Allowed

Surjit Kaur and Ors. v. State of Punjab and Ors.

Punjab & Haryana HC1 Oct 2010CWP/4688/2009

Case brief

AI extract

What is this about?

The High Court allowed the petitioners' writ petition, holding that land purchased in open auction from Muslim migrants before July 9, 1985, is excluded from the definition of Shamilat Deh under Section 2(g)(ii-a) of the Punjab Village Common Lands (Regulation) Act, 1961.

What did the court decide?

The writ petition was allowed, the impugned orders dated 24.08.2006 and 19.12.2008 were set aside, and the application filed by the Gram Panchayat was dismissed.

Surjit Kaur and Ors. Vs State of Punjab and Ors. — Property and Title | Punjab & Haryana HC (2010)

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CWP No.4688 of 2009

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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CWP No.4688 of 2009 Date of decision:01.10.2010

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Surjit Kaur and another

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..... Petitioners

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Versus

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State of Punjab through Secretary, Department of Panchayat, Civil Secretariat, Chandigarh and others

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..... Respondents

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CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA

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Present: Mr.Sanjiv Manrai, Advocate for the petitioners. Ms.Anu Pal, AAG, Punjab for respondents no.1 to 3. Mr.M.S.Bedi, Advocate for respondent no.4. Mr.I.S.sidhu, Advocate for respondent no.6.

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RAJIVE BHALLA, J.(ORAL)

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The petitioners pray for issuance of a writ in the nature of certiorari for quashing the orders dated 24.08.2006 and 19.12.2008, passed by the Additional Deputy Commissioner (Development)-cum-Collector Panchayat Lands, Kapurthala and the Director, Rural Development and Panchayat, Exercising the powers of Commissioner, under the Punjab Village Common Lands (Regulation) Act, 1961, respectively.

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Counsel for the petitioners submits that the land in dispute was the share of Muslim migrants in the Shamilat land of the village. The Tehsildar (Sales) Sultanpur Lodhi, auctioned the land in dispute as evacuee property. The land was purchased by petitioner no.1 in an open auction. A sale certificate was issued to petitioner no.1 on 22.05.1985. Udham Singh, father of petitioner no.2, purchased land in an auction and a sale certificate was issued on 22.05.1985. The land therefore, does not vest in the Gram

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CWP No.4688 of 2009

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Panchayat. The impugned orders holding to the contrary, are illegal and void.

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Counsel for the Gram Panchayat-respondent no.4 submits that it has been authoritatively held in Gram Panchayat of Village Jamalpur Versus Malwinder Singh, AIR 1985, SC 1394 that the share of Muslim migrants in Shamlat land of a village vests in the Gram Panchayat. The Rehabilitation Department or the Tehsildar (Sales) therefore, had no jurisdiction to auction the land or issue a sales certificate in favour of the petitioners. The impugned orders that have been passed in consonance with the law laid down in the aforementioned judgment, do not call for interference.

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Counsel for respondent no.6 reiterates the arguments putforth made by counsel for the petitioners.

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I have heard counsel for the parties and perused the impugned orders. Admittedly, the land in dispute, was the share of muslim migrants in the Shamilat land of the revenue estate. After partition of the country and in the bonafide belief that the share of muslim migrants was evacuee property, the Rehabilitation Department, allotted the share of muslim migrants to satisfy verified claims of Indian migrants. However, a dispute arose whether this land vests in the Gram Panchayat or in the Rehabilitation Department. The dispute was finally settled by the Hon'ble Supreme Court in Gram Panchayat of Village Jamalpur's case (supra) pronounced on 9^th July, 1985, by holding that the share of muslim migrants, in Shamilat Deh would vest in a Gram Panchayat. After partition of the country and upto 9^th July, 1985, the Rehabilitation Department, exercising powers under the Displaced Persons (Compensation and Rehabilitation) Act, 1954 and the

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CWP No.4688 of 2009

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State of Punjab, exercising powers under the Punjab Package Deal Properties (Disposal) Act, 1976, allotted and sold the share of muslim migrants in Shamilat Deh to satisfy verified claims or by auction/sale, in accordance with the provisions of these statutes. The State Legislature in order to save the rights of bonafide transferees, amended the Punjab Village Common Lands (Regulation) Act, 1961, (hereinafter referred to as the Act) by incorporating Section 2(g)(ii-a) by way of Punjab Act No.8 of 1995 which reads as follows: -

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Section 2(g)“Shamilat deh” includes-

(1)xxxx

(2)xxxx

(3)xxxx

(4)xxxx

(5)xxxx

but does not include land which--

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(i)xxxx

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(ii) xxxx

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(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 9^th Day of July, 1985.”

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Section 2(g)(ii)(a) of the Act, provides that land that was Shamilat

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but has been allotted on a 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 9^th day of July, 1985, shall not be Shamilat Deh.

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CWP No.4688 of 2009

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The land in dispute was admittedly Shamilat Deh left behind by muslim migrants but for enactment of the saving clause 2(g)(ii)(a) of the Act, would have vested in the Gram Panchayat. The land in dispute was admittedly purchased by the petitioners in an open auction. The land was transferred to the petitioners prior to 9^th July, 1985, and therefore, stands excluded from the definition of Shamilat Deh, by operation of Section 2(g) (ii-a) of the Act.

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The Collector and the Commissioner, failed to peruse the provisions of Section 2(g)(ii-a) of the Act and declared the sale certificates issued in favour of petitioners illegal and void. In view of the above enunciation of law, it is beyond debate that the land in dispute does not vest in the Gram Panchayat. The application filed by the Gram Panchayat claiming title to the land in dispute should therefore have been dismissed by the Collector and the Commissioner.

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As a consequence, the writ petition is allowed, the orders dated 24.08.2006 and 19.12.2008 are set aside and the application filed by the Gram Panchayat is dismissed, with no order as to costs.

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01.10.2010 [ RAJIVE BHALLA ] shamsher JUDGE

Surjit Kaur and Ors. v. State of Punjab and Ors.

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Surjit Kaur and Ors. v. State of Punjab and Ors.

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