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2011 DIGILAW 338 (PNJ)

Balbir Singh v. Gram Panchayat, Atta

2011-01-27

HEMANT GUPTA

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JUDGMENT Mr. Hemant Gupta, J.: - Challenge in the present writ petition is to an order dated 18.06.1985, whereby a petition filed by the petitioners under Section 42 of the East Punjab Holdings (Consolidation & Prevention Fragmentation) Act, 1948 (hereinafter referred to as ‘the Act’), was dismissed. 2. It is pleaded by the petitioners that the consolidation of holdings of Village Atta became final vide notification dated 29.11.1951 and that the petitioners are the land-owners of Village Atta, Tehsil Phillaur, District Jalandhar. It is pointed out that the land measuring 35 Kanals 8 Marlas, as detailed in the jamabandi for the year 1980-81was found surplus to the needs of common purposes set out in the Consolidation Scheme, therefore, the said land is to be divided amongst the proprietors of the Village. It is the case of the petitioners that the land in dispute neither vests in the Gram Panchayat nor falls in the Notified Area, but it vests in the proprietors of the Village and, therefore, it has to be divided amongst them. A portion of the land has been wrongly kept as Shamlat Deh-Hasab Rasad Khewat and that such entry is contrary to the Consolidation Scheme, therefore, the aforesaid land is to be partitioned amongst the proprietors. 3. The learned Additional Director, Consolidation of Holdings, Punjab, Jalandhar, dismissed the petition filed by the petitioners under Section 42 of the Act, inter alia, holding that the land has been transferred in favour of the Notified Area Committee Goraya and the remaining land measuring 12½ killas has been utilized for extension of abadi i.e. for raising residential colony for the landless and houseless Harijans, whereas the remaining land is required to be kept as such for utilizing the same for common purposes i.e. dharamshalas, playing grounds for children etc. Thus, the land should not be partitioned. 4. Learned counsel for the petitioners has vehemently argued that 343 Kanals 14 Marlas was the area of shamlat deh before the Scheme of Consolidation was framed, but in the scheme it was contemplated that if any area of shamlat patti is left after fulfilling the requirements of the common purposes, it should be partitioned amongst the owners in proportion of shares cited as in Jamabandi. Since land measuring 35 Kanals 8 Marlas has not been utilized, therefore, such land is available for partition amongst the village proprietors. 5. Since land measuring 35 Kanals 8 Marlas has not been utilized, therefore, such land is available for partition amongst the village proprietors. 5. It is the stand of the respondents in the written-statement filed that similar application filed by one Gurmit Singh son of Sarwan Singh was dismissed by the Additional Director of Consolidation of Holdings on 15.12.1979. Therefore, the petitioners cannot be permitted to re-agitate the issue again by filing another petition under Section 42 of the Act. It is pointed out that the land vests in Gram Panchayat under the Punjab Village Common Lands (Regulation) Act, 1961. 6. The operative of the Consolidation Scheme (Annexure P-1) reads as under: “IX. Partition of Shamlat Deh & other joint Khatas: (a) xxx xxx xxx (b) The total area of Shamlat Deh is 343 K. 11 M. out of which 338 K. 8 M. shall be kept under the right holders as before and remaining 5 K. 3 M. shall be utilized for the under noted common purposes. Out of the Shamlat Patties, the area which is under occupancy tenants, revenue payees and Sanjhiders shall be retained as before, and the remaining area shall be proportionately included in the Shamlat for common purposes. In case any area of Shamlat Patti is left after fulfilling the requirements of the under noted common purposes, it shall be partitioned amongst the owners in proportion of shares cited as in jamabandi and in case nothing is left or there is shortage, it shall be taken proportionately from all the owners and shall be kept joint for under noted common purposes.” 7. The Consolidation Scheme (Annexure P-1) deals with shamlat deh and shamlat patti land. The shamlat deh measuring 343 Kanals 11 Marlas was in existence even prior to consolidation. The said land vested with Panchayat on commencement of Shamlat Law i.e. The Punjab Village Common Lands (Regulation) Act, 1961. Since the land was already described as shamlat deh, the same vests with Panchayat. Reference may be made to Shiv Charan Singh and others Vs. Gram Panchayat, Narike, AIR 1974 (P&H) 283 wherein it is held that: “6. If the land is shown in revenue records as shamlat deh, it is not necessary to prove that it is being used for the common purposes of the village or for the benefit of the village community. The shamlat land automatically vests in the Gram Panchayat. Gram Panchayat, Narike, AIR 1974 (P&H) 283 wherein it is held that: “6. If the land is shown in revenue records as shamlat deh, it is not necessary to prove that it is being used for the common purposes of the village or for the benefit of the village community. The shamlat land automatically vests in the Gram Panchayat. For the aforesaid reasons, in my view, the land has vested in the Gram Panchayat and the mutation has been correctly attested in its name.” The aforesaid judgment has been followed in Zail Singh and others Vs. The State of Punjab and others 1996 (3) PLR 458. In another recent judgment reported as Rajinder Singh Vs. Director, Rural Development and Panchayat 2010(3) R.C.R. (Civil) 802, this Court held that: “6. A perusal of the above shows that ‘shamlat deh’ land in terms of Section 2 (g) of the 1961 Act includes land described in the revenue records as ‘shamlat deh’ but excluding ‘abadi deh’. Therefore, if the land in the revenue records is described or mentioned as ‘shamlat deh’ it is shamlat deh. Land which is shamlat deh vests in the Panchayat in terms of Section 4 of the 1961 Act. Section 4 provides for vesting of right in Panchayat and non-proprietors. It is provided therein that notwithstanding anything to the contrary contained in any other law for the time being in force or any agreement, instrument, custom or usage or any decree or order of any Court or other authority, all rights, title and interest whatever in the land which is included in the shamlat deh of any village and which has not vested in a Panchayat under the shamlat law shall at the commencement of the 1961 Act vest in the Panchayat constituted for such village and where no such Panchayat has been constituted for such village, vest in Panchayat on such date as the Panchayat having jurisdiction over that village is constituted. Therefore, the contention of the learned counsel for the petitioners that the land does not at all vest in the Panchayat is devoid of any merit as land which of Section 2(g) of the 1961 and such land vests in the Panchayat in terms of Section 4 thereof. 10. ….. Therefore, the contention of the learned counsel for the petitioners that the land does not at all vest in the Panchayat is devoid of any merit as land which of Section 2(g) of the 1961 and such land vests in the Panchayat in terms of Section 4 thereof. 10. ….. The land which is recorded in the revenue record as shamlat deh is shamlat deh and exception as sought to be carved out by the counsel for the petitioner is not shown to be there from any provision of the 1961 Act or other law. Therefore, such land cannot be said to be excluded from the definition of ‘shamlat deh’.” 8. Thus, the petitioners even as proprietors of the village have no right to seek partition of the said land, as the land was not taken during Consolidation Scheme by applying pro-rata cut. It is the land of shamlat patti, which was included in shamlat for common purposes while preparing consolidation scheme. 9. In view of the above, I do not find any merit in the present writ petition. The same is dismissed. -----------0.N.K.0-----------