Back
2006 Supreme(P&H) 1762
2006 (2) LAW HERALD 1459 (P&H) (DB)
PUNJAB AND HARYANA HIGH COURT
(DIVISION BENCH)
CORAM
AMAR DUTT, S.S. SARON, JJ.
CIVIL WRIT PETITION NO. 11722 OF 1999 (O AND M)
26.04.2006
Kashmir Singh and others
Petitioners
Vs.
Joint Development Commissioner (IRD), Punjab Chandigarh and others
Respondent
For the Petitioners:Mr. Arun Jain, Advocate and Mr. Arun Jindal, Advocate
For the Respondents No. 1 and 2: Mr. Jayender S. Chandail, AAG, Punjab.
For the Respondent No. 3:Mr. H.S. Mattewal, Senior Advocate with Mr. R.S. Riar, Advocate.
IMPORTANT POINT
Shamilat Deh - Land recorded as ‘Shamilat Deh Hasab Hissa Andraj Shijra Nasab’. Therefore, the land which is recorded as ‘Shamilat Deh’ in the revenue records in terms of Section 2(1)(g) of the 1961 Act is ‘Shamilat Deh’ and mention of Hasab Hissa Andraj Shijra Nasab i.e ‘as per share in the pedigree table’ is not of any significance as land has not been partitioned
Headnote:Punjab Village Common Lands (Regulations) Act, 1961 - Section 11 - Mutation Sanctioned in favour of the Gram Panchayat - Challenge to the made of transfer - Petitioners filed civil suit - Gram Panchayat was restrained from disposing the petitioners except in due course of Law - Land in question is covered by mutation sanctioned in favour of Gram Panchayat - Plea of adverse possession - Concurrent findings recorded by both the authorities in favour of Gram Panchayat appears to be logical - Not to be interfered with. (Para 24)
Punjab Village Common Lands (Regulations) Act, 1961 - Section 2 (g), 4 (1) (a) - Shamilat Deh - The land in question, is recorded as ‘Shamilat Deh Hasab Hissa Andraj Shijra Nasab’. Therefore, the land which is recorded as ‘Shamilat Deh’ in the revenue records in terms of Section 2 (1) (g) of the 1961 Act is ‘Shamilat Deh’. It is to vest in the Gram Panchayat in terms of Section 4 (i) (a) of the 1961 Act. The fact that it is also recorded as ‘Hasab Hissa Andraj Shijra Nasab’ i.e. as per share in the pedigree table is not of any significance in view of the fact that the said land has not been partitioned and brought under cultivation by individual land holders before 26.1.1950. (Para 21)
Constitution of India, 1950 - Article 226, 227 - Prejudice - Practice and Procedure - violation of - Violation of procedural provisions does not automatically vitiate the proceeding - Procedural provision is to be examined in the context of prejudice having been caused and it is to be seen whether violation has prejudiced the right of the parties. (Para 23)
Punjab Village Common Lands (Regulations) Act, 1961 - Section 13, 2 (g) (iii), 2 (g) (v), 2 (h) - Shamilat Deh - Jurisdiction of Civil court - No civil court have jurisdiction to entertain or adjudicate upon any question where any property or any right to or interest in any property is or is not ‘Shamilat Deh’ vests or deemed to have been vested in a panchayat or not under the Act. (Para 23)
Civil Procedure Code, 1908 - Framing of issues - It is procedural provision - Primarily meant to afford a reasonable and adequate opportunity to the parties to adduce the evidence. (Para 23)
East Punjab Consolidation of Holdings (Prevention of Fragmentation) Act, 1953 - Section 23-A - Rule 4 and 5 - Management and control of lands for common purpose is vested in the Panchayat or State Government. (Para 18)
Punjab Village Common Lands (Regulations) Act, 1961 - Section 4 - Panchayat land - A duty is cast on the panchayat to utilize the land for the common purpose of inhabitants of the village in accordance with the procedure provided. (Para 22)
S.S. SARON, J.
1. The documents filed by the State of Punjab i.e. details of Shamilat land and land recorded in the name of ‘Jumla Malkan Hasab Rasad Khewatdar’ as per amabandi for the year 1964-65 which are filed in compliance to the order dated 2.9.2005 passed by this Court are taken on record.
C.M. No.9149-50/2005:
The documents Annexures-R.3/15 to R.3/23 attached with the C.M. are taken on record.
The C.M. stands disposed of.
C.W.P. No.11722/1999:
1. This petition under Articles 226/227 of the Constitution of India has been filed by the petitioners for quashing the order dated 8.10.1998 (Annexure-P.5) passed by the Joint Development Commissioner (IRD), Punjab, Chandigarh (respondent No.1) and the order dated 27.3.1998 (Annexure-P.1) passed by the District Development and Panchayat Officer (‘DDPO’ - for short)-cum- Collector, Amritsar (respondent No.2) whereby the declaration sought by the petitioners claiming the ownership of the land in question has been declined and the ownership of the same has been found to be that of Gram Panchayat Budha Theh, Tehsil Baba Bakala, District Amritsar (respondent No.3).
2. The case of the petitioners is that they are right holders of Village Budha Theh, Tehsil Baba Bakala, District Amritsar and are owners in possession of the land in dispute as detailed in para 2 of the petition situated in the said village. It is stated that the Gram Panchayat (respondent No.3) in the year 1965 at the back of the petitioners got mutation in respect of the land entered in its favour which does not confer any right on it. The said mutation, it is stated, has been sanctioned on the basis of a letter issued by the Punjab Government which has no legal value in the eyes of law and the ownership of the land cannot be transferred or changed in such a manner which is opposed to law of the land. The land in dispute, it is stated, was neither acquired by the Government nor any compensation was paid to the owners. The mode of transfer, it is alleged, is unknown to law and as such the Gram Panchayat (respondent No.3) is not the owner of the land and thus has no right or title to dispossess the petitioners who are in possession being the right holders of the village. In the year 1989, the Gram Panchayat (respondent No.3) threatened to dispossess the petitioners forcibly and illegally and they were left with no option except to approach the civil court. The petitioners filed a civil suit for permanent injunction against the Gram Panchayat (respondent No.3) which was decreed in their favour vide judgment and decree dated 28.5.1992 (Annexure-P.8) and the Gram Panchayat (respondent No.3) was restrained from dispossessing the petitioners except in due course of law. The said judgment, it is stated, clearly reveals that the petitioners are in possession and that they cannot be dispossessed from the land in dispute except in due course of law. The petitioners, therefore, filed a petition under Section 11 of the Punjab Village Common Lands (Regulations) Act, 1961 (‘1961 Act’ -for short) for declaring them to be the owners of the land in dispute. The said petition was contested by the Gram Panchayat (respondent no.3). The petitioners, it is stated, filed detailed written arguments as well but the DDPO-cum- Collector (respondent No.2), who was none else but an officer of the Panchayat wrongly and illegally ignored the evidence produced by the petitioners and the written arguments and vide his order dated 27.3.1998 (Annexure-P.1) dismissed the petition. The petitioners aggrieved against the said order filed an appeal before the Joint Development Commissioner (IRD) (respondent No.1). In the meanwhile the Gram Panchayat (respondent No.3) passed a resolution on 16.9.1998 (Annexure- P.2) for taking possession of the land in dispute under the garb of the order dated 27.3.1998 (Annexure-P.1) in which no order of ejectment had been passed. The dismissal of the petition under Section 11 of the 1961 Act, it is stated, does not c
