2011 Supreme(P&H) 2120

2012(3) LAW HERALD (P&H) 2179
IN THE HIGH COURT OF PUNJAB AND HARYANA
[DIVISION BENCH]
Before
The Hon’ble Mr. Justice Satish Kumar Mittal
The Hon’ble Mr. Justice Paramjeet Singh
C.W.P. No. 20385 of 2011
Orion Infrastructure Ltd.
v.
The Commissioner, Gurgaon Division, Gurgaon & Ors.
{Decided on 08/12/2011}

Shamliat Deh--Vesting of Land--Eventualities are contained in clauses (1) to (5)--All these clauses are independent of each other--If the case falls under one of the clauses, that would be sufficient to bring it within the definition of shamilat deh.
Shamliat Deh--Question of title--Power of adjudication vests with Collector and not with Assistant Collector--Earlier power vested in Assistant Collector taken away by amendment, which was applicable even to pending cases--Order passed after said amendment, by Assistant Collector is without jurisdiction
Shamliat Deh--Revisional power of Commission--Suo motu revisional power can be exercised by the Commissioner within a reasonable time and length of reasonable time must be determined by the facts of the case and the nature of the order, which is being revised.

Headnote:(A) Punjab Village Common Lands (Regulation) Act, 1961, S.4(2)--Shamilat Deh--In view of Section 4(2) of the Act of 1961, the land in question, which vested in the Panchayat, on coming into force of the Act of 1953 and mutation of which was sanctioned in favour of the Panchayat on 31.3.1955, shall be deemed to have been vested in the Panchayat under the Act of 1961--Punjab Village Common Lands (Regulation) Act, 1953, S.3. (Para 23)

       (B) Punjab Village Common Lands (Regulation) Act, 1961, S.4(2)--Shamilat Deh--Land which has vested in the Gram Panchayat, either under the Act of 1953, or deemed to have vested in the Panchayat under the Act of 1961, can be held to be not vesting in the Panchayat only if it is proved by a person that he was in cultivating possession of such land on the commencement of the Act of 1953 and was in such cultivating possession for more than twelve years on such commencement, without payment of rent or by payment of charges not exceeding the land revenue and cesses payable thereon--Once the shamilat land is deemed to have been vested in the Panchayat, it can be ordered to be de-vested from the Panchayat, only on the title suit filed by a person, if he establishes the aforesaid three ingredients. (Para 24)

       (C) Punjab Village Common Land Revenue (Regulation) Act, 1961 (As applicable to Haryana) S.2(g)--Shamliat Deh--Section 2(g) of the Act of 1961 provides some of the eventualities, under which the land can be treated as shamilat deh--These eventualities are contained in clauses (1) to (5)--All these clauses are independent of each other--If the case falls under one of the clauses, that would be sufficient to bring it within the definition of shamilat deh.

       (D) Punjab Village Common Land Revenue (Regulation) Act, 1961 (As applicable to Haryana) S.2(g)--Shamliat Deh--The land in question, which was described in the revenue record as 'Shamilat Deh Hasab Rasad Kabja Zamin', clearly falls under clause (1) of Section 2(g) and in order to bring the same within the definition of shamilat deh, no further reference to any other clause is necessary; nor it is to be seen whether the said shamilat deh is being used for the common purpose of the village or not. (Para 25)

       (E) Punjab Village Common Land Revenue (Regulation) Act, 1961 (As applicable to Haryana) S.2(g)--Shamliat Deh--Once the land falls under clause (1) of Section 2(g) of the Act of 1961, then the Court is not required to look into other clauses. (Para 25)

       (F) Punjab Village Common Land Revenue (Regulation) Act, 1961 (As applicable to Haryana) S.2(g)--Shamliat Deh--Question of title--Power of adjudication vests with Collector and not with Assistant Collector--Earlier power vested in Assistant Collector taken away by amendment, which was applicable even to pending cases--Order passed after said amendment, by Assistant Collector is without jurisdiction and is set aside.

       After the amendment, which came into force on 10.3.1999, only the Collector, having jurisdiction in the area, was having the jurisdiction to adjudication the issue whether a particular land is shamilat deh or not and whether such land vests in the Gram Panchayat or not--The jurisdiction of the Assistant Collector 1st Grade to decide such issue has been taken away--In that situation, the Assistant Collector 1st Grade, before whom the title suit filed by the proprietors was pending, should have transferred the suit to the court of the Collector, who after the amendment was having the jurisdiction to adjudicate the title suit--But instead of transferring the case to the proper court, which the Assistant Collector 1st Grade could have done by invoking the provision of Order 7 Rule 10-A of the Code of Civil Procedure, the Assistant Collector 1st Grade himself decided the issue on 21.11.2000, which in our opinion was wholly without jurisdiction.

       (G) Punjab Village Common Land Revenue (Regulation) Act, 1961 (As applicable to Haryana) S.13-A--Shamliat Deh--After the amendment, the Assistant Collector 1st Grade was incompetent to adjudicate the matter and even to continue the title suit filed by the proprietor under the earlier provision of Section 13-A.

       In the present case also, purpose of amendment in Section 13-A of the Act of 1961 was that all title suits should be decided by the Collector, having jurisdiction in the area, and not by the Assistant Collector Ist Grade. By the said amendment, a right to file a title suit was given to any person or in the case of a Panchayat, either the Panchayat or its Gram Sachiv, the concerned Block Development and Panchayat Officer, Social Education and Panchayat Officer or any other officer duly authorised by the State Government in this behalf, claiming right, title or interest in any land or other immovable property, vested or deemed to have vested in the Panchayat under this Act, for adjudication of the dispute whether such land or other immovable property is shamilat-deh or not or whether any land or other immovable property or any right, tittle or interest therein vests or does not vest in Panchayat under this Act, in the court of the Collector, having jurisdiction in the area. In our opinion, if, after insertion of new Section 13- A, the Assistant Collector Ist Grade is permitted to continue with the pending title suit and decide the same, then the very purpose of the amendment would be defeated. Though in the new provision of Section 13A, no provision was made for transfer of the pending cases to the Court of the Collector, having jurisdiction in the area, but under sub-section (2) of Section 13-A of the Act of 1961, a specific provision has been made that the procedure for deciding the suits under sub-section (1) shall be the same as laid down in the Code of Civil Procedure. Thus, by taking the help of Order 7 Rule 10-A of the Code of Civil Procedure, the Assistant Collector Ist Grade could have transferred the pending title suits to the court of competent jurisdiction, i.e. the Collector, having jurisdiction in the area, instead of deciding the same himself. But, in the instant case, the Assistant Collector Ist Grade has passed the decree himself on 21.11.2000, when he was having no jurisdiction to decide the title suits. Therefore, in our opinion, the decree dated 21.11.2000 passed by the Assistant Collector Ist Grade was wholly without jurisdiction and a nullity. (Para 34)

       (H) Punjab Village Common Land Revenue (Regulation) Act, 1961 (As applicable to Haryana) S.2(g)--Shamliat Deh--Vesting of title--Order of AC set aside by Commissioner on Suo motu action--Order held to be valid--Held; Commissioner after coming to the conclusion that the Gram Panchayat at in connivance with the proprietors and their predecessors has withdrawn the appeal filed against the order of the Assistant Collector 1st Grade and the Assistant Collector 1st Grade, while totally ignoring the deletion of proviso to clause (5) of Section 2(g) of the Act of 1961 and while taking totally unreasonable and illegal view by ignoring the various provisions of the Act of 1961 and also further ignoring the amendment made in Section 13-A, has passed a totally illegal order, without any jurisdiction, and declared a big chunk of shamilat deh not to be vesting in the Panchayat, has set aside the order of the Assistant Collector 1st grade. (Para 40)

       (I) Punjab Village Common Land Revenue (Regulation) Act, 1961 (As applicable to Haryana) S.13-B(2)--Shamliat Deh--Revisional power of Commission--Suo motu revisional power can be exercised by the Commissioner within a reasonable time and length of reasonable time must be determined by the facts of the case and the nature of the order, which is being revised.

       It is pertinent to mention here that no limitation has been prescribed for exercising suo motu power by the Commissioner under Section 13-B(2) of the Act of 1961--It has been specifically mentioned in this provision that 'any time', the Commissioner in exercise of its suo motu power may call for the record of any proceedings pending before, or orders passed by, 'any authority subordinate to him' for the purpose of satisfying himself as to the legality or propriety of those proceedings or orders and pass such order in relation thereto as he may deem fit. (Para 39)