JUDGMENT Mr. Rajive Bhalla, J.: The Gram Panchayat of village Sekhowal, Tehsil and District Ludhiana, prays for issuance of a writ of certiorari setting aside orders dated 16.8.2004 and 13.1.2006 (Annexures P-5 and P- 8) passed by the Additional Deputy Commissioner (Development)- cum-Collector, Ludhiana and the Director, Rural Development and Panchayat (exercising the powers of “Commissioner”) under the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as the “1961 Act”), respectively. 2. Counsel for the Gram Panchayat submits that as the entire land, including 76 acres, has been held to be Shamilat Deh, by the Collector and the Appellate Authority, they had no jurisdiction to hold that the Department of Agriculture has created infrastructure on 76 acres, the department is owner of this land. It is further argued that while considering a similar controversy, the Hon’ble Supreme Court has held in Gram Panchayat of Village Jamalpur versus Malwinder Singh and others, 1985 Suppl.(2) SCR 28 that “Shamilat Deh” belonging to muslim migrants vests in a Gram Panchayat and cannot be treated as evacuee property. The land, in dispute, though “Shamilat Deh” belonged to muslim migrants and therefore, belongs to the Gram Panchayat. Even if the Department has raised construction and set up a farm etc., 76 acres, which forms a part of the land, declared “Shamilat Deh”, cannot be held to be the ownership of the Department of Agriculture. It is further submitted that in the absence of any allotment, to the department of agriculture or any order passed in terms of section 2(g)(ii-a) of the 1961 Act, the land does not vest in the Agriculture Department and is not excluded from Shamilat Deh. 3. Counsel for the State of Punjab submits that the land, in dispute, was evacuee property and, therefore, vested in the Central Government. The land was transferred to the State of Punjab, under a package deal between the Central and the State government. The Department of Agriculture has been in possession since 6.5.1970 and has spent crores of rupees in establishing a seed farm, a fruit garden, a nursery and residential quarters on 76 acres of land. The judgment, in Gram Panchayat of Village Jamalpur’s case (supra), does not apply to the case in hand, as the allotment of land to the Agriculture Department, is protected by Section 2(g)(ii-a) of the 1961 Act. 4. The judgment, in Gram Panchayat of Village Jamalpur’s case (supra), does not apply to the case in hand, as the allotment of land to the Agriculture Department, is protected by Section 2(g)(ii-a) of the 1961 Act. 4. We have heard counsel for the parties, and perused the impugned orders. 5. Before we proceed to narrate the facts, examine the legality of the impugned orders and answer the questions posed, it would be appropriate, to point out that the land, in dispute, is described as Shamilat Deh. A large number of villages, in the State of Punjab, were inhabited by muslims, who were owners of “Shamilat Deh”. After their migration to Pakistan, at the time of partition, their share in “Shamilat Deh, was wrongly treated as evacuee property and allotted to satisfy verified claims of displaced persons and thereafter transferred to the State of Punjab under a package deal between the Central and the State Government. A dispute, whether the share of muslims migrants in “Shamilat Deh” vests in a Gram Panchayat or is evacuee property and vests in the rehabilitation department, came up for consideration, before the Hon’ble Supreme Court in Gram Panchayat of Village Jamalpur’s case (supra). The Hon’ble Supreme Court, decided the controversy by holding that as the Punjab Village Common Lands (Regulation) Act, 1961, is a special statute, the share of muslim migrants in “Shamilat Deh” shall vest in a Gram Panchayat and cannot be treated as evacuee property. In the meanwhile, as vast tracts of such land were allotted to displaced persons to satisfy verified claims, the State of Punjab amended Section 2(g) of the 1961 Act, by incorporating sub-section (ii-a), which reads as follows: “2(g) “Shamilat deh” includes—— (1) XX XX XX (2) XX XX XX (3) XX XX XX (4) XX XX XX (5) XX XX XX but does not include land which— (i) [————] (ii) XX XX XX (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.” 6. Section 2(g)(ii-a) of the 1961 Act, protects land that has been allotted to a displaced person on a quasi permanent basis or has been otherwise transferred to any person by sale or in any other manner, whatsoever, after commencement of the 1961 Act, but on or before the 9th day of July, 1985 (the date of pronouncement of the judgment in Gram Panchayat of Village Jamalpur’s case) (supra). 7. Village Sekhowal was inhabited by muslims, who were shareholders, in the “Shamilat Deh” of the village.The land, in dispute, measuring 3599 Kanals-13 Marlas is, admittedly, “Shamilat Deh” and the 76 acres excluded by the Collector and the appellate authority is a part of this land. The entire land, though “Shamilat Deh”, was wrongly treated as evacuee property and entrusted to the Agriculture Department on 25.8.1967. A part of the land measuring 400 acres came into possession of the Department of Animal Husbandry, for setting up a cattle farm. The Department of Agriculture, admittedly, took over possession, of the land, in dispute on 6.5.1970 and has constructed buildings, offices, stores, residential quarters, a nursery, a seed farm, fruit gardens etc. on 76 acres out of 3599 Kanals and 13 Marlas. 8. The Gram Panchayat filed a petition under Section 7 of the 1961 Act for eviction of the respondents from the entire 3599 Kanals-13 Marlas which was allowed on 13.2.1992. The appeal filed by respondent no. 4 was dismissed by the Joint Development Commissioner, Punjab on 11.1.1995, by holding that the land, in dispute, belongs to the Gram Panchayat. Civil Writ Petition No.5436 of 1995 filed by respondent no.4 was also dismissed. The State of Punjab filed SLP No. 10364 of 1996, which was dismissed by holding that the land, in dispute, does not fall within the exclusion clauses enacted by Section 2(g) and Section 3 of the 1961 Act. A relevant extract from judgment dated 6.3.2002, passed by the Hon’ble Supreme Court reads as follows:- “ By Act 8 of 1995, sub-sections(2) and (3) are inserted in Section 3. But before reading the said sub-sections it would be necessary to notice that by virtue of section 4 of the Act all rights, title and interest whatsoever in the land which is included in the shamilat deh of any village had vested in the Panchayats except to the extent indicated therein. Clause (g) of section 2 defines shamilat deh. But before reading the said sub-sections it would be necessary to notice that by virtue of section 4 of the Act all rights, title and interest whatsoever in the land which is included in the shamilat deh of any village had vested in the Panchayats except to the extent indicated therein. Clause (g) of section 2 defines shamilat deh. It is an inclusive definition and is in two parts: the first part enumerates five categories of land which are included within its meaning and the second part excludes as many as ten items of land which would fall outside the ambit of shamilat deh. By the same Amendment Act, clause (ii-a) is inserted in clause (g) of section 2 in the list of the excluded items. Now adverting to the provisions of amended Section 3, we are concerned here with subsection (2). It opens with non obstante clause and says that notwithstanding anything contained in sub section (1) of Section 4 (which deals with vesting of rights in Panchayat and non proprietors), any land which has vested in Panchayat shall cease and all such rights, title and interest will revest in the person or persons in whom they were earlier vested. It has two limbs: (i) deals with a case where the land has vested in a 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) and as from the commencement of Act 8 of 1995 all rights, title and interest of the Panchayat in such land shall cease and vest in the person or persons in whom they were vested immediately before the commencement of such law; and (ii) provides, where any land has vested in a panchayat under the Act but such land has been excluded from shamilat deh under sub-clause (ii-a) of clause (g) of section 2, then as from the commencement of Act 8 of 1995 all rights, title and interest of the Panchayat in such land shall cease on or before July 9, 1985 and 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 conditions specified in clauses (a) and (b) therein (which are not relevant for the present discussion). Section 3(2)(i) has no application as the land in question does not fall under any of the items excluded under clause (g) of Section 2 other than sub-clause (ii-a). For purposes of application under Section 3(2)(ii), it has to be shown that the land falls within Section 2(g)(ii-a) which reads as follows: “2(g) `shamilat deh’ includes (1) to (5) *** *** *** But does not include land which- (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.” This sub-clause excludes the land which was shamilat deh and had 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 whatsover after the commencement of the Act (4th May, 1961) but on or before July 9, 1985. For invoking subsection (2) of section 3, quoted above, it has to be shown that the land in question had vested in the appellants immediately before the commencement of the Shamilat law or has been allotted or otherwise transferred by sale or by any other manner whatsoever. We have pointed out above that the question of dispute as to the title of the appellant was not referred to the competent authority under Section 11 of the Act, but on the application of the Panchayat under section 7 of the 1961 Act, both, the Collector as well as the Commissioner found that the appellant nos.2 and 3 had not produced any material or any documentary evidence to show that the land had vested in them or had been transferred by sale or otherwise in their favour. In view of the above findings of fact the said amended provision would have no application. In Gram Panchayat of Village Jamalpur’s case (supra), a Constitution Bench of this Court held: “...The law passed by the State Legislature being a measure of agraman reform, is conducive to the welfare of the community and there is no reason why that law should not have effect in its full amplitude. By this process, the Village Panchayat will be able to meet the needs of the village community and secure its welfare. By this process, the Village Panchayat will be able to meet the needs of the village community and secure its welfare. Accordingly, the Punjab Act of 1953 would prevail in the State of Punjab over the Central Act of 1950, even in so far as shamilat deh lands are concerned.” From the above observation of the Constitution Bench in the judgment, it follows that no right can be claimed by the appellants on the basis of vesting of land under the Administration of Evacuee Property Act, 1950 as under the Punjab Act of 1953 shamilat deh would vest in the Panchayat.” 9. After holding as above, the Hon’ble Supreme granted liberty to the respondents to take steps as may be considered necessary to establish their title, if any, to protect the farms and buildings, in accordance with law, which reads as follows: “It is brought to our notice that with the huge investment of crores of rupees the potato farm has been set up by the State Government in which many persons are working and the Government is spending Rs.10-12 lakhs per year and that the land was handed over to the Horticulture Department of the Government as an agency of the Government; there are constructed buildings and that the appellants would suffer grave hardship if the Panchayat would resort to demolish the same for purposes of taking dispossession. On instructions, the learned counsel for the Panchayat submits that the respondents would lease out the area on which the building of the appellants are existing together with land necessary for ingress or egress to reach the said land. We record this submission. However, we make it clear that nothing said in this judgment shall preclude the State Government from taking such steps as may be considered necessary to establish its title, if any, to protect the farms and the buildings in accordance with law. Subject to the above observations the appeal is dismissed. There shall be no order as to costs.” 10. The State of Punjab and the Director, Horticulture, Punjab, filed a petition under Section 11 of the 1961 Act, claiming ownership of the land by alleging that as the land, in dispute, is evacuee property, it was transferred to the State of Punjab under a package deal between the Central government and the State of Punjab and thereafter to the Department of Animal Husbandry for ‘Gau Sadan’. The Department of Agriculture took over possession on 6.5.1970 for setting up a potato seed farm. The State Government has spent crores of rupees for establishing the seed farm and constructed a number of buildings, such as, offices, stores, workshops and residential quarters, fruit gardens and a nursery etc. The Gram Panchayat, therefore, has no right, title or interest in the land, in dispute. The Gram Panchayat opposed the petition by claiming that as the land is “Shamilat Deh”, the petition should be dismissed. 11. After considering the pleadings and the evidence, the Collector dismissed the petition by holding that in view of judgment of the Hon’ble Supreme Court in Gram Panchayat of Village Jamalpur (supra), the land is “Shamilat Deh” and as it was never allotted to the respondents as evacuee property, it vests in the Gram Panchayat. But while holding as above, the Collector excluded 76 acres of the land, from the ownership of the Gram Panchayat by holding that the Agriculture Department has constructed residential quarters, a nursery, a fruit garden, and a seed farm etc. A relevant extract from the order reads as follows:- “ The petitioners have failed to prove their ownership regarding the suit property except the land measuring 76 Acres which is stated by the petitioners in their petition as well as in their statement which is covered by Residential Quarters, Nursery, Garden and seed farm and has also established ‘Progenygarden’ of Guava, Pears, Peach and Ber, in which disease free fruit plants of improved quality are prepared and supplied to the fruit growers which is for the uplift of farmers to increase their yield and quality of production. Undersigned personally visited the land in dispute for the spot inspection on 3.8.2004 and it was observed by the court that the petitioners are having fruit garden, nursery and residential quarters over the land measuring about 76 Acres. The petitioners failed to prove their ownership right title or interest regarding the remaining land. The remaining land is being used for the common purposes of the Village which is being used as cattle grazing ground belonging to the village people and is also used as playground by the children of the village. The petitioners were not able to prove those issues, the onus to prove which lies upon them whereas the respondents fully proved the issues, onus of which lies upon the respondents. The petitioners were not able to prove those issues, the onus to prove which lies upon them whereas the respondents fully proved the issues, onus of which lies upon the respondents. The Revenue Record as well as the documents produced on record clearly proves that the respondent Gram Panchayat village Sekhowal is owner of the remaining land in dispute. As such, after hearing the arguments advanced by both learned counsel for the parties and after perusing the record, the present petition filed by the petitioners is dismissed except the land measuring 76 Acres covered by fruit gardens, nursery and the residential quarters. This order is passed in favour of the petitioners and against the Gram Panchayat to the extent of land measuring 76 Acres only and rest of the petition regarding the remaining land is dismissed. This order is announced in the open court and the file be consigned to the record room.” 12. A perusal of the order passed by the Collector, reveals that the Gram Panchayat has been held to be owner of the entire land but 76 acres out of this land has been excluded on the ground that the department has erected infrastructure and established a farm etc. The Joint Development Commissioner has affirmed this finding and dismissed the appeal filed by the Gram Panchayat. The Collector and the Joint Development Commissioner, while excluding 76 acres from the ownership of the Gram Panchayat, were apparently trying to protect the infrastructure created by the government, but as they had already held that the entire land, which include the 76 acres, now in dispute, is “Shamilat Deh”, they had no jurisdiction to hold that 76 acres of land, which is, admittedly, an integral part of 3599 Kanals and 13 Marlas, is not “Shamilat Deh”, particularly in the absence of any allotment, transfer or sale deed executed by the concerned department in favour of the Department of Agriculture. The protection provided by Section 2(g)(ii-a) of the 1961 Act requires a person claiming, protection under Section 2(g) (ii-a) of the 1961 Act, to prove a sale, allotment/transfer in his favour, before 9.7.1985. The respondents have failed to adduce any evidence, much less refer to any document that may even, prima facie, prove that the land, in dispute, was ever allotted to them by way of transfer, sale or a conveyance deed. The respondents have failed to adduce any evidence, much less refer to any document that may even, prima facie, prove that the land, in dispute, was ever allotted to them by way of transfer, sale or a conveyance deed. The mere fact that the agriculture department is in possession or has raised infrastructure, would not confer proprietary rights upon the Department of Agriculture or divest the Gram Panchayat of its ownership. 13. In view of what has been stated hereinabove, the writ petition is allowed, the impugned orders, insofar as they hold that 76 acres of land vests in the Agriculture Department, are set aside and it is held that the entire land, including 76 acres, vests in the Gram Panchayat as “Shamilat Deh”. 14. However, as, admittedly, the Agriculture Department has raised infrastructure, including residential quarters, gardens and nursery etc., over 76 acres, we direct the Chief Secretary of the State of Punjab, to consider, acquiring the land, or taking the land on lease or purchasing it from the Gram Panchayat, in accordance with law. A decision in this regard be taken, within three months from receipt of a certified copy of this order, during which period, dispossession of the Agriculture Department, from the land, in dispute, shall remain stayed. No order as to costs. --------0.B.S.0------------ ————————