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2012 DIGILAW 1093 (PNJ)

Roshni v. Commissioner, Rohtak Division

2012-08-21

RAJIVE BHALLA, REKHA MITTAL

body2012
Judgment 1. By way of this order, we shall dispose of CWP Nos.9257, 9371, 10236 of 2010, 3903, 4246, 4260 and 4994 of 2010 as they involve adjudication of common questions of fact and law. Facts necessary for adjudication are being taken from CWP No.3903 of 2010. 2. The petitioners pray for issuance of a writ of certiorari for quashing orders dated 25.06.2008, 25.02.2009 and 11.12.2009, passed by the Assistant Collector, Ist Grade, Panipat, the Collector, Panipat and the Commissioner, Rohtak Division, Rohtak, respectively, and to restrain the respondents from implementing these orders. 3. The dispute, in the present case, pertains to proprietary and possessory rights in the land, in dispute. The Gram Panchayat, Village Urlana Khurd, District Panipat, claims that the land, in dispute, was reserved during consolidation for the village Panchayat and other common purposes of the village as Jumla Mushtarka Malkan, whereas the petitioners, claim that the land was not so reserved and, therefore, belongs to proprietors. 4. The Gram Panchayat filed a petition under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (as applicable to the State of Haryana) (hereinafter referred to as the 1961 Act') for eviction of the petitioners from the land, in dispute. The petitioners filed a reply inter-alia raising objection that as two earlier applications filed by the Gram Panchayat have been dismissed, the application should be rejected, summarily. The petitioners also pleaded that as they are in cultivating possession of the land since 1961 as per the jamabandi for the year 1961-62, the question of title so raised should be decided before proceeding any further. 5. Vide order dated 30.11.2004, the Assistant Collector, Ist Grade, dismissed the application filed by the Gram Panchayat, holding that the land does not vest in the Gram Panchayat. The Gram Panchayat filed an appeal. Vide order dated 17.11.2005, the Collector allowed the appeal and directed the Assistant Collector to decide the question of title so raised by parties. 6. The Assistant Collector, Ist Grade, accordingly, framed the following issues: - “1. Whether the land in dispute does not come under the jurisdiction of Gram Panchayat and mutation No.1454 is liable to set aside (Liable to decide) ? OPP 2. Whether the land in dispute never remain in the jurisdiction of Gram Panchayat and never used for common purposes ? OPP 3. Whether there is no right to plaintiff to file case ? OPP 2. Whether the land in dispute never remain in the jurisdiction of Gram Panchayat and never used for common purposes ? OPP 3. Whether there is no right to plaintiff to file case ? OPD 4. Whether this case is not maintainable legally in this situation ? OPD 5. Relief.” 7. After framing of issues, parties were allowed to lead evidence. After re-consideration of pleadings and arguments addressed, the Assistant Collector, Ist Grade, held that the land, in dispute, belongs to the Gram Panchayat. 8. Aggrieved by this order, the petitioners filed an appeal. The Deputy Commissioner-cum-Collector, dismissed the appeal on 25.02.2009 by holding that the petitioners are not proprietors as they purchased land in village Urlana Khurd, District Panipat, on 20.05.1965 and 13.06.1973 and have failed to prove their cultivating possession before 26.01.1950. The petitioners filed a revision before the Commissioner, Rohtak Division, Rohtak, which was also dismissed. 9. Counsel for the petitioners submits that as two applications, filed by the Gram Panchayat, under Section 7 of the 1961 Act, were dismissed, by holding that the land, in dispute, does not vest in the Gram Panchayat, these orders operate as res-judicata. It is further submitted that the land, in dispute, is wrongly recorded as Jumla Mushtarka Malkan as it was neither reserved nor earmarked for any common purpose. The petitioners purchased this land from proprietors, who were co-sharers in possession of the Mushtarka Malkan. The land, therefore, does not vest in the Gram Panchayat much less by virtue of a mutation sanctioned on the basis of a letter. It is further contended that jamabandi for the year 1961-62 records the ownership of “Jumla Mushtarka Malkan digar haqdaran hasad rasad raqba” and possession of various co-sharers in accordance with their shareholdings. The land is “Barani” and is cultivated by the petitioners, thereby establishing that the land was not reserved for any common purpose. It is prayed that as authorities, under the 1961 Act, have failed to consider much less decide the question of title, the writ petitions should be allowed, impugned orders should be set aside and the petitioners should be declared owners in possession of the land, in dispute. 10. Counsel for the Gram Panchayat submits that the Assistant Collector Ist Grade, the Collector and the Commissioner, have concurrently held that the land, in dispute, belongs to the Gram Panchayat. 10. Counsel for the Gram Panchayat submits that the Assistant Collector Ist Grade, the Collector and the Commissioner, have concurrently held that the land, in dispute, belongs to the Gram Panchayat. In the absence of any error of jurisdiction or of law or such a factual error as would render these findings illegal or void, the writ petitions should be dismissed. It is further contended that the petitioners are not proprietors of village Urlana Khurd, District Panipat. They purchased land in this village somewhere in the year 1973-74. The petitioners, therefore, cannot claim any right that may have vested in proprietors with respect to the land, in dispute. It is further submitted that land recorded as Jumla Mushtarka Malkan is created during consolidation “for the village Panchayat and for other common purposes” and vests in a Gram Panchayat for management and control. Section 2(g)(6) of the 1961 Act (as applicable to the State of Haryana) provides that such land shall vest in the Gram Panchayat as Shamilat Deh. It is further submitted that authorities under the 1961 Act have rightly held that the land, in dispute, was reserved for common purposes. 11. We have heard counsel for the parties, perused the impugned orders and have no hesitation in holding that the writ, as prayed, cannot be issued. 12. The petitioners' plea that the land, in dispute, is recorded as Jumla Mushtarka Malkan, is an admission that the land, in dispute, was reserved during consolidation “for the village Panchayat and for other common purposes”, in accordance with Sections 18 and 23-A of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (as applicable to the State of Haryana) (hereinafter referred to as the 'Consolidation Act') read alongwith Rule 16(ii) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949 (as applicable to the State of Haryana) (hereinafter referred to as the 'Consolidation Rules'). Sections 18 and 23-A of the Consolidation Act and Rule 16(ii) of the Consolidation Rules, read as follows: - “18. Sections 18 and 23-A of the Consolidation Act and Rule 16(ii) of the Consolidation Rules, read as follows: - “18. Lands reserved for common purposes:- Notwithstanding anything contained in any law for the time being in force, it shall be lawful for the Consolidation Officer to direct: - (a) That any land specifically assigned for any common purpose shall cease to be so assigned and to assign any other land in its place; (b) That any land under the bed of a stream or torrent flowing through or from the Shiwalik mountain range within the [State] shall be assigned for any common purpose; (c) That if any area under consolidation no land is reserved for any common purpose including extension of the village abadi, or if the land so reserved is inadequate, to assign other land for such purpose. [23A. Management and control of lands for common purposes to vest in Panchayats or State Government: - As soon as a scheme comes into force, the management and control of all lands assigned or reserved for common purposes of the village under section 18,- (a) In the case of common purposes specified in sub-clause (iv) of clause (bb) of section 2 in respect of which the management and control are to be exercised by the State Government, shall vest in the State Government; and (b) In the case of any other common purpose, shall vest in the Panchayat of that village; and the State Government or the Panchayat, as the case may be, shall be entitled to appropriate the income accruing there from for the benefit of the village community, and the rights and interests of the owners of such lands shall stand modified and extinguished accordingly: Provided that in the case of land assigned or reserved for the extension of village abadi or manure pits for the proprietors and non-proprietors of the village, such land shall vest in the proprietors and non-proprietors to whom it is given under the scheme of consolidation]. 16(i)xxx xxx xxx xxx 16(ii)In an estate or estates where during consolidation proceedings there is no shamlat deh land or such land is considered inadequate, land shall be reserved for the village Panchayat and for other common purposes, under section 18(c) of the Act, out of the common pool of the village [at the scale given in the Schedule to these rules]. Proprietary rights in respect of land so reserved (except the area reserved for the extension of abadi of proprietors and non-proprietors) shall vest in the proprietary body of the estate or estates concerned and it shall be entered in the column of ownership of record of rights as (Jumla Malkan Wa Digar Haqdaran Arazi Hasab Rasad Raqba). The management of such land shall be done by the Panchayat of the estate or estates concerned on behalf of the village proprietary body and the Panchayat shall have the right to utilize the income derived from the land so reserved for the common needs and the benefits of the estate of estates concerned.” A perusal of these provisions, particularly Rule 16(ii) of the Consolidation Rules, reveals that land described as Jumla Mushtarka Malkan vests in a Gram Panchayat for management and control whereas its ownership continues to vest in proprietors. The possessory right of management and control of such land vests in a Gram Panchayat whereas its proprietary title continues to vest in proprietors. As a necessary corollary, the Gram Panchayat would be entitled to use the land in accordance with common purposes set out in the Consolidation Act, the Consolidation Rules or the 1961 Act for such other common purpose, as may be necessary. Any person much less a proprietor shall not be heard to urge that the possessory title of the Gram Panchayat is negated as proprietary rights vest in proprietors. The petitioners' plea that the land, in dispute, was wrongly recorded as Jumla Mushtarka Malkan as it was not reserved for any common purpose, merits summary rejection. A plea that land has been wrongly reserved as Jumla Mushtarka Malkan or has been left over after reserving such land can only be determined by reference to orders passed and documents prepared during consolidation. The petitioners have not produced any document or order to prove that the land, in dispute, was not reserved as Jumla Mushtarka Malkan or was wrongly so reserved. The petitioners have not produced any document or order to prove that the land, in dispute, was not reserved as Jumla Mushtarka Malkan or was wrongly so reserved. We, therefore, reject this argument and affirm findings recorded by the Assistant Collector Ist Grade, the Collector and the Commissioner that the land, in dispute, vests in the Gram Panchayat but modify the orders by holding that land vests in the Gram Panchayat in terms of Rule 16(ii) of the Consolidation Rules read with Section 2 (g)(6) of the 1961 Act as interpreted by a Full Bench in Jai Singh Versus State of Haryana, 2003(2), PLR 658. An argument, raised by the petitioners, that as two previous applications filed by the Gram Panchayat, under Section 7 of the 1961 Act, were dismissed, on the ground that the land does not belong to the Gram Panchayat, these orders operate as res-judicata, is legally flawed. Section 7 of the 1961 Act provides a summary procedure for ejectment of unauthorised occupants of Shamilat Deh. While adjudicating an application under Section 7 of the 1961 Act, the Collector merely ascertains the rights of the Gram Panchayat and after recording a prima-facie opinion as to ownership of the Gram Panchayat proceeds to call upon the persons in possession to show cause why they should not be evicted from the land. Even otherwise, proceedings under Section 7 of the 1961 Act are summary in nature and like all summary adjudications, do not operate as res-judicata in proceedings before the adjudicatory forum, assigned with the jurisdiction to decide question of title, namely, the Collector/the Assistant Collector Ist Grade. The question whether an order passed under Section 7 of the 1961 Act operates as res-judicata in proceedings under Section 13-A of the 1961 Act, is no longer res-integra as while considering a similar controversy, a Division Bench of this Court in 'Tara Chand and Fateh Singh Versus Gram Panchayat and Gram Sabha of Village Atail, 1979, PLJ 1, held that an order, under Section 7 of the 1961 Act, does not operate as res-judicata in proceedings under Section 13-B of the 1961 Act. We would like to clarify that Section 13-B of the 1961 Act was altered to Section 13-A. A reference may also be made to another Division Bench judgment rendered in CWP No.653 of 2011 titled as “Balbir Singh Versus State of Punjab and others”, decided on 03.02.2012. We would like to clarify that Section 13-B of the 1961 Act was altered to Section 13-A. A reference may also be made to another Division Bench judgment rendered in CWP No.653 of 2011 titled as “Balbir Singh Versus State of Punjab and others”, decided on 03.02.2012. Another aspect of this case requires pointed reference. As has been held by the revenue courts and not denied by the petitioners, the petitioners are not proprietors of this village but purchased land in village Urlana Khurd, District Panipat. The petitioners encroached upon Jumla Mushtarka Malkan land and thereafter asserted rights as proprietors, though no such right was available to them. The expression “proprietors” denotes only such land owners as were either co-sharers in Shamilat Deh, prior to its vesting in the Gram Panchayat CWP No.3903 of 2010 or from whose proprietary holdings, a pro-rata cut was applied, while creating Jumla Mushtarka Malkan. In view of what has been stated hereinabove, we dismiss the writ petitions but with no order as to costs. This petition is filed to challenge orders passed under Section 13-A of the 1961 Act determining question of title whereas the other writ petitions have been filed to challenge orders under Section 7 of the 1961 Act. Counsel for the parties are ad-idem that decision in CWP No.3903 of 2010 would decide the fate of other writ petitions as orders passed by the Assistant Collector, Ist Grade, the Collector and the Commissioner holding that the Gram Panchayat is owner of the land, in dispute, are affirmed, orders passed under Section 7 of the 1961 Act, directing eviction of the petitioners would necessary have to be affirmed.