Hasab Rasad Raqba Khewatdar respectively. The State apart from getting prepared a separate list of the Khasra numbers falling in the aforementioned categories shall place on record a third list containing any other numbers mentioned in the head note of Annexure P-17 which may be shown as Shamilat Taraf or Patti. Mr. Dhaliwal wants time to complete the exercise. List the case for hearing on 9.9.2005." Accordingly, the documents regarding details of the land recorded as 'Shamilat Deh Hasab Hissa Malikaan' and 'Mushtarka Jumla Malkan Hasab Rasad Raqba Khewatdar' as mentioned in the earlier part of the order have been placed on record by the State. Mr. Arun Jain, Advocate learned counsel for the petitioners has also carried out the exercise of ascertaining the lands which are recorded as ''Shamilat Deh C.W.P. No.11722/1999 (O&M)

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Hasab Hissa Malikaan' and 'Mustraka Jumla Malkan Hasab Rasad Khewatdar' and it now transpires and is the accepted position by the learned counsel for the parties that the land detailed in the head note of the petition (Annexure-P.17) filed under Section 11 of the 1961 Act before the Collector cum DDPO relates to mutation No.635 sanctioned on 22.11.1956 only and no part of the said land i.e. the land mentioned in the head note of the petition (Annexure-P.17) relates to mutation No.957. The controversy in the case, therefore, stands narrowed down to ascertain as to what is the effect of the land mentioned in the head note of the petition (Annexure-P.17) as 'Shamilat Deh Hasab Hissa Malkan' in the revenue records and to which only the dispute relates. Keeping in view the fact that no part of the land of which declaration has been sought in the petition (Annexure-P.17) under Section 11 of the 1961 Act is covered by mutation No.957 sanctioned on 10.4.1967, it is made clear that no adjudication with respect to the said land covered by mutation No.957 is being given. Consequently, the questions whether the change of ownership on the basis of government letter No.1096/1105 dated 4.5.1965 could be sanctioned and whether the petitioners are residents in the village so as to be a part of the village proprietary body do not require any consideration in this petition as the land covered by mutation No.957 is not subject matter of dispute in the present case and the aforesaid C.W.P. No.11722/1999 (O&M)

[23]

factors may have been necessary for consideration as they relate to the sanction of Mutation No.957 the land of which in not a part of the claim made by the petitioners. The dispute, therefore, as already noticed, is only with respect to the land covered by mutation No.635 sanctioned on 22.12.1956 which is the land detailed in the head note of the petition (Annexure-P.17) under Section 11 of the 1961 Act for which declaration was sought and detail of which is also mentioned in para 2 of the present petition filed in this Court.

Another fact that may be noticed is with regard to the passing of the resolution dated 16.9.1998 (Annexure-P.2) for taking possession of the land. On the basis of the said resolution, the order dated 22.9.1998 (Annexure-P.3) was passed by the Collector-cum-DDPO, Amritsar (respondent no.2) for taking possession of the land. In this respect it may appropriately be noticed that writ petition i.e. C.W.P. No.15963 of 1998 titled Dalbir Singh and another v. The Joint Development Commissioner (IRD), Punjab and others was filed in this Court assailing the order dated 22.9.1998 (Annexure-P.3) regarding taking of possession of the land. The said writ petition was allowed by this Court on 5.8.2003 as during the course of hearing of the said writ petition it was agreed by the learned Counsel for the parties that the impugned order i.e. the order dated 22.9.1998 (Annexure-P.3) could not have been passed without initiating C.W.P. No.11722/1999 (O&M)

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proceedings under Section 7 or 11 of the 1961 Act and no such proceedings had in fact been initiated. Apart from the fact that the learned counsel appearing for the parties in the said writ petition had fairly made an agreed statement on the legality of the impugned order therein i.e. the order dated 22.9.1998, it was observed that the DDPO-cum-Collector (respondent No.2) could not have ordered dispossession of the petitioners without taking action under Section 7 or 11 of the 1961 Act. Accordingly, the writ petition was allowed and the order dated 22.9.1998 was quashed.

It was, however, made clear that the order passed in the said petition shall not adversely affect any other proceedings pending between the parties before any other judicial forum. The present petition was also listed for hearing on the said date i.e.5.8.2003, when the earlier writ petition i.e.

Dalbir Singh v. Joint Development Commissioner (IRD) (C.W.P.No.

15963 of 1998) was listed. However, the present writ petition could not be taken up. Later on this petition was listed before another bench of which one of us (Amar Dutt, J) was a member and it was vide order dated 16.9.2004 inter alia observed in the said petition i.e. Dalbir Singh v. Joint Development Commissioner (IRD) (C.W.P. No.15963 of 1998), that it had been jointly stated by the counsel for the parties that no order under Section 7 or 11 of the 1961 Act had been passed in relation to the land in dispute and that this position was evidently wrong as apparently two C.W.P. No.11722/1999 (O&M)

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orders had been passed in relation to the land in dispute which were being challenged before this Court in the present writ petition. It was observed that a piquant situation had, therefore, arisen on account of the stand inadvertently and deliberately taken by the counsel for the parties in Dalbir Singh's case (C.W.P. No.15963 of 1998) which this Court will have to resolve on account of the fact that the order dated 22.9.1998 which had been set aside in Dalbir Singh's case (C.W.P. No.15963 of 1998) is the order (Annexure-P.3) appended to the present petition and same appeared to have been passed in pursuance of the orders which are impugned in this petition. It was observed that since it may not be possible to consider the effect of the order in its entirety without setting aside order dated 5.8.2003 it may be appropriate that this petition is listed before the same Bench which passed the order dated 5.8.2003. A Civil Miscellaneous application has been filed by the petitioners in Dalbir Singh's case (C.W.P. No.15963 of 1998) for correcting the order dated 5.8.2003 by deleting the word "or Section 11" in the order dated 5.8.2003.

Counsel for both the parties are agreed that there was also a petition pending under Section 11 of the 1961 Act and it is accepted that the statement made by the counsel for the parties that the proceedings could not have been initiated without proceeding under Section 7 or Section 11 of the 1961 Act led to the passing of the order that dispossession could not C.W.P. No.11722/1999 (O&M)

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have been ordered without taking action under Section 7 or 11 of the Act.

By a separate order passed today in Dalbir Singh's case (C.W.P. No.15963 of 1998) with consent of the counsel appearing for the parties the word "or 11" has been deleted from the order dated 5.8.2003. The said order has been accordingly corrected. The effect of which is that the said order is to be read that the possession of the land in question cannot be taken by the respondent-Gram Panchayat except by initiating proceedings under Section 7 of the 1961 Act. Therefore, the controversy in the present petition that the Collector-cum-DDPO (respondent No.2) could not have vide order dated 22.9.1998 directed the taking over the possession of the land in dispute no longer survives as this Court has already passed a consent order on 5.8.2003 in Dalbir Singh's case C.W.P.No.15963 of 1998, the effect of which after being corrected is that the possession can be taken of the land in question by resort to the procedure provided under Section 7 of the 1961 Act. The passing of the said order or the correction in respect thereof would, however, of course be subject to the declaration that has been sought. As a consequence of the said order dated 5.8.2003 passed by this Court, the letter dated 25.9.1998 (Annexure-P.4) issued by the Kanungo directing the petitioners to remain present at the spot for delivery of possession also does not survive as the order dated 22.9.1998 (Annexure-P.3) regarding delivery of possession has been quashed in the C.W.P. No.11722/1999 (O&M)

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connected writ petition i.e. Dalbir Singh v. Joint Development Commissioner (IRD) (C.W.P. No.15963 of 1998).

The question, therefore, that remains for consideration is whether the impugned order dated 8.10.1998 (Annexure-P.5) passed by the Joint Development Commissioner (respondent No.1) and the order dated 27.3.1998 (Annexure-P.1) passed by the Collector-cum-DDPO (respondent No.2) are liable to be quashed and set aside. As has already been noticed, the claim of the petitioners is for declaring them as owners of the land as detailed in head note of the petition (Annexure-P.17) filed under Section 11 of the 1961 Act. The land in question of which the dispute now remains is recorded in the revenue record as; 'Shamilat Deh Hasab Hissa Munderja Shajra Nasab'. This is the accepted position by the counsel appearing for the parties. Mutation No.653 in respect of this land was sanctioned in favour of the Gram Panchayat on 22.12.1956. In order to ascertain the effect of land being so recorded , it is appropriate to notice the relevant provisions of the 1961 Act. Section 3 of the 1961 Act, provides as regards the lands to which this Act applies. It is envisaged therein that 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. Therefore, the 1961 Act applies to lands, which are `Shamilat Deh' and before its C.W.P. No.11722/1999 (O&M)

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commencement, the `Shamilat Law' is deemed to have always applied to all lands, which are `Shamilat Deh' as defined in Section 2 (g) of the 1961 Act. 'Shamilat Deh' and 'Shamilat Law' have been defined in Section 2(g) and 2(h) of the 1961 Act as follows:-

"2(g) "Shamilat Deh" includes.

(1)Land described in the revenue records as Shamilat Deh excluding abadi Deh.

(2) Shamilat Tikkas.

(3) Land described in the revenue records as shamilat, Tarafs, Pattis, Pannas and Tholas and used according to revenue records for the benefit of the village community or a part thereof or for common purposes of village.

(4) Lands used or reserved for the benefit of the village community including, streets, lane, playgrounds, school, drinking wells, or ponds within abadi Deh or gora Deh and.

(5) Lands in any village described as Banjar qadim and used for common purposes of the village, according to revenue records.

But does not include land which:

(i) [-]

(ii) has been allotted on quasi permanent basis to a C.W.P. No.11722/1999 (O&M)

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displaced person.

(ii-a) was shamilat Deh, but has been allotted on quasi- permanent basis to a displaced person, or has been otherwise transferred to any person by sale or by any other manner whatsoever after the commencement of this act, but on or before the 9th

day of July, 1985.

(iii) has been partitioned and brought under cultivation by individual landholders before the 26th

January, 1950.

(iv) having been acquired before 26th

January, 1950, by a

person by purchase or in exchange for proprietary land from a co-sharer in the Shamilat Deh and is so recorded in the Jamabandi or is supported by a valid deed; (and is not in excess of the sharer in the Shamilat Deh).

(v) is described in the revenue records as Shamilat, Taraf, Pattis, Pannas and Thola and not used: according to revenue records for the benefit of the village community or part thereof or for common purposes of the village.

(vi) (lies outside the abadi Deh and was being used as gitwar, bra manure pit, house or for cottage industry, immediately before the commencement of this Act).

(vii) [ - ]

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(vi) (lies outside the abadi Deh and was being used as gitwar, bara manure pit, house or for cottage industry, immediately because the commencement of this Act).

(vii) [ - ]

(viii) was shamilat Deh, was assessed to land revenue and has been in the individual cultivating possession of co- sharers not being in excess of their respective shares in such shamilat Deh on or before the 26th

January 1950, or

(ix) (was being used as a place of worship or for purposes, subservient thereto, immediately before the commencement of this Act.

(h) "Shamilat Law" means:-

(i) in relation to land situated in the territory which immediately before the Ist November, 1956, was comprised in State of Punjab, the Punjab Village Common Lands (Regulation) Act, 1953, or

(ii) in relation to land situated in territory which immediately before the Ist November, 1956, was comprised in State of Patiala and East Punjab States Union : the Pepsu Village Common Lands (Regulation) Act, 1954."

C.W.P. No.11722/1999 (O&M)

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A reading of Section 2(g)(1) shows that the land which is described in the revenue record as 'Shamilat Deh' excluding Abadi Deh is 'Shamilat Deh'. Section 4 (1)(a) of the 1961 Act envisages that notwithstanding anything to the contrary contained in any other law for the time being in force or in any agreement, instrument, custom or usage or any decree or order of any Court or other authority, all rights, title and interest whatsoever in the land which is included in `Shamilat Deh' of any village and which is not vested in a panchayat under the `Shamilat Law' shall at the commencement of this Act vest in a Panchayat constituted for said village and where no such panchayat has been constituted for such village vest in the panchayat on such date as panchayat having jurisdiction over that village is constituted. The declaration of ownership of the land in question which has been claimed by the petitioners is in terms of Section 11 of 1961 Act which reads as under:- "11:- Decisions of claims of right, title or interest in shamilat Deh. (1) Any person (or a Panchayat [claiming right, title or interest in any land vested or deemed to have been vested in a Panchayat under this Act, or claiming that any land has not so vested in a Panchayat, may submit to the Collector, within such time as may be prescribed, a statement of his claim in writing and signed and verified in the C.W.P. No.11722/1999 (O&M)

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prescribed manner and the Collector shall have jurisdiction to decide such claim in such manner as may be prescribed]." In the case in hand the land in question of which declaration has been sought by the petitioners, prior to consolidation operations was part of Khewat No.168/1. Consolidation proceedings or operations in the Village were carried out in the year 1962. These proceedings are done in accordance with the provisions of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (`Consolidation Act' for short) and the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949 (`Rules' for short). Rule 4 of the Rules provides for preparation of scheme of consolidation. Rule 5 provides for the particulars which such scheme of consolidation shall contain. Rule 6 provides that the scheme of consolidation is to be explained to the persons affected thereby and Rule 7 provides for repartition. Rule 7(iii) envisages the preparation of statement showing the names of owners of holdings with particulars of field numbers, shares, class of land, tenure, area, assessment and encumbrances, if any, after getting the record-of rights upto date. For the purpose of the present petition, it may be noticed that Khatauni Ishtemal is amongst the first document which is compiled which contains the existing khasra numbers of the land, the area and its valuation. Further the Naqsha C.W.P. No.11722/1999 (O&M)

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Haqdarwar is prepared which indicates the rights of the right holder and as to what would be its standard value. These are pre-partition documents. Thereafter, re-partition is done and the Consolidation Officer after obtaining the advice of the land owners (Mushwarti Committee) of the estate concerned carries out re-partition in accordance with the scheme of consolidation. As a consequence of this repartition, the Khatauni Paimaish is prepared which contains the statement showing the names of owners of holdings, with particulars of field numbers, shares, class of land, tenure, area, assessment and encumbrances, if any, the name of owners with particulars of all different rights possessed by each individually, the compensation payable by or to an owner in order to adjust difference in the value of land exchanged under Section 15 of the Consolidation Act. Besides, a statement showing the names of occupants of holders to whom the new consolidated holdings are allotted with particulars of field number, share, class of land, tenure, area, assessment and encumbrances and such other papers as may be considered expedient by the Settlement Officer (Consolidation). The first Jamabandi (record of rights) that is prepared after consolidation proceedings is the Misl Haqiat.

The consolidation proceedings also provide for the land which is to be kept for common purpose of the village in terms of Section 18 of the Consolidation Act. The management and control of the land of common C.W.P. No.11722/1999 (O&M)

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purposes are to vest in the Panchayat or the State Government in terms of section 23-A of the Consolidation Act.

The land of which declaration is sought is recorded as 'Shamilat Deh Hasab Hissa Munderja Shajra Nasab' in the Jamabandi for the year 1954-55 (Annexure-R.3/15). It is comprised in Khewat No.168/1.

In terms of Mutation No.635 sanctioned on 22.12.1956 the entire Khewat No.168/1 has been transferred in the name of Gram Panchayat Deh Haza.

It is after the sanction of mutation that consolidation operations were out in the village in 1962. The Khatauni Ishtemal in respect of the land comprised in Khewat No.168/1 (Annexure-R.3/17) was prepared in which the Gram Panchayat Deh is recorded as owner in column of ownership.

The Naqsha Haqdarwar (Annexure-R.3/18) was prepared during the consolidation proceedings, in which Gram Panchayat Deh is recorded as owner of the land in respect of Khewat No.168/1. In the Khatauni Paimaish (Annexure-R.3/19) the old khasra numbers of Khewat No.168/1 and new khasra numbers have been indicated which inter alia include the land in respect of which declaration under Section 11 of the 1961 Act has been sought by the petitioners. This is the undisputed position even as per the documents submitted by the State counsel in compliance to the order dated 2.9.2005 passed by this Court. The land detailed in the head note of the petition (Annexure-P.17) is that land in respect of which C.W.P. No.11722/1999 (O&M)

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Mutation No.635 has been sanctioned on 22.12.1956 and no part of the land is covered by Mutation No.957 sanctioned 10.4.1967 (Annexure- P.15), in pursuance of which the ownership recorded in the name of `Mustraka Jumla Malkan Hasab Rasad Raqba Khewatwar' has been changed in the name of Gram Panchayat. Therefore, evidently, the land in question of which declaration has been sought by the petitioners is recorded as `Shamilat Deh' even as per the Jamabandi for the year 1954- 55 (Annexure-R.3/15) i.e. before coming into force the 1961 Act and before the consolidation proceedings in the village were carried out in

1962. The contention of the learned counsel for the petitioners is that the land of which ownership is claimed by way of declaration under Section 11 of 1961 Act in fact had never been used for common purposes. It would be appropriate to notice the definition of "common purpose" under the Consolidation Act and the provisions of Section 23-A thereof relating to management and control of land for common purpose to vest in Panchayats or the State Government. Section 2(bb) of the Consolidation Act defines "common purpose" and reads as follows:- "2 (bb) "common purpose" means any purpose in relation to any common need, convenience or benefit of the Village and includes the following purposes:-

(i)extension of the village abadi.

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(ii) Providing income for the Panchayat of the village concerned for the benefit of the village community.

(iii) Village roads and paths; village drains, village well, ponds or tanks, village water courses or water channels; village bus stands and waiting places; manure pits; hada rori; public latrines; cremation and burial grounds; Panchayat Ghar; Janj Ghar grazing grounds; tanning places; mela grounds; public places of religious or charitable nature; and

(iv) schools and play-grounds, dispensaries, hospitals and institutions of like nature; water works or tube-wells may be managed and controlled by the State Government or not."

Besides, Section 23-A of the Consolidation Act provides for management and control of land for common purpose to vest in the Panchayat or State Government. Section 23-A of the Consolidation Act reads as under:-

"23-A. Management and control of lands for common purposes to vest in Panchayats or State Government As soon as a scheme comes into force the management and control of all lands assigned or reserved for common C.W.P. No.11722/1999 (O&M)

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purposes of the village under section 18,- (a) in the case of common purposes specified in sub-clause (iv) of clause (bb) of section 2 in respect of which the management and control are to be exercised by the State Government, shall vest in the State Government; and (b) in the case of any other common purpose, shall vest in the Panchayat of that village; and the state Government or the Panchayat, as the case may be, shall be entitled to appropriate the income accruing therefrom fro the benefit of the village community, and the rights and interests of the downers of such lands shall stand modified and extinguished accordingly:

Provided that in the case of land assigned or reserved for the extension of village abadi or manure pits for the proprietors and non-proprietors of the village, such land shall vest in the proprietors and non-proprietors to whom it is given under the scheme of consolidation." As has already been noticed that Rule 4 provides for preparation of the scheme of consolidation and Rule 5 envisages that every such scheme of consolidation shall contain the particulars indicated therein. Besides, Rule 6 provides that the draft scheme of consolidation is C.W.P. No.11722/1999 (O&M)

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to be explained to the persons affected thereby. It is in terms of the said provisions that the consolidation scheme (Annexure-R.3/6) was prepared in respect of the land in question and Item 6 thereof reads as under:- "Item No.6:

The land of Shamlat Deh has already been transferred to the name of the Gram Panchayat. The details thereof are contained at Sr. No.4. The land of `Shamlat Dheri' and `Pattis' shall be dealt with in accordance with instructions issued by the Government. Details of the Shamlat are attached."

A perusal of the above Item 6 of the consolidation scheme shows that the land in question had already been transferred in the name of the Gram Panchayat (respondent No.3) before consolidation operations took place in 1962.

In short, therefore, the position that emerges is that the land of which declaration under Section 11 of the 1961 Act has been sought is recorded was `Shamilat Deh' and earlier was comprised in Khewat No.168/1. The same is recorded as `Shamilat Deh' even in the Jamabandi of the year 1954-55 i.e. before the 1961 Act came into force on 4.5.1961.

The land in question of which declaration has been claimed, as has already been noticed, is recorded as 'Shamilat Deh Hasab Hissa Andraj Shijra C.W.P. No.11722/1999 (O&M)

[39]

Nasab'. Therefore, the land which is recorded as `Shamilat Deh' in the revenue records in terms of Section 2(1)(g) of the 1961 Act is `Shamilat Deh'. It is to vest in the Gram Panchayat in terms of Section 4(i)(a) of the 1961 Act. The fact that it is also recorded as `Hasab Hissa Andraj Shijra Nasab' i.e. as per share in the pedigree table is not of any significance in view of the fact that the said land has not been partitioned and brought under cultivation by individual land holders before 26.1.1950. A perusal of Section 2(g) of the 1961 Act shows that it is in two parts. The first part relates to the land which is included in the `Shamilat Deh' and the second part relates to the land which are excluded. In terms of clause (iii) which is in the second part of section 2(g) and relates to the land to be not included as `Shamilat Deh' it has to be shown that the land has been partitioned and brought under cultivation by individual land holders before 26.1.1950. Then such land would be excluded from `Shamilat Deh'. In terms of the exclusion clause (iii) of the second part of Section 2 (g) it was open to the proprietors and share holders before the commencement of the 1961 Act to partition or bring into cultivation the land of the `Shamilat Deh'. The land in question admittedly has not been partitioned or brought under cultivation by an individual land holder.

Therefore, it does not come in the second part of Section 2(g) of the 1961 Act so as to be excluded from `Shamilat Deh'. As such the land recorded C.W.P. No.11722/1999 (O&M)

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as `Shamilat Deh' is further mentioned as `Hasab Hissa Andraj Shijra Nasab' is of no significance as the land has not shown to be partitioned as per the share in the pedigree table before 26.1.1950 which is the date fixed so as to exclude the land from `Shamilat Deh'. Consequently, the land which is recorded as `Shamilat Deh' in the revenue records is `Shamilat Deh' within the meaning of Section 2(g) and is to vest in the Gram Panchayat in terms of Section 4(1)(a).

In terms of the order dated 2.9.2005 passed by this Court the State Government was asked to file a separate list of the khasra numbers which are recorded in the revenue record as `Shamilat Deh'. Besides, it was also indicated that a third list containing any other numbers mentioned in head note of Annexure-P.17 which may be shown as `Shamilat Taraf' or `Patti' be indicated. This was for the purpose of ascertaining as to whether any land would not be part of `Shamilat Deh' but would be amongst the land which is excluded in terms of clause (v) of the second part of Section 2(g). As per the list that has been submitted, there is no land mentioned as `Shamilat Taraf' or `Patti' in respect of the land of which declaration is sought. Therefore, the petitioners have no claim to ownership or proprietary rights in respect of the said land. The contentions primarily raised were on the premise that the land is `Jumla Mustraka Malkan Hasab Rasad Raqba Khewatdar' which relates to C.W.P. No.11722/1999 (O&M)

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mutation No.957 (Annexure-P.15). The same, as has already been noticed, is not subject matter of dispute in the present petition. Even in the consolidation operations the ownership of Gram Panchayat which had been transferred on 22.12.1956 vide mutation No.635 has been kept intact. The contention of the learned counsel for the petitioners as regards the judgment passed in the case of Om Parkash v. The Assistant Collector Ist Grade (supra) may be noticed. On the strength of the same it is contended that where in the column of ownership in the Jamabandi an entry is recorded as `Shamilat Deh Hasab Hissa Munderja Shajra Nasab', the same would not show that the land was being used for common purpose. In fact the said judgment was referred to Full Bench and was over-ruled in Roshan alias Roshan Lal v. Secretary, Government of Haryana, 1998 (2) P.L.J. 260. The fact that the judgment in Om Parkash's case (supra) has been overruled was not brought to the notice of the Court.

However, the possibility of the counsel being unaware of the same cannot be ruled out. Even otherwise the said case related to the proceedings where a tenant had been continuing after the expiry of his lease and it was held that he could be ejected from the land in accordance with law i.e.

either by filing a suit or a petition under the provisions of the Haryana Public Premises and Land (Eviction and Rent Recovery) Act. Besides, in the said case a reference was made to the copy of Jamabandi of 1952-53 C.W.P. No.11722/1999 (O&M)

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wherein in the column of ownership, the entry of `Shamilat Deh Hasab Hissa Malkiat Munderja Shajra Nasab' was recorded and it was held that the same does not show that the land was being used for common purposes. Therefore, the judgment in Om Parkash's case (supra) having been overruled by the Full Bench in Roshan alias Roshan Lal's case (supra) and even otherwise being inapplicable as only a passing reference has been made with regard to the fact that merely because land is recorded as 'Shamilat Deh Hasab Hissa Andraj Shijra Nasab' in the column of ownership does not show that the -land was being used for common purpose. In fact no reference has been made in Om Parkash's case (supra) to the provisions of Section 2(g) of the 1961 Act and particularly Section 2(g)(1) which specifically envisages that `Shamilat Deh' includes lands described in the revenue records as `Shamilat Deh'. Therefore, in the absence of noticing the provisions of Section 2(g) of the 1961 Act also, the said judgment is inconsequential. Learned counsel for the petitioners has also referred to the case of Gram Panchayat/Gram Sabha, Village Ugani v. State of Punjab and others, 1997 (2) P.L.J. 3. The said judgment does not lay down any ratio and it was found as a fact after going through the entire evidence which comprised of documents, that the respondent in the said case was in possession of the disputed land as owner before

1950. Besides, the counsel for the Gram Panchayat could not point out to C.W.P. No.11722/1999 (O&M)

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any document through which it could be gathered that the land vests in the Gram Panchayat. In the said circumstances, it was observed that the factum of the Gram Panchayat having auctioned the land in a particular year would not mean that the Gram Panchayat was the owner. Besides, until and unless the entries in the revenue record, evidences the ownership of Gram Panchayat, it was observed that it cannot be declared the owner of the disputed land. It was also observed that the entries in the revenue records to the effect that `Shamilat Deh Hasab Paimana Malkiat Muderqa Sajar Nasab Bandobasti' do not and cannot legally mean that the land is Shamilat Deh and the same vests in the Gram Panchayat. The said entry is not relevant for the purpose of the present petition. In the case in hand there is evidence to show that the land stood mutated in favour of the Gram Panchayat on 22.12.1956 vide mutation No.635 i.e. before the coming into force the 1961 Act. From the preamble of the 1961 Act, it is evident that it has been enacted to consolidate and amend the law regulating the rights in Shamilat Deh and Abadi Deh. Besides, when the land vests or is deemed to have vested in a village Panchayat in terms of Section 4 a duty is cast on the Panchayat to utilize it for the common purpose of inhabitants of the village in accordance with the procedure provided.

The other contentions that have been raised by the learned C.W.P. No.11722/1999 (O&M)

[44]

counsel for the petitioners and may be noticed are that the issues in the case have not been framed and for this purpose the matter is liable to be reconsidered and also that the Joint Development Commissioner (IRD) dismissed the appeal of the petitioners in limine. In this respect, it may be noticed that though when an issue or issues arise from the pleadings between the parties, issues should normally be framed. However, it is equally true that when the parties are alive to the nature of the dispute and have led evidence in support thereof, the non-framing of issues does not vitiate the proceedings. The object of providing the remedy under the provisions of 1961 Act was to cut down the conventional procedure provided for civil suits for determination of rights and it is for this reason that Section 13 of the 1961 Act bars the jurisdiction of the civil Court. It has been provided therein that no civil Court shall have jurisdiction to entertain or adjudicate upon any question where any property or any right to or interest in any property is or is not `Shamilat Deh' vests or deemed to have been vested in a Panchayat under the Act or to question the legality of any action taken by the Commissioner or Collector of the Panchayat under the Act or in respect of any matter which the Commissioner or the Collector is empowered by or under the Act to determine. Therefore, the object to bar the jurisdiction of the Civil Court is to provide for speedy remedy by making inapplicable the rigours of the provisions of civil C.W.P. No.11722/1999 (O&M)

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procedure. The procedure provided for determining of rights under the 1961 Act is a quasi judicial one to which the trappings of a civil Court are not wholly applicable. The position as regards the petitioners being alive to the issues that arise for consideration is evident from the application dated 17.3.1998 (Annexure-P.20) submitted by the petitioners for framing of issues. It is submitted therein that issues are to be framed in respect of the facts which are alleged by the petitioners and denied by the respondents. The proposed issues have also been indicated. This would show that the petitioners are aware as to what was to be adjudicated. The petitioners also filed written arguments (Annexure-P.21) in support of their case. The Gram Panchayat (respondent No.3) has not claimed the framing of issues and has contested the petition of the petitioners seeking declaration in respect of the land in question. The basic issue that arose for consideration is whether the petitioners were entitled to the declaration prayed for on the basis of the assertions made in their petition (Annexure- P.17). In this respect, it is appropriate to note that in fact the petitioners had in their petition seeking declaration tried to confuse the matter by taking into account two Mutations No.635 sanctioned on 22.12.1956 and No.957 sanctioned on 18.4.1967. However, now it is the admitted position that the land in respect of which declaration had been sought is only in relation to land covered by Mutation No.635 and this land, as has C.W.P. No.11722/1999 (O&M)

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already been noticed above, is `Shamilat Deh' land. Therefore, the other contentions which the petitioners had sought to raise are without any basis. In the circumstances, mere non-framing of issues is inconsequential. In Kunju Kesavan v. M.P. Philip, AIR 1964 SC 164, it was held that where both the parties understanding what the issue in the case was, absence of issue it was held did not lead to mis-trial sufficient to vitiate the decision. In Kali Prasad Agarwalla v. M/s Bharat Coking Coal Limited, AIR 1989 SC 1530, the judgment in Kunju Kesavan's case (supra) was reiterated to hold that the parties went to trial knowing fully well that what they were required to prove and they had adduced evidence of their choice in support of their respective claims and that evidence was considered they could not be allowed to turn around to say that the evidence could not be looked into. The framing of issues in a proceedings is a procedural provision and these are primarily meant to afford a reasonable and adequate opportunity to the parties to adduce the evidence. The violation of procedural provisions does not automatically vitiate the proceedings that have been conducted and the complaint of violation of procedural provision is to be examined in the context of prejudice having been caused and it is to be seen whether violation has prejudiced the rights of the parties. If it is found that prejudice has been caused the same would have to be remedied. However, if no prejudice is C.W.P. No.11722/1999 (O&M)

[47]

established it is apparent that no interference is called for. In the present case no prejudice is shown to have been caused and it is not the case of the petitioners that they were prevented from leading any evidence which they wanted to lead or there has been no due consideration to the material on record. The petitioners have claimed declaration of certain land in their favour which the Gram Panchayat claimed belongs to it. Therefore, the question which was to be seen was whether the petitioners are entitled to the declaration prayed for. The petitioners have placed on record the evidence that was led on their behalf and the other materials. The Collector-cum-DDPO (respondent No.2) considered the evidence and material on record and found that the Gram Panchayat is the owner of the land besides the entry in this regard has been there in the name of Gram Panchayat since 1964-65 to 1994-95. It was also found that Gram Panchayat was owner of the land and no solid proof had been produced by the petitioners which could prove the Jamabandi as incorrect. Moreover, the Gram Panchayat had auctioned the land on 27.5.1982 for five years and in 1994-95 it was auctioned for Rs.33,500/- and there was evidence in support of this from which it was clear that the Gram Panchayat was owner of the land. In appeal the Commissioner-cum-Joint Development Commissioner (respondent No.1) in his impugned order dated 8.10.1998 (Annexure-P.5) considered the aspect that the Collector had not framed C.W.P. No.11722/1999 (O&M)

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any issue. However, the following facts were found to be clearly established:-

"(1) That the land in dispute was entered in the name of Panchayat in the year 1964-65. Copies of the record of rights prove this fact. Presumption of truth is attached to the record of rights and the Appellants could not produce any cogent evidence or document either before the Collector or before me to prove that the entries made in the record of rights were not correct.

(2)That the Panchayat has been exercising these rights of ownership of the land becomes very clear from the fact that the Panchayat had leased this land for the year 1994-95 for Rs.33,500/-.

(3) In fact the main ground for claim of title by the Appellants was based on the entry `Shamilat Deh Hasab Hissas Andraj Shijra Nasab'. But this entry does not entitle the share holders to bring out their land out of the shamilat and merge it into their individual khewats. The ownership of shamilat was merged into the Gram Panchayat with the promulgation of the Punjab Village Common Lands (Regulation) Act, 1961. In this way the main ground for C.W.P. No.11722/1999 (O&M)

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claiming the title in this land becomes devoid of any merit.

In view of the discussion and findings above, the Appeal is without any merit. I see no necessity to issue notice to the other party and, therefore, the Appeal is dismissed without notice to the other party.

Announced."

After considering the evidence and material on record nothing has been found to dislodge the concurrent findings recorded by both the authorities below and the findings which have been recorded could have been reasonably arrived at and are logical. The same are, therefore, not liable to be interfered with. In this view of the matter, the contention of the learned counsel for the petitioners that the petitioners and previously their predecessors are in open, hostile, continuous possession of the land in question to the knowledge of the Gram Panchayat for more than 45 years is not made out. In fact, the petitioners have not specifically taken the plea of adverse possession in their writ petition filed in this Court though have made averments in this regard.

Therefore, the petitioners evidently have taken a half-hearted plea of their possession having ripened into ownership by adverse possession. The case of the petitioners in fact was based on the ground that sanction of mutation in favour of Gram Panchayat on the basis of a government letter C.W.P. No.11722/1999 (O&M)

[50]

is illegal. This aspect, as has already been noticed above, relates to land in respect of which mutation No.957 was sanctioned on 18.4.1967 which is not subject matter of dispute. The land in question is covered by mutation No.635 sanctioned in favour of Gram Panchayat on 22.12.1956.

In the circumstances, the question that the Joint Development Commissioner (IRD), Punjab (respondent No.1) dismissed the appeal against the order dated 27.3.1998 (Annexure-P.1) passed by the DDPO- cum-Collector, Amritsar (respondent No.2) in limine is also of no consequence as no prejudice is shown to have been caused to the petitioners.

The position regarding Civil Court decree dated 28.5.1992 that has been passed in favour of the petitioners may be considered. A reading of the said judgment dated 28.5.1992 (Annexure-P.8) would show that it relates to the plaintiffs being in possession of the Shamilat land of the village as co-sharers and that the defendant-Gram Panchayat had threatened to dispossess them. It was stated that they are in possession of the land for the last 20 years. In the said suit, it was alleged that the defendants had threatened to dispossess the plaintiffs forcibly from the suit land for which they have no right. It was held that the plaintiffs in the said suit are in possession of the suit land and thus they have every right to protect the possession. The defendants had threatened to dispossess the C.W.P. No.11722/1999 (O&M)

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plaintiffs from the suit land and, therefore, the suit has been filed. In terms of the findings recorded by the learned Sub Judge Ist Class on 28.5.1992 (Annexure-P.8), it was ordered that the suit for permanent injunction was decreed restraining the Gram Panchayat from dispossessing the plaintiffs forcibly from the suit land detailed in the head note of the plaint except in due course of law. The learned counsel for the Gram Panchayat (respondent No.3) in the connected writ petition i.e.

Dalbir Singh v. Joint Development Commissioner, C.W.P. No.15963 of 1998 in terms of which the action of the Gram Panchayat (respondent No.3) had been challenged regarding taking of possession without following the procedure under Section 7 of the 1961 Act, has already made a statement that the possession of the land will be taken in accordance with the provisions of Section 7 of 1961 Act. It is in view of the said statement made by the counsel for both the parties that the connected petition in Dalbir Singh's case, Civil Writ Petition No.15963 of 1998 was allowed, leaving it for the Gram Panchayat to take possession in accordance with Section 7. In fact even in terms of the judgment and decree dated 28.5.1992 (Annexure-P.8) the suit of the plaintiff therein has been decreed for permanent injunction restraining the Gram Panchayat (respondent No.3) from dispossessing the plaintiffs forcibly from the suit land except in due course of law. Evidently, the proceedings for taking C.W.P. No.11722/1999 (O&M)

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possession in accordance with law has been accepted by the Gram Panchayat (respondent No.3) with the statement made by its counsel in the other petition filed by Dalbir Singh and others (C.W.P. No.15963 of 1998).

Therefore, in view of the above, no interference is called for in exercise of the supervisory jurisdiction of this Court under Article 226/227 of the Constitution of India and there is no merit in this petition and consequently the same is dismissed. However, in terms of the order passed in the connected case of Dalbir Singh, C.W.P. No.15963 of 1993, the respondent Gram Panchayat may approach, if not already approached, to take possession of the land in accordance with Section 7 of the 1961 Act and in case such an application is filed or has already been filed, the same shall be considered by the competent authority in accordance with law. It is also made clear that any observation made in this order shall not in any manner relate to the land which is of the `Jumla Mustraka Malkan' relating to Mutation No.957 sanctioned on 18.4.1967.

(S.S. Saron)

Judge

Dated:26.4. 2006. (Amar Dutt)

Judge

hsp


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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