Gram Panchayat vs State of Haryana and Others

V.K. Bali, J.—Gram Panchayat village Kotian, Tehsil Kalka, District Ambala, through its Sarpanch has filed the present petition under Articles 226/227 of the Constitution of India seeking a writ in the nature of certiorari for quashing order passed by the Tehsildar (Sales) Ambala, and the proceedings taken by him for transferring the shamlat deh land of village Kotian measuring 1738-B 19-B in favour of the Central Government as also order passed by the Tehsildar-cum-Assistant Collector IInd Grade, Ambala, sanctioning mutations of the above mentioned land in favour of the Central Government, During the penedency of this writ various Civil Miscellaneous Applications have been filed by both the parties, but this order of mine shall dispose of the prayer contained in the writ regarding transfer of the land to the Rehabilitation Department, which admittedly, was recorded as Shamlat deh. In so far as the relief indicating above is concerned, .the matter has been clinched in favour of petitioner by the Supreme court by an authoritative pronouncement in Gram Panchayat of village Jamalpur v. Malwinder Singh and Ors. 1986 RLR 73. This is how the matter was dealt with by the apex Court:-

"In Rattigan''s ''Digest of Customary law in the Punjab'' in the introduction of Chapter X (village common land) it is noted that within the territorial limits of every village some portion of the uncultivated waste lands are reserved ''for purposes of common pasture, for assemblies of people for the tethering of the village cattle, and the possible extension of the village dwellings'' and that lands so reserved arc jealously guarded as the common property of the original body of settlers who founded the village or their descendants, and occasionally also those who assisted the settlers in clearing the waste and bringing it under cultivation are recognised as having a share in these reserved plots. It was further noticed "Even in villages which have adopted separate ownership as to the cultivated area, some such plots are usually reserved as village common, and in pattidar villages, it is not unusual to find certain portions of the waste reserved for the common use of the proprietors of each patti and other portions for common village purposes. The former is designated as Shamlat patti and the latter shamlat deh". It was said "As a general rule, only proprietors of the village (Malkan Deh) as distinguished from proprietors of their own holdings (malikan Makbuza Khud) are entitled to share in the shamilat deh".

While it appears to have been laid down that the right to share in the village common land is an incident attaching to the ownership of agricultural land in the village, and that ordinarily those persons who hold land on which revenue assessed and who are co-sharers in the khewat are entitled to a share in proportion to the revenue paid by them. (See Malik Mohammad Sher Khan v. Ghulam Mohammad ILR 13 Lah 92, it also appears to be settled law in Punjab that the rights of a proprietor in the shamilat ''are not a mere accessory to the land held by him'' and therefore ''an alienation of the latter does not ipso facto confer any rights in the former to the alienee'', (vide Rehman v. Sai ILR 9 Lah 501, and the cases noted therein). Further according to Rattigan''s Digest, "In the absence of custom none of the proprietors can do anything which alters the condition of the joint property without the consent of all the co-sharers" (Article 225). "Nor can any individual proprietor plant or cut trees on the common land, nor sink a well, nor appropriate houses built for common purpose except with such consent" (Article 226). "Nor in the absence of custom can the will of the majority of a village community prevail against that of the minority when the question is one as to the disposal of the common property in such a way as to preclude all use of it by the owners". (Article 227). Thus, it is seen that Shamilat Deh or village common land has certain distinctive and characteristic features of its own and even a majority of the co-sharers cannot destroy its character.

*** *** *** At that stage came the Punjab Village Common Land Acquisition Act, 1953, which has been held by this Court to be legislation to be aimed at agrarian reform. It had nothing to do and it did not purport to have anything to do with the administration of evacuee property. All Shamilat deh lands whether they belonged to the proprietary body of villagers consisting only of non-evacuees of whether they belonged to the proprietary body of villagers the interests of some of whom had become vested in the custodian under the various Evacuee Property Laws, were dealt with by the Punjab Act without distinction. All shamilat deh lands, notwithstanding anything to the contrary contained in any other law for the time being in force, became vested in the village Panchayat. As we said earlier the Punjab Act was a law providing for agrarian reform and it neither purported to be nor was it a law regulating the administration of evacuees property. In Ranjit Singh and Others Vs. State of Punjab and Others, , the very question arose whether a law providing for the taking away of the Shamilat deh lands from the proprietors and given over to the village Panchayat for allotment to non-proprietors was law relating to agrarian reforms and whether such a law was protected by Article 31A. It is worthwhile recall what the Constitutional Bench said in answer to the question posed before them? They explained the amplitude of rural development and agrarian reforms in the following words:-

"The High Court was also right in its view that the proposed charges in the shamilat deh and abadi-deh were included in the general scheme of planning of rural areas and the productive utilization of vacant and wasteful lands. The scheme of rural development today envisages not only equitable distribution of land so that there is no undue imbalance in society resulting in a landless class on the one hand and. a concentration of land in the hands of a few on the other, but envisages also the raising of economic standards and bettering rural health and social conditions. Provisions for the assignment of lands to village panchayat for the use for the general community, or for hospitals, schools, manure pit, tapping groups etc. ensure for the benefit of rural population must be considered to be an essential part of the redistribution of holdings and open lands to which no objection is apparently taken. If agrarian reforms are to succeed, mere distribution of land to the landless is not enough. There must be a proper distribution of land to the landless is not enough. There must be a proper planning of rural economy and conditions and a body like the village Panchayat is best designed to promote rural welfare than individual owner of small portions of lands. Further, the village Panchayat is an authority for purposes of Part-III as was conceded before us and it has the protection of Article 31A because of this character even if the taking over of shamilal deh amounts to acquisition. In our opinion, the High Court was right in deciding as it did on this part of the case."

"With respect of abadi deh the same reasoning must apply. The settling of a body of agricultural artisans (such as the village carpenter, the village blacksmith, the village tanner, farrier, wheelwright, barber, washerman etc.) is a part of rural planning and can be comprehended in a scheme of agrarian reforms. It is a trite saying that the Indian lives in villages and a scheme to make villagers self-sufficient cannot but be regarded as part of the larger reforms which consolidation of holdings, fixing of ceiling on lands, distribution of surplus lands and utilising of vacant and waste lands contemplate. The four Acts, namely, the Consolidation Act, the Village Panchayat Act, the Common Lands Regulation Act and the security of Tenures Act, are a part of a general scheme of reforms and any modification of rights such as the present had the protection of Article 31A. The High Court was thus right in its conclusions on this part of the case also".

We have quoted this passage in extenso in order to emphasis the meaning to be attached to expressions like ''agrarian reforms'', ''marketing'', etc. for which various legislations have been made. Occasionally we notice that some Courts have a tendency to confine these expressions to strait-jacket meanings, instead of giving a meaning of wide implications.

So we have the authoritative pronouncement of a Constitution Bench of this Court that the Punjab Act which had been reserved for the assent of the President and which did have the assent of the President is a law relating agrarian reform and ''therefore immune from challenge, under Article 31A, on the ground that the law infringed any of the Fundamental Rights enumerated in that Article. We have already noticed that the effect of the Administration of Evacuee Property Act was not to take away the character of shamilat deh as shamilat deh but only to vest in the Custodian such interest as the evacuee possessed in the Shamilat deh. The interest which the erstwhile evacuee possessed in the shamilat deh was neither enlarged nor abridged. The land continued to be shamilat deh and it could be the subject of competent State Legislation as shamilat-deh. If for the purposes of agrarian reform the legislature of the State enacted a law as it was competent to do, and consent to which was accorded by the President under Article 31A of the Constitution, we do not see any justification for the argument that there was any conflict between the Punjab Act and the Central Act. To illustrate it would be wholly wrong to suggest that on a Zamindari becoming vested in the Custodian on account of the Muslim Zamindar (intermediary) migrating to Pakistan raiyati land in the village changed its character and the occupancy rights of the raiyats ceased in the lands, merely because the Zamindar migrated to Pakistan and the Zamindari became vested in the Custodian. Similarly, lands in an erstwhile Zamindari set apart for pasture, as grazing grounds etc. did not lose their character as such on the migration of the Zamindar to Pakistan. When the Parliament and the State Legislature, each of them legislate in their own filed with respect to different subjects-in this case Evacuee Property and the Shamilat Deh we do not find any reason to conclude that there was necessarily a conflict between the two legislations. The question in the present case is not whether there was any conflict between the Central and State Legislations but whether the legislature of the State could make a law relating to agrarian reform in respect of property which include property which by a process of law had become vested in the Central Government or the Custodian. We do not see any reason why the State Legislature should be considered incompetent to make a law relating to agrarian reform, if indeed it is a law relating to agrarian reforms as it has been found to be so, in the present case, even it affects land vested in the Central Government or the Custodian."

That being the law, there is no choice but to set aside the mutation order passed by the Revenue Officer vide which the land vested in Gram panchayat and so recorded as Shamilat deh was wrongly transferred or mutated in favour of the Custodian Department. Since no other matter involved in this case is being decided, it shall be open to the petitioner to agitate for any other relief like partition of the land by proprietors of the village etc. The vendees from the Rehabilitation Department who were protecting sales in their favour on the ground that they are bonafide purchasers of value and for consideration would also be entitled to get their matters settled before the competent authorities which will proceed in the matter in accordance with law. This petition is disposed of with no order as to costs.