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2010 DIGILAW 458 (PNJ)

Brij Mohan v. State Of Punjab

2010-01-19

RAJIVE BHALLA

body2010
Judgment Rajive Bhalla, J. 1. This order shall dispose of C.W.P. Nos. 3330, 686 of 2004, C.W.P. Nos. 2936, 5114,9683, 9670,9640,4130,4419, 4108, 9657. 4116,4117 of 2008 as they involve adjudication of identical points. For the sake of convenience, facts are being taken from CWP No. 2936 of 2008. 2. Challenge in this writ petition is to an order dated 27.07.2007, passed by the Director, Rural Development and Panchayat, Punjab, exercising the powers of the Commissioner under the Punjab Village Common Lands (Regulation) Act, 1961, reversing the order dated 27.11.2002, passed by the Collector, Ferozepur. 3. The petitioner filed an application under Section 11 of the Punjab Village Common Lands (Regulation) Act, 1961, before the Collector, praying for a declaration that the land does not vest in the Gram Panchayat. The petitioner alleged that before him his forefathers and thereafter the petitioner is in continuous occupation as owner, of the land in dispute. The Gram Panchayat, opposed the petition by assorting that the land is Shamilat Deh and, therefore, vests in the Gram Panchayat in view of the provisions of the Punjab Village Common Lands (Regulation) Act, 1953 (hereinafter referred to as the 1953 Act) and the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as the 1961 Act). 4. The Collector, by placing reliance upon the jamabandi for the year 1940-41 and an entry in the jamabandi for the year 1974-75 declared that the petitioner is the owner of the disputed land as he has proved his established possession for the last 60 years. 5. Aggrieved by the aforementioned order, the Gram Panchayat filed an appeal. The Director, Panchayats, Punjab, exercising the powers of the Commissioner, under the 1961 Act, accepted the appeal, set aside the order passed by the Collector and rejected the application by holding that the jamabandis from the years 1974-75 to 1994- 95 record the Gram Panchayat as owner of the land in dispute and the mere fact that the petitioner is recorded in possession would not divest the Gram Panchayat of its proprietary rights. 6. Counsel for the petitioner submits that the revenue record describes the land as "Shamilat Deh Hasad Rasad Paimana Malkiat". The jamabandi for the year 1940-41 records the petitioners predecessors in possession. 6. Counsel for the petitioner submits that the revenue record describes the land as "Shamilat Deh Hasad Rasad Paimana Malkiat". The jamabandi for the year 1940-41 records the petitioners predecessors in possession. The revenue record from 1940-41 upto 1974-75 is missing, but as the jamabandis from the year 1974-75 onwards record the petitioner in possession as "Gair Marusi Bila Lagan" a presumption of continuous possession from 1940-41, arises in favour of the petitioners ownership. Counsel for the petitioner further submits that Section 2(g)(5)(iii) and Section 4(3)(ii) of the 1961 Act exclude the land in dispute from the expression "Shamilat Deh". The Commissioner, therefore, erred while holding that the Gram Panchayat is owner of the land in dispute. It is further argued that similarly situated proprietors of the village filed a civil suit claiming ownership of shamlat land on the basis of apartition dated 19.04.1925. The suit was decided in favour of the proprietors pursuant to a judgment of this Court recorded in Regular Second Appeal No. 265 of 1959 Mam Raj and others V/s. Gram Panchayat, Chuhriwala Dhanna and others. The land in dispute, relates to the property, which was subject-matter of the suit and, therefore, belongs to the petitioner. 7. Counsel for the respondent, on the other hand, submits that as the land in dispute is described as "Shamilat Deh" it vests in the Gram Panchayat. The petitioner has failed to establish his ownerhip by proving that the land as required by Section 2(g)(v)(iii) of the 1961 Act, was partitioned and brought under individual cultivation by his predecessors or by the petitioner before 26.01.1950. In addition, the petitioner has failed to satisfy the ingredients of Section 4(3 )(ii) as he has not produced any evidence to satisfy the tests set out in this provision. It is further argued that the jamabandi for the year 1940-41 and the jamabandi for the year 1974-75 bear different khasra numbers. In the absence of any evidence to establish that the land referred to in these jamabandis is the same, the petitioners claim of ownership was rightly rejected. The entry in the revenue record that the petitioner is in possession as "Gair Marusi Bila Lagan" clearly establishes that the petitioner is in unauthorised occupation. Even otherwise this entry appears for the first time in the year 1974-75. The entry in the revenue record that the petitioner is in possession as "Gair Marusi Bila Lagan" clearly establishes that the petitioner is in unauthorised occupation. Even otherwise this entry appears for the first time in the year 1974-75. The petitioner, therefore, cannot claim possession prior thereto or before the coming into force of the 1953 orthe 1961 Act. It is further submitted that the Gram Panchayat has filed a petition under Section 7 of the Act, which is also pending adjudication. 8. I have heard counsel for the parties, perused the impugned order and do not find any reason to hold that the order passed by the Commissioner suffers from any error as would require interference. 9. Prior to the enactment of the 1953 Act, the common land of a village was recorded as "Shamilat Deh" and proprietary and possessory rights vested in the proprietors in proportion with their proprietary holdings or in accordance with the land revenue paid by a proprietor. The expressions used to describe common land were "Shamilat Deh Hasab Rasad Zair Khewat", "Shamilat Deh Hasad Rasad Paimana Malkiat". However, with the enactment of the 1953 Act the proprietary and possessory rights of proprietors, in common land, came to vest in the Gram Panchayat or where there was no panchayat for a particular village in the Panchayat having jurisdiction over the village. The 1953 Act, however, did not set out a comprehensive definition of the expression "Shamilat Deh" and was repealed and was replaced by the 1961 Act. Section 2(g) of the 1961 Act defines " Shamilat Deh", as follows :- 2Kg) "shamilat deh includes - (1) lands described in the revenue records as shamilat deh excluding abadi deh. The 1953 Act, however, did not set out a comprehensive definition of the expression "Shamilat Deh" and was repealed and was replaced by the 1961 Act. Section 2(g) of the 1961 Act defines " Shamilat Deh", as follows :- 2Kg) "shamilat deh includes - (1) lands 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 the village; (4) lands used or reserved for the benefit of the village community including streets, lanes, playgrounds, school, drinking wells, or ponds within abadi deh or gorah 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 displaced persons; 2[(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 the 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 share of the cosharer in the shamilat deh. (v) is described in the revenue records as Shamilat, Taraf, Patti Pannas and Thola and not used; according to revenue records for the benefit of the village community or a part thereof or for common purposes of the village. [(vi) lies outside the abadi deh and was being used as gitwar, bara, manure pit, house or for cottage industry, immediately before the commencement of this Act]. [(vi) lies outside the abadi deh and was being used as gitwar, bara, manure pit, house or for cottage industry, immediately before the commencement of this Act]. (Vii) [***] (viii) was Shamilat deh was assessed to and 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]. Section 3 of the Act reads as follows :- Lands to which this Act applies - (1) This act shall apply and before the commencement of this Act the Shamilat Law shall be deemed always to have applied to all lands which are Shamilat deh as defined in clause(g) of section 2. Section 3 of the Act reads as follows :- Lands to which this Act applies - (1) This act shall apply and before the commencement of this Act the Shamilat Law shall be deemed always to have applied to all lands which are Shamilat deh as defined in clause(g) of section 2. (2) Notwithstanding, anything contained in sub section (1) of section 4 - (i) where any land vested in the Panchayat under the shamilat law, but such land has been excluded from Shamilat deh under clause (g) of Section 2, other than the land so excluded under sub-clause (ii-a) of that clause, all rights, title and interest of the Panchayat in such land as from the commencement of the Punjab Village Common Lands (Regulation) Amendment Act, 1995 shall cease and all such rights, title and interest shall vest in the person or persons in whom they were vested, immediately before the commencement of the Shamilat law; (ii) where any land has vested in a Panchayat under this Act, but such land has been excluded from shamilat deh under sub-clause (ii-a) of clause(g) of Section 2, all rights, title and interest of the Panchayat in such land, as from the commencement of the Panchayat Village Common Lands (Regulation) Amendment Act, 1995, shall, cease, and all such rights, title and interest shall on or before the 9th day of July, 1985, revest in the person or persons to whom the land so excluded has been allotted or otherwise transferred by sale or by any other manner whatsoever, subject to the condition that - (a) any sum of money realised by the Rehabilitation Department of the Government of Punjab as a result of allotment or transfer of such land shall along with interest at the rate of three per cent payable from the date of such allotment or transfer; or (b) where no money was realisable by the Rehabilitation Department of the Government of Punjab as a result of allotment or transfer of such land, the amount of compensation in respect of such land as determined by the Collector of the District in which such a land is situated along with interest at the rate of three per cent payable from the date of allotment or transfer, as the case may be; shall be paid by the Rehabilitation Department of the Government of Punjab to the Department of Rural Development and Panchayats for onward disbursement to the Panchayat to which such shamilat deh belonged. 3. As soon as may be, on the commencement of the Punjab Village Common Lands (Regulation) Amendment Act, 1995 the Department of Rural Development and Panchayats shall make a reference to the Collector of the District to determine the amount of compensation under sub-clause (b) of clause (ii) of sub-section (2) and the Collector of the District shall, keeping in view the market value of the shamilat deh at the time it was allotted or transferred determine the amount of compensation. A perusal of Section 3 and the definition of the expression "Shamilat Deh" as set out in Section 2(g) leaves no ambiguity as to legislative intent that where land is described as "Shamilat Deh" and does not fall within the exceptions enacted in Section 2(g), the land would vest in a Gram Panchayat free from the possessory and proprietary rights of the proprietors. The expressions "Hasad Rasad Zair Khewat" and "Hasad Rasad PamianaMalkiat" etc. are superfluous and irrelevant as they merely refer to the extent of share holding of proprietors. 10. Section 2(g) (v)(iii) enacts a number of exceptions that protect certain varieties of common land from their vesting in a Gram Panchayat. One such exception is enacted by Section 2(g)(v) (iii) of the Act, which postulates that land which has been partitioned and brought under cultivation by individual land owners before 26.01.1950 shall not vest in the Gram Panchayat. A landowner claiming the benefit of this exception shall, before he succeeds be required to establish, his individual cultivating possession, of a partitioned portion of the Shamilat land prior to 26.1.1950. The petitioner claims that prior to 26.01.1950 his predecessors and thereafter the petitioner is in possession. 11. If A perusal of the pleadings, the evidence and the material placed on record, discloses the absence of any evidence to hold that the land in dispute was partitioned or brought under the cultivating possession of individual land holders prior to 26.01.1950, much less the petitioners predecessors. The jamabandi for the year 1940- 41 does not record the individual cultivating possession of the petitioner or his predecessors but in fact records that the land is the joint property of the co-sharers. In addition, the khasra numbers in this jabamandi differ from the khasra numbers in the jamabandi for the year 1974-75. The jamabandi for the year 1940- 41 does not record the individual cultivating possession of the petitioner or his predecessors but in fact records that the land is the joint property of the co-sharers. In addition, the khasra numbers in this jabamandi differ from the khasra numbers in the jamabandi for the year 1974-75. It would also be necessary to mention here that the jamabandi for the year 1940-41 describes the land in dispute as "Shamilat Deh Hasad Rasad Pamiana Malkiat" i.e. the ownership of the proprietors in accordance with their holding in the revenue estate. The petitioners predecessors Mam Raj and Lachman are recorded as cosharers in equal shares of land detailed in column 7 of the jamabandi. Even if one were to accept that the jamabandi for the year 1940-41 pertains to the land in dispute, the petitioners case must fail for the absence of any evidence of partition and individual cultivating possession of the petitioner or his predecessors. 12. Another argument pressed into service by counsel for the petitioner is based upon the pro- visions of Section 4(3)(ii) of the Act, which reads as follows :- 4. Vesting of rights in Panchayat and non-pro- prietors :- (3) XX XX XX (i)XX XX XX (ii) Rights of persons in cultivating possession of shamilat deh, for more than twelve years [immediately preceding the commencement of this Act] without payment of rent or by payment of charges not exceeding the land revenue and cesses payable thereon." (iii) XX XX XX A perusal of this provision clearly establishes that persons in cultivating possession of Shamilat Deh for more than twelve years preceding the commencement of this Act, without payment of rent or by payment of charges not exceeding land revenue shall not be affected by anything contained in Clasue (a) in-sub-section (1) and sub- section (2) of Section 4 of the Act. Section 4 of the Act bears the title "Vesting of rights in Panchayat and non- proprietors". In the absence of any evidence that the petitioner or his predecessors were in continuous possession of the land in dispute for more than twelve years before the enactment of the 1961 Act or the 1953 Act the petitioner cannot press Section 4(3)(ii) of the 1961 Act into service. In the absence of any evidence that the petitioner or his predecessors were in continuous possession of the land in dispute for more than twelve years before the enactment of the 1961 Act or the 1953 Act the petitioner cannot press Section 4(3)(ii) of the 1961 Act into service. It would require mention that the jamabandis between 1940-41 and 1974- 75 have not been produced on the plea that the record is not available. The petitioners name figures, for the first time, in the jamabandi for the year 1974-75 and then also as Gair Marusi Bila Lagan an expression that denotes a person in possession under the landlord and nothing more. By no stretch of imagination can this expression be said to fulfil the ingredients of Section 4(3)(ii) of the Act. 13. Another argument pressed into service by counsel for the petitioner is based upon the decision in Regular Second Appeal No. 265 of 1959, wherein this court in its judgment dated 12.08.1968 has held that Shamilat Deh of this village vests in the proprietors. The petitioner could have derived benefit from this judgment if he had established that the land in the appeal is the same as the land in the present case. In the absence of any such evidence, the above judgment cannot be pressed into service. As a consequence, the writ petitions are dismissed with no orders as to costs. C. W.P Nos. 686 of 2004 and 3330 of 2004 14. By way of these petitions, the petitioners herein challenge orders directing their eviction and the dismissal of their appeal pursuant to proceedings initiated under Section 7 of the 1961 Act. In view of the dismissal of the writ petitions relating to the question of title, the findings recorded by the Collector and the Commissioner holding that the petitioners are in unauthorised occupation of the land in dispute are affirmed and the writ petitions are dismissed, with no order as to costs.