GRAM PANCHAYAT MULLANPUR GARIBDASS Vs. CHOE RECLAMATION SOCIETY

JUDGEMENT

(1.) THE present Letters Patent Appeal has been filed challenging the order dated 5.11.2001 passed by the learned single Judge vide which appellate order dated 12.8.1992 (Annexure P-8) passed by the learned Commissioner under the Punjab Village Common Lands (Regulation) Act, 1961 (for short the 1961 Act) has been set aside and the order dated 31.3.1989 (Annexure P-2) passed by the Collector (D.D.P.O.) Ropar, vide which he dismissed the petition of the appellant-Gram Panchayat under Section 7 of the 1961 Act for ejectment of respondent-society, has been restored.

(2.) FACTS in brief are that Gram Panchayat Mullanpur Garibdass, Tehsil Kharar, District Ropar (appellant-Panchayat) claimed itself to be the owner of land measuring 2295 bighas-15 biswas, which was/is in joint possession of Choe Reclamation Society, Anjuman Choe, Mullanpur Garibdass (for short the respondent-society). Appellant-Panchayat filed a petition under Section 7 of the 1961 Act before the Collector (District Development and Panchayat Officer) Ropar on 5.11.1981 claiming that it is entitled to get possession of the land in dispute described in the petition from the respondent-Society with an allegation that the respondent-Society is in wrongful and unauthorised possession of the land in dispute belonging to the Appellant-Panchayat. It was stated that in column 4 of the jamabandi for the year 1966-67 land in dispute is described as 'shamlat deh' which vests in the gram panchayat under section 4(1) of the 1961 Act and respondent-Society is liable to be dispossessed of the land in dispute. The stand of the respondent-Society (a registered society and a representative body of the proprietors of the village) was that the land in dispute is in its possession for the last more than 33 years without payment of any rent or any other payment and as such it has become owner by way of adverse possession. It was claimed that once land in dispute was mutated as shamlat deh with possession of the proprietors of the village and also described as subject to river action, such mutation having been effected on 5.4.1965 it stood excluded from the definition of 'shamlat deh' as given in section 2(g) of the 1961 Act and thus revested in favour of the proprietors in possession i.e. Respondent-Society. Appellant-Panchayat before the Collector and during the pendency of the ejectment proceedings had filed an application in the year 1988 that it has taken over possession of the property in dispute through S.E.P.O., Kharar and the property was auctioned and the money in lieu of the same was received by it. Application was objected to by the respondent-Society stating that in CWP No. 2543 of 1983 orders had been issued by the High Court restraining the B.D.P.O., from auctioning the land in question. The Collector while taking into consideration mutation dated 5.4.1965 and the fact that the land in dispute was revested in the proprietors of the village under Section 3(2) of the 1961 Act held that the land in dispute vests in the respondent-Society and no action under Section 7 of the 1961 Act is warranted against the respondent-Society. Thus, the petition was dismissed vide order dated 31.3.1989(Annexure P-2).

(3.) RESPONDENT -Society filed CWP No. 5270 of 1994 pleading that the findings about land being not subject to river action or burdgi baramadgi is wrong as in the revenue record, specially mutation sanctioned on 5.4.1965, the word baramadgi and gair mumkin nadi had been written. Jamabandi for the year 1944- 45 was also relied upon including definition of 'river' in Webster's Dictionary. Reliance was also placed on Punjab State v. Gram Panchayat Mallah, 1978 PLJ 138. It was further stated that Receiver had been appointed only for one year by the D.D.P.O., and that too without any legal authority and in terms of Section 99(2) of the Punjab Gram Panchayat Act, 1952. He was in any case restrained from auctioning the land by the High Court. Gram Panchayat never came in possession of the land and if any money was received by the Appellant-Panchayat from the Receiver on account of lease given by him that cannot be termed to mean that Panchayat had taken over the possession of the land in dispute. Shamlat Deh is in possession of proprietors as the entry in this regard in the revenue record is "Makbuja malkan hasab rasad khewat or hasab rasad zare khewat" and thus it does not vest in the gram panchayat. For this, reliance was placed on Gram Panchayat/Gram Sabha Ugane v. State of Punjab, 1997(1) RCR(Civil) 685 : 1997(2) PLJ 31 (DB), Rawat v. State of Haryana, 1997(2) RCR(Civil) 271 (P&H), Om Parkash v. Assistant Collector, 1992(2) RRR 327 : 1992(2) PLJ 365. It was further stated that mutation was sanctioned on 5.4.1965 in compliance with the mandatory provisions of Section 3(2) of the 1961 Act on the basis of which land vested in the proprietors and the proprietors cannot be subsequently divested of it by mere omission of clause (1) of section 2(g) inserted by way of amendment in the Act in the year 1976, as the amendment does not become effective retrospectively. Reliance was placed on Raj Pal Chhabra v. State of Haryana and others, 1998(4) RCR(Civil) 608 : 1998(2) PLJ 203, State of Haryana and another v. Inderjit, 1999(1) RCR(Civil) 32 : 1998(2) PLJ 436 and Mithilesh Kumari and another v. Prem Bihari Khare, 1989(1) RRR 255 : AIR 1989 SC 1247. The findings of the Commissioner were challenged by arguing that there is no truth in the plea of Panchayat that it had been auctioning the land and crediting the income in Panchayat fund since no evidence had been led to that effect. Effect of entry in column no. 4 of jamabandi i.e. "Makbuja malkan hasab rasad zare khewat" was not discussed by the Commissioner at all. The Commissioner did not consider that the land described as "Banjar kadeem" is not used for common purposes of village community, also does not vest with the gram panchayat. Reliance was placed on Tara Chand and another v. Punjab State and another 1971 PLJ 808. There was no allegation in the petition that under section 7 of the 1961 Act that the land was used for common purposes. Reliance was placed on Gram Panchayat Salina v. Nahar Singh and others, 1982 PLJ 261. The effect of long possession of the proprietors from the period before 26.1.1950 was also not taken into consideration by the learned Commissioner. For this reliance was placed on Surjan Singh v. Gram Panchayat village Mandhar, 1995(3) RRR 417. It was further stated that while deciding petition under Section 7 of the 1961 Act, the Collector has to decide the question of title, if it is raised by the respondent and by doing so he did not commit any illegality in view of the law laid down in the case of Tara Chand and Fateh Chand v. Gram Panchayat and Gram Sabha Atali, 1979 PLJ, 1 (FB).