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2006 DIGILAW 2381 (PNJ)

Gurdial Singh v. State Of Haryana

2006-05-31

ASHUTOSH MOHUNTA, MAHESH GROVER

body2006
Judgment Mahesh Grover, J. 1. By this Judgment 8 Civil Writ Petitions bearing Nos.7965, 8407, 8443, 8451, 8531, 8542, 9750 and 10018 of 2004 are being disposed of as they are directed against the common orders of the Commissioner dated 19.2.2004. 2. The facts as extracted from the pleadings of the parties are that the Gram Panchayat had filed a petition under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereafter known as the Act) against the petitioners claiming that they are the unauthorised occupants of the land and deserve to be evicted. The petitioners in their written statements raised a counter claim that the petitioners were in fact the owners of the property in dispute as per the revenue record and the land in dispute is Burd Baramadgi (subject to river action) and,therefore, it comes within the definition of Section 2(g) of the Act. It is pleaded that the land which has become Shamlat due to the river action or has been reversed as Shamlat Deh and is entered as pasture, pond or playground in the revenue does not come within the definition of Shamlat Deh and the Panchayat had no concern with the land and consequently all proceedings under Section 7 were null and void. In any case, the petitioners pleaded that they had raised the question of title and, therefore the Asstt. Collector had no power to enter upon the controversy. The Asstt. Collector after pursuing the pleadings of the parties took cognizance of the fact that the question of title was involved and then proceeded to decide it vide his order dated 5.6.2002. The plea of title raised by the petitioners was rejected and it was held that the Gram Panchayat is the owner of the property in dispute. Aggrieved by the order of the Asstt. Collector the petitioners preferred an appeal before the Collector which was dismissed vide order dated 14.8.2002 and revision against this order was also dismissed by the Commissioner vide his order dated 19.2.2004. The petitioners have impugned these orders of the revenue authorities by way of present writ petitions. 3. Aggrieved by the order of the Asstt. Collector the petitioners preferred an appeal before the Collector which was dismissed vide order dated 14.8.2002 and revision against this order was also dismissed by the Commissioner vide his order dated 19.2.2004. The petitioners have impugned these orders of the revenue authorities by way of present writ petitions. 3. The contention by the learned Counsel for the petitioners is that the land in dispute is Burd Baramadgi (subject to river action) and in the jamabandis, the land in question is shown as Sailab and, therefore, it could be not be treated to be Shamlat land in view of categoric provisions of Section 2(g) of the Act. 4. Section 2(g) of the Act as applicable to the State of Haryana shows that the definition of Shamlat is both inclusive and exclusive. By inclusive it is meant that certain areas which have been described in the Act are included in the definition of Shamlat Deh while certain lands have excluded from the purview of Shamlat Deh. Explanation (i) to Section 2(g)(vi) says that the land which becomes or had become shamilat deh due to river action or has been reserved as shamilat in villages subject to river action except shamilat deh entered as pasture, pond or playground in the revenue records. 5. It is further contended that the revenue authorities had gone wrong in holding that the Gram Panchayat was the owner of the land on the basis of the mutation No. 219 which was sanctioned on 26.9.1993 on the basis of the order passed by the Addl. Director, Consolidation, Haryana holding that the Gram Panchayat was the owner of the land. 6. The Gram Panchayat-respondent No. 4 has filed written statement and the learned Counsel appearing for it has stated that the Addl. Director, Consolidations has passed an order under Sections 18 and 23 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 on 13.10.1992 and had held that the Gram Panchayat is the owner of the land and that this order has assumed finality since it was not challenged. Consequently, the petitioners had no claim on the land in question and the land is Shamlat Deh Charand land and has been reserved for the benefit of the community. 7. We have heard the learned Counsel for the parties and have perused the record. 8. Consequently, the petitioners had no claim on the land in question and the land is Shamlat Deh Charand land and has been reserved for the benefit of the community. 7. We have heard the learned Counsel for the parties and have perused the record. 8. The case of the petitioners throughout has been they are proprietors of the village and that the land was subjected to river action and was excluded from the purview of Section 2(g) of the Act. The Gram Panchayat, on the other hand, had based its claim on the order dated 13.10.1992 passed by the Director, Consolidation by which he had held that the land was Shamlat and was reserved as Charand for the benefit of the Panchayat. In short, the rights of the Panchayat are flowing from the order of the Addl. Director Consolidations dated 13.10.1992. 9. In Gram Panchayat Village Sidh v. Additional Director, Consolidation of Holdings, Punjab 1997(3) Recent Civil Reports 491 and Gram Panchayat Nurpur v. State of Punjab (1997-2)116 I.L.R. 694 (S.C.), it has been held "that the authorities constituted under the Act of 1948 had no jurisdiction to determine the question of title or in other words, as to whether the land belonged, to the Gram Panchayat under the provisions of the Act of 1961 or the proprietors of the village, such a question, it is the case of the petitioners, could be determined only by the authorities constituted under the Act of 1961". 10. The question whether any land vested in the Panchayat or in the proprietors of the Village can be gone into under the provisions of the Act only. Section 13-A categorically provides for adjudication of such disputes and the said section is reproduced as below: 13A. 10. The question whether any land vested in the Panchayat or in the proprietors of the Village can be gone into under the provisions of the Act only. Section 13-A categorically provides for adjudication of such disputes and the said section is reproduced as below: 13A. Adjudication.- (1) Any person or in the case of a Panchayat, either the Panchayat or its Gram Sachiv, the concerned Block Development and Panchayat Officer, Social Education and Panchayat Officer or any other officer duly vested or deemed to have been vested in the Panchayat under this Act, may file a suit for adjudication, whether such land or other immovable property or shamlat deh or not and whether any land or other immovable property or any right, title or interest therein vests or does not vest in the Panchayat under this Act, in the Court of the Collector, having jurisdiction in the area wherein such land or other immovable property is situated: Provided that no suit shall lie under this section in respect of the land of other immovable property, which is or has been the subject matter of the proceedings under Section 7 of this Act under which the question of title has been raised and decided or under adjudication. (2) The procedure for deciding the suits under Sub-section (1) shall be same as laid down in the Code of Code Procedure, 1908 (Act of 1908). We, therefore, have no hesitation to hold that the Director, Consolidation had no authority to decide the question whether the land was Shamlat Deh and vested in the Gram Panchayat or not. Consequently, the claim of the Gram Panchayat which was based primarily on the order dated 13.10.1992 passed by the Director Consolidation is unsustainable. 11 It was next contended by the learned Counsel for the petitioners that the land which was subject to river action did not come within the purview of Section 2(g) of the Act and, therefore, the Gram Panchayat could not have filed a petition under Section 7 qua this land unless the question of the land being Shamlat was determined. In Gram Panchayat Village Kat v. The Addl. Collector, Ambala and Ors. (1996-3)114 P.L.R. 100, it was observed by this Court "that the land which is subject to river action, cannot be treated as shamlat deh". In Gram Panchayat Village Kat v. The Addl. Collector, Ambala and Ors. (1996-3)114 P.L.R. 100, it was observed by this Court "that the land which is subject to river action, cannot be treated as shamlat deh". The petitioners in support of their case had also produced the relevant record in the shape of Wajab-ul-Arz and the copies of the jamabandis to show that the land in question is Burad Baramadgi. A perusal of the order of Asstt. Collector shows that there was a specific issue as to whether the land in dispute was shami-lat deh on account of the river action. But strangely none of the authorities below have referred to any evidence which has been adduced by the petitioners in support of their claim that the land was subject to river action and was, therefore, beyond the purview of Section 2(g) of the Act. Similarly, the Collector and the Commissioner have also not apprised this issue at all. 12. The petitioners have not brought on record any such documents before us which could persuade us to believe that the land is subject to river action. Be that as it may, in the interest of justice we feel that this was a matter which had to be appraised by the revenue authorities specifically when they were confronted with the relevant record and a specific issue in this regard has been framed which was "Whether the land in dispute is Shamlat Deh on account of river action. 13. We, therefore, deem it fit in the interest of justice to remand these cases back to the Asstt. Collector to determine on the basis of record as to whether the land was subject to river action and as a result thereof whether the land came within the ambit of Section 2(g) or not. The writ petitions are accordingly allowed and the matter is remanded back to the Asstt. Collector who shall proceed to determine the issue as aforesaid within a period of six months from the date of receipt of certified copy of the order.