GRAM PANCHAYAT KHUNYARA Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) In all these writ petitions the petitioners have challenged the vires of sections 3 and 8 of the enactment called The Himachal Pradesh Village Common Lands Vesting and Utilisation Act, 1974 (Act 18 of 1974), which is hereinafter referred to as the impugned Act. According to the petitioners, sections 3 and 8 of this Act are violatory of the Constitutional provisions and beyond the competence and authority of Himachal Pradesh State Legislature. They have also challenged the vesting of certain lands under this Act as violating Articles 19 and 31 of the Constitution.

(2.) In order to understand the nature of the pleas raised by the parties, it would be necessary to state shortly the relevant provisions of the impugned Act.

(3.) This Act is passed with a view to provide for vesting and utilization of village common lands in the State of Himachal Pradesh. The object of the Act as is apparent from section 8 thereof, is that the common lands which vest in the Government under section 3 of the impugned Act should be utilized for grazing and other common purposes for the inhabitants of the State as well as for allotement to a landless person or a person whose holding is less than one acre. This Act is put on the statute book in the year 1974 and it extends to the whole of the State of Himachal Pradesh. Vesting of the lands in question is provided by section 3 as under: "3 (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 including the contingent interests, if any, of the landowner in the lands in any estate - (a) vested in a Panchayat under section 4 of the Punjab Village Common Lands (Regulation) Act, 1961 as in force in the areas added to Himachal Pradesh under section 5 of the Punjab Reorganisation Act, 1966 except lands used or reserved for the benefit of village community including streets, lands, playgrounds, schools, drinking wells or ponds within abadi deh or gorah deh ; (b) described in the revenue records as shamilat karaf, 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 in the areas added to Himachal Pradesh under section 5 of the Punjab Reorganisation Act, 1966 ; and (c) described in revenue records as shamilat, shamilat deh, shamilat taraf, shamilat chak and patti in the areas comprised in Himachal Pradesh, immediately before first November, 1966 ; shall stand extinguished and all such rights, title and interests shall vest in the State Government free from all encumbrances. (2) The provisions of sub -section (1) of this section shall not apply to lands described in clauses (b) and (c) of that sub -section if, before the date of commencement of this Act - (a) partition of such lands is made by the individual coshares through a process of law by a competent court or authority, (b) transfer of such lands is made by the landowner by way of sale, gift or exchange, (c) such lands built upon by an inhabitant by raising a residential house or cow -shed." From this vesting provision it is evident that lands in any estate vested in the panchayat under section 4 of the Punjab Village Common Lands Regulation) Act, 1961 or the lands described in revenue record as Shamilat Karaf, etc. or described in revenue records of the old area of Himachal Pradesh as Shamilat, Shamilat Deh etc. are expected to vest in the State Government free from all encumbrances. Subsection (2) of section 3 further says that this vesting would not operate in case of certain lands which are described in clause (a), (b) and (c) thereof.