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2009 DIGILAW 1279 (PNJ)

Ram Rati v. State Of Haryana

2009-07-31

S.S.SARON

body2009
Judgment S.S.Saron, J. 1. The dispute in the case relates to land measuring 55 Kanals 9 Marias, as detailed in the head note of the impugned order dated 16.1.2006 (P-7) passed by the Collector, Panipat. 2. The Gram Panchayat of village Razapur (respondents) filed a petition under Section 7(2) of the Punjab Village Common Lands (Regulation) Act 1961 (as applicable in Haryana) (1961 Act - for short), seeking eviction of the petitioners from the said land measuring 55 Kanals 9 Marias. An order of ejectment dated 16.1.2006 (P-7) has been passed by the Assistant Collector 1st Grade, Panipat holding that the land was given on lease in the years 1973- 74 and 1974-75. Besides, the said land was also given on lease in the year 2000. Therefore, it was clear that it was being utilized for common purposes. The said order dated 16.1.2006 (P-7) has been upheld in appeal in terms of order dated 28.5.2008 (P-ll) passed by the Collector, Panipat. It was observed that in the column relating to payment of revenue in the Jamaban- dies for the years 1973-74 to 1993-1994, which were available on the file, Bhartu, the predecessor-in-interest of the petitioners had been shown in cultivating possession of the land on payment of Rs. 54,000/- -Bil Mukta Saal Tamaam-. Therefore, it was observed that the land despite being Mushtarka Malkan, was being given on lease by the Gram Panchayat (respondent-4) and with the lease amount, development of the village was being undertaken. In this way, it was observed that the land in question was being used for common purposes. 3. Learned senior counsel for the petitioners has referred to the Jamabandies for the years 1973-74, 1983-84, 1988-89, 1993-94 and 1998-99. It is submitted that in the jamabandies for the years 1973-74 to 1993-94 in column 4 relating to the name of the owner, -Jumla Mushtarka Malkan Va Haqdaran Deh Hasab Rasad Rakba- is recorded as the owner. It is only in the jamabandi for the year 1988-89 that Gram Panchayat came to be recorded as owner which, it is stated, was recorded as such in view of Act -No. 9 of 1992 passed by the Haryana State. The said Act was subject matter of consideration in the case of Jai Singh v. State of Haryana, (2003-2) PLR 658 and directions were inter alia issued to enter the mutation in the name of the previous owner. The said Act was subject matter of consideration in the case of Jai Singh v. State of Haryana, (2003-2) PLR 658 and directions were inter alia issued to enter the mutation in the name of the previous owner. In consequence of the said directions, mutation 1736 (P-6) was entered and sanctioned on 4.1.2006 from the ownership of the Gram Panchayat to that of the Jumla Mushtarka Malkan Va Haqdaran Hasab Rasad Rakba. Therefore, it is submitted that the land does not vest in the Gram Panchayat and this question was liable to be decided. It is also submitted that insofar as the auctions are concerned, the petitioners had filed a petition under Section 10-A of the 1961 Act for cancellation of the auction which was allowed vide order dated 22.6.2000 (P-4). The successful auctioneer - Ashok Kumar son of Kishan Chand filed an appeal against the said order which was dismissed by the Collector Panipat on 28.8,2000 (P-5). Therefore, it is submitted that the Gram Panchayat has no right to the land. 4. In response, learned counsel for the Grain Panchayat (respondent-4) has submitted that the land vested in the Grain. Panchayat and the Full Bench in Jai Singh-s case (supra) had held that the petitioners cannot be dispossessed except in due course of law. Therefore, the Gram Panchayat is taking legal steps to evict the petitioners. It is submitted that the lease deed register for the year 1973-74 and 1974-75 would show that the land was given on lease by the Gram Panchayat. It is also submitted that Bhartu, the predecessor-in- interest of the petitioner has been shown in cultivating possession of the land in question on the basis of Rs. 54,000/- -Bill Mukta Saal Tamaam- in all the Jamabandies. Therefore, the petitioners are liable to be evicted and the application under Section 7(2) of the Gram Panchayat has rightly been allowed. 5. After giving my thoughtful consideration to the matter, i.t may be noticed that in respect of land measuring 55 Kanals 9 Marias which is in dispute and detailed in the head note of the order dated 16.1.2006 (P-7), the same in the Jamabandies for the years 1913-74, 1978-79, 1983-84, 1988-89 and 1993-94 is recorded as the ownership of -Jumla Mushtarka Malkan Va Haqdaran Deh Hasab Rasad Rakba-. It is in the Jamabaidi for the year 1993-94 that the Gram Panchayat (respondent-4) is recorded as owner. It is in the Jamabaidi for the year 1993-94 that the Gram Panchayat (respondent-4) is recorded as owner. However, in all these Jamabandies, Bhartu, the predecessor-in-interest of the petitioners is recorded as owner and in the column of rent, it is recorded as -Lagaan Bill Mukta Saal Tamaam Rs. 54,000/-. It is not in dispute that the land was mutated in favour of the Gram Panchayat in pursuance of Act No. 9 of 1992. The said Act was subject matter of the decision of the Full Bench of this Court in Jai Singh-s case (supra). The Full Bench, after considering the provisions of the Act No. 9 of 1992, concluded as follows - "i) sub-section (6) of Section 2(g) of the Punjab Village Common Lands (Regulation) Act, 1961 and the explanation appended thereto, is only an elucidation of the existing provisions of the said Act read with provisions contained in the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948; ii) the un-amended provisions of the Act of 1961 and, in particular, Section 2(g)(1) read with Sections 18 and 23-A of the Act of 1948 and Rule 16(H) of the Rules of 1949 cover all such lands which have been specifically earmarked in a consolidation scheme prepared under Section 14 read with Rules 5 and 7 and confirmed under Section 20, which -has been implemented under the provisions of Section 24 and no other lands; iii) the lands which have been contributed by the proprietors on the basis of pro-rata cut on their holdings imposed during the consolidation proceedings and which have not been earmarked for any common purposes in the consolidation scheme prepared under Section 14 read with Rules 5 and 7 and entered in the column of ownership as Jumla Mustarka Malkan Wa Digkr Haqdaran Hasab Rasad Arazi Khewat and in the column of possession with the proprietors, shall not vest with the Gram Panchayat or the State Government, as the case may be, on the dint of sub-Section (6) of Section 2(g) and the explanation appended thereto or any other provisions of the Act of 1961 or the Act of 1948." 6. It may be noticed that Section 2(g) of the 1961 Act defines -Shamlat deh-. In terms thereof, -Shamlat deh- includes lands included in Clauses (1) to (6) therein but does not include those mentioned in Clauses (i) to (ix). It may be noticed that Section 2(g) of the 1961 Act defines -Shamlat deh-. In terms thereof, -Shamlat deh- includes lands included in Clauses (1) to (6) therein but does not include those mentioned in Clauses (i) to (ix). Sub- Section (6) of Section 2(g) of the 1961 Act which is relevant for the present case was added by Act No. 9 of 1992. The same reads as under -- "2(g)(6) Lands reserved for the common purposes of a village under Section 18 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (East Punjab Act 50 of 1948), the management and control whereof vests in the Gram Panchayat under Section 23-A of the aforesaid Act. Explanation -- Lands entered in the column of ownership of record of rights as-Jumla Malkan Wa Digar Haqdaran Arazi Hassab Rassad-, shall be shamlat deh within the meaning of this section." 7. The explanation to Sub-Section (6) to Section 2(g) of the 1961 provides that lands entered in the column of ownership of record of rights as -Jumla Malkan Wa Digar Haqdaran Arazi Hasab Rasad,- shall be -shamlat deh- within the meaning of Section 2(g) of the 1961 Act. 8. It was held by the Full Bench that Sub-section (6) of Section 2(g) of the 1961 Act and the explanation appended thereto was only an elucidation of the existing provisions of the said Act read with the provisions contained in the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act 1948 (1948 Act - for short). After holding the same to be an elucidation, it was directed as follows -- "Insofar as all other cases are concerned, same shall stand disposed of in light of law laid down by us. After holding the same to be an elucidation, it was directed as follows -- "Insofar as all other cases are concerned, same shall stand disposed of in light of law laid down by us. Resultantly, if the mutations might have come into being on the dint of Act No. 9 of 1992 challenged herein in favour of the State or Gram Panchayat, the said mutations shall stand cancelled or set aside leaving (it) open for the Gram Panchayat to file an-application for eviction under Section 7 or title suit under Section 13-A, as the case may be, if the lands are such which have since been earmarked for common purposes under the scheme and the proprietors are in unauthorized occupation and, the proprietors to file a title suit in case the lands are such which form part of Bachat land, having not been earmarked for any common purpose in the scheme of consolidation and yet the Gram Panchayat is asserting its title or is in possession thereof." 9. Therefore, the matter was left open for the Gram Panchayats to file applications for eviction under Section 7 or title suit under Section 13-A of the 1961 Act as the case may be if the lands are such which have since been earmarked for common purposes under the scheme and the proprietors are in un- authorised occupation. It is in view of the aforesaid Full Bench decision that the mutation 1736 (P-6) entered in favour of the Gram Panchayat (respondent-4) was re-entered in the name of Jumla Mushtarka Malkan Va Haqdaran Deh Hasab Rasad Rakba. Bhartu - the predecessor- in-interest of the petitioners had also filed C.W.P. 7627 of 1992 in this Court which was disposed of on 13.3.2003 (P-3) along with the Full Bench decision in Jai Singh-s case (supra). 10. On the basis of the entries in the revenue records which are there in favour of -Jumla Mushtarka Malkan Wa Digar Haqdaran Arazi Hasab Rasad,- it would mean that the land is the ownership of the proprietors of the village Abadi according to their share holding in the revenue estate. The Sand on the basis of such entries would not be the land which would fall within the definition of -shamlat deh,- as contained in Section 2(g) of the Act. The Sand on the basis of such entries would not be the land which would fall within the definition of -shamlat deh,- as contained in Section 2(g) of the Act. For the lands to vest in the Panchayat, the land should be such which comes within the ambit of - shamlat deh,- as defined in Section 2(g) of the 1961 Act. However, the land which is recorded in the record of rights as -Jumla Malkan Wa Digar Haqdaran Arazi Hasab Rasad-, -Jumla Malkan- or -Mushtarka Malkan- would be -Shamlat Deh- if it is in terms of the consolidation scheme or is otherwise reserved for common purposes of a village under Section 18 of the 1948 Act. The management and control of lands reserved for common purposes during consolidation proceedings vests in the Gram Panchayat under Section 23-A of the 1948 Act. It, therefore, follows that lands which are recorded in the record of rights as -Jumla Malkan Wa Digar Haqdaran Arazi Hasab Rasad-, -Jumla Malkan- or -Mushtarka Malkan- and have not been reserved for common purposes in the consolidation proceedings would not vest in the Gram Panchayat. Nothing has been placed on record to show that the land in the present case, which is recorded in the record of rights as -Jumla Malkan Wa Digar Haqdaran Arazi Hasab Rasad Rakba- was during consolidation reserved for common purposes in terms of Section 1, 8 of the 1948 Act. As such, the land in the present case from the material on record would not vest in the Gram Panchayat of village Razapur (respondent-4). Besides, the mere fact that it is recorded in the column of rent that Bhartu is in occupation on Lagaan Bill Mukta Saal Tarnaam Rs. 54,000/-, would not mean that the Gram Panchayat has become owner of the land. In fact, this is even recorded in the earlier Jamabandies for the years 1973-74, 1978-79, 1983-84, 1988-89 and 1993-94; when the land is recorded in, the column of ownership as -Jumla Malkan Wa Digar Haqdaran Arazi Hasab Rasad-. These entries are there before the land was entered in favour of the Gram Panchayat. Therefore, on the basis of such entries, it cannot be held that because the land was recorded as Lagaan Bill Mukta Saal Tarnaam Rs. 54,000/-. it would vest in the Gram Panchayat. These entries are there before the land was entered in favour of the Gram Panchayat. Therefore, on the basis of such entries, it cannot be held that because the land was recorded as Lagaan Bill Mukta Saal Tarnaam Rs. 54,000/-. it would vest in the Gram Panchayat. The fact that the land was auctioned by the Gram Panchayat is also inconsequential as it was auctioned during the time the Gram Panchayat was recorded as owner in the revenue records. Infact the auction that was held in favour of Ashok Kumar was cancelled by the Assistant Collector Ist Grade, Panipat on a petition filed by the petitioners under Section 10-A of the Act vide order dated 22.6.2000 (P-4). The appeal of Ashok Kumar against the said order was dismissed, vide order dated 28.8.2000 (P-5) passed by the Collector. Therefore, in view of the Full Bench decision if the Gram Panchayat is to claim any right or possession of the land, it is to assert the same by showing it to vest in the Gram Panchayat on the basis of the revenue records and also by showing that the land falls or at some stage fell within the definition of -Shamlat Deh.- It cannot, on the basis of mere fact that it had auctioned the land for some time or that in the column of rent, it was recorded as -Lagaan Bill Mukta Saal Tarnaam Rs. 54,000/- confer the title of ownership although it may amount to and even establish relationship of lessor and lessee between the two. Consequently, the writ petition is allowed, the impugned orders dated 16.1.2006 (P-7) and 28.5.2008 (P-11) passed by the Assistant Collector Ist Grade, Panipat and the Collector Panipat, respectively, shall stand quashed. However, the quashing of the said order shall not preclude the Gram Panchayat (respondent-4) to file a petition on the basis of their claim to title to be determined on the basis of the revenue records and to show that the land falls within the definition of - Shamlat Deh- in terms of Section 2(g) of the 1961 Act.