ATTAR SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) The petitioners are the owners of Khewat No. 3, of which the total area at the commencement of the consolidation proceedings in the village was 542 Bighas 7 Bishas out of which only 17 Bighas 18 Biswas were given to the petitioners and the rest of the area of the Khewat was utilised for the common purposes of the village. The petitioners objected to this provision in the scheme and filed objections when the scheme was published. Those objections were rejected. The petitioners then filed an application under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter called the Act), which was decided by Additional Director, Consolidation of Holdings, Punjab, at Patiala, on the 26th March, 1965. The learned Additional Director only allowed relief with regard to 30 Bighas of land out of the Khewat and held that the rest of the land could be utilised for common purposes of the village. The petitioners filed the present writ petition challenging the legality of that order.

(2.) No return has been filed by the respondents to the writ petition and so the facts stated in the writ petition are to be presumed to be correct.

(3.) Along with the writ petition, some extracts from the scheme have been filed and it is stated therein that there is no area Shamlat or Shamlat Deh, Shamlat Panchayat nor of Nagar Panchayat. For this reason, the land which was described as Banjar Qadim in the Jamabandi belonging to the petitioners could not be held to be Shamlat Deh. The learned Additional Director has held that land to be Shamlat Deh under Section 2(g)(5) of the Punjab Village Common Lands (Regulation) Act, 1961. Under clause (5), land in any village described as Banjar Qadim and used for common purposes of the village, according to revenue records, is Shamlat Deh. However, the land which has been partitioned and brought under cultivation by individual landholders before the 26th January, 1950; cannot be held to be Shamlat land even if it is Banjar Qadim, nor can the land, described as Banjar Qadim which has been acquired before 26th January, 1950, by a person, by purchase or in exchange for proprietary land from a co-sharer in the Shamlat Deh and is so recorded in the Jamamandi or is supported by a valid deed, be held to be Shamlat Deh. The argument of the learned Counsel for the petitioners is that the land of Khewat No. 3 is owned by the petitioners as co-owners and has been in their possession since long before the 26th January, 1950, and so even if it is Banjar Qadim, it could not be held to be Shamlat Deh by the learned Additional Director. It has been also pointed out that the Nagar Panchayat filed a suit against the petitioners in a Civil Court in 1958 calming declaration that the land measuring 296 BIghas 1 Biswa Kham comprising of Khasra numbers mentioned in the plaint, which pertained to the land of the petitioners, was Shamlat Deh and vested in the Nagar Panchayat, in view of the provisions of the Village Common Lands (Regulation) Act, 1954 and a permanent injunction was sought against the petitioners restraining them from cutting any trees from that land. The suit was dismissed by Shri Sadhu Ram Goel, Sub-Judge Ist Class, Narwana, on the 8th April, 1960, and a copy of the decree is annexure 'B' to the writ petition. It is submitted that it was for the Civil Court to decide the disputed question of title to the land and not by the consolidation authorities under the Act. Reliance is placed on Section 25 of the Act in support of this submission. Since the Civil Court had rejected the claim of the Nagar Panchayat to the ownership of the land in dispute, the Additional Director could not declare that land to be Shamlat Deh vesting in the village Panchayat. There is force in these submissions of the learned Counsel and the order of the Additional Director being contrary to the provisions of the Act is liable to be quashed.