Jagir Singh vs Gram Panchayat, village Mirzapur and ors.

G.C. Mital, J.

The interpretation of Section 2(g)(vi) of the Punjab Village Common Lands (Regulation) Act, 1961 (for short `the Act''), as it exists after the Haryana Act No. 2 of 1981, by which the Act was amended, falls for consideration in this writ petition.

In order to appreciate the law points, brief facts deserve to be kept in view.

Gram Panchayat of village Mirzapur filed an application before the Assistant Collector under Section 7(2) of the Act for ejecting Jagir Singh from 9 Marlas comprised in Khasra No. 156 and 3 Kanals 17 Marlas comprised in Khasra No. 158. On receipt of notice Jagir Singh disputed title of Gram Panchayat. He pleaded that on the land in dispute house was built long time back and by virtue of Section 2(g)(vi) of the Act, since the house was built on a piece of land, which was outside the abadi deh, it stood excluded from Shamilat deh. The Assistant Collector came to the conclusion that the house built by Jagir Singh existed on 9 Marlas comprised in Khasra No. 156 and regarding the remaining land he found that the same was Shamilat and was not covered by any of the exceptions. As a result the possession of the house was maintained but order of eviction was passed in regard to 4 Kanalas 17 Marlas of land.

The Gram Panchayat went up in appeal and the learned Collector came to the conclusion that according to the revenue record even 9 Marlas which was under the house was shown as belonging to the Gram Panchayat, and, therefore, ordered his eviction from 9 Marlas of land also. The revision of Jagir Singh before the Commissioner remained unsuccessful. This is petition by him under Articles 226/227 of the Constitution of India to impugn the orders of the Collector and Commissioner.

At the time of admission the Bench was of the view that the matter is likely to arise frequently and consequently directed the matter to be decided by a Division Bench. This is how the matter has been placed before us.

In the Principal Act Section 2(g)(vi) was as follows :

"2(g)(vi) "Shamilat deh" or "Charand" includes ... ... ... ... but does not include land which ... ... lies outside the abadi deh and is used as gitwar, bara, manure pit or house or for cottage industry;"

Clause (vi) above quoted was later substituted by Haryana Act No. 2 of 1981 by the following clause :

"(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."

According to Section 2(g)(vi) of the Act, as it stood before amendment, land which lay outside the abadi deh and was found to have been used for purposes mentioned in clause (vi), stood excluded from the definition of Shamilat deh, and this was so because of the use of the word `is used''. The Principal Act had come into force in the year 1961 but the word `is'' has reference to any given point of time, whenever the land outside the abadi deh fell for use of house and other purposes after the enforcement of the Principal Act. The Principal Act was enacted in the erstwhile State of Punjab and had continued to apply to both the States namely the present Punjab and Haryana, which came into force on 1st November, 1966. In Punjab this provision was amended by the Punjab Act No. 19 of 1976 by substituting existing clause (vi) with the clause, which has been substituted by Haryana Act No. 2 of 1981. Keeping in view the fact that even after coming into force of the Principal Act, land outside the abadi deh could be occupied by the villagers for being used as gitwar, bara, manure pit or house or for cottage industry, and from such use the land stood excluded from the purview of Shamilat deh. Since certain villagers had already occupied it, it was not considered proper or feasible to dislodge them and that is why the newly substituted clause was given prospective effect, that is, from the date of coming into force of the Amending Act.

In the State of Haryana this matter was noticed later on and they brought similar amendment by Act No. 2 of 1981. A reading of the Amending Act shows that it has been made operative from the date of the Amendment of the Amending Act and saved the land lying outside the abadi deh, which was put to as use gitwar, bara, manure pit or house or for cottage industry. The result of the amendment was that if any villager occupied the land situated outside the abadi deh for any of the aforesaid purposes after coming into force of the Amending Act, the same did not cease to be Shamilat deh and the Panchayat could evict the unauthorised occupant. It is also in consonance with the object contained in the Amending Act.

M.R. Sharma, J. in Jagdev Singh v. The Commissioner, Ambala Division, 1976 PLJ 118, had interpreted unamended clause (vi) and had come to the conclusion that even after the enforcement of the Principal Act of 1961, if land lying outside the abadi deh was occupied by a villager for any of the purposes mentioned in clause (vi) of the Act the same stood excluded from the definition of the Shamilat deh. When amendments were made by the two States, it was mentioned that certain decisions of the High Court had necessitated the amendment and one such High Court decision was the one noticed above. Therefore, both on the interpretation of the provisions of the Amending Act, as also in the light of the objects of the Amendment Act, the amendment of clause (vi) is prospective and it saves the land which is outside the abadi deh and was put to use for one of the purposes contained in that clause before the commencement of the Amending Act.

There is yet another clinching reason for taking the aforesaid view. While section 2(g)(vi) has been substituted with effect the date of the Amending Act, that is, when it was published on 12.2.1981, by virtue of Section 4 of the Amending Act of 1981, for Section 13, new Section 13 was substituted with effect from the 4th day of May, 1961 and similarly by virtue of Section 5 of the Amending Act, for existing Sections 13A and 13B new Sections 13A to 13D were substituted with effect from the 4th day of May, 1961. The amendments which were brought in by virtue of Sections 4 and 5 were made retrospective with effect from 4th of May, 1961, whereas the amendments which have been brought in Section 2(g)(iv) of the Act by virtue of Section 2 of the Amending Act, has been made prospective as it has been made operative from the date of the commencement of the Act. Therefore, the matter was clear of the Legislature, wherever they wanted to give retrospective effect, it was so stated and wherever they did not intend to make it retrospective, it was not given.

In view of the interpretation made by us on the Amending Act, it is clear that if the petitioner had constructed the house before the Amending Act of 1981, the land underneath stood excluded from the definition of Shamilat deh. The case of the petitioner was that the house was built more than 20 years ago, but even if that is not so, the case of the Gram Panchayat never was that the house was built after the enforcement of the Amending Act.

The Collector and the Commissioner went wrong merely in reading the revenue records, wherein the ownership of the land in dispute was recorded that of the Gram Panchayat. What they had to do so was to advert to the provisions of Section 2(g) and find out whether the land was Shamilat Deh or not and whether it stood excluded under any of the exceptions. While the Assistant Collector followed this, the higher officers did not do so.

Before us, no challenge has been made on behalf of the petitioner regarding 3 Kanals 13 Marlas of land comprised in Khasra No. 158, regarding which ejectment order was passed by the Assistant Collector, and that matter was not disputed before the Collector and the Commissioner in further appeals. Hence, the decision in this case relates only to 9 Marlas of land comprised in Khasra No. 156.

For the reasons recorded above, the writ petition is allowed and the orders of the Collector, Annexures P2 and P3 and of the Commissioner, Annexure P6, are hereby quashed. Since none has appeared on behalf of the respondents, we make no order as to costs.