Petitioners challenged orders mutating village common land to Gram Panchayat, claiming individual ownership. The court held the land was not in individual possession before 1950 and was deemed to vest in the Panchayat under the Act.
Writ petitions dismissed without any costs; land remains mutated in favour of Gram Panchayat.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
CWP No.8766 of 2011 (O&M) & [ 1 ] CWP No.812 of 2012 (O&M)
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
| (1) | CWP No.8766 of 2011 (O&M) Date of decision :15.02.2012 |
|
|---|---|---|
| Ajit Singh and others | Versus | ...Petitioners |
| State of Punjab and others | ...Respondents | |
| (2) | CWP No.812 of 2012 (O&M) Date of decision :15.02.2012 |
|
| Kartar Singh and others | ...Petitioners | |
| Versus | ||
| State of Punjab and others | ...Respondents |
CORAM: HON’BLE MR. JUSTICE RAJIVE BHALLA
HON'BLE MR. JUSTICE RAKESH KUMAR JAIN
Present: Mr. S.S.Rangi, Advocate, for the petitioners.
Mr. Amit Chaudhary, DAG, Punjab.
Mr. P.K.Gupta, Advocate, for respondent No.4.
RAKESH KUMAR JAIN, J.
This order shall dispose of two writ petitions bearing CWP No.8766 of 2011 titled as Ajit Singh and others Vs. State of Punjab and others' [for short “first petition”] and CWP No.812 of 2012 titled as Kartar Singh and others Vs. State of Punjab and others' [for short “second petition”] as a common question of law and almost similar facts are involved in both the writ petitions.
Both the petitions have been filed for seeking a writ in the nature
CWP No.8766 of 2011 (O&M) & CWP No.812 of 2012 (O&M)
[ 2 ]
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of certiorari. In the first petition, order dated 30.12.2009, conveyed on 09.08.2010 (Annexure P-11), passed by respondent No.2, has been challenged and in the second petition, order dated 21.10.2011 (Annexure P-13) passed by respondent No.2, has been assailed.
In both the petitions, the petitioners have claimed that they are proprietors of village Amargarh @ Panjoli, Tehsil and District Fatehgarh Sahib. The land in question belongs to Patti Dhaliwal and is recorded in the column of ownership as “ Shamilat Deh Hasab Hisab Mundarja Shajra Nasab” and the possession has been shown to be of Makbooja Malkan . It is alleged that as per jamabandi for the year 1945-46, the nature of land is recorded as “ Banjar Kadeem”, but it has never been used for the common purposes of the Gram Panchayat. In both the cases, it is alleged that the land has been re-claimed and has been made cultivable which is so reflected in Khasra Girdawari for the year 1954-55 onwards. The land in dispute was mutated vide mutation No.160 in favour of the Gram Panchayat on the basis of an order passed by the Deputy Commissioner, Patiala on 26.04.1956. The Gram Panchayat, thus, filed an application in the year 1964 under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 [for short “the Act”] which was dismissed by the SDO(C)-cum-Collector, Bassi Pathana, by way of two separate orders dated 02.05.1966 and 03.05.1966, but on appeal filed by the Gram Panchayat, the case was remanded back to the Assistant Collector 1st Grade, Patiala, who, vide order dated 29.03.1968, held that the petitioners cannot be held to be in unauthorized possession as the question of title requires to be decided by a competent Court. The Gram Panchayat then filed separate petitions under Sections 7 and 11 of the Act, both, for declaration of its title and for eviction of the petitioners, respectively. The applications were allowed on 16.08.1988 and the appeal filed by the petitioners was dismissed vide order dated 24.11.1994, which was challenged by them by way of writ petition before this Court which was allowed on 09.04.1996 and the matter was remanded back to the Appellate Authority to determine the question of title. After remand, the Joint Development Commissioner, Punjab, dismissed the petition filed by the Gram Panchayat, vide order dated 01.01.1997, which led to the filing of a writ
CWP No.8766 of 2011 (O&M) & [ 3 ] CWP No.812 of 2012 (O&M)
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petition by the Gram Panchayat, this time, which was allowed and order dated 01.01.1997 was set aside and the matter was remanded back to respondent No.2. The respondent No.2 passed the impugned order Annexure P-11 in the first petition and Annexure P-13 in the second petition, which have been assailed in both the present writ petitions.
Counsel for the petitioners has submitted that the land in dispute is not Shamilat Deh as it was in possession of Makbooja Malkan as per column of ownership which records the entry as Shamilat Deh Hasab Hisab Mundarja Shajra Nasab. He, thus, invokes the provisions of Section 2(g)(viii) of the Act and contends that the mutation of the land on the basis of letter of the Deputy Commissioner and further the applications under Sections 7 and 11 of the Act filed by the Gram Panchayat, are illegal and not maintainable.
On the contrary, learned counsel for the respondents has argued that, admittedly, as per the case set up by the petitioners, the land in question has been shown to be Banjar Kadeem in the jamabandi for the year 1945-46 and was not under the individual cultivating possession of co-sharers, therefore, the provisions of Section 2(g)(viii) of the Act are not available to the petitioners.
We have heard counsel for the parties and perused the record with their able assistance.
As per the case of the petitioners, in both the cases, the land in question is recorded as Banjar Kadeem in the jamabandi for the year 1945-46 which was, thus, not in individual cultivating possession of the co-sharers. As per Section 2(g)(viii) of the Act, if the land was assessed to land revenue, and has been in individual cultivating possession of co-sharers not being in excess of their respective shares in such shamilat deh on or before the 26th January, 1950, then it has to be excluded. Thus, the petitioners were required to prove the following:
i) The land in question was shamilat deh , ii) It was assessed to land revenue, iii) It has been in the individual cultivating possession of co-sharers not being in excess of their respective shares in
CWP No.8766 of 2011 (O&M) & CWP No.812 of 2012 (O&M)
[ 4 ]
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such shamilat deh on or before the 26th January, 1950.
The only jamabandi, prior to 26.01.1950, for the period 1945-46 available on record does not satisfy the provisions of Section 2(g)(viii) of the Act as it does not reflect individual cultivating possession of the co-sharers much-less in accordance with their respective shares in such shamilat deh . Additionally, the land has been shown to be Banjar Kadeem which means that the land is old fallow. It is, therefore, apparent that the land is not excluded from Shamilat Deh .
In the face of this situation, the question that arises is “whether the land has been rightly mutated by way of letter of the Deputy Commissioner in the year 1956 in favour of the Gram Panchayat or not”?
Section 4 of the Act provides for vesting of rights in Panchayat and non-proprietors. The land, therefore, is deemed to have vested, by operation of the Act, and the letter, merely, required the revenue authorities to carry out the mandate of the Act, as provided by Section 4(1)(a) of the Act.
Hence, we do not find any merit in these writ petitions which are thus dismissed, but without any costs.
A photocopy of this order be placed on the file of other connected
case.
(RAKESH KUMAR JAIN) JUDGE
(RAJIVE BHALLA)
JUDGE
15.02.2012 vinod*
2 issues framed by the court
Whether land recorded as Banjar Kadeem in 1945-46 excludes it from Section 2(g)(viii) of the Act requiring individual cultivating possession before 1950?
Whether the mutation of the land in favour of the Gram Panchayat by the Deputy Commissioner's letter was valid under Section 4 of the Act?
2 provisions across 1 enactments
Ajit Singh and others
Kartar Singh and others
State of Punjab
Rajeev Bhalla
Rakesh Kumar Jain
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
