Mehar Singh v. Gram Panchayat Sehjo Majra, Tehsil Samrala, District Ludhiana
2012-08-03
RAJIVE BHALLA, REKHA MITTAL
body2012
DigiLaw.ai
JUDGMENT : - RAJIVE BHALLA, J. The petitioners pray for issuance of a writ of certiorari for setting aside orders dated 14.06.2007 and 18.09.2009, passed by the Divisional Deputy Director, Rural Development & Panchayat-cum-Collector, Panchayat Lands, Jalandhar/Amritsar and the Director Village Development & Panchayat Department, Punjab, (exercising the powers of Commissioner) under Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as the 1961 Act'). Counsel for the petitioners contends that the land, in dispute, was created after applying a pro-rata cut on the holdings of proprietors but as it was not needed or earmarked for any common purpose, it is Bachat Land and has to be returned to proprietors. It is further contended that as the land, in dispute, was recorded as “Shamlat Deh Hasab Hissas Paimana Malkiat” and was in the possession of “Maqbooza Malkan” prior to consolidation, the land clearly belongs to proprietors and was, therefore, wrongly mutated in the name of the Gram Panchayat. It is further contended that vide order dated 15.07.1996, the Director Consolidation of Holdings, Punjab, has partitioned the land amongst proprietors and allocated it to them. The order has been upheld upto the Hon'ble Supreme Court. The mere fact that the Hon'ble Supreme Court granted liberty to the Gram Panchayat to seek adjudication of its title, under Section 11 of the 1961 Act, did not entitle authorities, under the 1961 Act, to ignore orders passed by consolidation authorities. It is further contended that orders passed by the Collector and the Appellate Authority are devoid of any reasons, much less reasons to support their conclusion that the land vests in the Gram Panchayat. It is also contended that as a mere mutation does not confer title, the mutation sanctioned during consolidation, cannot be the basis for a declaration that the land, in dispute, belongs to the Gram Panchayat. Counsel for the Gram Panchayat submits that as, admittedly, the land, in dispute, was Shamlat Deh Hasab Hissas Paimana Malkiat”, it came to vest in the Gram Panchayat under the Punjab Village Common Lands (Regulation) Act, 1953 (hereinafter referred to as the 1953 Act') and, thereafter, in accordance with the 1961 Act. The land was, therefore, rightly recorded as ownership of the Gram Panchayat.
The land was, therefore, rightly recorded as ownership of the Gram Panchayat. It is contended that as consolidation authorities had no jurisdiction to decide title, the Hon'ble Supreme Court granted liberty to the Gram Panchayat to file a petition under Section 11 of the 1961 Act. The petitioners have failed to prove that the land belongs to them or that it vests in them as proprietors under any of the exceptions carved out under Section 2(g) of the 1961 Act. We have heard counsel for the parties and perused the impugned orders. The petitioners, filed a petition under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter referred to as the 'Consolidation Act') praying that orders passed during consolidation should be corrected and “Shamlat Deh Hasab Hissas Paimana Malkiat” described as ownership of the Gram Panchayat, should be allotted to proprietors. The Additional Director Consolidation, vide order dated 15.07.1996, allowed the application and ordered partition of the land, in dispute, amongst proprietors. The Gram Panchayat filed CWP No.15306 of 1996 which was dismissed on 10.03.1997. The Gram Panchayat, thereafter, filed SLP (C) No.12487 of 1997, which was dismissed but with liberty to the Gram Panchayat to file a petition under Section 11 of the 1961 Act. A relevant extract from the said order, reads as follows: - “Upon hearing counsel the court made the following application for appointment of official translator is rejected. The Special Leave Petition is dismissed as the question which is now sought to be raised before us is that the land involved in this case is Shamlat Deh. Such a question can be decided only under the Punjab Village Common Lands (Regulation) Act, 1961 by the Collector. It will be, therefore, open to the petitioner-Gram Panchayat to approach the Collector to get the nature and title of land decided. If such an application is filed by the Panchayat within one month from today the Collector shall dispose of the same within a reasonable time and in accordance with law.” The Gram Panchayat, therefore, filed a petition under Section 11 of the 1961 Act for a declaration that the land, in dispute, belongs to the Gram Panchayat. The petitioners put in appearance and filed a reply. The Collector framed the following issues: - “1.
The petitioners put in appearance and filed a reply. The Collector framed the following issues: - “1. Whether the petitioner Gram Panchayat is entitled for the declaration to the effect that petitioner Gram Panchayat is the absolute owner in possession of the land in dispute? OIP 2. Whether the land in dispute belongs to the petitioner Gram Panchayat and the same vest in it, if so what effect? OPP 3. Whether the land in dispute is not shamlat deh as mentioned in Section 2(g) of the Punjab Village Common Land Act? OPR 4. Whether the land in dispute is utilised for the benefit of village community or a part thereof or for common purposes of village as alleged in the petition? OPP 5. Whether khasra numbers as mentioned in the para No.2 of the petition not reserved in scheme for charand or for the benefit of the village community? OPR 6. Whether the consolidation authorities have jurisdiction to adjudicate the matter in dispute under Sections 21 and 42 of the Consolidation Act? OPR 7. Whether this court has no jurisdiction to try and decide the petition? OPR 8. Whether the petitioner has no locus standi to file the present petition? OPR 9. Whether the petitioner has no cause of action to file the present petition? OPR 10. Whether the present petition is not maintainable in the present form? OPR 11. Whether the claim petition is time barred? OPR 12. Whether the petitioner becomes owner of land in dispute alternatively by way of adverse possession as alleged? OPP 13. Whether the land in dispute is Bachat land and belongs to the proprietors of the village Sehjomajra? OPR.” The Gram Panchayat and the petitioners led evidence. After perusal of the voluminous evidence led by the parties, the Collector held that as the land was Shamilat Deh prior to consolidation, it vests in the Gram Panchayat. The Collector also held that as the petitioners have failed to produce any evidence that the land, in dispute, was in their cultivating possession before 26.01.1950, their plea of ownership cannot be accepted. Aggrieved by this order, the petitioners filed an appeal which was dismissed by the learned Commissioner on 18.09.2009. The first argument raised by counsel for the petitioners is that the impugned orders are sketchy, non-speaking and do not meet the parameters of a quasi-judicial order. The argument, in our considered opinion, is not tenable.
Aggrieved by this order, the petitioners filed an appeal which was dismissed by the learned Commissioner on 18.09.2009. The first argument raised by counsel for the petitioners is that the impugned orders are sketchy, non-speaking and do not meet the parameters of a quasi-judicial order. The argument, in our considered opinion, is not tenable. The learned Collector has referred to the entire evidence, arguments addressed and only thereafter recorded his conclusion that as the land was recorded as Shamilat Deh, it vests in the Gram Panchayat. The Commissioner has upheld this finding after due consideration of the pleadings, the evidence and the arguments. The next contention that as a mutation does not confer title, the mere recording of a mutation by revenue authorities does not divest the petitioners of their title, cannot be accepted. The land, in dispute, was Shamilat Deh and came to vest in the Gram Panchayat under a statutory declaration contained in the 1953 Act, that land described as Shamilat Deh shall vest in the Gram Panchayat. The statutory declaration was to be reflected in the revenue record by way of a mutation as there is no other method whereby a statutory declaration of title can be reflected in the revenue record. The argument that as the Director Consolidation has held that the land does not belong to the Gram Panchayat and thereafter proceeded to partition the land amongst proprietors, this order could not be ignored by the Collector, cannot be accepted. Consolidation authorities, much less the Director, exercising power under Section 42 of the Consolidation Act, had no jurisdiction to decide whether land vests or does not vest in a Gram Panchayat. The only authority empowered to decide such a question is the Collector, exercising power under the 1961 Act. A reference in this regard may be made to judgments of the Hon'ble Supreme Court titled Gram Panchayat, Nurpur Versus State of Punjab, 1997(3) RCR (Civil) 47 (SC) and Gram Panchayat village Sidh Versus Additional Director Consolidation of Holdings, 1997(3) RCR (Civil) 491 (SC). Even otherwise and as referred to in the preceding part of this judgment, the Hon'ble Supreme Court granted liberty to the Gram Panchayat to seek adjudication of the question of title.
Even otherwise and as referred to in the preceding part of this judgment, the Hon'ble Supreme Court granted liberty to the Gram Panchayat to seek adjudication of the question of title. An argument that the land was created after applying a pro-rata cut on the holdings of proprietors but as it was not assigned any common purpose, it is Bachat Land, in our considered opinion, is entirely misconceived. The petitioners have not placed any material on record, much less before the Collector or the Commissioner to prove that the land, in dispute, was created during consolidation after applying a pro-rata cut on the holdings of proprietors. Even otherwise, land that is created after applying a pro-rata cut is recorded as Jumla Mushtarka Malkan whereas the land, in dispute, is admittedly Shamilat Deh, which negates the plea raised by the petitioners that the land, in dispute, was created after applying a pro-rata cut on the holdings of proprietors or is Bachat Land. Another argument that as the land is recorded as “Shamlat Deh Hasab Hissas Paimana Malkiat” and not Shamilat Deh, it continues to vest in proprietors, is legally flawed. After enactment of the 1953 Act, land described as Shamilat Deh came to vest in the Gram Panchayat. The ownership of proprietors stood extinguished and expression like “Hasab Hissas Paimana Malkiat” that followed the words “Shamilat Deh”, relevant before the 1953 Act as it denoted the manner of calculating shareholding of proprietors, were rendered irrelevant as Shamilat Deh vested in a Gram Panchayat. A reference in this regard may be made to Division Bench judgments in “Kashmir Singh and others V/s Joint Development Commissioner (IRD) Punjab, Chandigarh and others, 2006(1) LAR, 607 and “Sita Ram etc. V/s Gram Panchayat Ismaila etc.(CWP No.9368 of 2007) decided on 20.06.2007”. In view of what has been stated hereinabove, and as the land, in dispute, was Shamilat Deh, it vested in the Gram Panchayat upon enactment of the 1953 Act. The petitioners have failed to place their case within any of the exceptions set out in Section 2(g) of the 1961 Act. We, therefore, affirm orders passed by the Collector and the Commissioner and dismiss the writ petition, but with no order as to costs.