Gram Panchayat vs Rao Pirthi Singh

V.K. Bali, J.—Gram Panchayat, Majra-appellant herein seeks setting aside of the judgment rendered by Shri Surinder Sarup, Additional District Judge, Ambala, dated March 30, 1979 vide which reference made by the Land Acquisition Collector u/s 30 of the Land Acquisition Act was disposed of by holding that it is Rao Pirthi Singh, who is entitled to the, entire compensation on account of acquisition of land owned by him and that the Gram Panchayat is not entitled to apportionment of 1/3rd being tenant.

Brief facts of the case reveal that in pursuance of the government notification dated 20.5.1971 issued u/s 4 of the Land Acquisition Act, which was followed by declaration u/s 6 on 11.4.1972, the State of Haryana acquired 17.87 acres of land in village Majra, Tehsil Naraingarh, District Ambala for public purpose, namely, for constructing New Haryana State Highway direct road from mile No. 28 on Ambala-Jagadhri road to Panchkula passing through the Haryana territory (bye-pass Shahzadpur). Vide his award dated 23.1.1973 the Land Acquisition Collector determined compensation for the acquired land. Whereas, barani land was assessed, at Rs. 3600/- per acre, banjar zadid @ 2400/- per acre and Gair mumkin @ Rs. 1600/- per acre. Inasmuch as there was a dispute between Rao Pirthi Singh and Gram Panchayat, Shahzadpur Majra regarding claim to the awarded compensation of the acquired land, the Land Acquisition Collector referred the dispute u/s 30 of the Act to the Court on an application moved by the Gram Panchayat. In the application filed by the Gram Panchayat on 2.2.1973 it was stated that the land in question originally belonged to Rao Pirthi Singh and. was kept for charand for malkan and gair malkan Bahshingdan deh as per the orders of the High Court and it had been in possession of Bashindgan Deh and that Bashindgan deh were and continued to be in possession when notification u/s 4 was issued. It was further stated in the application that it was being filed on behalf of and for the benefit of all the Bashindgan deh.

Rao Pirthi Singh entered defence and pleaded in his written statement that the land in question was lying banjar, thus, incapable of being cultivated. Assuming that the land was gair mumkin charand, the people who grazed their cattle in it were merely licensees, and they were never in possession owners. The land in fact was given to the Forest Department by him and it was he who was enjoing possession of the land. He also pleaded that Bashindgan deh is an indeterminate body and Gram Panchayat, Majra nor the other applicants had any interest in property. They in fact had no locus standi to move the application. He also pleaded that! he had been transferring the property belonging to him according to his own choice as also that Bashindgan deh never made an applicationUnder Section 9 of the Act. He also took some other preliminary objections.

On the pleadings of the parties, learned trial Judge framed the following issue:-

"1. Whether the petitioners have any interest in the property acquired ?

If issue No. 1 is proved, what amount of compensation, is the claimant entitled to?

Whether the compensation awarded is inadequate ?

Relief."

After- resultant trial, as mentioned above, it was held that the Gram Panchayat is not entitled to any compensation of land in question and it should be paid to Rao Pirthi Singh as he is proved to be owner thereof.

Assailing the findings of the learned trial Court, Mr. I.K. Mehta, learned Senior Advocate, vehemently contends that it is proved by way of documentary evidence i.e. judgment and decree passed by the Sub Judge way back in 1943 and the execution that was carried to implement the judgment in 1959 that Bashindgan deh had a right to graze their cattle and, therefore, Bashindgan deh certainly had a right attached to the land. That being so, they were certainly entitled to apportionment of compensation. He further contends that by virtue of provisions contained in Punjab Village Common Lands (Regulation) Act, 1961, the land vested with the Gram Panchayat and as on the date when notification u/s 4 came to be issued, Gram Panchayat was owner and it is the Gram Panchayat which Was entitled to entire compensation.

I have heard learned Counsel for the appellant and perused the records. No one has put in appearance on behalf of respondent-Rao Pirthi Singh.

The first contention of Mr. I.K. Mehta, as noted above, has to be straightaway rejected as the appellant in this case is only Gram Panchayat and no appeal has been filed by Bashindgan Deh. In fact, when confronted with the fact that no appeal had been filed by Bashindgan Deh, Mr. Mehta himself realised that no argument could possibly be advanced in support of Bashindgan Deh for apportionment of the compensation. He thereafter concentrated entirely on the right of Gram Panchayat to get apportionment of compensation. Before the contention of Mr. Mehta is examined in light of the provisions of the Punjab Village Common Lands (Regulation), Act, 1961 or the law earlier prevalent on the subject, it shall be useful to see the judgment passed by the Civil Court in the year 1943 and the order passed in execution of the said judgment and decree. In the suit instituted by Niadar and others for declaration to the effect that they were entitled to graze their cattle without any restriction in land measuring 570 bighas 7 biswas, Shri Mirza Bashir Ahmad, the then Sub Judge IIIrd Class, Ambala vide judgment dated January 19, 1943, held that injunction could be given to the plaintiffs only to this extent that defendant shall not interfere in plaintiffs'' grazing rights and shall have sufficient land out of the banjar land in the suit for the purpose and the question of sufficiency of pasturage would not to be decided in thus case and may be left open for decision by the Executing Court. The entire matter was decided on the basis of custom incorporated in the Vajib-ul-arj, Ex. P2 (in the judgment aforesaid) wherein it was stated that all the residents of village were entitled to graze their cattle in the uncultivable land and the residents cannot be obstructed in the exercise of right and no fee or Taqavi can be realised from them. It Is on the basis of this Vajib-ul-Arj, as mentioned above, that the plaintiffs in the said suit, who were residents of the village, were held entitled to graze their cattle.

The decree-holder, during the course of execution-proceedings, prayed for demarcation of the area wherein Judgment Debtor Rao Pirthi Singh raised objections. One Lala Jagan Nath, .who was then Tehsildar, was appointed as Local Commissioner for the purpose of demarcating the area. The first report made by the Commissioner was set aside and a direction was issued to the Commissioner, that so far as it may be possible, area reserved for forest should not be included in the area that was to be set apart as a pasturage; The Judgment Debtor" had filed objection against the report of the Commissioner and stated that the Commissioner should have reserved field Nos. 6-7 and 11 measuring 90 bighas 4 biswas and to that extent could have excluded the forest area from the pasturage. While dealing with the matter, the Court held that the decree-holders had been given only a right to graze their cattle and no other right in the land. Neither they could cut grass nor any tree or even its branches. In ultimate analysis, the Court found no reason to differ with the Commissioner''s report and accepted the same. Accordingly, alternative proposal was rejected. The. area proposed by the Commissioner in his report, Ex. C1 read with plan, Ex. C2 was set apart for the decree holders for grazing their cattle. This area was to measure 400 bighas and comprised in the fields mentioned in the order. From these two orders, can it be said that the area so demarcated became Charand and, therefore, vested with the Gram Panchayat by virtue of Section 2(g) of the Punjab Village common Lands (Regulation) Act, 1961, which defines Shamilat deh.

In view of this Court, by these two orders, the one passed in the main suit and the other passed in execution proceedings, the Gram Panchayat could not possibly become owner of the land, subject matter of acquisition. If there was some right, the same was with the residents of village which, as referred to above, was restricted to only grazing their cattle. They could not remove the grass, cut branches of trees or do any other thing. Insofar as Gram Panchayat is concerned, it was neither a party nor any right was claimed by it nor the same was held established in its favour. On the contrary, it has come in evidence and on the basis of which a finding as well has been recorded by the learned-trial Judge that Rao Pirthi Singh, respondent herein was having the right and in fact cut the trees and sold the same which rights are available only to-proprietors.

Coming now to the provisions of the Punjab Village Common Lands (Regulation) Act, 1961, it shall be seen that shamlat deh has been defined in Section 2(g) to include :-

(i) lands described in the revenue record as (Shamilat deh or Charand) excluding abadi deh;

(2) Shamilat tikkas;

(3) lands described in the revenue records as Shamilat deh, tarafs, patties, pannas and tholas and used according to revenue records for the benefit of the village community or a part thereof or for common purposes of the village;

(4) lands used or reserved for the benefit of village Community including streets, lanes, playgrounds, schools, drinking well or ponds situated within the sabha areas defined in clause (mmm) of Section 3 of the Punjab Gram Panchayat Act, 1952, excluding lands reserved for the common purposes of a village u/s 18 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (East Punjab Act 50 of 1948), the management and control whereof vests in the State Government u/s 23-A of the aforesaid Act;)

(4a) vacant land situate in abadi deh or gora deh not owned by any person;

(3) lands in any village described as banjar quadin and used for common purposes of the village according to revenue records:

The word ''charand'' in Sub-section (1) of Section 2(g) came to be inserted for the first time by Act No. 43 of 1971. On records of the case there is available Jamabandi for the year 1969-70. This jamabandi precedes the amendment brought about in Sub-section (1) of Section 2(g) of the Act of 1961. In the column of ownership it is clearly mentioned that Rao Pirthi Singh owns the same. In the next column i.e. of possession, Forest department has been mentioned. However, in the note given in the last column of the Jamabandi it is mentioned that vide government letter dated 1.4.1957 the area is reserved with the forest. There is also a mention of order dated 17.8.1959 saying therein that residents are owners but immediately thereafter it has been mentioned that in block ''B'' there is a permission to graze the cattle. The mention with regard to residents being owner is obviously not correct as this is neither the order passed by the civil court nor even the case of the Gram Panchayat. Be that as it may, the land in dispute has not been described as charand in the revenue records. Mr. Mehta is unable to show any law on the point or the provisions of the Act from where it could be made out that simply on account of the fact that the villagers had a right to graze their cattle would make the Gram Panchayat as an owner of such a land. It is interesting to note that in the application that was filed u/s 18 read with Section 30 of the Land Acquisition Act, the signatories are Sant Ram, Member Panchayat and Jiwan Ram, Member Panchayat as also thirteen residents of the village. In paragraph 5 of this application it has been mentioned that Gram Panchayat, Majra has also been asked by the Bashindgan Deh for making this application and, thus, the Gram Panchayat is also joining in this application and this is being filed on behalf of all the Bashindgan Deh. It has also been mentioned that there are numerous Bashindgan Deh haying the same interest in this land and, therefore, the application is being filed on behalf of and for the benefit, of Bashindgan Deh, who are interested. There is also reference of an earlier application that might have been filed on 22.1.1972 in paragraph 9 of this application. However, Mr. Mehta has not been able to show the said application to this Court. Perusal of the application aforesaid would rather show that it is the Bashindgan Deh of the village, who are asking for compensation and not the Gram Panchayat. Further, the Land Acquisition Collector made a reference wherein it is mentioned that since there is a dispute between Rao Pirthi Singh, owner of the land and the Gram Panchayat, which is shown as Gair Maurusi (tenant at will) in the jamabandi of village Majra, District Ambala and latter has requested through an application that the matter may be referred to the Court of District Judge u/s 30 of the Act, a reference'' is made for apportionment of the compensation of the land acquired between the aforesaid claimants. The reference was for apportionment of compensation between land owner Rao Pirthi Singh and Gram Panchayat as tenant. As on today, Mr. Mehta has endeavored to show that the Gram Panchayat is exclusive owner of the land under acquisition. This Court is of the view that such a plea is not permissible to the Gram Panchayat.

Finding no merit in this appeal, I dismiss the same, leaving, however, the parties to bear their own costs.