Partly allowed

Gram Panchayat Lohar Majra Tehsil Nabha Distt. Patiala v. Director Consolidation of Holdings

Punjab & Haryana HC3 Oct 2012CWP/16164/1996

Case brief

AI extract

What is this about?

The Court set aside an order by the Director Consolidation partitioning land reserved for village common purposes, ruling it was illegal and without jurisdiction. The Court affirmed an order declaring the Gram Panchayat's ownership, holding that the Collector under the 1961 Act has exclusive jurisdiction over such disputes, rendering any sale based on the void partition order invalid.

What did the court decide?

Writ petition CWP 16164 of 1996 allowed; order of Director Consolidation set aside. Writ petition CWP 10973 of 2010 dismissed; order of Director Rural Development affirmed.

Gram Panchayat Lohar Majra Tehsil… — Pension and Retirement Benefits | Punjab & Haryana HC (2012)

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C.W.P.No. 16164 of 1996 -1-

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In the High Court of Punjab and Haryana at Chandigarh

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Date of Decision: October 03, 2012

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1.C.W.P.No. 16164 of 1996

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Gram Panchayat of village Lohar Majra

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---Petitioner

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versus

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Director, Consolidation of Holdings, Punjab, Chandigarh and others

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---Respondents

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2.C.W.P.No. 10973 of 2010

Kulvinder Singh

---Petitioner

versus

Director, Village and Panchayat Development and others

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---Respondents

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Coram: Hon'ble Mr. Justice Rajive Bhalla Hon'ble Mrs. Justice Rekha Mittal

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Present: Mrs. G.K.Hundal, Advocate for the petitioner(in CWP No. 16164 of 1996)

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Mr. Yogesh Goyal, Advocate for the petitioner(in CWP No. 10973 of 2010)

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Mr. NDS Mann, Addl.Advocate General, Punjab for respondent-State

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Mr. Viney K.Gupta, Advocate for Mr. S.P.S.Sidhu, Advocate, for the Gram Panchayat(in CWP No. 10973 of 2010)

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REKHA MITTAL, J.

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By way of this order we shall dispose of Civil Writ Petition

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No. 16164 of 1996 and Civil Writ Petition No. 10973 of 2010, as they

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C.W.P.No. 16164 of 1996

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involve adjudication of common question of law and facts.

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CWP No 16164 of 1996

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Gram Panchayat of village Lohar Majra, Tehsil Nabha, District Patiala, has prayed for setting aside order dated 11.3.1996 (Annexure P-3) passed by the Director Consolidation, being illegal and without jurisdiction, on the plea that land measuring 134 Kanals 08 Marlas of village Lohar Majra, Tehsil Nabha, District Patiala was reserved for common purposes of the village during consolidation but the said land has been wrongly ordered to be partitioned vide order Annexure P-3, on a petition filed by respondent Nos. 3 to 20 under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter referred to as “the Consolidation Act”)

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C.W.P.No. 10973 of 2010

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Kulvinder Singh has challenged order dated 3.2.2010 (Annexure P-2) passed by the Director, Rural Development and Panchayat,Punjab (exercising the powers of 'Commissioner'), whereby order dated 12.12.2006 passed by the Collector has been set aside and the petition filed by the Gram Panchayat seeking declaration of its ownership of the suit land, has been accepted. It is prayed that the Commissioner, exercising powers under the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as “the 1961 Act”), has no authority to set aside the order passed by the Director Consolidation under “the Consolidation Act”.

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We have heard Mrs. Hundal, counsel for the petitioner(in C.W.P.No. 16164 of 1996), Mr. Yogesh Goyal, counsel for petitionerKulvinder Singh(in C.W.P.No. 10973 of 2010), Mr. NDS Mann, Addl.

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C.W.P.No. 16164 of 1996

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Advocate General, Punjab for the State and Mr. Viney K.Gupta, counsel for the Gram Panchayat(in C.W.P.No. 10973 of 2010).

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Counsel for the Gram Panchayat contends that the land in dispute is admittedly ' Jumla Mustarka Malkan' . The orders passed by the Director Consolidation as well as the Consolidation Officer to partition this land amongst proprietors are without jurisdiction and, therefore, rightly ignored, in proceedings under Section 11 of the 1961 Act, filed by the Gram Panchayat claiming title to the suit land. It is further contended that the sale deed executed by Shingara Singh in favour of Kulvinder Singh is a nullity as the land is ' Jumla Mustarka Malkan', and thus, vests in the Gram Panchayat for management and control.

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Mr. Yogesh Goyal, Advocate, has contended that the Director, Panchayat Department, exercising powers of Commissioner under “the 1961 Act”, is not competent to set aside an order passed by the Director Consolidation, under “the Consolidation Act”. It is further contended that land which was taken in excess from the proprietors was given back to the proprietors/owners and even mutation in respect thereof, was sanctioned in their favour. It is further argued that the petitioner along with his brother purchased the land from persons recorded as owners in the revenue records. Kulvinder Singh is a bona fide purchaser and in possession of the disputed property. He has further submitted that the order passed by the Collector rejecting the claim of the Gram Panchayat in respect of its ownership of the suit land, is correct and the order dated 3.2.2010 passed by the Appellate Authority i.e. Director, Rural Development and Panchayat, exercising the powers of 'Commissioner', setting aside the order of the Collector dated 12.12.2006 by declaring the Gram Panchayat to be owner

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C.W.P.No. 16164 of 1996

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of the land, in dispute, is illegal and without jurisdiction.

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We have heard counsel for the parties and perused the impugned orders.

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Admittedly, the land, in dispute, is ' Jumla Mustarka Malkan' i.e. land reserved during consolidation, in accordance with Sections 18 and 23(A) of “the Consolidation Act” and Rule 16(ii) of East Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949 (hereinafter referred to as “Consolidation Rules”) for common purposes of the village panchayat and other common purposes. The land, so reserved, falls to the possessory title of the Gram Panchayat whereas proprietary title continues to vest in proprietors. The Gram Panchayat is empowered to enter into possession of such land and use it for the common purpose assigned during consolidation or such other common purpose as may be permissible. The order passed by the Director Consolidation that the land does not vest in the Gram Panchayat and directing partition of this land, is totally illegal and without jurisdiction. After conclusion of consolidation proceedings, authorities under “the Consolidation Act” are functus officio and have no jurisdiction to determine whether the land vests or does not vest in a Gram Panchayat. An order directing partition of “ Jumla Mustarka Malkan khewat” would require the Director Consolidation to record a finding that the land does not fall to the possessory title of the Gram Panchayat. The right to decide such a dispute vests in the Collector, exercising the power under Section 11 of the 1961 Act. A reference in this regard may be made to the judgments rendered in the cases of Gram Panchayat village Sidh

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Vs. Additional Director, Consolidation of Holding, Punjab, 1997(3) R.C.R.(Civil) 491 and Gram Panchayat, Nurpur vs. State of Punjab

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C.W.P.No. 16164 of 1996

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1997(1) PLJ 268 . A perusal of the order passed by the Director Consolidation would reveal that no reasons whatsoever have been assigned while recording the finding that there was excess cut applied to the holdings of proprietors The Director Consolidation has not recorded as to how much area could be deducted from the holdings of the proprietors for the common purposes and how much cut, in excess, was imposed.

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The orders passed by the Director Consolidation and Consolidation Officer were clearly illegal, without jurisdiction, null and void and were rightly ignored by the Appellate Authority while deciding the question of title as Section 13-B of “the 1961 Act” provides that provisions of “the 1961 Act” shall have effect, notwithstanding anything to the contrary in any law or agreement, instrument, custom or usage or any decree or order of any court or other authority thereby, clearly postulating that the orders passed as to the vesting and non-vesting of land in a Gram Panchayat by any authority other than the Collector, exercising powers under Section 11 of “the 1961 Act”, shall be void and shall not affect the rights of the Gram Panchayat.

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The claim of petitioner Kulvinder Singh is that as he and his brother purchased the land, in dispute, from a proprietor after an order of partition was passed by the Director Consolidation, they are bona fide purchasers having possession of the land, in dispute, and should, therefore, be protected. The order passed by the Director Consolidation was without jurisdiction and void ab initio. The foundation of the sale deed, is a void order, passed on an illegal assumption of jurisdiction and, therefore, does not divest the Gram Panchayat of its rights, or confer right upon the

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C.W.P.No. 16164 of 1996

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petitioner as bona fide purchaser. As per the settled position of law, no one can bestow a better title than he himself has. Kulvinder Singh got right through an order passed by the Director Consolidation, which is void ab initio. The contention of counsel for Kulvinder Singh that he is a bona fide purchaser is devoid of merit and is rejected.

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The Appellate Authority has correctly recorded a finding that the sanction of mutation in favour of Shingara Singh, vendor of Kulvinder Singh and his brother, based upon the order of the Director Consolidation, does not create any right in favour of Shingara Singh nor can it be the basis of any valid title in favour of Kulvinder Singh and others. The Commissioner has correctly recorded his findings that the land, in dispute, being ' mushtarqa malkan hasab rasad malkan' is reserved and has to be utilised only for the common purposes of the village and vests in the Gram Panchayat.

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In view of what has been said hereinabove, Civil Writ Petition No. 16164 of 1996 is allowed. Order dated 11.3.1986 passed by the Director Consolidation is set aside being illegal and without jurisdiction. As a necessary consequence, Civil Writ Petition No. 10973 of 2010 is dismissed, order dated 3.2.2010 passed by the Director Rural Development and Panchayat Department, Punjab, exercising the powers of Commissioner, is affirmed.

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October 03, 2012 PARAMJIT

Gram Panchayat Lohar Majra Tehsil Nabha Distt. Patiala v. Director Consolidation of Holdings

Case brief

What is this about?

What did the court decide?

Gram Panchayat Lohar Majra Tehsil Nabha Distt. Patiala v. Director Consolidation of Holdings

Case brief

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What did the court decide?

What the court decided

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