Wassan Singh v. State of Punjab & Ors.

CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr.Gurnam Singh, Advocate for the petitioner. Ms. C.S.Brar, DAG, Punjab, for respondents no.1 to 3. Mr. Rakesh Kumar, Advocate for respondents no.4 and 5. .... RAJIVE BHALLA, J The petitioner prays for issuance of a writ in the nature of Certiorari for quashing orders dated 27.5.2004 and 6.9.2006, passed by the Additional Deputy Commissioner-cum-Collector, Kapurthala and the Joint Development Commissioner (IRD) exercising the powers of the Commissioner, respectively. The petitioner, filed a petition under Section 11 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as `the Act'). claiming ownership of land measuring 21 kanals. The petitioner pleaded that though the land was described, in the revenue record, as the ownership of “Shamilat Deh, Hasab Rasad Khewat” and in possession of the “Makbuza Malkan”, consolidation authorities changed the entries to CWP No.17065 of 2007 2 the ownership of the Nagar Panchayat. The residents of the village, filed a petition under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 for restoring the original entry. The Director, Consolidation vide order dated 20.11.1991 restored the entry as “Shamilat Deh, Hasab Rasad Khewat”. The petitioner also pleaded that the land was created after imposing a pro-rata cut upon holdings of proprietors, during consolidation proceedings, but as it was never used for common purposes, it does not vest in the Gram Panchayat. The petitioner also pleaded that he is in possession from 1950. The Gram Panchayat denied the averments in the application and pleaded that the land is “Shamilat Deh”. The petitioner is a displaced person from Pakistan, who is neither a proprietor nor in possession as an allottee. It was further pleaded that as the Director, Consolidation had no jurisdiction to divest the Gram Panchayat of its ownership, the order passed by the Director Consolidation has no bearing on the dispute. After considering the pleadings, the evidence adduced and the arguments advanced, the Collector dismissed the petition. Aggrieved by this order, the petitioner filed an appeal. The Joint Development Commissioner (IRD) dismissed the appeal. Counsel for the petitioner submits that the use of the expressions “Shamilat Deh, Hasab Rasad Khewat” and “Makbuza Malkan” in the revenue record, clearly denotes the ownership of proprietors as opposed to the ownership of the Gram Panchayat. The order, passed by the Director, Consolidation, deleting the name of the Gram Panchayat from the record, fortifies this plea. It is further argued that the land in dispute vested in Mohammedan proprietors, who migrated to Pakistan. The CWP No.17065 of 2007 3 petitioner, a refugee from Pakistan, settled on this land and made the land cultivable. The Gram Panchayat cannot claim ownership, as the land partakes the nature of evacuee property. It is further submitted that the land in dispute was reserved, during consolidation for common purposes of the village, but as it was never used for any common purpose, it continues to vest in the proprietors. Counsel for the Gram Panchayat submits that the expression “Shamilat Deh, Hasab Rasad Khewat” establishes that the land is “Shamilat Deh” and, therefore, vests in the Gram Panchayat. The land in dispute was originally owned by Mohammedans, who migrated to Pakistan. Their share in Shamilat, vests in the Gram Panchayat, as held by Hon'ble Supreme Court in Gram Panchayat, Jamalpur Vs. Malvinder Singh, AIR 1985 SC 1394. It is further argued that the petitioner obtained the land on lease, but after expiry of the lease period, refused to vacate the land. The order passed by the Director, Consolidation, is null and void, as Consolidation authorities have no jurisdiction to decide whether land vests or does not vest in a Gram Panchayat. It is further submitted that the petitioner has failed to prove his possession before 1950 or that he is a proprietor of the village and, therefore, entitled to any share in the Shamilat. It is also pointed out that CWP No.6689 of 1996 Gian Singh Vs. State of Punjab and others involving a similar dispute was decided in favour of the Gram Panchayat on 11.5.1998. I have heard counsel for the petitioner, perused the impugned orders but express my inability to accept the arguments advanced by counsel for the petitioner. The Collector and the Commissioner have recorded concurrent CWP No.17065 of 2007 4 findings of fact that the petitioner obtained the land on lease from the Gram Panchayat but, refused to vacate the land upon expiry of the lease period. The document, Annexure R-1, appended with the reply filed by the Gram Panchayat, clearly establishes that the land was leased out to the petitioner. The petitioner, therefore, cannot be heard to urge his ownership in opposition to the ownership of his lessor, the Gram Panchayat. The petitioner, a rank trespasser seeks to perpetuate his unauthorised occupation, by raising frivolous pleas. The petitioner appears to have cast a wide net of inconsequential pleas, in the fervent hope that he would be able to net one of these pleas. Section 2(g)(1) of the 1961 Act defines “Shamilat Deh” to include land described in the revenue records as “Shamilat Deh”. The ownership column of the jamabandi, admittedly records the words “Shamilat Deh, Hasab Rasad Khewat”. The use of the words “Shamilat Deh”, leave no ambiguity that the land is Shamilat Deh and vests in the Gram Panchayat. The expressions “Hasab Rasad Khewat” and “Makbuza Malkan” are superfluous, as they refer to the shareholding and possession of proprietors, before the land came to vest in a Gram Panchayat, under “Shamilat Law” enacted in the year 1954 and the 1961 Act and, therefore, do not divest the Gram Panchayat of its ownership. The land was admittedly left behind by Mohammedan proprietors, who migrated to Pakistan. The share of Muslim proprietors in the Shamilat Deh vests in a Gram Panchayat, as held by the Hon'ble Supreme Court in Gram Panchayat, Jamalpur Vs. Malvinder Singh ( supra). Section 2(g)(5)(ii)(a) of the Act, however, saves allotments and transfers of such land, made by the Rehabilitation Department or the State CWP No.17065 of 2007 5 of Punjab, before 9th July 1985. The petitioner, however, has failed to adduce any evidence to prima facie establish that this land was allotted to him by the Rehabilitation Department or by the Government as a displaced person or otherwise, thereby nullifying his plea. As regards the argument that the Director, Consolidation has held that the land in dispute does not belong to the Gram Panchayat, suffice it to state that the Director Consolidation, corrected a revenue entry but did not express any opinion on the question of title. The Director, Consolidation granted liberty to parties to seek their remedy in accordance with law. Even otherwise, in view of judgements of the Hon'ble Supreme Court in Gram Panchayat,Nurpur Vs. State of Punjab, (SC) 1997(2) PLR 694 and Gram Panchayat, Village, Sidh Vs. Additional Director, Consolidation of Holdings, Punjab (SC) 1997 (3) RCR (Civil) 491, a Director, Consolidation, exercising power under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 has no jurisdiction to decide whether land vests or does not vest in a Gram Panchayat. The petitioner has also failed to produce any evidence of his possession before 1950, his alleged status as a proprietor or that the land was created during consolidation by applying a pro-rata cut on the holdings of proprietors. A similar dispute raised by another unauthorised occupant, of this very Gram Panchayat, in CWP No.6689 of 1996 Gian Chand Vs. State of Punjab was dismissed on 11.5.1998. In view of what has been held herein above, the petitioner is an unauthorised occupant, who has failed to prove any right, to remain in possession of the land in dispute. The impugned orders are consequently CWP No.17065 of 2007 6 affirmed and the writ petition is dismissed, with no order as to costs.

20.8.2010 GS ( RAJIVE BHALLA ) JUDGE