Gram Panchayat land – Gairmumkin rasta -- Eviction of encroacher – Ex-parte demarcation -- In cross-examination, Demarcation officer admitted that he had not caused service nor also he obtained the apposite signatures on the list of the appearing litigants before him -- He has also admitted, that his signatures are not there on the list of presences -- No reliance was amenable to be placed upon his demarcation report – Impugned orders set aside -- Matter remitted back for fresh demarcation.

(Para 1, 2, 5-7)

A. Haryana Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g)(viii) – Shamilat deh -- Non-inclusion in shamilat deh – Plea of -- Pedigree table has not been placed on record, therefore, the petitioners cannot claim that they were either lawful successors in interest of their purported predecessors in interest, who were purportedly recorded, as hisedarans over the petition lands, in the records of rights prepared prior to 1950.

(Para 8(a))

B. Haryana Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g) – Shamilat deh -- Gair Mumkin -- Charand lands -- Record of rights prepared prior to the year 1950, reveals that lands are recorded as Gair Mumkin and or as charand lands -- In view of Section 2(g)(5) of 'the PVCL Act', the said lands also assigned to the panchayat.

(Para 8(b))

C. Haryana Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g)(viii) – Shamilat deh -- Charand, banjar quadim and gair mumkin lands -- In the jamabandi, there is no hisedari possession nor there could be any valid partition in respect of the above categories of land -- Placing reliance upon any purported private partition which occurred in the year 1943-44 is insignificant nor the benefit of the savings clause can be assigned to the petitioners.

(Para 9)

Haryana Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 7 – Panchayat land – Eviction -- Disputed khasra numbers are evidently owned by the Gram Panchayat -- Principal premise for decree of eviction rested upon demarcation report -- Despite several opportunities, the petitioner failed to adduce evidence for repelling the worth of the demarcation report – Petitioner omitted to ask for the summoning of the author of the demarcation report so as to ensure cross examination upon him -- Effect of the waivers and abandonments, is that, the petitioner is deemed to have acquiesced to the validity of the drawing of the demarcation report relied upon by the statutory authorities below -- Impugned orders do not suffer from any gross perversity – No merit in the writ petition, dismissed.

(Para 5-8)

Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g) – Constitution of India, Article 21 -- Revenue rasta – Constitutional right of single individual – Resistance by Gram Panchayat -- Even if only a single individual may become benefitted from the construction of a revenue rasta at the instance of the Collector of the revenue district yet the above is not a sufficient and well informed reason for the Panchayat to resist to make compliance with the orders of the Collector, as thereby there would be breach of the mandate of right to life as enshrined in Article 21 of the Constitution of India.

-- Constitutional mandate of right to life, also encapsulates, the right to a road being constructed upto, the homestead of any citizen, thus for facilitating able ambulance services being purveyed to a citizen, thus requiring emergent medical aid.

-- Solemn duty cast upon the Gram Panchayat to enable all villagers concerned to become facilitated with an ambulance road.

-- Imperatively also when the Panchayat lands are meant for the common purposes of the village proprietary body, thus are meant to as such rather also serve the above purpose, which also is a purpose, which tenably serves any member of the village proprietary body concerned.

Writ petition of Gram Panchayat dismissed.

(Para 7-9)

Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 7 – Code of Civil Procedure, 1908 (V of 1908), Section 11 -- Gair Mumkin Gali -- Eviction – Res-judicata -- Dismissal order on the earlier petition carrying therein a cause of action or subject matter or khasra numbers similar to the ones as carried in the extant petition is not sufficient to attract to the extant petition the estopping principle of constructive resjudicata unless also in the earlier motion either the petitioner or his predecessor in interest became impleaded as a party -- One of the respondents, who became impleaded therein was the predecessor in interest, of the present petitioner – Subsequent motion was necessarily barred by the estopping principle of res-judicata.

(Para 4, 5)

A. Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1973 (31 of 1973), Section 4, 5 – Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 7 -- East Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949, Rule 16(iii) – Gair Mumkin Makan – Eviction -- After consolidation petition land entered as “Gair Mumkin Abadi” and in the column of ownership, the entry of “Jumla Mushtarka Malkan va Digar Haqdaran Arazi Deh Hasab Rasad Raqba Khewatdar” – Gram Panchayat has management and control only, therefore, in the said capacity, when any of the person concerned, raises a “Gair Mumkin Makan” on the land, it becomes enabled to seek his eviction therefrom, as a “Gair Mumkin Makan” – No entry of “abadi deh” existing in the ownership column -- Land is required to be owned by the Gram Panchayat, for its being well enabled to institute a lawful motion u/s 7 of the Act of 1961, whereas, the petition land never became owned by the Gram Panchayat -- Therefore, the institution of an eviction petition, u/s 4 and 5 of the Act of 1973, is a valid motion -- Eviction order upheld.

(Para 1, 2, 9-13)

B. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g)(1)(4a) -- “Abadi Deh” -- “Gair Mumkin Abadi” -- Legal incidence of any land entered in the revenue record as “abadi deh” is that the abadi owners can raise their abadis on the land described in the revenue record as “abadi deh” (The land which is not cultivable because of inhabitation over it) -- Contrarily, any land entered in the revenue record as “Gair Mumkin Abadi” does not carry a co-equal legal incidence, as is impartible to land, described in the revenue record, as “abadi deh” land.

(Para 9)

Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 11 -- Shamilat deh -- Title dispute -- Suit for rendition of a declaratory decree by Gram Panchayat to declare as owner of the suit land – Concurrent decision against writ petitioner/ defendant -- Sale certificate  issued for auction sale by rehabilitation department in favour of the petitioner not produced before competent authority, attached in writ – After assigning only prima-facie credence impugned verdicts quashed, lis remanded to the learned Collector and ensure that it is proven in accordance with law but also with an opportunity to adduce cogent rebuttable evidence thereto Gram Panchayat – Court directed to decide the lis afresh but positively within 3 months.

(Para 1-4)

Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g), 7 -- Constitution of India, Article 226 -- Writ for a mandamus – Unauthorized occupation of Hadda Rori land – Demarcation of land – Eviction -- Respondents are purportedly delaying in making a lawful demarcation – Writ petition allowed, empowered Revenue Officer directed to forthwith make lawful demarcation(s) of the petition lands, and, thereafter to supply a certified copy of the demarcation report to the BDPO -- In case the said demarcation report reveals, that some encroachments, are made on the lands designated as Hadda Rori, thereupon, the BDPO concerned, is directed to forthwith institute a petition under Section 7 of the Act, before the learned Collector, who shall on receiving the said petition but after hearing all affected concerned, hence make a lawful decision thereon within 3 months of preferment of the said petition.

(Para 1-5)

Haryana Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g) -- Haryana Village Common Lands (Regulation) Rules, 1964, Rule 6 -- Lease of Shamlat Deh – Power of Gram Panchayat -- Though the Gram Panchayat has an able empowerment to lease the lands but the said empowerment is only when a public auction is conducted rather under the supervision of an Officer of the State Government -- Collector of the Revenue District directed to appoint SDM of the area to be the Officer, who shall conduct and supervise the public auction of the lands.

(Para 2-4)

A. Haryana Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 7, 13B -- Finality of eviction – Execution -- Eviction order acquired a binding and a conclusive effect, inasmuch as, it remaining unappealed, before the learned competent appellate authority --  Order is required to be ensured to be forthwith fully executed by the learned Assistant Collector.

(Para 2)

B. Haryana Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 7, 13B -- Eviction – Appeal -- Execution -- If the eviction order has yet not acquired any binding and a conclusive effect, inasmuch as, the aggrieved therefrom rearing an appeal thereagainst before the competent appellate authority, the learned Assistant Collector concerned may not draw any lawful order but may await a final and a conclusive decision being made thereon, by the competent appellate authority.

(Para 2)

A. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 7, 11 – East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (50 of 1948), Section 23A -- Gram Panchayat land -- Expiry of lease -- Eviction of lessee -- Jurisdiction to make an effective adjudication not vested in the authorities under the Act of 1948, but vested in the statutory authorities contemplated under the Act of 1961.

(Para 6)

B. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 7, 11 – Gram Panchayat land -- Expiry of lease -- Status of the petitioner on the petition land was as a Chakotedar or tenant -- On expiry of the tenure of lease, he was amenable to be evicted from the panchayat land.

(Para 7)

Haryana Village Common Lands (Regulation) Rules, 1964, Rule 8(4) Proviso  -- Shamilat deh – Carving out plot – Allotment of plot to scheduled caste, backward class, landless labourers, tenant – Permissibility of –Exemption assigned in the proviso underneath sub-Rule (4) of Rule 8 cannot lead to any interpretation, that it yet assigns any leverage or privilege in the Gram Panchayat concerned, to even carve plots from gair mumkin gada khad, and, to thereafter make resolution for allotments thereof, in purported terms of the proviso to sub-Rule (4) of Rule 8 rather to any member of the scheduled caste or backward class or to any landless labourers or tenant.

(Para 5, 6)

Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 7 -- Gair Mumkin Rasta -- Eviction by office order – Sustainability of -- Procedure established by law u/s 7 of the Act, 1961 not adopted – Appellate authority concurred similar vice of jurisdictional incapacity – Impugned orders quashed with a direction to the Sarpanch/ B.D.O. to forthwith institute a petition u/s 7 of the Act of 1961, before the ld. Collector and the Collector shall make a speaking decision after granting an opportunity of hearing to all affected concerned positively within 6 months.

(Para 3-6)

Haryana Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g)(iia) – Haryana Land Revenue Act, 1887 (XVII of 1887), Section 13, 16, 34 -- Shamilat deh  -- Cancellation of allotment -- Financial Commissioner assigned liberty to the Rehabilitation Department to access the Assistant Collector Ist Grade for attesting mutation in favour of the allottees subject to rider that compensation be made to Gram Panchayat -- Said compensation became deposited -- When all the statutory mandates complied, there was no occasion for the Assistant Collector Ist Grade to cancel the allotments in favour of the allottees nor was he empowered to mutate the petition lands, in favour of the Gram Panchayat – Mutations entered in favour of the Gram Panchayat cancelled and fresh mutations ordered to be attested by the Assistant Collector in favour of the allottees.

(Para 18-20)

Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 7 -- Gair Mumkin Rasta -- Encroachment upon – Eviction from – Writ petition -- Petitioner made a complaint to competent authority -- BDPO directed for valid demarcation of the site and if some encroachments are noticed, he shall forthwith institute a petition u/s 7 of the Punjab Village Common Lands (Regulation) Act, 1961, before the learned Collector -- Upon receiving such a petition, the ld. Collector shall pass a speaking decision after hearing all affected persons within a period of 4 months.

(Para 2-5)

A. East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (50 of 1948), Section 18, 22, 23-A – Haryana Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g)(iii)(iv), 2(g)(6) (as amended by Haryana Act No. 9 of 1992) – Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g)(iii)(iv) -- Punjab Village Common Lands (Regulation) Act, 1953, (1 of 1954) -- Shamilat deh – Exclusion from -- Common purposes land -- Jumla Malkan Wa Digar Haqdaran Arazi Hassab Rasad, Jumla Malkan – Vesting of -- Harmonious construction :

“Question : As to whether the verdict pronounced by the Hon'ble Apex Court in case “The State of Haryana through Secretary to Govt. of Haryana Vs. Jai Singh and Others”, verdict whereof, became rendered in Civil Appeal No.6990* of 2014, can be assigned retrospective effect, inasmuch as, even to those lands which were otherwise saved from vestment under the previous Acts respectively nomenclatured as “The Punjab Village Common Lands (Regulation) Act, 1961” as well as “The Punjab Village Common Lands (Regulation) Act, 1953”.

*State of Haryana Vs. Jai Singh and Others, 2022 AIR (SC ) 1718 = 2022(1) L.A.R. 1 = (2022) Law Today Live Doc. Id. 16887

Held:

-- If the lands, ear-marked for ‘common purposes’ recorded as Jumla Malkan Wa Digar Haqdaran Arazi Hassab Rasad, Jumla Malkan, were reserved by the Consolidation Officer for ‘common purposes’ u/s 18 of the 1948 Act, and if these lands did not revert back to the proprietors, before 11.02.1992, and the management and control thereof had already got vested in the Gram Panchayat u/s 23-A of the 1948 Act, then by virtue of Haryana Act 9 of 1992, the ownership and title of such lands gets vested in the Gram Panchayats.

-- where the lands which were at one point of time proposed to be meant for ‘common purposes’ at the time of consolidation or thereafter before 11.02.1992, rather were returned to the proprietors and were never reserved or ear-marked for common purposes, then such lands did not come under the management and control of the Gram Panchayats and ownership and title of such lands remained unaffected by Haryana Act 9 of 1992.

-- where the lands, though were kept for ‘common purposes’ under the Consolidation Scheme, but subsequently on account of any lis between the proprietors and the Gram panchayats, such lands had been partitioned amongst the proprietors and they continued to be recorded as owners in possession for decades, thus, also the management and control of such lands cannot be stated to have vested in the Gram Panchayat -- Clause (6) added by Haryana Act 9 of 1992 will remain inapplicable qua these lands also.

– lands which stood excluded from the definition of Shamlat Deh under the unamended Act i.e. Clause (iii) or (iv) of the Exclusion Clause contained in Section 2(g) of the 1961 Act, these factual issues can be determined only by a competent Court of jurisdiction.

-- if a proprietor is able to show that the land owned by him falls within any of these Exclusion Clauses, he is entitled to be protected from the wrath of the Haryana Act 9 of 1992 -- Haryana Act No. 9 of 1992 does not erode the efficacy or workability of the relevant exclusionary clause(s).

-- executive fiat cannot be pressed into aid by the State to annul such judicial or quasi-judicial orders and to transfer ownership of lands with a stroke of pen after decades.

-- once a Consolidation Officer causes to prepare a new Record of Rights and pursuant thereto, entries in the revenue records are made, such entries shall carry a presumption of truth in respect of ownership and possessory rights of the land -- Such lands where ownership and possessory rights have been duly recorded u/s 22 of the Act, shall fall outside the purview of Section 18 read with Section 23-A of the 1948 Act and as a necessary corollary, these lands cannot be subject matter of inclusion of Shamlat Deh in Clause (6) of Section 2(g) of 1961 Act.

(Para 35-40)

B. East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (50 of 1948), Section 18, 22, 23-A – Haryana Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g)(iii)(iv), 2(g)(6) (as amended by Haryana Act No. 9 of 1992) – Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g)(iii)(iv) -- Punjab Village Common Lands (Regulation) Act, 1953, (1 of 1954) -- Punjab Land Revenue Act, 1887 (XVII of 1887), Section 32 – Transfer of Property Act, 1882 (4 of 1882), Section 41 -- Shamilat deh – Exclusion from – Subsequent purchaser – Ostensible owner – Record of Rights prepared u/s Section 22 of the 1948 Act, read with Section 32 of 1887 Act were the bench-mark to determine whether the transferee or the subsequent vendee acted with due diligence -- After having verified that the vendor was recorded to be owner in possession of land for decades, such vendee entered into a bona-fide sale transaction, it shall get due protection of Section 41 of the Transfer of Properties Act -- The fact as to whether there was no due diligence or whether the transfer of title suffers from any type of imperfection, is an onus which lies on the Gram Panchayat or the Municipality, for which they are required to approach the Civil Court of appropriate jurisdiction.

(Para 43)

C East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (50 of 1948), Section 18, 22, 23-A – Haryana Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g)(iii)(iv), 2(g)(6) (as amended by Haryana Act No. 9 of 1992), 5-B – Shamilat deh – Exclusion from -- Common purposes land -- Jumla Malkan Wa Digar Haqdaran Arazi Hassab Rasad, Jumla Malkan – Sale transaction – Effect of :

Question : “whether in the wake of the assented to amendment, made by the Haryana State Legislative Assembly, wherethrough, Section 5-B became incorporated in the Haryana Village Common Land (Regulation) Act, 1961, does or does not, cover the sale transaction which occurred prior thereto, and, especially when such issue was not under consideration before the Hon'ble Supreme Court in Jai Singh's case (Supra)*, besides especially also when it has not been assigned any retrospective effect.”

*State of Haryana Vs. Jai Singh and Others, 2022 AIR (SC ) 1718 = 2022(1) L.A.R. 1 = (2022) Law Today Live Doc. Id. 16887

-- Section 5-B will be applicable only when it is proved before a competent court of law that the land was actually Shamlat Deh and hence the conveyance deed in relation thereto should be declared inoperative -- Determination of title of land as to whether or not it is Shamlat Deh through proceedings before a court of competent jurisdiction and in accordance with the principles of natural justice is a sine-qua-non for invoking the powers under Section 5-B of the 1961 Act.

(Para 45)

D. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g) -- East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (50 of 1948), Section 42-A (inserted vide Punjab Act No. 6 of 2007) – Shamilat deh – Common purpose land – Jai Singh's case* is equally binding on the State of Punjab, the mechanism to implement the said Judgment in both the States therefore, requires commonality -- Section 42-A of the 1948 Act provide that the land reserved for ‘common purposes’ whether specified in the Consolidation Scheme or not shall not be partitioned amongst the proprietors of the Village and it shall be utilized and continue to be utilized for ‘common purposes’ -- Above provision came to be inserted vide Punjab Act No. 6 of 2007 in the 1948 Act and has to apply prospectively -- Thus, the natural consequence thereof would be that the lands which already stand partitioned/re-distributed amongst the proprietors prior to Punjab Act No. 6 of 2007, would not get affected and the orders passed by competent Courts of Jurisdiction under which the said partition/re-distribution has been made, cannot be eroded through recourse to the said insertion.

*State of Haryana Vs. Jai Singh and Others, 2022 AIR (SC ) 1718 = 2022(1) L.A.R. 1 = (2022) Law Today Live Doc. Id. 16887

(Para 48)

E. East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (50 of 1948), Section 18, 22, 23-A, 42-A (inserted vide Punjab Act No. 6 of 2007) – Haryana Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g)(iii)(iv), 2(g)(6) (as amended by Haryana Act No. 9 of 1992), 5-B – Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g)(iii)(iv) -- Punjab Village Common Lands (Regulation) Act, 1953, (1 of 1954) -- Constitution of India, Article 31A, 300A -- Shamilat deh – Exclusion from -- Common purposes land -- Jumla Malkan Wa Digar Haqdaran Arazi Hassab Rasad, Jumla Malkan – Vesting of –

(i) Executive Instructions dated 21.06.2022 and 18.08.2022 issued by the State of Haryana and dated 11.10.2022 issued by the State of Punjab whereby ownership rights of the lands in question are sought to be transferred in favour of the Gram Panchayat/Municipalities, through Executive fiat, are held to be contrary to the very scheme of the Statute and are hereby quashed, particularly in view of the fact that these executive instructions cannot result into arbitrary cancellation of valid title over the properties.

(ii) Accordingly, the States of Haryana as well as Punjab shall give effect to the Judgment of the Hon'ble Supreme Court in Jai Singh's case (supra)* in the following manner:-

*State of Haryana Vs. Jai Singh and Others, 2022 AIR (SC ) 1718 = 2022(1) L.A.R. 1 = (2022) Law Today Live Doc. Id. 16887

(a) Where the lands continue to be shown as reserved for ‘common purposes’, whether utilized or unutilized, the ownership of such land shall vest in the Gram Panchayat or the Municipalities, as the case may be.

(b) However, if the lands which were proposed or shown to be reserved for common purposes have been partitioned, amongst the proprietors or redistributed amongst them, under the Consolidation Scheme, such lands are held to have never come under the management and control of the Gram Panchayats and, thus, ownership in relation thereto does not vest in the Gram Panchayats by virtue of the provisions, like Haryana Act 9 of 1992. Conspicuously, also given that the Punjab Act No. 6 of 2007 as relates to the 1948 Act, rather has only prospective effect, and, it does not erode the validly made orders either by the jurisdictionally competent Courts, and, or by the empowered revenue authorities whereby partitions and re-distribution of lands are made, may be even from the common pool.

(c) The Gram Panchayat or the Municipality shall be at liberty to approach the competent Court of law for vesting of ownership rights in them in respect of the lands where there is serious dispute as to whether the same had been reserved for common purposes and/or were never distributed/ returned amongst the proprietors through an order of a competent court or of any competent statutory authority.

(d) where there is no dispute in respect of lands reserved for common purposes and the management and control whereof had been transferred to the Gram Panchayat under Section 23-A of the 1948 Act, ownership of such lands shall vest in the Gram Panchayat/Municipality in view of the fact that provisions like Haryana Act 9 of 1992 have been declared intra vires by the Hon'ble Supreme Court in Jai Singh's Case;

(e) In the case of lands which at one point of time were shown or proposed to be reserved for common purposes but have been returned/ re-distributed amongst the proprietors under the orders of the Revenue Court/ Consolidation Officer and when ‘management’ or ‘control’ of lands was never transferred to the Gram Panchayats under Section 23-A of the 1948 Act, such lands also cannot be automatically presumed to have vested in Gram Panchayats or Municipalities;

(f) Where lands falling in the categories as illustrated in direction No.(b) and (e) above, have been sold/re-sold to bonafide purchasers after due diligence and for valuable consideration, the title or possessory rights of such bona-fide purchasers shall remain unaffected, save and except, when the sale deeds in their favour are set aside by the courts of competent jurisdiction.

Impugned notifications/instructions, as respectively made by the State of Haryana, and, by the State of Punjab, are to the extent that are militative, to the prospective assignments of force, by this court, to the Haryana Amending Act, 1992, the Punjab Amending Act, 2022, and, to the Punjab Act No. 6 of 2007, are quashed and set aside, on the above, and, the hereinafter mentioned five counts, and, shall henceforth have no force and operation.

i) They are in breach to the mandate of the judgment made by the Hon'ble Apex Court in Jai Singh's case (supra), whereby only a very limited retrospectivity is assigned to the amended provisions (supra).

ii) They are ultra vires the rules of natural justice.

iii) They are ultra vires the lawfully made assignment(s) to the assignees concerned, hence by any empowered revenue officer.

iv) That when they assign untenable retrospectivity, to the amended provisions, but yet they do not make any contemplations qua payments of compensation to the land owners concerned. Thus, they are quashed and set aside.

v) They are ultra vires the constitutional right of property, as enshrined in Article 31A, and, in Article 300 A of the Constitution of India.

(Para 50-51)

Haryana Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 7(2) – Haryana Village Common Lands (Regulation) Rules, 1964, Rule 12 -- Gram Panchayat land -- Earmarked for School -- Encroachment upon -- There is no playground, school is surrounded by the unauthorized construction made by the original writ petitioners -- Unauthorized occupation and possession of the land, which is reserved for the school and the playground, cannot be directed to be legalized -- There cannot be any school without playground -- Even the students, who study in such a school are entitled to a good environment -- Held, High Court committed a very serious error in directing to legalise the unauthorized occupation and possession on payment of market price -- Impugned judgment and order passed by the High Court quashed and set aside.

(Para 4, 5)

Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 7 – Constitution of India, Article 226 -- Eviction from shamilat deh – Writ of mandamus -- Mandamus cannot be made as yet the statutorily prescribed remedies are still available to become recoursed at the instance of BDPO or by the petitioner or at the instance of the Gram Panchayat, through the institution a petition u/s 7 of the PVCL Act, 1961 – Directions given that BDPO, does forthwith draw a petition u/s 7 of the Act, against the encroachers, upon the petition land(s) -- On such a motion being drawn, thereupon, a lawful order, positively within five months from its preferment, and, but after hearing all the affected persons be made.

(Para 1)

A. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g), 11 -- Gair marusi – Right of ownership -- Gram Panchayat is recorded in the column of ownership and name of father of the petitioner recorded as Gair Marusi (A non-occupant tenant) in the column of cultivation -- A non-occupant tenant cannot acquire the status and rights of Marusi and claim ownership.

(Para 7)

B. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g), 7 -- Code of Civil Procedure, 1908 (V of 1908), Order 6 -- Pleading in civil suit – Admission as Shamilat deh -- In suit plaintiff/ petitioner specifically pleaded that the suit land is Shamlat Deh, and, ejectment therefrom could only be ordered u/s 7 of the Act -- Now the petitioner cannot turn around, and, say that the suit land is not Shamlat Deh, rather, it is Nazul land.

(Para 9)

C. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g) 13 -- Shamilat deh – Jurisdiction of civil court -- Civil court has no jurisdiction with regard to Shamlat land -- Therefore, any order passed by the civil court would be coram-nonjudice, thus a nullity.

(Para 9)

Haryana Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 5, 13, 15 -- Haryana Village Common Lands (Regulation) Rules, 1964, Rule 5 -- Exchange of shamilat land – Jurisdiction of civil court -- Word 'benefit of inhabitants of the village' does not mean for the benefit of one or two persons amongst the inhabitants, but is for the benefit of entire village proprietary body -- Further-more, there is no prior approval of the State Government enabling the Sarpanch to file written statement admitting the claim of private respondents -- Exchange is result of collusion between the office bearers of Gram Panchayat and the private respondents -- Even otherwise, there is a specific jurisdictional bar created in Section 13 of the Act of 1961 against the civil court to entertain such a claim -- Thus, the said civil suit was ill constituted besides the award as made thereon by the Daily Lok Adalat concerned, is also vitiated by the vice of jurisdictional incompetence -- Award is a nullity.

(Para 6-8)

Constitution of India, Article 226 – Eviction of unauthorised occupant of shamilat deh – Writ jurisdiction -- Complaint before the Director, Rural Development & Panchayats Department regarding unauthorized possession of the Shamlat land with prayer for lawful proceedings under the relevant statute be drawn against the encroachers – Direction given that subject to lawful demarcations, the BDPO shall forthwith subsequent thereto draw proceedings under the relevant provisions of the relevant statute against the encroachers.

(Para 2-5)

A. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g)(i), 4(3)(ii) -- Shamilat deh – Brani first -- Gair dakhilkar  -- Gair marusi -- Vesting in Panchayat – More than 12 years cultivable possession immediately preceding to the commencement of the Act  -- Ground of – Jamabandi of 1939-40, in ownership column-Shamlat deh, in cultivation column-name of the father of the petitioners as gair dakhilkar and in the column of area and kind of land, it is recorded as brani first – Simpliciter the “shamlat deh” as per Section 2(g)(i) falls in the inclusionary clause, brani first is non cultivatable land, petitioners cannot claim that their father was in cultivating possession in the year 1939-40 -- In the name of cultivator, name entered as gair marusi, meaning thereby he is 'non occupant tenant' -- Collective reading of the entries makes it clear that the land falls within the ambit of 'Shamlat Deh' – Contention that, by the dint of provisions of Section 4(3)(ii) of the Act, the land saved from vestment in the Panchayat, is not tenable.

(Para 7)

B. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g)(i), 4(3)(ii), 7, 11 – Shamilat deh – Vesting in Panchayat – Civil Court order – Effect of – Civil Court order that the father of the petitioners shown to have been in possession of the disputed land for more than 12 years and in view of Section 4(3)(ii) of the Act, the suit land does not vest with Panchayat – Held, this order is of no consequence, as it has not been passed by the competent authority exercising the powers under the Act because no petition has been filed either u/s 7 or 11 of the Act.

(Para 8)

C. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g)(i), 4(3)(ii) – Shamilat deh – Cultivation possession -- Banjar Kadim -- If a land remains uncultivated for a successive period of 8 harvest then the same is recorded as banjar kadim -- In the jamabandis for the year 1939-40 and 1943-44, the nature of the land is recorded as banjar kadim -- This dislodges the stand of the petitioners that they or their fore-fathers were in cultivating possession – Petitioners failed to prove that they were in cultivating possession of Shamlat Deh for more than 12 years immediately preceding the commencement of this Act, rather, the revenue records with which presumption of truth is attached speaks otherwise, and, the land clearly falls within the inclusionary clause of Shamlat Deh, and, therefore, by the dint of provisions of Section 4(1) of the Act, the land vests in the respondent-Gram Panchayat.

(Para 8)

Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 7 -- Panchayat  deh – Eviction petition – Locus Standi -- A private person had no locus standi -- Initially the Collector, and, the latter the appellate authority passed orders of eviction, is rather a curable infirmity -- Above infirmity can be cured, after quashing the impugned orders, through an order of remand upon the learned Collector, to make a fresh decision, in accordance with law only when the Gram Panchayat, passes a resolution authorizing the Sarpanch thereof, to institute an application for seeking the substitution of applicant by the Sarpanch of the Gram Panchayat -- Collector after hearing all the affected concerned, shall make lawful orders upon the petition u/s 7 of the Act.

(Para 4-6)

Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 7 -- Panchayat  deh – Eviction petition by Sarpanch – Sarpanch himself encroacher of land – Effect of – Petition in respect of those tracts of land, whereons no encroachment is made, at the instance of co-respondent No.7/ Sarpanch, renders the petition by the said Sarpanch well constituted – If after demarcations land owned by the Panchayat Deh found to be encroached by Sarpanch, the Panchayat, shall make a resolution, whereby it shall not authorize the above Sarpanch, to institute a petition u/s 7 of the Act, but shall authorize some other Panch to institute petition.

(Para 5)

Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 11 – Constitution of India, Article 226 -- Title dispute -- Vacation of interim relief – Writ jurisdiction -- No reason recorded, which called for vacation of interim relief by ADC -- Writ petition disposed of with the direction that petition u/s 11 of the PVCL Act filed by the petitioners be finally decided by the ADC within a period of three months -- Till then, status quo with regard to possession maintained.

(Para 3-6)

A. Haryana Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g), 7 -- Shamilat deh – Eviction of unauthorised occupant – Destructive stands -- Two stands are mutually destructive inasmuch as, on one hand, the petitioner is claiming ownership of the land in question and at the same time, he is seeking protection of his possession as a “tenant” -- Mutually destructive stands are not permissible in law.

(Para 16)

B. Haryana Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g), 7 – Haryana Village Common Lands (Regulation) Rules, 1964, Rule 19 -- Shamilat deh – Vesting of -- No document to substantiate plea that petitioner is a tenant under the Gram Panchayat – Still further, petitioner has not challenged the judgment and decree passed by the learned Civil Judge, findings have been returned that though the suit property is the ownership of the Gram Panchayat but the same is possessed by the plaintiff -- In view of the facts & circumstances and also the provisions contained in Section 7 read with Section 2(g) of the Act, 1961 and Rule 19 of the Rules, 1964; the land in dispute vests with the Gram Panchayat.

(Para 17-21)

C. Haryana Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g) – Shamilat deh -- Jumla Malkan Wa Digar Haqdaran Arazi Hassab Rasad -- Jumla Malkan -- Mushtarka Malkan – Explanation appended to sub Section 6 of Section 2(g) of the Act, 1961 clearly states that the lands entered in the column of ownership of record of rights as “Jumla Malkan Wa Digar Haqdaran Arazi Hassab Rasad”, “Jumla Malkan” or “Mushtarka Malkan” shall be shamilat deh within the meaning of this section.

(Para 22)

D. Haryana Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g), 7 -- Shamilat deh -- Eviction proceedings – Res-judicata -- It is well settled that the proceedings u/s 7 of the Act, 1961 are summary in nature and the principles of res judicata are not attracted thereto.

(Para 25)

E. Haryana Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 7(2) – Shamilat deh – Eviction of Unauthorised occupant – Penalty -- Since the petitioner had continued in illegal and unauthorised possession of the land in dispute measuring198 Kanals - 2 Marlas, the penalty @ 1% of the Collector rate of the land per acre per annum, as provided under Section 7(2) of the Act, 1961, upon the petitioner imposed w.e.f. the date of filing of the eviction petition up to the date of taking over the possession of the land in dispute from the petitioner -- DDPO to determine the total amount of penalty in terms of Section 7(2) of the Act, 1961 and shall ensure that the said penalty amount does not exceed 10% of the current Collector rate on the date when the said amount is deposited in terms of Section 7(2) of the Act, 1961.

(Para 34-36)

Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 11, 13 -- Gram Panchayat Deh – Shamilat deh – Ownership dispute – Jurisdiction of civil court – Rejection of plaint -- Suit to declare the plaintiff owner in possession by way of adverse possession – Civil Court refused to reject the plaint on the ground that the property is not a shamilat deh land – Held, the question as to whether the suit property is or is not shamilat deh is required to be decided by the Collector and the jurisdiction of the Civil Court has been specifically excluded -- Plaintiff claims that he has perfected his title by way of adverse possession -- Such a question exclusively falls within the domain of the Collector empowered under Section 11 of the 1961 Act -- Revision petition allowed, order passed by the trial Court set aside being unsustainable -- Plaint shall stand rejected -- However, the plaintiff shall have the liberty to file proceedings under Section 11 of the 1961 Act.

(Para 3-9)

Haryana Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 5-A, 5-B – Haryana Village Common Lands (Regulation) Rules, 1964, Rule 3(2)(ii), 12 – Shamilat deh -- Sale of land for plantation purpose to PWD (B&R) – Permissibility of -- Although the change of user of shamlat deh land is permissible for plantation purposes but such permissible user can be effected either by the Gram Panchayat at its own level or through another as envisaged under Rule 3 of Rules, 1964 -- However, sale of land by Panchayat in favour of any Government Department for “plantation” would not fall within the parameters envisaged under Section 5B of the Act, 1961 read with Rule 12 of the Rules, 1964 as applicable to the State of Haryana – Held such sale was not permissible.

(Para 14-19)

A. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 7, 11 – Shamilat deh – Eviction petition – Title dispute – Scope of summary proceedings -- Parties had raised question of title and the ld. Collector and the ld. Appellate Authority decided the matter in an exceptional hurry, without even granting proper opportunity to both the parties to place on record to their respective evidence before the same -- In such cases, the effective recourse for the Collector would have been to undertake such an exercise by expanding the scope of proceedings from Section 7 to Section 11 of the Act as the eviction proceedings under Section 7 of the Act are summary in nature and such summary proceedings can cause prejudice to either party.

(Para 13)

B. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g), 7 -- Abadi deh – Exclusive use as abadi deh – Common purposes usage -- Shamilat deh -- Eviction petition – Maintainability of – It was to be seen as to whether the land was exclusively used as 'Abadi Deh', then it would not have been included in the 'Shamlat Deh' and the petition u/s 7 of the Act on behalf of Gram Panchayat in respect of such land would not have been maintainable -- If the land fell within 'Abadi Deh' and was used or reserved for the benefit of village community including the pond, then it would be included in the definition of 'Shamlat Deh' and the Gram Panchayat would be entitled to maintain a petition u/s 7 of the Act.

(Para 14)

Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 13, 13-A -- Shamilat deh – Jurisdiction of civil court -- Primary question which arises for adjudication would be, “As to whether the land meant for the construction of school playground is Shamlat deh or not?” – Section 13 bars the jurisdiction of the court to entertain or adjudicate upon any question whether any land or other immovable property is Shamlat deh or not -- Exclusive jurisdiction to decide such question vests with the Collector.

(Para 3)

A. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 7 – Constitution of India, Article 226, 227 -- Shamilat deh – Eviction order set aside in appeal – Writ petition -- Delay and laches of 34 years – Gram Panchayat challenging the order passed on 08.02.1988 – No explanation, only submission, that the Commissioner did not have the jurisdiction to pass an order dated 08.02.1988 and, therefore, the said order would be null and void -- When confronted with the statutory provisions, the counsel has not been able to substantiate the same – Writ petition dismissed on delay and laches.

(Para 1, 2)

B. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 7 – Allotment of land – Breach of condition – Onus to prove – Eviction -- Case of the Gram Panchayat for eviction hinges is that the land was given to the forefather of the private respondents by the village community on the condition that they would hand over the land back to the village community if they ceased to provide artisan services as carpenter and blacksmith to the village community and that since these private respondents have ceased to provide such artisan services, they are liable to be evicted from the land – Onus was on the Gram Panchayat to establish that there was any stipulation at the time of allotment of land -- Merely because some of the family members have adopted some other professions does not in itself mean that the said persons are liable to be evicted from the land in question, especially when nothing has come on record, which would indicate that it was a conditional allotment of land to the forefathers.

(Para 3,4)

C. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g), 7 – Unauthorised possession -- Respondents had never paid anything to the Gram Panchayat as rent or share of the produce -- They had, however, been paying land revenue like other land owners -- Forefathers of the private respondents have been occupying the land much prior to the period of 12 years before the commencement of the 1961 Act and, thus, they cannot be said to be in unauthorized occupation of the land and, therefore, they are not liable to be evicted from the land being unauthorized occupants.

(Para 6)

Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g), 11 -- Shamilat deh – Title dispute – Gair marusi -- Jamabandi since the year 1935-36 indicates the land to be 'Shamlat Deh' -- All the records since the earlier time to the cut-off date of 26.01.1950 indicate that the Gram Panchayat has been entered as the owner in the column meant for the said purpose -- In the Jamabandi since the year 1976-77 till 2006-07, the Gram Panchayat is entered in the ownership column and on the other hand, petitioners have been shown as Gair Marusi, which shows that they are in illegal possession of the land – In the absence of any evidence to the contrary that the petitioners are in cultivating possession of the land prior to 26.01.1950, the petitioners cannot be declared the owners of the land in question.

(Para 7)

Punjab Village Common Lands (Regulation) Rules 1964, Rule 10, Rule 12 (4) -- Shamilat deh -- Allotment of land to encroacher -- Intent and purpose of selling the land by the Gram Panchayat is to help out the people who do not have any land -- It is not intended to help the encroachers of the land of the Gram Panchayat -- Courts cannot be a party to encourage illegal encroachment upon the Gram Panchayat land by regularizing or accepting such prayer.

(Para 5, 6)

A. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 13, 13-A (Haryana) -- Shamilat deh/ Gram Panchayat land – Title dispute – Jurisdiction of civil Court -- Jurisdiction to decide any dispute as to whether any right, title or interest in any land or immovable property vests in the Gram Panchayat or not, would exclusively lie with the Collector, to the exclusion of the Civil Court.

(Para 9)

B. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 13, 13-A (Haryana) -- Shamilat deh/ Gram Panchayat land – Title dispute – Suit for injunction -- Relief claimed in the civil suit involves the adjudication of rights of the parties over the suit property, hence, the jurisdiction of the Civil Court over the matter would, therefore, be barred u/s  13 of the Act.

(Para 10)

C. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 13-A(1)(2) (Haryana) -- Shamilat deh/ Gram Panchayat land -- Injunction – Power of Collector – Contention that there was no alternative remedy available to plaintiffs for restraining the defendants, is devoid of any merit -- Section 13-A(2) of the Act provides for deciding the suits under Section 13-A(1) in the same manner, as is provided for, in the Code of Civil Procedure (CPC) -- Hence, the Collector also does have all such incidental powers to decide the suit effectively and also has the powers to grant injunction.

(Para 11)

D. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 – Rejection of plaint – Power of – Nature of – Stage of -- Trial Court erred in observing that since the evidence had commenced, an application under Order 7 Rule 11 of CPC was not maintainable -- Powers of the Court conferred under Order 7 Rule 11 of CPC are mandatory in nature and can be exercised at any stage of the suit, but before the conclusion of the trial.

(Para 13)

Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 11, 13 – Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11,  Section 9 – Common land -- Title dispute – Jurisdiction of Civil court -- Plaint rejected as the plaintiffs sought a decree of declaration that the various orders passed by the authorities while deciding the suit u/s 11 of the 1961 and other orders are illegal, null and void -- Section 13 of the 1961 Act specifically bars the jurisdiction of the Civil Court with respect to the correctness of the orders passed by the authorities nominated under the 1961 Act – No ground to interfere is made out.

(Para 1, 2)

Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 7(2), 13AA(2) (Haryana) – Constitution of India, Article 226, 227 -- Eviction proceedings – Revision for title dispute pending – Effect of -- Contends that in case the proceedings u/s 7(2) of the Act which have been preferred by the private respondents is finalised prior to the decision in the revision petition, the petitioner is likely to loose the possession of the land in question without there being any decision on the title – Direction issued to the F.C. Revenue to consider and decide the said revision petitions on the next date of hearing and in case it is not possible to do so on the said date, it may be done within a further period of one week thereafter.

(Para 1-5)

Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 7(2), 13AA (2) (Haryana) – Constitution of India, Article 226 -- Eviction proceeding -- Question of title pending in revision – Writ jurisdiction -- Contention that in case the proceedings u/s 7(2) of the Act is finalised prior to the decision in the revision petition, the petitioners are likely to loose the possession of the land in question without there being any decision on the title -- Direction issued to the F.C, Revenue, to consider and decide the said revision petitions on the next date of hearing, and in case it is not possible to do so on the said date, it may be done within a further period of one week thereafter.

(Para 1-5)

Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g), 7 – Constitution of India, Article 226 -- Shamilat deh -- Encroachment over street – Removal/ Eviction of – Writ jurisdiction -- Street is included within the definition of “Shamlat Deh” -- Collector, on an application filed by the Gram Panchayat, is entitled to pass an order for putting the Gram Panchayat in possession of the Shamlat Deh land -- Since the petitioner can avail an efficacious alternative remedy available u/s 7 of the 1961 Act, therefore, there is no ground to exercise the extraordinary writ jurisdiction under Article 226 of the Constitution of India -- Petitioner relegated to the alternative remedy.

(Para 1-4)

Constitution of India, Article 226 – Code of Civil Procedure, 1908 (V of 1908), Section 9 -- Shamilat deh – Writ jurisdiction -- If the proprietors claim that the Shamilat land has never been reserved/used for common purposes, they can get their title decided from the Civil Court -- Writ petition is not the appropriate remedy. Jai Singh’s case 2003(2) PLR 658 relied.

(Para 3)

Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 7, 13-A (Haryana) – Constitution of India, Article 227 -- Eviction from Gram Panchayat land – Writ jurisdiction -- At the time when the decision was rendered on an application moved u/s 7 of the Act, 1961, the application/petition which was moved by the petitioners u/s 13-A of the Act for declaring them as owners of the land in question stood dismissed, the appeal against which was also dismissed by learned Commissioner and revision before financial Commissioner was also dismissed – Writ against those orders pending -- Mere pendency of an issue before a writ Court or a revisional Court where there is no stay granted with regard to possession, cannot be a ground for keeping the proceedings pending for all time to comes -- Pendency of the matter before the higher Court specially when a declaration sought for has been declined by the competent Court would not be an impediment for passing an order of eviction under Section 7 of Act, 1961.

(Para 4, 5)

Constitution of India, Article 226 -- Ejectment from unauthorised occupation – Non-decisioning of -- Gram Panchayat made applications/ representations for ejectment of the private respondents -- No action has been taken till date – Writ petition disposed of by giving direction to respondent No. 2 to take appropriate steps within three months in accordance with law.

(Para 1-4)

A. Constitution of India, Article 226 -- Encroachment on Panchayat land by Sarpanch/petitioner -- Demarcation of – All the parties are ready for the fresh demarcation – In case after demarcation of the area, it is found that the petitioner has encroached upon area of the Gram Panchayat and the same is in his possession, as undertaken by the petitioner, the said encroached area will be immediately vacated and the possession of the same will be given to the Gram Panchayat again and any construction done on the said encroached area will be demolished by the petitioner himself -- In case, the said construction on the said encroached area is not demolished by the petitioner within a period of four weeks, the Gram Panchayat will be within its jurisdiction to demolish the same.

(Para 9-11)

B. Punjab Panchayati Raj Act, 1994 (9 of 1994), Section 20 -- Constitution of India, Article 226 -- Suspension of Sarpanch -- Encroachment on Panchayat land by Sarpanch/petitioner -- Demarcation of – If after demarcation of the disputed area, it is found that some area belonging to the Gram Panchayat is encroached but the same is not in the possession of the petitioner, but is in the possession of somebody else, the petitioner undertakes that the appropriate proceedings for getting the said encroachment vacated will be initiated by the Gram Panchayat expeditiously without any fail by adopting the proper procedure as envisaged under law against the said encroacher by the petitioner being the Sarpanch of the village -- Order suspending him on the said allegation will not be given effect and will kept in abeyance till the fresh demarcation report is given by the revenue authorities -- In case the petitioner is found to have encroached upon any Government land, the said suspension order will automatically come into force once again.

(Para 12-14)

Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 13-B – Constitution of India, Article 226, 227 -- Writ of mandamus – Executive revision petition pending before Commissioner since 6.11.2020 – Direction given to Commissioner to make an effort to decide the revision petition on fixed date and in any case, to conclude the said proceedings by deciding it within a further period of three weeks thereof, if it is not possible to conclude on fixed date.

(Para 1, 2)

Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Sections 5 and 15(2)(f) -- Punjab Village Common Lands (Regulation) Rules, 1964, Rule 12(4) -- Gram Panchayat land/ deh – Shamilat land/ deh -- Sale to illegal occupant – Regularisation of -- Permissibility of – Persons in illegal occupation of the Government Land/Panchayat Land cannot, as a matter of right, claim regularization – It can only be as per the policy of the State Government and the conditions stipulated in the Rules – Rule 12(4) specifically contained a stipulation to the effect that the illegal/unauthorised occupation up to a maximum of 200 square yards only can be sold on regularisation and on fulfilment of other conditions mentioned in Rule 12(4) of the 1964 Rules -- Petitioners are found to be in illegal occupation of the area of more than 200 square yards -- Therefore, one of the conditions mentioned in Rule 12(4) is not satisfied and therefore both, the competent authority as well as the High Court have rightly held that the petitioners are not entitled to the benefit of the provisions of Rule 12(4) of the 1964 Rules -- Prayer of the petitioners for regularization of their illegal occupation of the panchayat land cannot be accepted.

(Para 7, 8, 9)

A. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 5, 15(2)(f) -- Punjab Village Common Lands (Regulation) Rules, 1964, Rule 5 -- Constitution of India, Article 226 -- Exchange of shamilat deh/land – Satisfaction in resolution about benefit of inhabitants of village – No such satisfaction was recorded by it while passing the impugned resolutions -- Government has already approved the change of land use from agriculture to industrial in the land in question belonging to Gram Panchayat which is abutting road -- Development activities have already started in the said area -- So, it cannot be said that it is a case of exchange of two lands having equivalent values -- 200 feet road has divided the Panchayat land into two parts, same has increased the potential value of the said land which is now abutting both sides of the road leading to Mohali International Airport -- Writ petition allowed, the impugned Resolutions passed by the Gram Panchayat set aside -- A writ in the nature of Certiorari is also issued for quashing the order passed by the Government permitting the exchange of land of the Gram Panchayat.

(Para 21-26)

B. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 5, 6, 15(2)(f) -- Punjab Village Common Lands (Regulation) Rules, 1964, Rule 5 -- Punjab Panchayati Raj Act, 1994 (9 of 1994), Section 199 -- Constitution of India, Article 226 -- Exchange of shamilat deh/land – Challenged in writ – Alternative remedy – Effect of – Locus-standi of -- Anybody who has been prejudicially affected by the aforesaid acts or omissions committed by the Gram Panchayat could invoke writ jurisdiction, even though he may not have proprietary interest in the subject matter -- As the petitioner was not party to the impugned proceedings, he was having no right to challenge the same by filing statutory appeal -- Also the existence of alternative remedy is not an absolute bar on the jurisdiction of the High Court under Article 226 and is a rule of discretion and self-imposed limitation rather than that of law – Petitioner being vigilant citizen and inhabitant of the village was competent to challenge impugned actions of Gram Panchayat in the writ petition, even if he has not availed the alternative remedy (if any), available to him under the law – Gram Panchayat resolution and permission granted by Government set aside.

(Para 23-26)

Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 11 -- Code of Civil Procedure, 1908 (V of 1908), Section 11 – Shamilat deh – Res-judicata – Earlier plaintiff’s father petition was dismissed by Collector, affirmed by Division Bench of High Court -- Land in dispute is the same in the previous and subsequent litigation which came to be decided by the Division Bench -- Plaintiff as well as his witness admitted that the plaintiff's father also filed a similar suit in which he remained unsuccessful -- Keeping in view the principle of res judicata, the suit is a clear abuse of the process of the Court – Appeal dismissed in limini, with costs of Rs.25,000/-.

(Para 3-6)

Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 13-A – Ownership suit by Gram Panchayat before Collector – Revenue authorities ignored civil court decrees as null and void and decided in favour of Gram Panchayat -- Land of the shamlat deh measuring 9413 kanal 13 marla i.e. about 1176 acres was given on lease to the petitioners and others in the year 1952 under the East Punjab Utilization of Lands Act, 1948 -- Petitioners did not vacate the land after expiry of the lease period and remained in unauthorized possession without paying any rent to the Gram Panchayat

– Petitioners filed suits in the Civil Court and obtained the collusive decrees of the land measuring 6531 kanal 11 marla i.e. about 816 acres.

-- Besides this, the suit filed by the Gram Panchayat in order to challenge the decrees of the years 1973 and 1974 were also not contested by it and were dismissed for want of prosecution or evidence.

-- Thus, the petitioners and others, who are otherwise not the owners, got a declaration of the ownership rights from the Civil Court though the land in dispute is recorded in the revenue record as shamlat deh hasab rasad zar khewat which cannot be owned by a person who is not a co-sharer or proprietor.

-- Petitioners and others are admittedly not the co-sharers but were only in possession as lessee and there is no such law that a lessee can become the owner without purchasing the land in his possession.

-- Ownership can be set up in an immovable property by way of sale, gift or exchange whereas the possession can be claimed by way of lease and mortgage – Claim that their decrees have been protected by High Court while deciding CWP No. 525 of 1975 is not acceptable because in the case of Gram Panchayat, Village Naulakha 200(4) RCR (Civil) 749, the Hon’ble Supreme Court has held that the collusive degree obtained by fraud can be ignored in a subsequent suit/proceedings if question is raised and proved and it is not necessary to file an independent separate suit for setting aside such a decree.

Held, if such type of decrees obtained by the petitioners and similarly situated other persons in collusion with the Sarpanch of the Gram Panchayat, for declaration of ownership, though they are not the owners of the land in question and were only in possession and the land is shamlat deh are protected then there would be a total chaos in the Society – Held, no error in the impugned orders, writ petition dismissed.

(Para 18-20)

A. Lease of land by Gram panchayat without lease deed -- Fraud alleged -- Land in question was ‘banjar’ land having “shora” and Gram Panchayat wanted to give the said land on lease to make the same fit for cultivation by removing “shora” -- Such proposal was agreed to by all the members of Gaon Sabha and proposal as such was sent to Dy. Director, Panchayat for approval -- Dy. Director of Panchayat has approved the same -- Only after receipt of such approval from the Dy. Director, Panchayat, land was auctioned for grant of leasehold rights -- In the auction conducted there were as many as six bidders and bid of the respondent was the highest was accepted -- Dy. Director approved the acceptance of the bid in favour of the respondent for a period of five years -- Thereafter the respondent was put in possession and he continued in possession by paying bid amount to the Gram Panchayat -- Revenue records produced also reveal that the name of the respondent was entered as possessor and cultivator -- In the light of such documentary evidence it cannot be said that lease was obtained by the respondents in collusion with ex-Pradhan.

(Para 11)

B. Transfer of Property Act, 1882 (4 of 1882), Section 53-A -- Lease of land by Gram panchayat without lease deed – Defence u/s 53A is available to a person who has agreement of lease in his favour though no lease has been executed and registered -- Section 53A protects the possession of persons who have acted on a contract of sale but in whose favour no valid sale deed is executed or registered. Maneklal Mansukhbhai’s case, AIR 1950 SC 1 & Hamzabi’s case (2001) 1 SCC 414 relied -- Respondents were put in possession and the Panchayat has acted upon their proposal for grant of lease, case law supports the case of the respondents.

(Para 11, 12)

A. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g) (as applicable to the State of Haryana) -- Shamilat deh – Meaning of -- The word ‘shamilat’ basically means ‘held in joint possession and undivided lands which are part and parcel of a village’ --  When these lands are held commonly by a village proprietary body, they are described as ‘shamilat deh’ land.

(Para 8)

B. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g) (as applicable to the State of Haryana) -- Taraf -- Patti – Panna -- Thola’ – Meaning of -- ‘Taraf’, ‘patti’, ‘panna’ and ‘thola’ are different terms but have a common strain or similarity running through them -- These descriptions are of land of a group of villagers based on clan, caste, sect, area, etc. -- In British India, the village was divided into different pattis/sections based upon caste, religion, occupation, etc. of the persons residing in the village.

--      Patti is described as division of land into separate portions or strips in a village. These locations are known as pattis.

--      After independence since the caste system has been constitutionally abolished, these classifications refer to different hamlets/clusters where villagers reside in groups irrespective of their caste.

--      Patti is basically, therefore, a small division of the village.

--      The terms ‘taraf’, ‘panna’ and ‘thola’ may be different but are akin to patti and also deal with community of villagers residing separately. Therefore, they have virtually the same meaning.

It is also apparent that a patti can normally be created out of the shamilat land only when a group of people enjoy some portion of the land out of the bigger common shareholding that is a patti.

(Para 9, 10)

C. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g) (as applicable to the State of Haryana) -- Shamilat deh -- If the land described as ‘shamilat’, ‘taraf’, ‘patti’, ‘panna’ and ‘thola’ were not being used for the common purpose, it would not fall within the meaning of ‘shamilat deh’.

(Para 10)

D. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g)(5(v) (as applicable to the State of Haryana) -- Shamilat, taraf, pattis, pannas and thola -- A comma should be read after ‘shamilat’ and before ‘taraf’ in the latter part of the section also -- Word ‘shamilat’ has to be read with all four- ‘taraf’, ‘patti’, ‘panna’ and ‘thola’ -- A land can be ‘shamilat deh’ only if it is ‘shamilat taraf’, ‘shamilat patti’, ‘shamilat panna’, or ‘shamilat thola’ -- In case the word shamilat is missing from any of these four terms, then the land cannot be said to be belonging to a group of people and could never become ‘shamilat deh’ land.

(Para 11)

E. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g)(3) (as applicable to the State of Haryana) – Shamilat deh -- Shamilat, taraf, pattis, pannas and thola – Purpose of the section which defines ‘shamilat deh’ is that the land described as ‘shamilat’, ‘taraf’, ‘patti’, ‘panna’ and ‘thola’ not used for the benefit of the village community will not be treated as ‘shamilat deh’ -- Clause (3) of Section 2(g) is identical -- Purpose is that the land which is described in revenue records as ‘shamilat’, ‘taraf’, ‘patti’, ‘panna’ and ‘thola’ and used for the benefit of the entire village community or a part thereof only would vest in the village proprietary body -- Even if the land is being utilised for the common purpose of the inhabitants of that ‘taraf’, ‘patti’, ‘panna’ and ‘thola’, it would be ‘shamilat deh’ even if it is not used for the benefit of the entire village -- However, if the land is not used either for the benefit of the entire village or for the part of the village community which comprises the patti then the land, cannot be said to be ‘shamilat deh’ land within the meaning of Section 2(g).

(Para 12)

F. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g) (as applicable to the State of Haryana) -- Shamilat Patti -- Land has been shown as ‘Shamlat Patti Dhera & Khubi’ -- ‘Dhera & Khubi’ are the ancestors of the appellant(s) -- Possession is shown as that of proprietors/self-cultivators and an entry was made in favour of the Panchayat Deh in 1987-1988 -- Land was always shown to be ‘Shamlat Patti Dhera & Khubi’ and in the cultivation of the appellant(s) or his ancestors -- Moreover, the land was never shown to be used for the benefit of the entire village community or even for a part of the community – Held, the land cannot be described as ‘Shamilat Deh’ and, therefore, would not vest in the village proprietary body -- Name of the appellant(s) be entered in the column of ownership with the entry ‘shamlat patti’.

(Para 13,14)

A. Rai Sharah Malkana Ba Baja Kabja Sabka -- Means that they were like owners of the suit land because of old and previous possession.

(Para 17)

B. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2 (g) (viii) -- Punjab Land Revenue Act, 1887 (XVII of 1887), Section 44 – Shamilat deh – Exclusion from -- Possession has been more than 12 years prior to 1950 -- Even if the land was recorded in the ownership of Shamlat Deh, the plaintiffs were in possession qua their shares reflected in Jamabandis -- Their land has been rightly excluded from Shamlat Deh and was held not to be included in the definition of Shamlat Deh as per Section 2 (g) (viii) of the Punjab Village Common Lands (Regulation) Act, 1961 -- Since, the revenue entries were never challenged or altered and no steps were taken to get these entries changed, they will retain a presumption of truth for the purpose of possession and shares of the proprietors.

(Para 17)

C. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2 (g) (i) to (x), 4 -- Shamilat deh – Exclusion from -- Entry recorded as gair marusi and they were not paying any rent -- Holding the land like owners because of previous possession -- Entries were recorded in the Jamabandi for the year 1969-70 -- Fehrist Ismai Malkan (list of proprietors) as per Missal Haqiat pertaining to the year 1939-40, they were shown at serial No.2 as proprietors and their share has also been mentioned therein -- Copy of mutation sanctioned on 13.04.1925 on record -- Entire evidence shows that they were in possession without payment of rent and their possession was like that of owners -- Before 1950, they were in cultivating possession for the last more than 12 years and their case falls under the category of Section 2 (g) (i) to (ix) of the Act.

(Para 18)

D. East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (50 of 1948), Section 2(bb), 23-A -- Jumla Mushtarka Malkan or Jumla Malkan Wa Digar Haqdaran Arazi Hasab Rasad Raqba – Land vests in the proprietary body of the village and not in Panchayat -- However, the management and control of these lands vest in the Panchayat in view of Section 2 (bb) and Section 23A of the Consolidation Act, 1948 -- Proprietors of the villages, who are recorded as per the above said entries, would be entitled to compensation to the extent of their shares as they are owners of the same.

(Para 24)