Alok Singh, J.@mdashIn all the petitions, property in question is recorded either as "Shamlat Deh Hasab Rasad Zar Khewat" or as "Shamlat Deh Hasab Hisas Mundarja Shijra Nasab". In all the petitions, properties in question stood vested in Panchayats as per Section 3 of Punjab Village Common Lands (Regulation) Act, 1953 (hereinafter called as ''1953 Act'') and were mutated in favour of Panchayat in the year 1957. Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter called as ''the 1961 Act'') came into force w.e.f. 1961 repealing 1953 Act with saving clause as provided u/s 16 of the 1961 Act. Thereafter, Plaintiffs have filed different petitions u/s 11 of the 1961 Act seeking declaration that Plaintiffs be declared owners of the land and for deleting the name of Panchayat as owner from the revenue record. In some petitions filed by Plaintiffs, learned Commissioners have held that since property was recorded as "Shamlat Deh Hasab Rasad Zar Khewat" in jamabandi for the year 1948-49 and Panchayat could not prove that suit land was kept reserved for common purposes of the village, therefore, proprietors thereof are the owners of the property and property shall not vest in the Panchayat. Feeling aggrieved, Gram Panchayats have filed CWP Nos. 15937, 17871, 17565, 17943 and 17944 of 2006. However, in rest of the petitions it has been held by the authorities below that since property was recorded as "Shamlat Deh Hasab Rasad Zar Khewat", therefore, it rightly stood vested in the Panchayat. It has further been held that Plaintiffs have failed to bring their cases under the exemption clauses of shamlat deh by proving that property was under their cultivation and they have got their shares divided on or before 26.1.1950, therefore, Plaintiffs cannot be held to be owners of the property. Feeling aggrieved, Plaintiffs have filed CWP Nos. 10911 of 2008, 12992 of 2011, 4734, 4738, 4739, 4732, 4733, 4735, 4736, 4737, 8322 of 2010, 16107 of 2006 and 17146 of 2008.
2. Mr. S.D. Sharma, learned Senior Advocate, as well as Mr. Arun Jain, learned Senior Advocate, have vehemently argued that land in question stood vested in favour of Panchayat in view of Section 3 of 1953 Act; land which has been excluded from shamlat deh as provided in Clause (iii) and (viii) of Section 2(g), shall be reverted in persons or persons in whom they were vested prior to commencement of shamlat law and the Panchayat shall deliver possession of such land to such person or persons in view of Section 3(2) of 1961 Act. It has further been argued that although entire land is recorded as "Shamlat Deh Hasab Hisas Mundarja Shijra Nasab" or "Shamlat Deh Hasab Rasad Zar Khewat" however, only that portion shall remain vested in Panchayat which is declared or reserved for common purposes by the consolidation authorities and rest of the land shall be revested in the proprietors by operation of Section 3(2) of the 1961 Act. Learned Counsel appearing for the Petitioners have further contended that in the revenue record prior to 1950 in the column of cultivation entry is ''Makbuja Malkan'' which means in the possession of owner of the property; since Petitioners are the owners, therefore, they were in possession prior to 1950, hence, as per exclusion clauses i.e. (iii) and (viii) of Section 2(g) Petitioners are the owners and property should be revested in them.
3. Mr. V.S. Rana, learned Counsel appearing for the Gram Panchayat as well as Mr. Jaswinder Singh learned Deputy Advocate General, Punjab and Mr. Gaurav Dhir, learned Deputy Advocate General, Haryana, have vehemently argued that entire land of shamlat deh which stood vested in the Panchayat in view of Section 3 of 1953 Act shall not automatically revert to the proprietors in view of Section 3 -7 (2) of 1961 Act. They have further contended that from the careful reading of Section 3(2) and Section 4 of 1961 Act, the only conclusion would be that only such land would be reverted to the proprietors which is excluded from ''shamlat deh'' under exemption clauses of Section 2(g) of the 1961 Act and rest of the land described as ''shamlat deh'' shall remain vested in Panchayat irrespective of any right, title, interest or order/decree, agreement, custom or usage. They have further argued that unless and until Petitioner are able to make out the case of exclusion of the land under the sub clauses of Section 2(g) of the 1961 Act to say land does not fall within the definition of shamlat deh No. relief can be granted to the Petitioners.
4. I have heard learned Counsel for the parties and have carefully perused the record and relevant provisions of law.
5. To appreciate the respective arguments and to resolve the controversy this Court thinks it proper to go back in the history and object of the Punjab Village Common Lands (Regulation) Act 1953 as well as 1961 and would like to reproduce Section 3 of 1953 Act and 2(g), 3 and 4 of the unamended 1961 Act as was applicable in State of Punjab before carving out State of Haryana from the Punjab in the year 1966.
Section 3 of 1953 Act reads as under:
3. Vesting of rights in panchayats and in non-proprietors. -Notwithstanding anything to the contrary contained in any other law for the time being in force, and notwithstanding any agreement, instrument, custom or usage or any decree or order of any Court or other authority, all rights, title and interest whatever in the land
(a) which is included in the Shamlat Deh of any village, shall, on the appointed date, vest in a -8 panchayat having jurisdiction over the village;
(b) which is situated in the Abadi Deh of a village and which is under the house owned by a non-proprietor, shall at the commencement of this Act vest in the said non-proprietor.
Sections 2(g), 3 and 4 read as under:
2(g) "shamlat deh" includes
(1) lands described in the revenue records as shamlat deh excluding abadi deh;
(2) shamlat tikkas;
(3) lands described in the revenue records as shamlat, 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 the village;
(4) lands used or reserved for the benefits of village community including streets, lanes, playgrounds, schools, drinking wells, or ponds within abadi deh or gorah deh; and
(5) lands in any village described as banjar qadim and used for common purposes of the village according to revenue records;
Provided that shamlat deh at least to the extent of twenty-five per centum of the total area of the village does not exist in the village;
but does not include land which
(i) becomes or has become shamilat deh due to river action or has been reserved as shamlat in villages subject to river action except shamlat deh entered as pasture, pond or playground in the revenue records;
(ii) has been allotted on quasi-permanent basis to a displaced person;
(iii)has been partitioned and brought under cultivation by individual landholders 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 shamlat deh is so recorded in the jamabandi or is supported by a valid deed;
(v) is described in the revenue records as shamlat taraf, pattis, pannas and thola 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 or house or for cottage industry immediately;
(vii) is shamlat deh of villages included in the fourteen revenue estates called ''Bhojes'' of Naraingarh Tehsil of Ambala District;
(viii) was shamlat deh, was assessed to land revenue and has been in the individual cultivating possession of co-sharers not being in excess of their respective shares in such shamlat deh on or before the 26th January, 1950; or
(ix) is used as a place of worship or for purposes subservient thereto;
3. Lands to which this Act applies. -(1) This Act shall apply, and before the commencement of this Act, the shamlat law shall be deemed always to have applied, to all lands which are shamlat deh as defined in Clause (g) of Section 2.
(2) Notwithstanding anything contained in Sub-section
(1) or Section 4, where any land has been vested in a panchayat under the shamlat law but such land has been excluded from shamlat 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 reverted in the person or persons in whom they vested, immediately before the commencement of the shamlat law and the panchayat shall deliver possession of such land to such person or persons:
6. 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;
4. Vesting of rights in Pachayats and non-proprietors. -
(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 shamlat deh of any village and which has not vested in a panchayat under the shamlat law shall, at the commencement of this Act, vest in a -10 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;
(b) which is situated within or outside the abadi deh of a village and which is under the house owned by a non-proprietor, shall on the commencement of the shamlat law, be deemed to have been vested in such non-proprietor.
(2) Any land which is vested in a panchayat under the shamlat law shall be deemed to have been vested in the panchayat under this Act.
(3) Nothing contained in Clause (a) of Sub-section (1) and in Sub-section (2) shall affect or shall be deemed ever to have affected the
(i) existing rights, title or interest of persons who though not entered as occupancy tenants in the revenue records are accorded a similar status by custom or otherwise, such as Dholidars, Bhondedars, Butimars, Basikhuopahus, Saunjidars, Muqararidars;
(ii) rights of persons in cultivating possession of shamlat deh for more than twelve years without payment of rent or by payment of charges not exceeding the land revenue and cesses payable thereon;
(iii) rights of a mortgagee to whom such land is mortgaged with possession before the 26th January, 1950.
Hon''ble Apex Court in the case of
3. Villages in pre-independent rural India having village common or communal lands meant for use by the whole village community was their common redeeming feature, in that, the inhabitants of the villages whose occupation was predominantly agriculture dependent on their livestock needed to give manure to their lands, to cart manure to their lands, to plough their lands and the carry on several other incidental -11 agricultural operations, required common lands for using as pasturagcs, pools, ponds, thrashing-floors, cow dung pits, have stack areas, tethering areas and the like. Villages in the States of Punjab and Pepsu were of No. exception. With the dawn of independence and rise in land value even in villages, powerful and greedy inhabitants in Villages became grabbers of village common lands depriving their use to the village community. Some of the State which were enabled by the Constitution of India to organise village Panchayats as units of self-Government and encourage growth of agriculture and animal husbandry in villages by suitable legislative measures took prompt steps to legislate on common lands of the villages, so as to restore such lands for communal use and common benefit of all the inhabitants of the villages by vesting them in their respective Panchayats. Punjab Village Common Lands (Regulation) Act, 1953 and Pepsu Village Common Lands (Regulation) Act, 1954 are 1954 are two legislative measures enacted by the respective States of Punjab and Pepsu to vest the common lands of villages in their Panchayats for common benefit and advantage of the whole community of the village concerned. When under the States, Re-organisation Act, 1956 Pepsu State merged in Punjab State, the said Papsu Act continued to operate in the area of erstwhile Pepsu. When the operation of two legislative measures in the new Punjab State, which were in come respects not common, was found to be undesirable, the State of Punjab enacted the Villages Common Lands (Regulation) Act, 1961 referred to by us already as ''principal Act'' and made it operative in the whole territory of Punjab State, with effect from 4th day of May, 1961. By the principal Act the two earlier Acts which had covered the field till then were repealed, as well. The principal Act, as stated in its preamble, sought by its provisions to consolidate and amend the law regulating the rights in village common lands popularly and colloquially known as ''shamilat deh'' and ''abadi- deh''.
5. While Sub-section (1) of Section 3 of the principal Act declared that the Act shall apply and before the commencement of the Act the Shamilat Law shall be deemed to have applied to all lands which are ''shamilat deh'' as defined in Clause (g) of Section 2 thereof, Sub-section (2) thereof declared that notwithstanding, anything contained in Sub-section (1) of Section 4, where any land had vested in the Panchayat under the shamilat law, but such land had 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 the Act, shall 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 was directed to deliver possession of such land to such person or persons. No. doubt, Sub-sections (2) and (1) of Section 4 delcared that any land which vested in a Panchayat under ''shamilat law'' shall be deemed to have been vested in the Panchayat under the Act and notwithstanding anything to the contrary contained in any other law for the time being in force or in any agreement, instruments, custom or usage or any decree or order of any court or other authority, all rights, title and interest whatever in the land which is included in the shamilat deh of any village and which and not vested in a panchayat under the shamilat law'' shall, at the commencement of the Act, vest in a Panchayat. But Sub-section (3) thereof declared that nothing contained in Clause (a) of Sub-section (1) in Sub-section (2) shall affect or shall be deemed ever to have affected the (i) existing rights, title or interests of persons who, though not entered as occupancy tenants in the revenue records, are accorded a similar status by custom or otherwise, such as Dholidars, Bhondedars, Butimars, Basikhupopohus, Sounjidars, Muqurridars; (ii) rights of persons who were in cultivating possession of ''shamilat deh'', on the date of the commencement of the Act and were in such cultivating possession for more than twelve years immediately preceding the commencement of the Act without payment of rent or by payment of charges not exceeding the land revenue and ceases payable thereon; and (iii) rights of a mortgaged to whom such land is mortgaged with possession before 26th January, 1950, while Sub-section (2) of Section 3 declared that notwithstanding, anything contained in Sub-section (1) of Section 4, where any land has vested in the 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 the principal 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.
Scope and interpretation of Section 2(g), 3 and 4 are No. more -13-res integra. As per ratio of the judgment in the case of Karnal Co-op. Farmers'' Society (supra) any land which is included in shamlat deh shall vest in a Panchayat, notwithstanding anything to the contrary contained in any other law, agreement, instrument, custom or usage or any decree or order of any Court or authority, on the appointed day i.e. the date of constitution of Panchayat in the area, if land has already not been vested in the Panchayat.
It is further held that notwithstanding anything contained in Section 4(1) of the 1961 Act any land vested in a Panchayat under the shamlat law but has been excluded from shamlat deh under Clause (g) of Section 2, all rights, title and interest of the Panchayat shall cease and all such rights, title and interest shall revest in the person or persons in whom they were vested immediately before the commencement of shamlat law.
Now question comes as to whether land in question falls within the exclusion clauses i.e. (iii) and (viii) of Section 2(g) to make out the case u/s 3(2)(i) of the Act?
As per Clause (iii) and (viii), I find that such shamlat deh land would be excluded from the definition of shamlat deh when such land has been partitioned and brought under separate cultivation by individual landholders on or before 26th January, 1950 or was assessed to land revenue and had been in individual cultivation of a co-sharer not been in excess of their respective shares in such shamlat deh on or before 26th January, 1950. To make out the case either under Clause (iii) or (viii), Petitioners have to prove that land was partitioned and brought under separate cultivation by co-landholders on or before 26th January, -14-1950 or land was assessed to land revenue and has been in individual cultivation of a co sharer on or before 26th January, 1950 as per his respective share in the land.
No document or material is produced either before the Courts below or before this Court to show that Petitioners are actual legal heirs of the recorded khewatdar and what are their respective shares in the land in question; Petitioners further failed to prove that land was ever partitioned and was used in actual cultivation by the proprietors as per their partitioned share on or before 26th January, 1950 or land was ever subjected to assessment of land revenue and has been in the individual cultivating possession of the co sharer as per his actual share. In the present case, Petitioner did not disclose their respective shares nor have shown what was the land revenue assessed and paid by them according to their respective shares after actual partition among the cosharers. Possession in the shape of actual cultivation as per share is sine qua non to attract exemption Clause (iii) and (viii). Petitioners cannot take any benefit of ''Makbuja Malkan''. To make out case under the exemption clauses of Section 2(g) joint possession of all the share holders will not help. Therefore, in the opinion of this Court, Petitioner miserably failed to bring out the case under the exemption Clause (iii) and (viii) of Section 2(g) of the 1961 Act.
I find support from the judgment of Division Bench judgment of this Court in the case of Rama Sarup and Ors. v. State of Haryana and Ors. 2006 (4) RCR (Civil) 350, wherein Division Bench in paragraphs No. 19 and 21 has observed as under: -
19. A perusal of the above shows that the sub-clauses -15 of Section 2(g) of the 1961 Act are independent of each other. Besides, it was also observed that from Sub-clause (1) it is evident that Shamilat Deh would include land described in the revenue records as Shamilat Deh. Therefore, land which is recorded in the revenue records as Shamilat Deh would fall within the definition of Shamilat Deh as defined in Section 2 (g) of the 1961 Act. Once the land is Shamilat Deh it vests in the Gram Panchayat by virtue of Section 4) of the 1961 Act. 21.
7. In the case in hand the term revenue records ''Shamilat Deh Hasab Rasad Raqba Khewat''. With the use of the expression ''Raqba Khewat'' it is evident that the share of the proprietors in the Shamilat Deh land is to the extent of the share of their holdings in the Khewat. Besides, it is not the case of the Petitioners that the land has been partitioned amongst the holders of the land according to their share in the holding in the khewat. Section 2(g) as has been noticed is in two parts. The first part of Section 2(g) relates to land which is included in Shamilat Deh and the second part is that which is excluded from Shamilat Deh. In terms of Clause (iii) in the second part which relats to exclusion of land from Shamilat Deh, it has been provided that the land which has been partitioned and brought under cultivation by individual land owners before 26.1.1950 would not be included in Shamilat Deh. It is not even the case of the Petitioners that the land in question has ever been partitioned, which may bring their case in the said exclusion clause. It is also not the case of the Petitioners that they are in individual cultivating possession of the Shamilat land of co-sharers not being in excess of their respective share in Shamilat Deh on or before 26.1.1950 so as to come within the exclusion provided by Clause (viii) of Section 2(g) of the 1961 Act. The expressions '' individual cultivating possession'' and ''respective shares'' were considered in the case of Ram Bahu and Ors. v. Gram Panchayat (Gram Sabha) of Village Indri, 1971 PLJ 487, wherein it was observed as follows: -
The use of the words and expressions ''individual'', ''cultivating possession'' and ''respective shares'' would suggest that a co-sharer or a small body of co-sharers should be in separate cultivating possession of lands on individual basis before they can claim the benefit of the exception. There is further condition attached that the separate cultivating possession of an individual co-sharer or small body of co-sharers should not exceed his or their due share -16 in the Shamilat land. There is No. question of the entire proprietary body having its ''respective share'' in the shamilat. The proprietary body would be owning the entire Shamilat on a joint basis and cannot be said to have only a share in the Shamilat. There is No. separate cultivating possession of the proprietary body on individual basis in the capacity of an individual co-sharer or a small body of co-sharers which could claim to be distinct and separate from the proprietary body so that he or they could have their respective shares in the Shamilat. The Plaintiff-Appellants are not shown to have been in cultivating possession of any separate parcels of the Shamilat land as co-sharers at the crucial time and there is nothing to stop the Shamilat land from vesting in the Defendant-Panchayat on the coming into force of the Act.
8. The judgment in Ram Bahu''s case (supra) was affirmed by a Divisions Bench of this Court in Tel Ram v. Gram Sabha Manakpur, 1976 PLJ 628 wherein it was also observed that the land if it falls under any of the clauses of Section 2(g), it is sufficient to bring the land within the definition of the word Shamilat Deh and the requirement of Clause (1) is applicable to the said land and No. further reference to any other clause is necessary to treat the land as Shamilat Deh. Therefore, the land having been described as Shamilat Deh, it would come within the ambit of Clause (1) of Section 2(g) of the 1961 Act and vests in the Gram Panchayat by virtue of Section 4(1) thereof.
9. In view of the above discussion and observations, petitions filed by the Petitioners/landowners are dismissed, however, petitions filed by the Panchayat are allowed.
10. No order as to costs.
Photocopy of this order be placed on the files of connected cases.
