Gram Panchayat vs The Director, Consolidation of Holdings and Another

N.K. Kapoor, J.—This judgment shall dispose of Civil Writ Petition No. 9205 of 1992 and 8315 of 1993 since these two raise common questions of law and fact. In C.W.P. No. 8315 of 1993 Gram Panchayat, Jalajan seeks issuance of a writ of certiorari or any other appropriate writ, order or direction quashing the order dated 7.4.1992 passed by Director of Land Records, Punjab, exercising the powers u/s 42 of the East Punjab Consolidation of Holdings (Prevention of Fragmentation) Act, 1948. In the connected writ petition bearing No. 9205 of 1992 Bhagwan Singh and others have sought issuance of a writ of mandamus, prohibition, quo warranto or any other writ, order or direction commanding the respondents not to auction the land on 15.7.1992 as the same belongs to Khewatdars of the village in view of the law laid down by this Court in Joginder Singh and Others Vs. Director, Consolidation of Holdings, Punjab, Chandigarh and Others, . Facts have been taken from C.W.P. No. 8315 of 1993.

It is the case of Gram Panchayat that land measuring 940 kanals 10 marlas comprised in khasra No. 149/153 was shown to be in the name of Shamlat Patti Jalajan, Hasab Pamana Hakiat. Similarly, land measuring 160 kanals was shown to be in the name of Shamilat Jalajan Hasab Pamana Hakiat comprised in Khewat No. 149/154. No person objected for keeping the said two different khurrahs separate and so the consolidation authorities on consolidation of holdings in the village granted new khurrahs in place of old one. According to the Gram Panchayat this land was being used for common purposes of the village and as a charand and so on coming into enforcement of Punjab Village Common Lands (Regulation) Act, 1954 the land comprised in these two Khurrahs was recorded in the name of Gram Panchayat and mutation to this effect was also sanctioned by the revenue authorities. Ever since then the same has remained in possession of the Gram Panchayat and is being used for common purposes of the village. Infact right from the year 1958 the part of it is being auctioned for leasing and the rent recovered from such an auction is being put for the benefit of the village community. None has objected to this till the passing of the impugned order by the Director dated 7.4.1992. It is with a view to grab the land and harm the interest of the village community that Bhagwan Singh and others-petitioners in the connected writ petition filed an application u/s 42 of the Act to the Director of Consolidation against the re-partition with a further prayer for partition of the land stated to be owned by the proprietary body but wrongly shown as Shamlat deh, which request has been accepted by the Director of Consolidation. Accordingly, petitioner prays for the quashing of order passed by Director of Consolidation, annexure P-2 being illegal, unjustified, unwarranted, without jurisdiction and void abinitio on the following grounds :-

i) That land vested in the Gram Panchayat in the year 1958 and on the coming into enforcement of the Act mutation has also been sanctioned in favour of the Gram Panchayat. Subsequent jamabandis show Gram Panchayat to be owner of the land in dispute;

ii) Director of Consolidation has no power to declare the title in favour of the proprietors, as such a matter can only be decided by the Collector in terms of Section 11 of the Punjab Village Common Lands Act. This way the Director has wrongly assumed the jurisdiction which did not vest in him;

iii) That per se the land was shown to be Shamilat Patti and was being put to use for common purposes of the village and so falls within the ambit of Shamilat deh as per Section 2(g) of the Punjab Village Common Lands Act. This way too the Director could not determine this precise issue by invoking its powers u/s 42 of the Act;

iv) That respondent No. 1 has erred in law in relying upon the decision in Joginder Singh''s case (supra), as the same is not applicable in the present case.

Bhagwan Singh and others on the other hand seek a direction against the respondents not to auction the land as the same belongs to the Khewatdars of the village as held in Joginder Singh''s case (supra). According to Bhagwan Singh and others in copies of Jamabandis for the year 1954-55 it is shown as Hasab Paimana Malkiat and in the column of cultivation as Maqbooza Malkan, which by itself shows that land belongs to the proprietors and so in view of Wazib-ularz for the year 1909-10 of village Jullanjan Khewatdars of the village are owners of the land in dispute and so the mutation in favour of Gram Panchayat on 24.9.1995 without giving an opportunity to the petitioners to contest is nonest and is liable to be ignored. This way the Director Consolidation on considering the matter in the light of entries in revenue record rightly came to the conclusion that a mistake was committed by the Consolidation authorities while doing consolidation in the village and so thought it appropriate to correct this error vide order dated 7-4.1992. Otherwise, too, this order is in conformity with the view taken by this Court in Joginder Singh''s case (supra) and so now the Gram panchayat has no right to lease out this property and utilise the funds so recovered. Infact the petitioners are entitled to recover the amount already received as well as restraining the Gram Panchayat from auctioning the same.

Broad averments in the two writ petitions have been noticed. Admittedly, land measuring 940 kanals 18 marlas comprised in khasra No. 149/153 was shown in the name of Shamilat Patti, Jalajan, Hasab Pamana Hakiat and in respect of khasra No. 149/154 measuring 160 kanals to be in the name of Shamilat Jalajan Hasab Pamana Hakiat. This land was mutated in the name of Gram Panchayat on 24.9.1955 in view of the letter issued by the Punjab Government. Subsequent entries in the revenue record, record it as a Shamilat deh. During the consolidation of holdings in the village land comprised in the aforesaid two khewats were considered separately and new area allotted. Concededly, no grievance was made by the proprietors as regards their identity. So, ever since its vesting in the Gram Panchayat being a Shamilat Deh Gram Panchayat has been utilising the land as a charand and for other common purposes of the village as well as leasing the same and utilising the rent so recovered to meet the various demands of village community. As per averments made in C.W.P. No. 9205 of 1992 consolidation of holding of this village took place in the year 1952-53. u/s 14 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 Government can of its own accord or on an application declare its intention to make a scheme for consolidation of holdings in such estate or estates or part thereof as may be specified. On publication in the estate concerned, Government is to appoint a Consolidation Officer who after obtaining in the prescribed manner the advice of the land owners of the estate or estates concerned and of the non-proprietors and the Gram Panchayat prepare a Scheme for the consolidation of holdings in such estate or estates or part thereof as the case may be. A Notification is issued by the Government in this regard. u/s 16-A the authority could make provision in the Scheme to partition joint land and joint occupancy tenancy, u/s 17 it has powers for amalgamation of public roads within the Scheme for consolidation of holdings. u/s 18 Consolidation Officer can direct that land assigned for any common purpose shall cease to be so assigned and can assign any other land in its place. Similarly, he has powers in case no land is reserved for any common purposes to include such land for a common purposes including extension of village abadi. u/s 19 draft of the proposed Scheme is published and any person likely to be effected by such Scheme can file objections within 30 days of such publication in writing to the Consolidation Officer who after considering the objections, if any, submits the Scheme with such amendments as he considers to be necessary together with his remarks on the objections to the Settlement Officer (Consolidation). u/s 20 the Settlement Officer has been given powers to confirm the scheme. On confirmation of the scheme the same is to be published in the prescribed manner in the estate/estates concerned. It is, therefore, that re-partition proceedings commence. u/s 21 aggrieved person can file objection to re-partition and still dissatisfied file an appeal before the Settlement Officer and a further appeal before the Assistant Director of Consolidation. No such objection appears to have been filed by Bhagwan Singh and others-writ petitioners in C.W.P. No. 9205 of 1992 or by any other aggrieved person against the re-partition of the holdings. It is for the first time that a petition u/s 42 of the Act has been filed by Bhagwant Singh on 6.6.1991. Vide this petition grievance has been made of the re-partition as effected with a further prayer for partition of land which has been wrongly shown as Shamilat deh. According to the Director such land could not be-allotted in the name of Gram Panchayat as the same did not fall within the ambit of Shamilat deh as per Section 2(g) of Village Common Lands Act of 1961 and so these entries in revenue record does not in any manner affect the right of the proprietors to get it partitioned according to their shares which relief can be appropriately granted to Bhagwan Singh and his like by making the necessary amendment in the Scheme. The Director further held that there is no need for the petitioner to approach the Collector u/s 11 of the Punjab Village Common Lands Act. This way petition was accepted and case remanded to the Consolidation Officer with a direction that he may take action in confirmity with points highlighted in the order.

According to the counsel representing the Gram Panchayat the order of the Director, Consolidation of Holdings is per se without jurisdiction and hence nonest. Elaborating the counsel urged that no grievance was made of the Scheme duly approved and notified, pursuant to which the consolidation of holdings in the village was completed way back in the year 1954. The present petition has been filed to take away the valuable rights of the Gram Panchayat by approaching an authority which has no powers to adjudicate on question of title. No objection was raised to the Scheme nor any grievance has been made of the re-partition proceedings. This being the admitted position the petition filed u/s 42 against re-partitioned for re-distribution of land which vested in the Gram Panchayat sometime in the year 1954 is highly improper and unjust. Director Consolidation infact has embarked upon an enquiry which did not fall within its ambit. Whether property rightly vested in the Gram Panchayat or the same stands excluded lies within an authority under the village common lands Act and appropriately u/s 11 of the Act for the reason as primarily the case as set up by Bhagwan Singh and others raises a question of title. Director also erred in law in observing that land earmarked as a charand is in excess of land which is to be left for charand purposes. Concededly, no reference has been made to the Scheme. Even it has not been mentioned that re-partition effected contravenes any provisions of the Scheme. In the absence of any such finding the order passed by the Director (land records) exercising the powers u/s 42 of the Act is without jurisdiction and hence null and void.

Counsel for the respondent on the other hand argued that land subject matter of dispute was shown in the revenue record as Shamilat Patti Jalajan Hasab Pamana and Shamilat Jalajan Hasab Pamana Hakiat. This land was shown to be under cultivation of right holders. This being so, the same did not fall within the ambit of Shamilat deh as per Section 2(g) of the Punjab Village Common Lands Act. Precisely for this reason Director on detecting this mistake which crept during the consolidation of holdings has ordered for correction of the same by excluding this land from Shamilat deh and thereafter distributing the same amongst the proprietors. Otherwise too, as per Wazib-ularz of the village such land vests in the proprietors, and so the decision given by the Director of Consolidation does not call for any interference. In somewhat similar matter pertaining to other villages the claim of the Gram Panchayat of those villages has been negatived by this Court. Moreover, the Gram Panchayat at best can retain such land which is being put to use for common purposes of the village. Gram Panchayat has no right to lease out such land and thus utilise the rent so recovered for any other purposes. Such land vests in the proprietors who have a legitimate claim to distribute the land and its profits as per their shares in the proprietary body of the village. Since only an error has crept during the Scheme and re-partition of holdings in the village no question of title arises and only an error is ordered to be corrected. So, the plea raised by the Gram Panchayat that it raises questions of title is mis-conceived.

Re-partitioning of the village which was completed sometime in the year 1953-54 has now been re-opened with the passing of the order by the Director which is being impugned. Concededly, land subject matter of dispute was shown as Shamilat Patti Jalajan Hasab Pamana Hakiat and Shamilat Jalajan Hasab Pamana Hakiat. Land was mutated in the name of Gram Panchayat vide mutation No. 1085 under the Punjab Village Common Lands Act, 1953 (Punjab Act No. 1 of 1954), Copy of jamabandi for the year 1954-55 of village Jalajan (Annexure P-1 in CWP No. 9205 of 1992) record it so. Precisely for this reason land in the two khewats were kept apart as per Scheme. Subsequent entries in revenue record continue to record the disputed land as Shamilat and owned by Gram Panchayat. Precisely for this reason during all these years land is being put to use for common purposes of village i.e. as charand and the remaining for leasing the same and utilising the money so recovered for up keep of the village and utilising for other common purposes of the village. Earlier there were two enactments regulating the rights in the Village Common Lands i.e. (i) in the State of Punjab and the (ii) in the erstwhile State of Pepsu. Subsequently, Pepsu merged in the State of Punjab and so the legislators thought of enacting Punjab Common Lands (Regulation) Act, 1961 consolidating the provisions contained in the two earlier enactments i.e. Punjab Village Common Lands (Regulation) Act, 1953 and the Pepsu Common Lands (Regulation) Act, 1954. Main provisions of these have been incorporated, further amplified and amended here and there. Section 2(g) reads as :-

"2(g) Shamilat deh includes.

1) Land described in the revenue record as Shamilat deh excluding abadi deh.

2) Shamilat Tikkas.

3) Land described in the revenue records as Shamilat, Tarafs, Pattis, 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 village.

4) Lands used or reserved for the benefit of the village, community including, streets, lanes, playgrounds, school, drinking wells, or ponds within abadi deh or gora deh and

5) Lands in any village described as banjar qadim and used for common purposes of the village, according to revenue records.

but does not include land which:

i) Omitted.

ii) has been allotted on quasi permanent basis to a displaced person, iii) has been partitioned and brought under cultivation by individual landholder before the 26th January, 1950.

iv) having been acquired before the 26th January, 1950 by a person by purchase or in exchange for proprietory land from a co-sharer in the Shamilat deh and is so recorded in the jamabandi or is supported by a valid deed; and is not in excess of the share of the co-sharer in the Shamilat deh.

v) is described in the revenue records as Shamilat, Taraf, Pattis, Pannas and Tholas and not used; according to revenue records for the benefit of the village community or a part thereof or for common purposes of the village.

vi) lies outside the abadi deh and was being used as gitwar, bara manure pit, house or for cottage industry, immediately before the commencement of this Act.

vii) Omitted.

viii) was Shamilat deh, was assessed to land revenue and has been in the individual cultivating possession of co-sharer not being in excess of their respective shares in such Shamilat-deh on or before the 26th January, 1950.

ix) was being used as a place of worship or for purposes, subservient thereto, immediately before the commencement of this Act."

As per Section 2(g) land described in revenue record as Shamilat, Tarafs, Pattis, Pannas and Tholas and used as according to the revenue record for the benefit of village community or part thereof or for common purposes of village form part of the Shamilat deh. u/s 2(g)(v) such land though recorded'' in revenue record as Shamilat, Taraf, Pattis Panna and Tholas but not being used for the benefit of the village community or part thereof or for common purposes of the village stands excluded. Thus, a duty has been cast upon a person claiming exclusion from the ambit of Shamilat deh to prove that such land is not being used according to revenue records for the benefit of village community or for common purposes of the village else such a land would fall within the ambit of Shamilat deh. Authorities on examining the relevant provisions ordered for sanctioning of mutation in favour of Gram Panchayat way back in the year 1954-55. Subsequent entries till the filing of the petition in the year 1992 continue to record Gram Panchayat to be the owner of the property. Concededly, no grievance has been made by Bhagwan Singh and such like other persons during all these years. Gram Panchayat on the other hand had been utilising a part of the land as a charand and the remaining by leasing out to various persons and thus utilising the funds so generated in up-keep of the village and utilising the funds in furtherance of the common purposes of the village. So, in the context of the present case, it raised a disputed question as to whether the same was rightly mutated in favour of the Gram Panchayat or the same could not be mutated as it was not being out to for the benefit of the village community or for common purposes of the village. Section 11 of the Punjab Village Common Lands Act gives a right to person who claims a right, title or interest in Shamilat deh to approach the Collector who after examining the matter can grant the necessary relief, if a case is made out. Section 11 reads as :-

"11. Decision of claims of right, title or interest in Shamilat deh.-(1) Any person claiming right, title or interest in any land, vested or deemed to have been vested in a Panchayat under this Act or claiming that any land has not so vested in a Panchayat may submit to the Collector, within such time, as may be prescribed a statement of his claim in writing and signed and verified in the prescribed manner and the Collector shall have jurisdiction to decide such claim in such manner as may be prescribed.

2) Any person or a Panchayat aggrieved by an order of the Collector made under sub-section (1) may, within sixty days from the date of the order, prefer an appeal to the Commissioner in such form and manner as may be prescribed and the Commissioner may after hearing the appeal, confirm, vary or reverse the order appealed from and may pass such order as he deems fit."

u/s 11 sub-clause (2) a person or a Panchayat aggrieved by an order of the Collector made under sub-section (1) can prefer an appeal to the Commissioner whose decision is to be final. Bhagwan Singh and others instead of resorting to Section 11 of the Punjab Village Common Lands (Regulation) Act, 1961, have, however, chosen to approach the Director, Consolidation of Holdings u/s 42 of the Act challenging the re-partition effected as well as praying for redistribution of land which was earlier shown in the name of Shamilat Patti Jalajan and Shamilat Jalajan. Grievance regarding the re-partition of the holdings could be made by an aggrieved person by approaching the Consolidation Officer in the first instance and thereafter filing an appeal before the Settlement Officer (Consolidation) and finally before the Assistant Director of Consolidation. Concededly, no such grievance has been made by Bhagwan Singh or anybody else regarding re-partition of the holdings. Similarly no objection appears to have been filed against the Scheme duly notified by the Government in terms of Section 20 of the Act. It is not the case of Bhagwan Singh and others that re-partition has been effected against the Scheme. Infact the copy of the Scheme has not been annexed by either set of the petitioners and in the absence of the same it can be taken that the proceedings conducted by the consolidation authorities are in consonance of the Scheme so framed.

Whether Bhagwan Singh can now ask for partition of some alleged joint holding in terms of Section 16-A of the Act is another point which was pressed by Shri Sharma during his arguments. According to the counsel, the petition filed before the authority was only to apprise the authorities to "do the needful in terms of Section 16-A of the Act i.e. partitioning of the joint holdings amongst the proprietors as per their shares. Since they did not perform their duties hence the need to approach the Director arose. I find no merit in this submission of the learned counsel for the petitioner. Land was mutated in favour of Gram Panchayat on the coming into enforcement of Punjab Village Common Lands (Regulation) Act, 1953 and so the same cease to have its earlier nomenclature of Shamilat Patti Jalajan Hasab Pamana Hakiat and Shamilat Jalajan Hasab Pamana Hakiat. Person aggrieved could approach an appropriate authority under the provisions of Punjab Village Common Lands Act seeking exclusion of the land from the ambit of Shamilat deh by presenting a petition/application before the Collector in terms of Section 11 of the Act. So, the recourse adopted by Bhagwan Singh is most in-appropriate. u/s 42 of the Act the State Government has powers to examine the legality or propriety of any order passed or Scheme prepared or confirmed or re-partition made by any officer under this Act. In the present case there is no challenge to any order passed by an authority under the Act. Similarly there is no challenge to the scheme confirmed or even to the re-partition made by the Officer. All that has been stated in the petition u/s 42 is that mutation has been wrongly sanctioned in favour of the Gram Panchayat and so the same does not confer any title or right upon the Gram Panchayat and thus has to be ignored. Thus, the petition u/s 42 was wholly mis-conceived.

To be fair to the counsel, reference to some of the judgments, relied upon by him would indeed be appropriate, i.e.:-

2) Gram Panchayat Vs. Director, Consolidation of Holdings and Others,

3) Baj Singh v. State of Punjab and Ors. (1992)100 P.L.R. 10.

4) Om Parkash Vs. The Assistant Collector Ist Grade and Others,

5) Gram Panchayat Vs. The State of Punjab and Others,

6) Bagga Singh v. The Commissioner, Ferozepur Division, Ferozepur and Ors. 1984 P.L.J. 498, and

6) Joginder Singh''s case (supra).

None of the aforesaid judgments cited has any bearing upon the point in controversy. In Gram Panchayat Gunia Majri''s case (supra) the Court was examining the effect of Rule 16(ii) relating to Bachat land deducted from the holdings of the proprietors. On considering the matter, the Court held that Bachat land which had been taken by imposing pro rata cut on the holdings of the proprietors is to be redistributed amongst the proprietors in case the same is not being put for any common purposes of the village. The Court held that such land cannot be Allowed to remain with the Panchayat for income of the Panchayat for leasing out to lessees, Harijans or non-Harijans etc. In the instant case no such pro rata objection has been made from the holdings of proprietors so as to constitute some land to be used for common purposes of the village. Infact, no such direction was issued by the Consolidation Officer during the Consolidation of holdings in the village,

To the similar effect is the decision in Raj Singh''s case (supra) relating to Bachat land which had been carved out by imposing a pro rata cut on the holdings during Consolidation of holdings in the village.

Similarly, in Om Parkash''s case (supra) the Court considered the provisions of Sections 7 and 2(g) of the Punjab Village Common Lands Act. This too has no bearing upon the point in controversy.

In Gram Panchayat Nurpur Jattan''s case (supra) the Court was considering the matter in the light of provisions contained in Section 2(bb) 23-A and 18 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, the order of Additional Director vide which some land which was reserved for common purposes by imposing a pro rata cut which was being given to the proprietors having not been utilised for common purposes of the village.

In Bagga''s case (supra) the Court considered the provisions of Punjab Gram Panchayat (Common Purposes Land) eviction and Rent Recovery Act and by relying upon the definition in Section 2(a) held that land before it can be held to be common purposes land, the same is to be reserved u/s 18 of the Consolidation Act and secondly, the management and control of such land vest in the Gram Panchayat u/s 23-A of the Consolidation Act. Land which is not being utilised for the common purposes i.e. Bachan land which remain unutilised the Panchayat is not entitled to manage and control such Bachat land. As noticed in the earlier part of the judgment the present dispute does not pertain to land carved out by implying a pro rata cut upon the proprietors during the consolidation of holdings in the village. Even this is not the case of Bhagwan Singh that any such pro rata cut was imposed upon the proprietors during the consolidation of holdings in the village. Otherwise too, it is clear from the record that the land was mutated in favour of the Gram Panchayat some time in the year 1954, perhaps earlier to the conclusion of consolidation proceedings in the village (exact date when the consolidation of holdings was completed has not been mentioned in these two writ petitions).

The Director Consolidation while brushing aside the objection of the Gram Panchayat that matter can be only appropriately examined u/s 11 of the Punjab Village Common Lands Act has sought support from the decision of this Court in Joginder Singh''s case (supra). In the aforesaid case Joginder Singh a lessee of the Gram Panchayat challenged the order of the Director of Consolidation vide which the land which was shown in the revenue record as Shamilat deh was ordered to be re-distributed amongst the proprietors it being a banjar qadim and as per entry in wazib-ularz of the village. The court held that since the petitioners got the property for cultivation in auction for a year they had a right to remain there for the auction period. After the expiry of auction period they were un-authorised occupants and had to surrender possession to the Gram Panchayat. Accordingly, writ petition was dismissed.

The precise point as to whether the tenants are also entitled to be heard by the concerned authority while deciding a dispute in respect of Shamilat deh between persons claiming to the owners and Gram Panchayat came up for consideration before the apex Court in Swaran Singh and Ors. v. State of Punjab and Ors. (1994) 103 P.L.R. 206 and the Court after dilating upon the relevant provisions of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act as well as of Punjab Village Common Lands Act held that even in a dispute between the proprietors and the Panchayat in respect of title of the land a tenant has a right to participate in such a dispute. The Court in its operative order held as under :-

"We do not agree that they cannot participate in the dispute between the proprietors and the Panchayat in respect of the title of the land in view of the mandate under the proviso to Section 42. The general issues in law regarding locus standi of a tenant to participate in a dispute regarding title between two rival claimants would not arise in a case covered by Section 42 of the Act having regard to the nature of the rights created under the Act in favour of the tenants also as discussed above. As observed in Paras Ram''s case and in the case of Gram Panchayat of village Serohi Behali and others (supra) the tenants definitely come within the meaning of "parties interested" and, therefore, they have a right to be heard. As a matter of fact in Joginder Singh''s case they again approached the Director of Consolidation and he directed them to get a clarification from the High Court which was refused and they have come into this Court. We do not think that the appellants in each of these appeals and who are the interested parties should be driven to have a recourse to some other proceedings. Hearing of an interested party in a condition precedent for passing of an order u/s 42 of the Act. When once it is not in dispute that the appellants who are the tenants in the disputed land by virtue of a lease granted by the Panchayat by way of auction then they have acquired some rights which also should be protected.

In the result the impugned orders passed by the Director and also the impugned judgments of the High Court are set aside and the matters are remanded to the Director for being disposed of afresh after hearing the appellants as well as the other necessary parties.

The judgment of this Court in Joginder Singh''s case was accordingly set aside. Resultantly, I am of the view that dispute raised can be appropriately examined u/s 11 of the Punjab Village Common Lands Act. Accordingly, I accept the writ petition filed by Gram Panchayat set aside the order passed by Director Consolidation dated 7.4.1992. Consequently the other writ petition filed by Bhagwan Singh and others for restraining the Gram Panchayat from leasing out the property is hereby dismissed.

No order as to costs.