Dismissed

Gram Panchayat Murajwala v. State of Punjab and Ors.

Punjab & Haryana HC1 Feb 2013CWP/11007/2002

Case brief

AI extract

What is this about?

A split bench of the High Court of Punjab and Haryana held that the impugned order denying the Gram Panchayat's management rights over consolidated common land was set aside, but dismissed the writ petition as a petition under the 1961 Act was not maintainable for such land. Liberty was granted to pursue eviction under the 1973 Act.

What did the court decide?

Liberty granted to petitioner to pursue eviction petition under the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1973.

Gram Panchayat Murajwala Vs State… — Pension and Retirement Benefits | Punjab & Haryana HC (2013)

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Civil Writ Petition No.11007 of 2002 -1-

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Civil Misc. No.318 of 2013 and

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Civil Writ Petition No.11007 of 2002

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Date of Order: 01.02.2013

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Gram Panchayat, Murajwala, Block Shahkot, Tehsil Nakodar, District Jalandhar.

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...Petitioner

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Versus

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State of Punjab and others ..Respondents

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CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA HON'BLE MRS. JUSTICE REKHA MITTAL

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Present: Mr. Umesh Kumar Kanwar, Advocate for the applicant-petitioner.

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Mr. Ashwani Talwar, Addl. A.G.,Punjab for respondents no.1 and 2.

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None for respondent no.3.

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Mr. Vijay Rana, Advocate for respondents no.4 and 5.

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RAJIVE BHALLA, J (Oral) Civil Misc. No.318 of 2013

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Prayer in this application is to withdraw the writ

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petition.

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Reply filed on behalf of respondent nos.4 and 5, is

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taken on record. The application is being decided with the main

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case.

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Civil Writ Petition No.11007 of 2002 Civil Writ Petition No.11007 of 2002

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The petitioner-Gram Panchayat prays for issuance of a writ of certiorari quashing orders dated 16.10.1998 (Annexure P-4) and 22.02.2002(Annexure P-5), passed by the District Development and Panchayat Officer-cum-Collector, Jalandhar and the Director-cum-Special Secretary, Department of Rural Development and Panchayats, Punjab (exercising the power of 'Commissioner'), respectively, under the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as 'the 1961 Act').

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Counsel for the petitioner-Gram Panchayat submits that the land, in dispute, is admittedly “Jumla Mushtarka Malkan Wa Digar Haqdaran Hasab Rasad Arazi”, i.e., land created during consolidation for common purposes of the village. The land, so created, vests in the Gram Panchayat for management and control. It is further submitted that as even otherwise the land is recorded as a “Gair Mumkin Nala”, it, therefore, vests in the Gram Panchayat. The impugned orders, holding that land does not vest in the Gram Panchayat, are, therefore, illegal and void. It is, however, conceded that as the land, in dispute, is “Jumla Mushtarka Malkan”, the petition under Section 7 of the 1961 Act was not maintainable. It is prayed that as the Gram Panchayat has already filed a petition for eviction, under the Punjab Public Premises and Land (Eviction and Rent Recovery)

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Civil Writ Petition No.11007 of 2002 -3-

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Act,1973 (hereinafter referred to as 'the 1973 Act'), liberty may be granted to the Gram Panchayat to pursue the said petition.

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Counsel for private respondents no.3 to 5 submits that as the land, in dispute, belongs to proprietors, the impugned orders should be affirmed. The land has been in possession of the petitioner since long. The petition under Section 7 of the 1961 Act has, therefore, been rightly dismissed and liberty should not be granted to the Gram Panchayat to pursue its remedy under the 1973 Act.

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We have heard counsel for the parties, perused the impugned orders and as well as the application for withdrawal.

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A perusal of the order, passed by the Collector, reveals that the land, in dispute, is recorded as “Jumla Mushtarka Malkan Wa Digar Haqdaran Hasab Rasad Arazi” in jamabandies for the years 1968-69, 1973-74, 1978-79, 1983-84 and 1988-89. The Collector has, however, held that the Gram Panchayat has no concern with the land, in dispute. The Collector was apparently unaware of Sections 18 and 23-A of the East Punjab Holdings(Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter referred to as the 'Consolidation Act') and Rule 16(ii) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949 (hereinafter referred to as the 'Consolidation Rules'), which read as follows:-

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Section 18. Lands reserved for common purposes:-

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Civil Writ Petition No.11007 of 2002

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(a) that any land specifically assigned for any common purpose shall cease to be so assigned and to assign any other land in its place;

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(b) that any land under the bed of a stream or torrent flowing through or from the Shiwalik mountain range within the [State] shall be assigned for any common purpose;

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(c) that if any area under consolidation no land is reserved for any common purpose including extension of the village abadi, or if the land so reserved is inadequate, to assign other land for such purpose

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Section [23-A. As soon as a scheme comes into force, the management and control of all lands assigned or reserved for common purposes of the village under section 18, —

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(a) in the case of common purposes specified in sub-clause (iv) of clause (bb) of section 2 in respect of which the management and control are to be exercised by the State Government, shall vest in the State Government; and

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(b) in the case of any other common purpose, shall vest in the panchayat of that village;

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and the State Government or the Panchayat, as

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Civil Writ Petition No.11007 of 2002

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the case may be, shall be entitled to appropriate the income accruing therefrom for the benefit of the village community, and the rights and interests of the owners of such lands shall stand modified and extinguished accordingly:

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Provided that in case of land assigned or reserved for the extension of village abadi or manure pits for the proprietors and nonproprietors of the village, such land shall vest in the proprietors and non-proprietors to whom it is given under the scheme of consolidation.]

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Rule 16 of Consolidation Rules:

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Rule 16(i) XX XX XX

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16(ii) In an estate or estates where during Consolidation proceedings there is no Shamlat Deh land or such land is considered inadequate, “land shall be reserved for the village Panchayat and for other common purposes”, under section 18 (c) of the Act, out of the common pool of the village³ [at the scale given in the schedule to these rules]. Proprietary rights in respect of land so reserved (except the area reserved for the

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Civil Writ Petition No.11007 of 2002

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extension of abadi of the proprietors and non-proprietors) shall vest in the proprietary body of estate or estates concerned and it shall be entered in the column of ownership of records rights as (Jumla Malkan Wa Digar Haqdaran Arazi Hasab Rasad Raqba). The management of such land shall be done by the Panchayat of the estate or estates concerned on behalf of the village proprietary body and the Panchayat shall have the right to utilize the income derived from the land so reserved for the common needs and benefit of the estate or estates concerned.]

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A conjoint reading of these provisions reveals that “Jumla Mushtarka Malkan” land is created during consolidation, after applying a pro-rata cut on the holdings of proprietors and, though, ownership of this land vests in proprietors, its management and control vest in a Gram Panchayat. The Collector, therefore, wrongly held that the Gram Panchayat has no right, title or interest, in the land, in dispute. The finding is, consequently, set aside but the writ petition cannot be allowed in view of another important aspect of the case that requires referance.

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The land is, admittedly, “Jumla Mushtarka Malkan”,

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Civil Writ Petition No.11007 of 2002

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i.e., land created during consolidation under the Consolidation Act and Consolidation Rules and vests in the Gram Panchayat for management and control. The Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as 'the 1961 Act') does not apply to eviction from “Jumla Mushtarka Malkan” land but applies to eviction from land that is “Shamilat Deh”, as declared under the 1961 Act. Counsel for the petitioner fairly concedes that as the land is “Jumla Mushtarka Malkan”, the Gram Panchayat had no right to file a petition under Section 7 of the 1961 Act as it was required to file a petition under the Punjab Gram Panchayat (Common Purposes Land) Eviction and Rent Recovery Act, 1976 (hereinafter referred to as the 1976 v. Act), as held by a Division Bench in Mithu Singh and another Director Rural Development & Panchayat Department, Punjab

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and others ( Civil Writ Petition No.7438 of 2010, decided on 22.05.2012 ). It is, therefore, apparent that the petition filed by the Gram Panchayat under Section 7 of the 1961 Act, was not maintainable.

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In view of what has been held hereinabove, the findings recorded by the Collector and the Appellate Authority that the Gram Panchayat has no right, title or interest in the land, in dispute, are set aside but the writ petition is dismissed by holding that petition filed under Section 7 of the 1961 Act was not maintainable. Liberty is, however, granted to the Gram Panchayat to pursue its petition, already filed under the Punjab Public Premises and Land (Eviction

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Civil Writ Petition No.11007 of 2002

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and Rent Recovery) Act,1973, and to the private respondents to seek adjudication of their plea that the land, in dispute, does not vest in the Gram Panchayat, in accordance with law.

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(RAJIVE BHALLA) JUDGE

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February 01, 2013 (REKHA MITTAL) nt JUDGE

Gram Panchayat Murajwala v. State of Punjab and Ors.

Case brief

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Gram Panchayat Murajwala v. State of Punjab and Ors.

Case brief

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