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IN THE HIGH COURT OF PUNJAB & HARYANA
[DIVISION BENCH]
Before
The Hon’ble Mr. Justice Surya Kant
The Hon’ble Mr. Justice Raj Mohan Singh
CWP No.2141 of 1986
Gram Panchayat Village Mulepur
v.
Prem Singh & Ors.
{Decided on 16/02/2015}
(A) Punjab Village Common Lands (Regulation) Act, 1961, S.2(g)--Shamlat Deh--Vesting of Land--With the entry of owners/co-sharers in cultivating possession, the requirement of individual cultivating possession is not satisfied--There is mark distinction between individual cultivating possession and proprietary possession of the owners in undivided share--There is no evidence of partition of the land and individual cultivating possession of the land on or before 26.01.1950--Therefore, conditions of S. 2(g)(iii) of the 1961 Act cannot come to the aid of the claimants. (Para 28)
(B) Punjab Village Common Lands (Regulation) Act, 1961, S.2(g)--Shamlat Deh--Vesting of Land--Individual cultivating possession of even co-sharers cannot be presumed with the entry of banjar qadim in column No.8 of the jamabandi--In the absence of any evidence of partition, no finding can be given whether co-sharers are in possession according to their shares or not--The said jamabandi further reveals that the land is exempted from land revenue/bachh which further negates the applicability of Section 2(g)(viii) as the land was not assessed to land revenue. (Para 30)
(C) Punjab Village Common Lands (Regulation) Act, 1961, S.2(g)--Shamlat Deh--Vesting of Land--In view of nature of land being banjar qadim the cultivation of the respondents over the land in question cannot be presumed for a period of 12 years immediately preceding the commencement of the 1961 Act. (Para 31)
(D) Punjab Village Common Lands (Regulation) Act, 1961, S.2(g)--Shamlat Deh--Vesting of Land--In the event of failure of the private respondents to bring the case under the ambit of any exclusion clause, the case would fall back to Section 2(g)(1) and the vested in its nature of shamlat deh would bring the land to be vested in Panchayat as shamlat deh. (Para 32)
(E) Punjab Village Common Lands (Regulation) Act, 1961, S.2(g)--Shamlat Deh--Vesting of Land--Entry of “Shamlat Deh” in the column of ownership, possession of co-sharers in column No.5, nature of land as Banjar Qadim in column No.8 and land not assessed to land revenue in column No.10 according to jamabandi for the year 1950-51, would vest in Gram Panchayat as Shamlat Deh and would not be covered by the exclusion clause of Section 2(g) of the 1961 Act. (Para 11)
(F) Punjab Village Common Lands (Regulation) Act, 1961, S.2(g)--Shamlat Deh--Vesting of Land--Only Collector is obligated to decide the title suit--A person holding possession of the land without any right, title or interest cannot translate the same into ownership, nor can stop the true owner i.e. Gram Panchayat from asserting its title. (Para 23)
(G) Punjab Village Common Lands (Regulation) Act, 1961, S.2(g)--Shamlat Deh--Vesting of Land--The entries of shamlat deh prior to consolidation irrespective of any nomenclature would definitely vest it in Gram Panchayat under Section 2(g)(1) and Section 4 of the Act--Therefore, word shamlat deh simpliciter followed by any other entry of Hasab Rasad/Hasab Hissa etc. would vest with the Gram Panchayat with the enactment of the 1961 Act. (Para 25)
(H) Punjab Village Common Lands (Regulation) Act, 1961, S.2(g)--Shamlat Deh--Vesting of Land--Held that all the clauses of Section 2(g)(1) to (5) of the 1961 Act are independent of each other--Recourse to any of the clauses can be made to the exclusion of other--If the case falls under any of the clauses then it would suffice to bring the case within the ambit of said clause to hold the land to be shamlat deh. (Para 26)
(I) Words and Phrases--(i) Makhuja Malkan--Word makbuja malkan/co-sharers denotes the possession of the proprietary body in common with no particular co-sharer being in possession of any part of the land, much less in cultivating possession.
(ii) Banjar Qadim--A banjar qadim land is a land which remained uncultivated for 8 preceding harvests. (Para 27)
Mr. Raj Mohan Singh, J.: - Vide this common order we propose to dispose of CWP Nos.2146 of 1986, 5177 of 1995, 7887, 7888 and 7889 of 1997 as common question of law is involved in these cases. The facts are taken from CWP No.2146 of 1986.
2. Petitioner(s)-Gram Panchayat seeks quashing of orders dated 06.10.1982 and 27.12.1985 (Annexures P-4 & P-5), passed by Collector-cum-DDPO Patiala and Joint Director, Panchayats, Punjab respectively, exercising the powers under Section 11 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as the ‘1961 Act’).
3. Before adverting to the rival claims of the parties, it would be necessary to pin down brief facts.
4. Predecessors-in-interest of respondents No.1 to 3 filed a petition under Section 11 of the 1961 Act for declaration of their title in respect of 86 Kanal 17 Marla of land as detailed in para 1 of the writ petition. On earlier occasion the petitioner-Gram Panchayat resorted to proceedings under Section 7 of the 1961 Act which was dismissed by the Collector, Bassi, holding that the petitioner was not entitled to seek possession of the suit land as the possession of the respondents was found to be more than 12 years old.
5. The petitioner-Gram Panchayat filed appeal before the Commissioner and the same was accepted. The predecessors-ininterest of the private respondents challenged the order of Commissioner in CWP No.1687 of 1968 which was accepted on 19.12.1969 and the order was set aside on the ground of the jurisdiction of the Commissioner to revise the order of Assistant Collector.
6. Thereafter petitioner-Gram Panchayat moved another application under Section 7 of the 1961 Act but the same was withdrawn on 12.03.1974. The petitioner-Gram Panchayat moved yet another application under Section 7 of the 1961 Act on 16.05.1977 and the Collector, Patiala, vide order dated 30.04.1980 accepted the petition and passed an order of ejectment against the predecessors-in-interest of respondents No.1 to 3. The said order was again assailed by the private respondents before the Appellate Authority who dismissed the same vide order dated 26.03.1981.
7. The private respondents assailed that order in CWP No.1648 of 1981 before this Court. This Court vide order dated 29.04.1981 dismissed the petition by observing as follows:-
“Even according to Annexure P-1, the order of the Collector upon which the petitioners placed reliance their possession on the land in dispute is not proved to be for more than 12 years. Dismissed.”
8. The said order was statedly challenged before the Hon’ble Supreme Court but the final outcome has not been placed on record. The proceedings upto this stage were confined to the action initiated in summary proceedings arising out of Section 7 of the 1961 Act.
9. Thereafter the predecessors-in-interest of the private respondents filed a petition under Section 11 of the 1961 Act before the respondent No.5 on the ground of they being in possession prior to 26.01.1950. The decision rendered in summary proceedings under Section 7 of the 1961 Act was claimed to have an effect of res-judicata and estoppel against the Gram Panchayat and the same was sought to be created on the ground of withdrawal of application under Section 7 of the 1961 Act by the Gram Panchayat. The petition filed under Section 11 of the Act was allowed by the Collector-cum-DDPO, Patiala, vide order dated 06.10.1982 primarily on the ground of possession of the private respondents for more than 12 years at the commencement of the 1961 Act.
10. The order dated 06.10.1982 passed by the Collector-cum- DDPO, Patiala, was assailed in appeal by the petitioner-Gram Panchayat before the Joint Director, Panchayats exercising the powers of Commissioner. The Appellate Authority dismissed the appeal vide order dated 27.12.1985 by holding that the petitioner- Gram Panchayat was debarred from raising issue again being barred by principle of res-judicata and possession of the private responden
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