Bachan Singh vs The Joint Development Commissioner (Integrated Rural Development)

R.L. Anand, J.—Bachan Singh, Swaran Singh and Bhajan Singh petitioners of the present writ Petition have filed the present writ petition against respondents No. 1 to 3 including the Gram Panchayat of village Bhani Badesha, Tehsil Baba Bakala District Amritsar praying for the issuance of an appropriate writ in the nature of certiorari quashing the orders dated 5.10.1994 passed by respondent No. 1 (exercising the powers of Commissioner under the Punjab Village Common Lands (Regulation) Act, 1951, being illegal, bad, unlawful untenable'' unsustainable and unwarranted and prayer has also been made in the writ petition restraining the respondents including respondent No. 3 from dispossessing the petitioners from the land in dispute, as it does not form part of shamilat deh.

The case set up by the petitioners is that village Bhani Badesha, Tehsil Baba Bakala, District Amritsar is a village of Matruka land as a whole in regard to inhabitation. Mostly all the inhabitants of the village are the allottees and after the partition of the Country the petitioners were allotted land for residences etc. from the quota of abadi deh. The allotment was made on the basis of possession. The petitioners have been living and using the land in dispute for the purposes of their cattles/their maintenance. At the time of the consolidation the part of the land was kept reserved for the common purposes and out of that, land measuring 174 kanals is a land of matruka on which different co-habitants of the village are in possession for a very long time. The petitioners are also in possession of matruka land measuring 6-7 kanals of their separate shares respectively for a long time and have built boundaries and are using the same for their cattle purposes. The petitioners along with other co-habitants moved application'' to the Tehsildar (sales), Baba Bakala for permanent allotment of their plots on the basis of their possession. The Kanungo (Sales) also visited the spot and prepared the site plan according to the respective possession of the co-habitants of the village. Later on, the Gram Panchayat, respondent No. 3 moved an application u/s 11 of the Punjab Village Common Lands (Regulation), Act before the respondent No. 2 (Collector) against the petitioners for their ejectment. The Collector recorded the evidence of both the parties and finally dismissed the application u/s 11 of the Punjab Village Common Lands (Regulation) Act vide order Annexure P.5. Thereafter, the Gram Panchayat filed an appeal before the Commissioner, respondent No. 1, who accepted the appeal and set aside the order of the Collector vide order dated 5.10.1994 Annexure P.7. In the present petition, challenge has been given by the petitioners to the order of the commissioner Annexure P.7 on the ground that it is patently illegal, bad, unjust, unwarrated, untenable and unsustainable in the eyes of law because he had ignored the facts, documentary records, and the provisions of Punjab Village Common Lands (Regulation) Act. It is submitted that the land in dispute bearing khasra No. 40 measuring 3-4 acres is a land under the ownership of abadi deh under the possession of different co-habitants of the village. The school, as alleged by respondent No. 2, in fact is situated in the land bearing khasra No. 48. According to the Punjab Village Common Lands (Regulation) Act, the shamilat deh and the abadi deh are entirely distinct from each other. The land in village Bhani Badesha, Tehsil Baba Bakala, District Amritsar is matruka as a whole. The cohabitants of the village along with the petitioners have been living and using the land out of matruka as the same came into possession after the partition of the country. The petitioners are in possession of only 6-7 kanal as land out of 3-4 acres bearing khasra No. 40. The claim of respondent No. 3 that there is a village pond over the land in dispute is totally wrong. Rather this land is situated on the other side of the road. In short the case of the petitioner is that the order of Commissioner Annexure P.7 is wrong because the land in question is neither a shamilat deh nor a part of the shamilat deh and with the above averments, the petitioners have made the prayer quoted in the earlier part of this judgment.

Notice of the writ petition was given to the respondents and it has been contested by respondent No. 3 which filed written statement. It has been stated that the petitioners are mere unauthorised occupants of the land measuring 5 kanals 10 marlas out of khasra No. 40 (150 K-12M) which is being used for common purposes of the village. The land left by the Muslims after the partition of the country vests in the Gram Panchayat and the petitioners have no right to claim its ownership. On merits, the stand of respondent No. 3 is that out of the total area of land measuring 150 kanals 12 marlas, the land in possession of the petitioners was encroached upon by them. Their possession is unauthorised and the possession was recent one. Justifying the orders of the Commissioner, respondent No. 3, has criticised the order of the Collector by stating that he had passed the orders in a wrongful manner by holding that the land in dispute is not the part of the shamilat deh. It has been averred in the reply that the land in dispute is the ownership of the Gram Panchayat. The Govt. gave the grant to the panchayat in the year 1985 amounting to Rs. 46,000/- for the construction of fish pond and the same was spent by the Gram Panchayat for the said purpose. It was also pleaded that the land left by the Muslims vests in the Gram panchayat and even on that account the Gram Panchayat has become owner of the land in dispute besides the other part of the land of khasra No. 40.

In support of their case the parties have placed certain Annexures and I will make a brief mention of the relevant piece of the evidence in the latter portion of this judgment. The point for consideration in this case would be whether the area in possession of the petitioners is a shamilat deh being a pond or play ground of the school and as such is being used for another purpose of the inhabitants of the village or that the area in possession of the petitioner is a part of the abadi deh and as such could not be declared is shamilat deh as so held by the learned Commissioner vide Annexure P.7. Before I determine the above point, it may be mentioned that the Gram Panchayat, respondent No. 3 filed an application u/s 11 of the Punjab Village Common Lands (Regulation) Act. This remedy was misconceived on the part of the Gram Panchayat as it had no locus standi to file the application u/s 11 of the Act. Rather such application on the part of the Gram Panchayat was not maintainable. It could only file an application u/s 7 of the said Act, which course has not been adopted. The learned Collector vide order dated 31.8.1988 dismissed that application u/s 11 of the Act and it was categorically held by the Collector after apprising the evidence that the whole of village Bhani Bedesha was matruka and the land measuring 150 kanals 12 marlas was left under abadi dell for the common use of the co-habitants of the Village. After recording this finding in the concluding portion of the order it was held by the Collector on the basis of the map prepared by S.D.O.(C), Baba Bakala that the area in question was being used by the respondents as the same was in their possession and it was to remain in their possession. The application u/s 11 of the Gram Panchayat was dismissed. Aggrieved by this order, the Gram Panchayat went in appeal before the Commissioner who passed the orders in the following terms:-

"This is correct that the land in dispute has been mentioned as the land of Abadi Deh in Jamabandi for the year 1982-83. But in the meanwhile, this is also clear that the land in dispute being used as the play ground by the school children and in a part of this land there is a pond for which the Gram Panchayat has spent Rs. 46,000/- to make a fish pond. From the above facts, it is clear that the land in dispute exists in Abadi Deh but used for the common purposes and the Gram Panchayat is the owner of the land in dispute. Shri Gian Singh and Swaran Singh had admitted this fact in their respective statements. The present respondents produced no proof to defend this fact. Shri Sant Singh, Kanungo, Sales, has cleared in his statement that there is no record in the Department regarding this land in question to a Matruka. Actually, this land is being used for the common purposes and comes within the definition of ''Shamlat'' u/s 2(g) of the Punjab Village Common Lands (Regulation) Act, 1961. Therefore, this appeal is allowed and the Gram Panchayat is declared as the owner of this land. The order dated 31.8.1988 passed by the lower Court is set aside."

During the pendency of this writ petition and in order to determine the contention and averments of the Gram Panchayat made in the petition u/s 11 of the Act, the Local Commissioner was appointed by this Court to inspect the place of occurrence who inspected the site and came to the conclusion that the school was on the other side of the village. There was no play ground near the site in dispute. It was found by the Local Commissioner that kikar trees were standing at the spot and those trees were very old and the land was uneven from which it was clearly made out that the land in dispute was never used as play ground for the last many years. It was also observed by the local Commissioner that the land in dispute was in exclusive possession of the petitioners who were using it for tethering their cattle and storage of manure. There was no play ground on or near the site in dispute. The pond which was being used for bathing and drinking water for the animals was situated on the eastern side of the road. In the light of above fact report dated 20.1.1995 of the Local Commissioner who inspected the spot in the presence of the parties and the findings of the learned Commissioner vide Annexure P.7 are on the face of it is incorrect. Even the learned Commissioner has admitted in the impugned order that the land in dispute has been mentioned as the land of abadi deh in the jamabandi for the year 1982-83. There is hardly any cogent proof on the part of the Gram Panchayat to establish that the site in dispute formed part of shamilat deh. The findings of the learned Commissioner in this view of the matter are apparently wrong. He committed an error of jurisdiction by stretching the interpretation in favour of the Gram Panchayat.

Faced with this situation, the learned counsel for the respondents, Shri Nagra submitted that protection to the petitioners u/s 4(3) (ii) would be available to such all the persons who are in cultivating possession of the land before the stipulated date 26.1.1990 and not to one who is merely in possession and in that regard the Legislature has made clear distinction between mere possession and cultivating possession. In support of his contention, the learned counsel for the respondent has placed reliance on 1992 P.L.J. 693 Gram Panchayat Nalini v. State of Punjab. The contention raised by the learned counsel for the, respondent is devoid of any merit. It is for the respondents to prove that the disputed area was used or reserved for the benefit of village community including play ground, ponds within the abadi deh or gora deh. The findings of the Collector was based upon the report of the S.D.O. Besides that he also took into consideration the oral evidence led by the parties. On the contrary, the findings of the learned Commissioner was contrary to the record. Rather the findings of the learned Collector are fully borne out from the report of the local Commissioner. Once it is established and proved on the record that the site in dispute which is in possession of the petitioners is neither a shamilat deh or part of it; rather it is the part of the abadi deh and is not being used for common purposes such as play ground, ponds etc. Such part of the land cannot be declared as shamilat deh.

In the present case it stands established that the site in possession of the petitioners is part of the abadi deh. They are in possession as an allottee.

It was also submitted by Shri Nagra that as per the case made out by the petitioners themselves the entire area was matruka and after the partition of the country land vested in the Govt. of India being an evacuee property and all shamilat lands before the partition of the country automatically vested with the gram panchayat and in this manner the site in dispute including the larger chunk becomes a shamilat deh. The argument cannot be accepted as it is not established that the site in dispute was the part of the shamilat deh or was being used as such by the Mohammedans before the partition of the country.

Summing up it is held that the petition u/s 11 of the Gram Panchayat before the Collector was not maintainable. Even otherwise, the Gram Panchayat failed to establish that the site in dispute was a shamilat deh as defined u/s 2(g) of the Punjab Village Common Lands (Regulation) Act. There was no evidence that it was being used as play ground or there existed any pond. The finding of the learned Commissioner Annexure P.7 have not been circumstantiated. He committed patent illegality in coming to the conclusion which was against the record and in these circumstances it has become, just and necessary for this Court to exercise its writ jurisdiction by quashing Annexure P.7. The orders dated 5.10.1994 passed by the learned Commissioner considering it as illegal, unlawful unsustainable. By allowing this writ petition, directions are also given to the respondents not to dispossess the petitioners from the land in dispute. The writ is allowed with no order as to costs.