2017 Supreme(P&H) 2401

IN THE HIGH COURT OF PUNJAB AND HARYANA
S.S. SARON, ARUN PALLI, LISA GILL, JJ.
Attar Singh – Appellant
Versus
Commissioner, Rohtak Division – Respondent
CM No.10456, 10457 CWP-2015 in CWP No.19364 of 2001 (O&M)
Decided on : 03-02-2017

The proviso below clause (5) of Section 2 (g) of the 1961 Act, which provided that 'shamlat deh' at least to the extent of twenty-five per centum of the total area of the village does not exist in the village; has been omitted by Haryana Act No.9 of 1992. The effect, therefore, of the same is different from that of repeal and it is to be taken as if it had not existed. The determination of the lands whether these are 'shamlat deh' or not is to be done on the basis of statutory provisions of the 1961 Act and in case of 'banjar qadim' lands de hors the proviso to clause (5) of Section 2 (g) of the 1961 Act.

Headnote:

PUNJAB VILLAGE COMMON LANDS (REGULATION) ACT, 1961 - [SECTION 2 (G), 4, 13-A] - SHAMLAT DEH - ADJUDICATION - OWNERSHIP - VESTING - COMMON LANDS - CULTIVATING POSSESSION - REVENUE RECORDS - MUTATION - JURISDICTION - WRIT PETITION - DISMISSAL - RECALL - RESTORATION - COMMON PURPOSES - BANJAR QADIM - EXCLUSIONARY CLAUSES - REPEAL - OMISSION - GENERAL CLAUSES ACT, 1897 - [SECTION 6].

Fact of the Case:

The petitioner, Attar Singh, filed a writ petition challenging the orders passed by the Assistant Collector, Collector, and Commissioner under the Punjab Village Common Lands (Regulation) Act, 1961 (1961 Act), and also sought to quash the mutation sanctioned in favor of the Gram Panchayat. The land in question was recorded as 'shamlat deh hasab paimana malkiat' in the Jamabandi for the year 1950-51, and the ownership was recorded as 'makbuja malkan'. The Gram Panchayat filed an application under Section 7 of the 1961 Act against the petitioner and other landowners, claiming ownership of the land. However, the Assistant Collector dismissed the application, holding that the question of title was involved and should be decided before proceeding further. Subsequently, the Gram Panchayat filed a suit under Section 13-A of the 1961 Act for adjudication of the title to the land. The Assistant Collector dismissed the suit, holding that the mutation sanctioned in favor of the Gram Panchayat was valid. The petitioner and other landowners filed an appeal, which was dismissed by the Collector. The revision petition filed by the petitioner before the Commissioner was also dismissed. The petitioner then filed the present writ petition, which was admitted and ordered to be heard along with another writ petition (Jai Singh's case). The present writ petition was ultimately disposed of on 13.03.2003 by a Full Bench of the High Court with the following order: "For orders see CWP No.5877 of 1992". The petitioner filed the present CMs for staying dispossession from the land in question, recalling the order dated 13.03.2003, and deciding the writ petition on its own merits.

Finding of the Court:

The High Court held that the present writ petition (CWP No.19364 of 2001) was wrongly decided in terms of the decision in Jai Singh's case (supra). In fact, the same was liable to be decided independently and it had no nexus with Jai Singh's case (supra). Resultantly, a Division Bench of this Court in CWP No.11984 of 2015 on 14.07.2015 after perusal of the paper book of the present CWP No.19364 of 2001 observed that it revealed that the petitioner had challenged the orders passed under Section 13-A of the 1961 Act holding that the land was 'shamlat deh' and it vests in the Gram Panchayat (respondent No.5). It was observed that the petitioner got the writ petition (CWP No.19364 of 2001) tagged with Jai Singh's case (CWP No.5877 of 1992) though as already recorded in the order dated 06.07.2015, the writ petition filed by the petitioner had nothing to do with the controversy in Jai Singh's case (supra). It was further observed that the petitioner then got the writ petition disposed of in terms of order dated 13.03.2003 passed in Jai Singh's case (supra), whereby a direction to approach the revenue authorities for changing the mutation from the name of Gram Panchayat (respondent No.5) was issued. The Assistant Collector Ist Grade unmindful of the fact that the order passed in Jai Singh's case (supra) related to 'Jumla Mustarka Malkan' land and the land in the present case was 'shamlat deh' land, set aside the mutation in favor of the Gram Panchayat (respondent No.5). Taking advantage of the said order of mutation, the petitioner filed another petition under Section 13-A of the 1961 Act which was dismissed and was subject matter of the petition i.e. CWP No.11984 of 2015 before the Division Bench. The learned counsel appearing for the petitioner Attar Singh fairly conceded that the present CWP No.19364 of 2001 could not have been disposed of with Jai Singh's case (CWP No.5877 of 1992) (supra). He prayed for time to file an appropriate application in the present CWP No.19364 of 2001 for recalling of the order disposing of the present writ petition.

Issues: 1. Whether the present writ petition (CWP No.19364 of 2001) was wrongly decided in terms of the decision in Jai Singh's case (supra)? 2. Whether the petitioner is entitled to the land in question? 3. Whether the land in question falls within the definition of 'shamlat deh' as defined in Section 2 (g) of the 1961 Act?

Ratio Decidendi: 1. The High Court held that the present writ petition (CWP No.19364 of 2001) was wrongly decided in terms of the decision in Jai Singh's case (supra). In fact, the same was liable to be decided independently and it had no nexus with Jai Singh's case (supra). 2. The High Court held that the petitioner is not entitled to the land in question as it falls within the definition of 'shamlat deh' as defined in Section 2 (g) of the 1961 Act. 3. The High Court held that the land in question falls within the definition of 'shamlat deh' as defined in Section 2 (g) of the 1961 Act.

Final Decision: The High Court allowed the Civil Misc. application No.10457 of 2015 and recalled the order dated 13.03.2003 disposing of the present petition (CWP No. 19364 of 2001) in terms of the order passed in Jai Singh's case (CWP No.5877 of 1992) (supra). The High Court directed the Collector, Jhajjar exercising powers under Section 13-A of the 1961 Act to adjudicate regarding the unutilized land as detailed in Annexures R-1 and R-2 of the affidavit dated 19.01.2017 of Sh. Pardeep Kaushik, SDO (Civil)-cum-Assistant Collector Ist Grade, Jhajjar on the basis of the revenue records and ascertain whether the land falls within the definition of 'shamlat deh' as defined in Section 2 (g) of the 1961 Act and in respect of 'banjar qadim' land for it to fall within 'shamlat deh' it is liable to be ascertained whether it was being used for common purposes in accordance with the revenue records; besides, the proviso below Clause (5) of Section 2 (g) shall be taken to be not in existence.