JUDGMENT Mr. Rajive Bhalla, J.: - Gram Panchayat of village Mehal Singh Wala prays for issuance of a writ of certiorari quashing order dated 31.5.2006 (Annexure P-2) passed by the Joint Development Commissioner (IRD) (exercising the powers of ‘Commissioner’) under the Punjab Village Common Lands (Regulation) Act, 1961. 2. Counsel for the petitioner submits that the appellate authority has erred in holding that “Jumla Mushtarka Malkan Wa Digar Haqdaran” is Bachat Land. The land described as “Jumla Mushtarka Malkan”, is created during consolidation, after applying a pro rata cut on the holdings of proprietors, in accordance with Sections 18 and 23-A of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter referred to as the “Consolidation Act”) read with Rule 16 (ii) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949 (hereinafter referred to as the “1949 Rules”) and reserved for the panchayat and for other common purposes. “Bachat”, on the other hand, is land, that is left over after creating “Jumla Mushtarka Malkan” and is generally returned to proprietors during consolidation. The use of the expression “Jumla Mushtarka Malkan” denotes the ownership of proprietors, but the management and control of a Gram Panchayat. It is further argued that respondent no.3 has not adduced any evidence to prove his ownership or that the land, in dispute, was created after applying a cut on his holding or the holding of his predecessors or that it was not reserved for any common purpose. The impugned order does not refer to any portion of the scheme, the extent of cut, the particulars of land earmarked and reserved for common purposes or left over, thereby clearly proving that respondent no.3 has failed to prove that the land was not earmarked for any common purpose during consolidation. The mere fact that the land may be cultivated or cultivable and is in possession of a person other than the Gram Panchayat, does not raise any inference that the land was not reserved for any common purpose. 3. Counsel for respondent no.3 submits that Madan Lal son of Babu Ram and Smt. Mala wife of Tulsi Ram were owners of the entire land in the village. Madan Lal is the father of respondent no.3, whereas Mala Devi is his maternal grand mother. A cut of 106 Kanals-03 Marlas was applied to their holdings, for creating common land. 3. Counsel for respondent no.3 submits that Madan Lal son of Babu Ram and Smt. Mala wife of Tulsi Ram were owners of the entire land in the village. Madan Lal is the father of respondent no.3, whereas Mala Devi is his maternal grand mother. A cut of 106 Kanals-03 Marlas was applied to their holdings, for creating common land. A perusal of documents prepared during consolidation reveals that this land was utilised for “Gadha Khad” (manure pits) “Hadda Rori”, roads and paths etc. but land measuring 46Kanals-19Marlas was unutilised and is, therefore, recorded as “Jumla Mushtarka Malkan”, in column no.4 of jamabandi, for the year 1959-60. The quality of land is “Barani” and Nehri, (cultivated land), thereby clearly proving that it was never used or reserved for any common purpose. The entry of “Jumla Mushtarka Malkan” was changed to the ownership of the Gram Panchayat, without any notice to respondent no.3, on the basis of a letter issued by the government. The mutation is, therefore, illegal and void. It is further submitted that a perusal of the reply filed by the Gram Panchayat and the statement made by the Sarpanch before the Collector reveals that the Gram Panchayat has failed to prove any right, title or interest in the land in dispute. As per Annexure R-3/6 (exhibited as Ex.P-6), a report prepared by the office of the Deputy Commissioner, Ferozepur, reveals that there was no “Shamilat Khewat’ in the village, thereby clearly proving that the land, in dispute, is “bachat” and does not vest in the Gram Panchayat. In support of his arguments that the land described as “Jumla Mushtarka Malkan”, is bachat land and does not vest in the Gram Panchayat, counsel for respondent no.3 places reliance upon the following judgments:- Gurjant Singh versus Commissioner, Ferozepur Division 2000(2) RCR(Civil) 437; State of Punjab versus Gurjant Singh and others 2002(2)PLJ 438(SC); Jai Singh versus State of Haryana, 2003(2) RCR(Civil) 578; Bhagat Ram and others versus State of Punjab and others, 1967 PLR 287; Chajju Ram versus Joint Director, Panchayat, 1986 PLJ 293 and Gurmeet Singh versus Consolidation Officer, Ludhiana, 2003(1) RCR (Civil)678. 4. 4. We have heard counsel for the parties, perused the orders passed by the Collector, and Joint Development Commissioner, the pleadings as well as relevant documents and have no hesitation in holding that the Appellate Authority has committed a serious error of law while holding that the Gram Panchayat has no right, title or interest in the land, in dispute as it is bachat land. 5. Before we proceed to record reasons in support of our conclusion, it would be appropriate to refer to relevant provisions of the Consolidation Act and Rules. Sections 18 and 23-A of the Consolidation Act and Rule 16(ii) of the 1949 Rules read as follows: “ 18. 5. Before we proceed to record reasons in support of our conclusion, it would be appropriate to refer to relevant provisions of the Consolidation Act and Rules. Sections 18 and 23-A of the Consolidation Act and Rule 16(ii) of the 1949 Rules read as follows: “ 18. Land 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.” 23 A. 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 subclause (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 therefrom 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.” “Rule 16 (i) XX XX XX 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.” 6. The Consolidation Act, was enacted in 1949, to consolidate land holding, but was later amended to empower consolidation authorities, to apply a pro rata cut on the holdings of proprietors to create land for the village panchayat and for other common purposes of the village. Sections 18 and 23-A of the Consolidation Act, place a statutory duty on a consolidation officer, where there is no “Shamilat Deh” or the Shamilat Deh in a village is insufficient, to apply a pro rata cut on the holdings of proprietors and reserve land for the panchayat and for common purposes. The land so created vests in the Gram Panchayat for management and control though its ownership continues to vest in proprietors. An entry in the revenue record, describing the land as “Jumla Mushtarka Malkan”, raises a presumption that the land was reserved for the panchayat and for other common purposes and vests in a Gram Panchayat for management and control. The presumption so raised, may, however, be rebutted by reference to documents prepared and orders passed during consolidation. 7. Respondent no.3 filed a petition, under section 11 of the 1961 Act, asserting that the land, in dispute, though created during consolidation after applying a cut on the holdings of his predecessors does not vest in the Gram Panchayat as it was not assigned or used for any common purpose, during consolidation. After due consideration of the pleadings and the evidence, the Collector dismissed the petition. After due consideration of the pleadings and the evidence, the Collector dismissed the petition. The appellate authority reversed the order passed by the Collector and held that though land measuring 106 Kanals-03 Marlas was created after applying a pro rata cut, but as land measuring 46 Kanals-19 Marlas, is recorded as Nehri and Barani, (cultivable), it is bachat land and, therefore, does not vest in the Gram Panchayat. 8. The impugned order, in our opinion, is not sustainable in fact or in law. The finding that “Jumla Mushtarka Malkan” is bachat land as it is recorded as Nehri and Barani (cultivated land), is contrary to the statutory provisions of the Consolidation Act and the Rules. As referred to hereinbefore, “Jumla Mushtarka Malkan” is land created during consolidation, for the panchayat and for other common purposes, after applying a pro rata cut on the holdings of proprietors. The land that remains unutilised, after creating land for common purposes, is called “Bachat land” and is generally redistributed amongst proprietors during consolidation. The expressions “Jumla Mushtarka Malkan” and “Bachat land” are neither synonymous nor interchangeable as they refer to entirely distinct and separate varieties of land: “Jumla Mushtarka Malkan” is land that is assigned and earmarked for a common purpose whereas “Bachat” is land that is not earmarked for any common purpose. The question whether a particular parcel of land is “bachat land”, it was not earmarked for a common purpose, has to be proved by reference to documents, prepared and orders passed during consolidation, particularly documents and orders disclosing the extent of cut applied to holdings of proprietors, the extent of land reserved and earmarked for common purposes. Only thereafter may a finding be recorded, whether a particular parcel of land was left over and was not earmarked for a common purpose. The mere fact that land, earmarked for common purpose, is not being used for the said common purpose or it has remained in possession of proprietors, or is being cultivated by them, does not raise an inference that it was not reserved for a common purpose or it is “bachat land”. The expression “Jumla Mushtarka Malkan” raises a presumption in law that the land was reserved for common purposes of the village panchayat and for other common purposes. The presumption so raised, cannot be rebutted by mere possession of a proprietor or his cultivation of such land. 9. The expression “Jumla Mushtarka Malkan” raises a presumption in law that the land was reserved for common purposes of the village panchayat and for other common purposes. The presumption so raised, cannot be rebutted by mere possession of a proprietor or his cultivation of such land. 9. The land, in dispute, is, admittedly, “Jumla Mushtarka Malkan”. Respondent no. 3 has not produced any document to prove that the land was not earmarked or reserved for a common purpose. The findings recorded by the appellate authority, that the land is Bachat, on the ground that land is Nehri and Barani (cultivated) and respondent no.3 is in possession, in our considered opinion, is insufficient to hold that land, which is, admittedly, described as “Jumla Mushtarka Malkan” is “bachat land” and, therefore, does not vest in the Gram Panchayat for management and control. It would be appropriate at this stage to deal with the judgments cited by counsel for respondent no.3. 10. The judgment in Gurjant Singh’s case (supra), holds that as the land remains unutilised, i.e., bachat land, it shall be redistributed amongst proprietors. The judgment does not hold that the “Jumla Mushtarka Malkan” is bachat land or that “Jumla Mushtarka Malkan” has to be re-distributed amongst proprietors. The judgment in Gurmeet Singh’s case (supra), while making a reference to Gurjant Singh’s case (supra), relates to a change of mutation of land belonging to a Shamilat Patti, which is entirely different from land described as “Jumla Mushtarka Malkan” and is, therefore, irrelevant for the present controversy. 11. In Chajju Ram’s case (supra), the dispute pertained to eviction of persons in possession of land recorded as “Jumla Mushtarka Malkan” and it was, therefore, rightly held that proceedings had to be taken under Section 3 of the Punjab Public Premises and Land (Eviction and Rent Recovery), Act, 1976. The judgment is, therefore, irrelevant for the present controversy. 12. The judgment in Bhagat Ram’s case (supra) does not advance respondent No. 3’s case in any manner as he does not allege or claim that the land, in dispute, was reserved for the income of the Gram Panchayat, thereby rendering the consolidation scheme illegal. 13. The judgment in Jai Singh’s case (supra) deals with the provisions of Section 2(g)(6) of the 1961 Act, as applicable to the State of Haryana, and, therefore, does not advance the case of respondent no.3 in any manner. 13. The judgment in Jai Singh’s case (supra) deals with the provisions of Section 2(g)(6) of the 1961 Act, as applicable to the State of Haryana, and, therefore, does not advance the case of respondent no.3 in any manner. The judgment does not hold that the “Jumla Mushtarka Malkan” is bachat land, but merely reiterates a well-known principle that the land that is not earmarked for any common purpose, out of land created after applying a pro rata cut on the holdings of proprietors, does not vest in a Gram Panchayat. The situation, in the present case, is entirely different as respondent No.3 has not been able to produce any document to prove that the land, in dispute, is bachat land. 14. The judgment in Gram Panchayat village Bhedpura versus the Additional Director Consolidation, 1997(2) RCR (Civil) 259 relates to the jurisdiction of the Director Consolidation to re-distribute land created during consolidation amongst proprietors. The judgment, in our considered opinion, though authored by a Division Bench, is contrary to the judgments of the Hon’ble Supreme Court in Gram Panchayat Sidh versus State or Punjab, 1997(1)PLJ 313 and Gram Panchayat, Nurpur versus Gurjant Singh and others, 1997(4) RCR (Civil) 47 (SC) and therefore, does not lay down the correct position in law. In view of what has been stated hereinabove, the land, in dispute, is, admittedly, recorded as “Jumla Mushtarka Malkan” , i.e., land created during consolidation, for the village panchayat and for other common purposes but as respondent no.3 has not been able to adduce any evidence to prove that this land was not earmarked or reserved for any common purposes, the impugned order holding that the land does not vest in the Gram Panchayat for any purpose whatsoever, is illegal and void and is set aside. As a consequence, the writ petition is allowed and the order passed by the Collector is restored.