Gram Panchayat vs The Additional Director, Consolidation and Others

M.L. Singhal, J.—Before the advent of Consolidation operations in Village Bhedpura, there was total land measuring 1194 Bighas 2 Biswas recorded as Shamlat Deh Hasab Rasad Ragha Khewat in the revenue record. This land was in the possession of the right holders of the village. During Consolidation operations, this land was distributed as per the shares of the right holders of the village and was included in the khatas of the right holders as reflected in the Naksha Hakdarwar. During Consolidation, with a view to fulfil the common purposes of the village, the Consolidation Authorities imposed a pro-rata cut on all the right holders of the village. Imposition of pro-rata cut on the right holders of the village for the common purposes of the village, is permissible under the provisions of Section 18 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act,1948 (hereinafter referred to as the Act No. 50 of 1948) in the Scheme of Consolidation. According to Ujagar Singh and other right holders, after utilising the land for common purposes of the village in the wake of imposition of a pro-rata cut on the right holders, land was still left which is known as "Bachat Land". Bachat land should have been re-distributed amongst the right holders" Hasab Rasad Raqba Khewat". According to the rules framed under the Act No. 50 of 1948 only limited area could be eked out for meeting the common purposes of the village by imposing a pro-rata cut on the right holders but, in this case, an area measuring 219 bighas and 12 biswas was reserved for "Charand" in the village. It was improper for the consolidation authorities to have reserved area for charand. In the re-partition scheme, so much reservation of area for the income of the Panchayat or charand was illegal. Although, the bachat land should have been re-distributed amongst the right holders, the same was mutated in the name of the Gram Panchayat. Mutation of bachat land could not have taken place in the name of the Gram Panchayat. During consolidation, about 470 bighas and 8 biswas of land which is culturable was "Bachat land" which should have been partitioned amongst the right holders as it was the property of ''Jumla Mushtarka Malkan''.

Ujagar Singh and other right holders instituted petition u/s 42 of Act No. 50 of 1948 challenging re-partition and the consolidation scheme. The Additional Director, Consolidation, Punjab vide order Annexure P4, allowed this petition and ordered re-partition of the ''Bachat land'' amongst the right holders and the amendment of the consolidation scheme. Vide other Annexure P5, the same Additional Director, Consolidation of Holdings, Punjab stayed the auctioning of the bachat land.

Gram Panchayat having felt dissatisfied with the orders Annexures P4 and P5 has sought to invoke the extra-ordinary writ jurisdiction of this Court under Article 226/227 of the Constitution of India thereby seeking the quashing of the said orders through the issuance of writ in the nature of certiorari and also thwarting the re-distribution of ''bachat land'' by the Consolidation Officer amongst the right holders i.e. respondent Nos. 3 to 43.

Grievance of the Gram Panchayat is that the scheme of consolidation was prepared, published and confirmed about 38 years ago u/s 20 of Act No. 50 of 1948 in the general gathering of the village with the consent of all the right holders and the scheme later became part of the statute for carrying out re-partition proceedings. It is the scheme around which the entire consolidation operations, repartition, objections, petitions, appeals revolved and the Consolidation Authorities had to act in consonance and conformity with the scheme. As per jamabandi for the year 1992-93, land mentioned in Khewat No. 173 is shown in the ownership of the Panchayat vesting in it as being ''Shamlat Deh'' and the various right holders are shown as lessees under the Gram Panchayat. Gram Panchayat had been leasing out this land after the consolidation operations had been carried out in the village. No body out of the proprietary body ever raised any objections or questioned the scheme any time during the last about 38 years. Re-partition was carried out under the scheme which was acted upon and became part of the revenue record. Under the Punjab Village Common lands (Regulation) Act 1961 (hereinafter to be called the 1.961 Act), the shamlat deh vests in the Panchayat. Land in question was "shamlat deh" as defined in the Punjab Village Common, Lands (Regulation) Act, 1961 and it was rightly mutated in the name of the Gram Panchayat. As to whether land in question was or was not shamlat deh, did or did not vest in the Gram Panchayat or the right holders were its owners having right to claim its partition involved the determination of title. Question of title could not be determined by the Additional Director, Consolidation of Holdings. Question of title to this land could be decided by the Collector under the 1961 Act. Right-holders should have first gone to the Collector u/s 11 of the 1961 Act and have question of title determined. If the Collector had found that the land in question is not shamlat deh not vesting in the Gram Panchayat, petitioners could have then claimed partition. The Director Consolidation of Holdings could not have decided the question of title at all us his jurisdiction to decide question of title is barred by Section 44 of Act No. 50 of 1948.

Ujagar Singh etc. right holders have contested the claim of the Gram Panchayat urging that the matter had been remanded to the Consolidation Officer with a view to partition the bachat area and that too after hearing the parties and leaving the area for common purposes. Bachat area is liable to be re-distributed amongst the right holders by the Consolidation Authorities. No area can be reserved for the income of the Gram panchayat without payment of compensation. Land in question belongs to the Mustarka Malkan and it is bachat land. Land in question came into existence because of the excessive pro-rata cut. Land in question belongs to the right holders of the village in Mishal Haqiat/jamabandi for the year 1953-54. Land in question was shown ''Hushtarka Malkan''. "Shamlat deh hasab rasad raqba khewat land" always belongs to the proprietors of the village as per their respective shares, Consolidation Authorities ought not to have put the land in question in the joint khewat but re-distributed the same amongst the proprietors of the village as per the scale at which pro-rata cut was imposed upon them. Mutation of land in the name of the Gram Panchayat confers no title on the Gram Panchayat. As per Section 42 of Act No. 50 of 1948, any mistake in the re-distribution proceedings could be challenged any time and there is no limitation for such challenge. Mistake of the Consolidation Authorities can not deprive the lawful owners of their ownership. Land in question is not shamlat deh and does not vest in the Panchayat u/s 2(g) of the Punjab Village Common Lands (Regulations) Act, 1961 as the land in dispute was never used for common purpose. In the basic revenue record, land in question is not described as deh rather it is described as shamlat deh hasab rasad raqba khewat. Land in question which is described as shamlat deh hasab rasad raqba khewat in the basic revenue record can not be said to have vested in the Gram Panchayat. It is "bachat Land" which has to be re-distributed amongst the right holders.

We have heard the learned counsel for the parties and have gone through the record. Learned counsel for the petitioner has raised a few points in support of his contention that the Additional Director Consolidation of Holdings, Punjab should not have passed the impugned orders Annexures P4 and P5.

It has been submitted by the learned counsel for the petitioner that this land was mutated in the name of the Panchayat 38 years ago. Mutation was incorporated in the jambandi and the Gram panchayat is lying shown as owner in jamabandi for the last several years and no satisfactory explanation is forthcoming as to why the proprietors rake up the matter after a lapse of about 38 years. Suffice it to say, it depends upon the facts and circumstances of each case whether or not delay in instituting the proceedings before the Addl. Director, Consolidation of Holdings, Punjab should or should not matter. In our opinion, delay should not matter where only the correction of a mistake having been crept in during the consolidation by either reserving land more than what was required or by not immediately re-distributing it back after consolidation proceedings were over is sought. In Gram Panchayat Vs. Director, Consolidation of Holdings and Others, it was held that if a mistake crept in during consolidation i.e. by either reserving the land more than what was required or by not immediately re-distributing it back after consolidation proceedings were over, such mistake can be corrected even after a lapse of quarter of a century or so. The action does not become in any way illegal or contrary to the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948.

In Gram Panchayat Gunia Majri v. Director, Consolidation of Holdings and Ors. (supra) the right holders had sought re-distribution of the Panchayat land through petition u/s 42 made by them to the Director, Consolidation of Holdings, Punjab after a lapse of 25 years which had been recorded in the name of the Panchayat and the Gram panchayat was leasing out that land to the lessees. We, therefore, do not think that delay in the institution of the petition u/s 42 of the Act No. 50 of 1948 could be allowed to scuttle the course of justice.

Next point raised by the learned counsel for the petitioner-Gram Panchayat is that the land was mutated in the name of the Panchayat several years ago. Mutation was recorded in Jamabandi and now for the last several years, the Gram Panchayat is shown in the revenue record as owner. Suffice it to say, the land was mutated in the name of the Panchayat without any basis. Incorporation of the mutation in the jamabandi showing Gram Panchayat to be owner of the land, would be again without any basis. Presumption of correctness attaches to the jamabandi record, but this presumption is rebuttable. In this case, " bachat land" was mutated in the name of the Gram Panchayat. Bachat land should have been re-distributed amongst the right holders. Rule 16(ii) of the East Punjab Holding (Consolidation and Prevention of Fragmentation) Rules, 1949 provides as under:-

"In an estate or estates where during consolidation proceedings there is no shamlat deh land or such land is considered inadequate, land shall be reserved for the village Panchayat and for other common purposes u/s 18(c) of the Act, out of the common pool of the village (at the scale given in the schedule to these rules.). Proprietary rights in respect of land so reserved (except the area reserved for the extension of abadi of proprietors and non proprietors) shall vest in the proprietory body of the estate or estates concerned and it shall be entered in the column of ownership of record of rights as (Jumla Malkan Wa Digar Haqdaran Arazi Hassab Rasad). The Management of such land shall be dome by the Panchayat of the estate or estates concerned on behalf of the village proprietory body and the Panchayat shall have the right to utilise the income derived from the land so reserved for the common needs and the benefits of the estate or estates concerned."

Perusal of this rule shows that land can be reserved for the village panchayat and for other common purposes u/s 18(c) of Act No. 50 of 1948, only when there was no shamlat deh land or such land was considered inadequate. If shamlat deh land is available, it should be used for common purposes. In case it is found to be inadequate, land can be reserved out of the common pool for the benefit of the village community. In a case where adequate shamlat deh land is available, the land holders cannot be deprived of their property.

In this case, in the scheme of consolidation, some land was taken out of the proprietorship of each proprietor by imposing a pro-rata out of his holding with a view to meet the common purpose of the village. After providing for the common purpose of the village, some land was still left. That land had to be distributed amongst the proprietors according to nasab rasad raqba khewat. That land which is known a bachat land could not have been made over to the Panchayat for the income of the panchayat. "Bachat land" would not vest in the panchayat. If previously, the land was being leased out by the gram panchayat, that would be no bar in asserting that the act of the gram panchayat was wrong and the "bachat land" never vested in the panchayat. Mutation which was earlier entered in the name of the panchayat would not change the legal position. For this view, support can be had from the judgment of this Court in Baj Singh Vs. State of Punjab and Others, .

In Gram Panchayat Gunia Majri v. Director, Consolidation of holdings and Ors. (supra), the view taken was that once a certain area of land is earmarked by imposing a pro-rata cut on the holdings of the proprietors and all the common purposes for which the land was taken stand fully satisfied by utilization of land required for each such purpose, the remaining land i.e. bachat land should be re-distributed back to the proprietors from whom it was taken. For this view, reliance was placed on the Full Bench judgments of this Court in Gram Panchayat Sadhraur etc. v. Baldev Singh and Ors. 1977 P.L.J. 276. Later on, this Full Bench judgment was followed in Gurdian Singh and Ors. v. The State of Haryana and Ors. 1979 PLJ 350 and Des Raj and Anr. v. The Gram Sabha of Village Ladhot and Anr. 1981 PLJ 300.

No doubt can, thus, be entertained so far as this proposition of law goes that bachat land has to be re-distributed amongst the proprietors according to hasab rasad raqba khewat.

Next point raised by the learned counsel for the petitioner-Gram Panchayat is that the land in question was shamlat deh u/s 2(g) of the Punjab Village Common Land (Regulation) Act 1961, Suffice it to say the land in question was "bachat land". Bachat land is the ownership of the proprietors of the village.

Next point raised by the learned counsel for the proprietor is that the Director, Consolidation of Holdings could not decide the question of title. It is true that he was not competent to decide the question of title. In support of this contention, learned counsel for the petitioner has placed reliance on a judgment reported as Pirthi Singh and Ors. v. State of Haryana and Ors. 1986 P.L.J. 620. In this case, however, the Addl. Director, Consolidation of Holdings has not decided any title, title inhered in the proprietors of the village. If the bachat land was wrongly mutated! in the name of the Gram panchayat, the Gram panchayat did not become vested with any title in it. If the mutation was incorporated in the jamabandi, again Gram panchayat did not become owner of the land. Director, Consolidation of Holdings only corrected a mistake that had crept in at the time of consolidation preparation of scheme of repartition during which he could do. Support can be had from the judgment of this Court in Gram Panchayat Shitabgarh Vs. The Director, Consolidation of Holdings and Others, .

Next point raised by the learned counsel for the petitioner-Gram panchayat is that some of the respondents have been taking the land on lease from the Gram Panchayat and are paying lease money to the Gram panchayat. They cannot disclaim the title of the Gram Panchayat in view of Section 116 of the Evidence Act. Suffice it to say if they continued paying lease money to the Gram panchayat and acknowledging Gram panchayat as owner of the land under a mistake of fact or law they can still say that the Gram panchayat is not the owner of the land and rather they are the owners of the land. Section 116 of the Evidence Act would come in if they had taken the land on lease knowing full well their position vis-a-vis the Gram panchayat''s and paying lease money to it.

Consolidation authorities could have only that much area for common purposes which was warranted by Rules and the Schedule framed under Act No. 50 of 1948. After having provided for some area for the common purposes of the village, if any area was left, the Consolidation Authorities should have entered that area in the khata of the proprietors of the village. Bachat land area should have constituted one khewat.

In this case, the Additional Director, Consolidation of Holdings had done substantial justice. He has corrected a mistake which had crept in several years ago in the revenue record. He has ordered the re-distribution of the bachat area amongst the proprietors of the village. While accepting the petition, he remanded the case to the Consolidation Officer with the direction to partition the remaining area according to the share of the right holders of the village after hearing the concerned parties and after leaving the area for common purposes and checking the records, repartition the land. While doing so, he has safe-guarded the interest of the Gram Panchayat also. In the exercise of writ jurisdiction, we are unable to interfere where substantial justice has been done through the impugned orders.

For the reasons given above, this writ petition fails and is dismissed. In view of the contentious points of law involved, we would make no order as to costs.