Parbhu and Another vs The Gram Panchayat

Prem Chand Pandit, J.—Vide my order dated 21s''t November 1961, I had remanded this case to the trial Court for giving a finding as to the effect of the enforcement of the Punjab Village Common Lands (Regulation) Act No. 18 of 1961, on the rights of the parties after giving them an opportunity to lead evidence thereon. This report had to come through the learned Senior Subordinate Judge, who was also directed to record his finding after hearing the parties. The report has been received and the case has been put up for hearing.

The trial Judge held that the land in suit was not shamilat deh as defined in Clause (g) of Section 2 of Punjab Act No. 18 of 1961, because it lay outside the abadi deh and was used as a gitwar and house by the Defendants. That being so, the rights of the Plaintiff-Panchayat therein came to an end. He, consequently, held that the Plaintiff was no longer the owner of the land in suit and had no locus standi to bring and maintain the present suit.

The learned Senior Subordinate Judge came to the conclusion that the site in dispute having been situated outside the abadi and used as a gitwar ceased to be shamilat deh within the definition of the term as given in Section 2(g) of the 1961 Act. By virtue of Section 3(2) of this Act it, therefore, revested in the proprietors of the village, who were the owners of the same before its vesting in the Gram Panchayat. Consequently, the Plaintiff- Gram Panchayat ceased to be the owner of the land in dispute,-vide Section 3(2) of the 1961 Act.

Learned Counsel for the Respondent has challenged this report. The facts found in this case are these (1) the site in dispute in 1953 was shamilat deh and lay outside the abadi. No gitwar or kotha was constructed thereon. In the revenue records in the proprietors'' column, ''shamilat deh'' was written and in the cultivation column, it was written ''maqbooza malikan'' (in the possession of the proprietors), (2) on 3rd September, 1955, a mutation was effected that this land had vested in the Panehayat, and (3) the Defendants took possession of this land in kharif 1956 and constructed a Kotha and a gitwar thereon. The Punjab Village Common Lands (Regulation) Act, 1953 (Punjab Act No. 1 of 1954) (hereinafter referred to as 1953 Act) came into force on 9th January, 1954, while the Punjab Village Common Lands (Regulation) Act, 1961 (Punjab Act No. 18 of 1961) (hereinafter referred to as 1961 Act) on 4th May, 1961. The relevant provisions of 1961 Act for the determination of this case are as follows:

Section 2....

(g) ''shamilat deh'''' includes

(1) lands described in the revenue records as shamilat deh, excluding abadi deh;....

but does not include land which

....

(vi) lies outside the abadi deh and is used as gitwar, bara, manure pit or house or for cottage industry;

....

(h) ''shamilat law'' means-

(i) in relation to land situated in the.territory which immediately before the 1st November, 1956, was comprised in the State of Punjab, the Punjab Village Common Lands (Regulation) Act, 1953; or...

Section 3....

(1). This Act shall apply, and before the commencement of this Act, the shamilat law shall be deemed always to have applied, to all lands which are shamilat deh as defined in Clause (g) of Section 2.

(2) Notwithstanding anything contained in Sub-section (1) of Section 4, where any land has vested in a panchayat under the shamilat law but such land has been excluded from shamilat deh as defined in Clause (g) of Section 2, all rights, title and interest of the Panchayat in such land shall, as from the commencement of this Act, cease and such rights, title and interest shall be revested in the person or persons in whom they vested immediately before the commencement of the shamilat law and the panchayat shall deliver possession of such land to such person or persons:

Provided that where a panchayat is unable to deliver possession of any such land on account of its having been sold or utilised for any of its purposes, the rights, title and interest of the panchayat in such land shall not so cease but the panchayat shall, notwithstanding anything contained in Section 10, pay to the person or persons entitled to such land compensation to be determined in accordance with such principles and in such manner as may be prescribed.

Section 4. (1) Notwithstanding anything to the contrary contained in any other law for the time being in force or in any agreement, instrument custom or usage or any decree or order of any Court or other authority, all rights, title and interests whatever in the land

(a) which is included in the shamilat deh of any village and which has not vested in a panchayat under the shamilat law shall, at the commencement of this Act, vest in a panchayat constituted for such village, and, where no such panchayat has been constituted for such village, vest in the panchayat on such date as a panchayat having jurisdiction over that village is constituted;

....

(2) Any land which is vested in a panchayat under the shamilat law shall be deemed to have been vested in the panchayat under this Act.

The reasoning of the Courts below and of the learned Counsel for the Appellant is like this. The land in dispute, on which a gitwar and a kotha is constructed, is excluded from the definition of shamilat deh as given in Section 2(g) of 1961 Act. Therefore, by virtue of the provisions of Section 3(2), even if this land had vested in the Gram Panchayat under the 1953 Act, all rights, title and interest of the Panchayat in this land shall from the commencement of the 1961 Act cease and such rights, title and interest shall be revested in the proprietary body of the village in whom they vested immediately before the commencement of the 1953 Act, and the Panchayat shall deliver possession of this land to those persons.

There is a fallacy in this argument. Sub-section (1) of Section 3 of 1961 Act clearly provides that before the commencement of this Act, the 1953 Act shall be deemed always to have applied to all lands which are shamilat deh as defined in Clause (g) of Section 2 of ,1961 Act. In the present case, when the 1953 Act came into force, the land in dispute was entered as shamilat deh in the revenue records and it was outside the abadi deh. Na gitwar or kotha was constructed thereon at that time. Therefore, it was as ''shamilat deh'' as defined in Clause (g) of Section 2 of 1961 Act. Consequently, the provisions of 1953 Act applied and by virtue of Section 3 of that Act, on 9th January, 1954 all rights, title and interest in the land vested in the Panchayat. Having rightly vested, the Panchayat cannot be deprived of these rights unless there is a specific provision to this effect in the 1961 Act. Reliance was placed by the Courts below on Sub-section (2) of Section 3 of the 1961 Act for holding that the land, which had vested in the Panchayat under the 1953 Act but was excluded from the definition of ''shamilat deh'', as given in Clause (g) of Section 2 of 1961 Act, all rights title and interest of the Panchayat therein would cease from the commencement of the 1961 Act and the same shall revest in the persons in whom they vested immediately before the commencement of the 1953 Act. In my opinion, all that this Sub-section means is that only those lands shall revest which were covered by items (i) to (ix) mentioned in Section 2 (g) of the 1961 Act, at the time when the 1953 Act came into force. If in a particular case some land was not covered by any of these items at the commencement of the 1953 Act, but later on it was so used that it fell within any one of these items, Sub-section (2) of Section 3 would have no effect on the same, because this land had rightly vested in the Panchayat on the commencement of the 1953 Act. In other words, Sub-section (2) of Section 3 of the 1961 Act applies in those cases where the lands fell within items (i) to (ix). of Section 2(g) of this Act at the time when the 1953 Act came into force, but not to those lands which later on by use etc., fell within any of these items. It has, therefore, to be seen as to what was the position of the land in question at the time of the commencement of the 1953 Act. The land in dispute, admittedly, was not being used as a gitwar or a house on 9th January, 1954. Therefore, it rightly vested in the Panchayat even according to the 1961r/ Act and, consequently, it could not under the provisions of Section 3(2) of the 1961 Act revest in the proprietary body of the village, in whom it vested before the commencement of the 1953 Act. The result is that it remained vested in the Plaintiff-Gram Panchayat. Under these circumstances, the findings of the Subordinate Judge in his report dated 19th March, 1962 and of the learned Senior Subordinate Judge in his report dated 26th March, 1962 are set aside.

In view of what I have said above, the appeal fails and is dismissed. In the circumstances of this case, however, I will leave the parties to bear their own costs throughout.