Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g), 7 – Constitution of India, Article 226 -- Shamilat deh -- Encroachment over street – Removal/ Eviction of – Writ jurisdiction -- Street is included within the definition of “Shamlat Deh” -- Collector, on an application filed by the Gram Panchayat, is entitled to pass an order for putting the Gram Panchayat in possession of the Shamlat Deh land -- Since the petitioner can avail an efficacious alternative remedy available u/s 7 of the 1961 Act, therefore, there is no ground to exercise the extraordinary writ jurisdiction under Article 226 of the Constitution of India -- Petitioner relegated to the alternative remedy.

(Para 1-4)

Constitution of India, Article 226 – Code of Civil Procedure, 1908 (V of 1908), Section 9 -- Shamilat deh – Writ jurisdiction -- If the proprietors claim that the Shamilat land has never been reserved/used for common purposes, they can get their title decided from the Civil Court -- Writ petition is not the appropriate remedy. Jai Singh’s case 2003(2) PLR 658 relied.

(Para 3)

Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 7, 13-A (Haryana) – Constitution of India, Article 227 -- Eviction from Gram Panchayat land – Writ jurisdiction -- At the time when the decision was rendered on an application moved u/s 7 of the Act, 1961, the application/petition which was moved by the petitioners u/s 13-A of the Act for declaring them as owners of the land in question stood dismissed, the appeal against which was also dismissed by learned Commissioner and revision before financial Commissioner was also dismissed – Writ against those orders pending -- Mere pendency of an issue before a writ Court or a revisional Court where there is no stay granted with regard to possession, cannot be a ground for keeping the proceedings pending for all time to comes -- Pendency of the matter before the higher Court specially when a declaration sought for has been declined by the competent Court would not be an impediment for passing an order of eviction under Section 7 of Act, 1961.

(Para 4, 5)

Constitution of India, Article 226 -- Ejectment from unauthorised occupation – Non-decisioning of -- Gram Panchayat made applications/ representations for ejectment of the private respondents -- No action has been taken till date – Writ petition disposed of by giving direction to respondent No. 2 to take appropriate steps within three months in accordance with law.

(Para 1-4)

A. Constitution of India, Article 226 -- Encroachment on Panchayat land by Sarpanch/petitioner -- Demarcation of – All the parties are ready for the fresh demarcation – In case after demarcation of the area, it is found that the petitioner has encroached upon area of the Gram Panchayat and the same is in his possession, as undertaken by the petitioner, the said encroached area will be immediately vacated and the possession of the same will be given to the Gram Panchayat again and any construction done on the said encroached area will be demolished by the petitioner himself -- In case, the said construction on the said encroached area is not demolished by the petitioner within a period of four weeks, the Gram Panchayat will be within its jurisdiction to demolish the same.

(Para 9-11)

B. Punjab Panchayati Raj Act, 1994 (9 of 1994), Section 20 -- Constitution of India, Article 226 -- Suspension of Sarpanch -- Encroachment on Panchayat land by Sarpanch/petitioner -- Demarcation of – If after demarcation of the disputed area, it is found that some area belonging to the Gram Panchayat is encroached but the same is not in the possession of the petitioner, but is in the possession of somebody else, the petitioner undertakes that the appropriate proceedings for getting the said encroachment vacated will be initiated by the Gram Panchayat expeditiously without any fail by adopting the proper procedure as envisaged under law against the said encroacher by the petitioner being the Sarpanch of the village -- Order suspending him on the said allegation will not be given effect and will kept in abeyance till the fresh demarcation report is given by the revenue authorities -- In case the petitioner is found to have encroached upon any Government land, the said suspension order will automatically come into force once again.

(Para 12-14)

Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 13-B – Constitution of India, Article 226, 227 -- Writ of mandamus – Executive revision petition pending before Commissioner since 6.11.2020 – Direction given to Commissioner to make an effort to decide the revision petition on fixed date and in any case, to conclude the said proceedings by deciding it within a further period of three weeks thereof, if it is not possible to conclude on fixed date.

(Para 1, 2)

Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Sections 5 and 15(2)(f) -- Punjab Village Common Lands (Regulation) Rules, 1964, Rule 12(4) -- Gram Panchayat land/ deh – Shamilat land/ deh -- Sale to illegal occupant – Regularisation of -- Permissibility of – Persons in illegal occupation of the Government Land/Panchayat Land cannot, as a matter of right, claim regularization – It can only be as per the policy of the State Government and the conditions stipulated in the Rules – Rule 12(4) specifically contained a stipulation to the effect that the illegal/unauthorised occupation up to a maximum of 200 square yards only can be sold on regularisation and on fulfilment of other conditions mentioned in Rule 12(4) of the 1964 Rules -- Petitioners are found to be in illegal occupation of the area of more than 200 square yards -- Therefore, one of the conditions mentioned in Rule 12(4) is not satisfied and therefore both, the competent authority as well as the High Court have rightly held that the petitioners are not entitled to the benefit of the provisions of Rule 12(4) of the 1964 Rules -- Prayer of the petitioners for regularization of their illegal occupation of the panchayat land cannot be accepted.

(Para 7, 8, 9)

A. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 5, 15(2)(f) -- Punjab Village Common Lands (Regulation) Rules, 1964, Rule 5 -- Constitution of India, Article 226 -- Exchange of shamilat deh/land – Satisfaction in resolution about benefit of inhabitants of village – No such satisfaction was recorded by it while passing the impugned resolutions -- Government has already approved the change of land use from agriculture to industrial in the land in question belonging to Gram Panchayat which is abutting road -- Development activities have already started in the said area -- So, it cannot be said that it is a case of exchange of two lands having equivalent values -- 200 feet road has divided the Panchayat land into two parts, same has increased the potential value of the said land which is now abutting both sides of the road leading to Mohali International Airport -- Writ petition allowed, the impugned Resolutions passed by the Gram Panchayat set aside -- A writ in the nature of Certiorari is also issued for quashing the order passed by the Government permitting the exchange of land of the Gram Panchayat.

(Para 21-26)

B. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 5, 6, 15(2)(f) -- Punjab Village Common Lands (Regulation) Rules, 1964, Rule 5 -- Punjab Panchayati Raj Act, 1994 (9 of 1994), Section 199 -- Constitution of India, Article 226 -- Exchange of shamilat deh/land – Challenged in writ – Alternative remedy – Effect of – Locus-standi of -- Anybody who has been prejudicially affected by the aforesaid acts or omissions committed by the Gram Panchayat could invoke writ jurisdiction, even though he may not have proprietary interest in the subject matter -- As the petitioner was not party to the impugned proceedings, he was having no right to challenge the same by filing statutory appeal -- Also the existence of alternative remedy is not an absolute bar on the jurisdiction of the High Court under Article 226 and is a rule of discretion and self-imposed limitation rather than that of law – Petitioner being vigilant citizen and inhabitant of the village was competent to challenge impugned actions of Gram Panchayat in the writ petition, even if he has not availed the alternative remedy (if any), available to him under the law – Gram Panchayat resolution and permission granted by Government set aside.

(Para 23-26)

Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 11 -- Code of Civil Procedure, 1908 (V of 1908), Section 11 – Shamilat deh – Res-judicata – Earlier plaintiff’s father petition was dismissed by Collector, affirmed by Division Bench of High Court -- Land in dispute is the same in the previous and subsequent litigation which came to be decided by the Division Bench -- Plaintiff as well as his witness admitted that the plaintiff's father also filed a similar suit in which he remained unsuccessful -- Keeping in view the principle of res judicata, the suit is a clear abuse of the process of the Court – Appeal dismissed in limini, with costs of Rs.25,000/-.

(Para 3-6)

Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 13-A – Ownership suit by Gram Panchayat before Collector – Revenue authorities ignored civil court decrees as null and void and decided in favour of Gram Panchayat -- Land of the shamlat deh measuring 9413 kanal 13 marla i.e. about 1176 acres was given on lease to the petitioners and others in the year 1952 under the East Punjab Utilization of Lands Act, 1948 -- Petitioners did not vacate the land after expiry of the lease period and remained in unauthorized possession without paying any rent to the Gram Panchayat

– Petitioners filed suits in the Civil Court and obtained the collusive decrees of the land measuring 6531 kanal 11 marla i.e. about 816 acres.

-- Besides this, the suit filed by the Gram Panchayat in order to challenge the decrees of the years 1973 and 1974 were also not contested by it and were dismissed for want of prosecution or evidence.

-- Thus, the petitioners and others, who are otherwise not the owners, got a declaration of the ownership rights from the Civil Court though the land in dispute is recorded in the revenue record as shamlat deh hasab rasad zar khewat which cannot be owned by a person who is not a co-sharer or proprietor.

-- Petitioners and others are admittedly not the co-sharers but were only in possession as lessee and there is no such law that a lessee can become the owner without purchasing the land in his possession.

-- Ownership can be set up in an immovable property by way of sale, gift or exchange whereas the possession can be claimed by way of lease and mortgage – Claim that their decrees have been protected by High Court while deciding CWP No. 525 of 1975 is not acceptable because in the case of Gram Panchayat, Village Naulakha 200(4) RCR (Civil) 749, the Hon’ble Supreme Court has held that the collusive degree obtained by fraud can be ignored in a subsequent suit/proceedings if question is raised and proved and it is not necessary to file an independent separate suit for setting aside such a decree.

Held, if such type of decrees obtained by the petitioners and similarly situated other persons in collusion with the Sarpanch of the Gram Panchayat, for declaration of ownership, though they are not the owners of the land in question and were only in possession and the land is shamlat deh are protected then there would be a total chaos in the Society – Held, no error in the impugned orders, writ petition dismissed.

(Para 18-20)

A. Lease of land by Gram panchayat without lease deed -- Fraud alleged -- Land in question was ‘banjar’ land having “shora” and Gram Panchayat wanted to give the said land on lease to make the same fit for cultivation by removing “shora” -- Such proposal was agreed to by all the members of Gaon Sabha and proposal as such was sent to Dy. Director, Panchayat for approval -- Dy. Director of Panchayat has approved the same -- Only after receipt of such approval from the Dy. Director, Panchayat, land was auctioned for grant of leasehold rights -- In the auction conducted there were as many as six bidders and bid of the respondent was the highest was accepted -- Dy. Director approved the acceptance of the bid in favour of the respondent for a period of five years -- Thereafter the respondent was put in possession and he continued in possession by paying bid amount to the Gram Panchayat -- Revenue records produced also reveal that the name of the respondent was entered as possessor and cultivator -- In the light of such documentary evidence it cannot be said that lease was obtained by the respondents in collusion with ex-Pradhan.

(Para 11)

B. Transfer of Property Act, 1882 (4 of 1882), Section 53-A -- Lease of land by Gram panchayat without lease deed – Defence u/s 53A is available to a person who has agreement of lease in his favour though no lease has been executed and registered -- Section 53A protects the possession of persons who have acted on a contract of sale but in whose favour no valid sale deed is executed or registered. Maneklal Mansukhbhai’s case, AIR 1950 SC 1 & Hamzabi’s case (2001) 1 SCC 414 relied -- Respondents were put in possession and the Panchayat has acted upon their proposal for grant of lease, case law supports the case of the respondents.

(Para 11, 12)

A. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g) (as applicable to the State of Haryana) -- Shamilat deh – Meaning of -- The word ‘shamilat’ basically means ‘held in joint possession and undivided lands which are part and parcel of a village’ --  When these lands are held commonly by a village proprietary body, they are described as ‘shamilat deh’ land.

(Para 8)

B. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g) (as applicable to the State of Haryana) -- Taraf -- Patti – Panna -- Thola’ – Meaning of -- ‘Taraf’, ‘patti’, ‘panna’ and ‘thola’ are different terms but have a common strain or similarity running through them -- These descriptions are of land of a group of villagers based on clan, caste, sect, area, etc. -- In British India, the village was divided into different pattis/sections based upon caste, religion, occupation, etc. of the persons residing in the village.

--      Patti is described as division of land into separate portions or strips in a village. These locations are known as pattis.

--      After independence since the caste system has been constitutionally abolished, these classifications refer to different hamlets/clusters where villagers reside in groups irrespective of their caste.

--      Patti is basically, therefore, a small division of the village.

--      The terms ‘taraf’, ‘panna’ and ‘thola’ may be different but are akin to patti and also deal with community of villagers residing separately. Therefore, they have virtually the same meaning.

It is also apparent that a patti can normally be created out of the shamilat land only when a group of people enjoy some portion of the land out of the bigger common shareholding that is a patti.

(Para 9, 10)

C. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g) (as applicable to the State of Haryana) -- Shamilat deh -- If the land described as ‘shamilat’, ‘taraf’, ‘patti’, ‘panna’ and ‘thola’ were not being used for the common purpose, it would not fall within the meaning of ‘shamilat deh’.

(Para 10)

D. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g)(5(v) (as applicable to the State of Haryana) -- Shamilat, taraf, pattis, pannas and thola -- A comma should be read after ‘shamilat’ and before ‘taraf’ in the latter part of the section also -- Word ‘shamilat’ has to be read with all four- ‘taraf’, ‘patti’, ‘panna’ and ‘thola’ -- A land can be ‘shamilat deh’ only if it is ‘shamilat taraf’, ‘shamilat patti’, ‘shamilat panna’, or ‘shamilat thola’ -- In case the word shamilat is missing from any of these four terms, then the land cannot be said to be belonging to a group of people and could never become ‘shamilat deh’ land.

(Para 11)

E. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g)(3) (as applicable to the State of Haryana) – Shamilat deh -- Shamilat, taraf, pattis, pannas and thola – Purpose of the section which defines ‘shamilat deh’ is that the land described as ‘shamilat’, ‘taraf’, ‘patti’, ‘panna’ and ‘thola’ not used for the benefit of the village community will not be treated as ‘shamilat deh’ -- Clause (3) of Section 2(g) is identical -- Purpose is that the land which is described in revenue records as ‘shamilat’, ‘taraf’, ‘patti’, ‘panna’ and ‘thola’ and used for the benefit of the entire village community or a part thereof only would vest in the village proprietary body -- Even if the land is being utilised for the common purpose of the inhabitants of that ‘taraf’, ‘patti’, ‘panna’ and ‘thola’, it would be ‘shamilat deh’ even if it is not used for the benefit of the entire village -- However, if the land is not used either for the benefit of the entire village or for the part of the village community which comprises the patti then the land, cannot be said to be ‘shamilat deh’ land within the meaning of Section 2(g).

(Para 12)

F. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g) (as applicable to the State of Haryana) -- Shamilat Patti -- Land has been shown as ‘Shamlat Patti Dhera & Khubi’ -- ‘Dhera & Khubi’ are the ancestors of the appellant(s) -- Possession is shown as that of proprietors/self-cultivators and an entry was made in favour of the Panchayat Deh in 1987-1988 -- Land was always shown to be ‘Shamlat Patti Dhera & Khubi’ and in the cultivation of the appellant(s) or his ancestors -- Moreover, the land was never shown to be used for the benefit of the entire village community or even for a part of the community – Held, the land cannot be described as ‘Shamilat Deh’ and, therefore, would not vest in the village proprietary body -- Name of the appellant(s) be entered in the column of ownership with the entry ‘shamlat patti’.

(Para 13,14)

A. Rai Sharah Malkana Ba Baja Kabja Sabka -- Means that they were like owners of the suit land because of old and previous possession.

(Para 17)

B. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2 (g) (viii) -- Punjab Land Revenue Act, 1887 (XVII of 1887), Section 44 – Shamilat deh – Exclusion from -- Possession has been more than 12 years prior to 1950 -- Even if the land was recorded in the ownership of Shamlat Deh, the plaintiffs were in possession qua their shares reflected in Jamabandis -- Their land has been rightly excluded from Shamlat Deh and was held not to be included in the definition of Shamlat Deh as per Section 2 (g) (viii) of the Punjab Village Common Lands (Regulation) Act, 1961 -- Since, the revenue entries were never challenged or altered and no steps were taken to get these entries changed, they will retain a presumption of truth for the purpose of possession and shares of the proprietors.

(Para 17)

C. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2 (g) (i) to (x), 4 -- Shamilat deh – Exclusion from -- Entry recorded as gair marusi and they were not paying any rent -- Holding the land like owners because of previous possession -- Entries were recorded in the Jamabandi for the year 1969-70 -- Fehrist Ismai Malkan (list of proprietors) as per Missal Haqiat pertaining to the year 1939-40, they were shown at serial No.2 as proprietors and their share has also been mentioned therein -- Copy of mutation sanctioned on 13.04.1925 on record -- Entire evidence shows that they were in possession without payment of rent and their possession was like that of owners -- Before 1950, they were in cultivating possession for the last more than 12 years and their case falls under the category of Section 2 (g) (i) to (ix) of the Act.

(Para 18)

D. East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (50 of 1948), Section 2(bb), 23-A -- Jumla Mushtarka Malkan or Jumla Malkan Wa Digar Haqdaran Arazi Hasab Rasad Raqba – Land vests in the proprietary body of the village and not in Panchayat -- However, the management and control of these lands vest in the Panchayat in view of Section 2 (bb) and Section 23A of the Consolidation Act, 1948 -- Proprietors of the villages, who are recorded as per the above said entries, would be entitled to compensation to the extent of their shares as they are owners of the same.

(Para 24)

A. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g), 4 -- Shamilat deh – Right of Gram Panchayat -- Lands which are described in revenue records as shamilat, tarafs, pattis, pannas and THOLAS and which are used, according to the revenue record, for the benefit of village community or for common purposes of a village, such land stands included in shamlat deh -- Lands which are recorded as shamlat deh vests in the Gram Panchayat under Section 4 of the 1961 Act.

(Para 9)

B. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g), 4 -- Shamilat deh -- Thola land -- Right of Gram Panchayat -- Not every land which is recorded as owned by thola can be shamlat deh -- It must qualify the twin test of, namely, (i) that such land is used for the benefit of village community or for common purposes of village; and (ii) the land is being used for the benefit of village community or for common purposes and is duly recorded in the revenue record -- Unless both the conditions are satisfied, thola land cannot be included in shamlat deh.

(Para 10)

C. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g), 4 -- Shamilat deh -- Thola land -- Right of Gram Panchayat -- Some khasra Nos. are recorded as nehri, namely, irrigatable land and are in the individual cultivating possession of co-sharers in thola land -- It may be difficult to include such khasra Nos. within the definition of shamlat deh as in terms of the revenue record, these Khasra Nos. are not being used for ‘common purposes’ or for the ‘benefit of village community’.

(Para 11)

D. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g), 4 -- Shamilat deh -- Thola land -- Right of Gram Panchayat -- Authorities below ought not to have made sweeping observations merely on the basis of definition of shamlat deh or the fact that the expression “thola” has been used in sub-clause (3) of Section 2(g) of 1961 Act -- Collector was obligated to examine the nature of land khasra number-wise and then determine as to how much land of thola, as per the revenue record, is being used for ‘common purposes’ or for the benefit of ‘village community’ and how much land is in individual cultivating possession of proprietors of thola land -- Land which falls in the later category cannot be termed as shamlat deh whereas the first category of land will fall within the ambit of shamlat deh and it vests in Gram Panchayat.

(Para 12)

A. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 11 (For Punjab) – Shamilat deh -- Private respondents came into possession of the land in dispute in the year 1981-82 as lessees -- After the expiry of the lease period, became unauthorized occupants – In the beginning, they claimed proprietary rights, on failing to get the desired relief, they took a diametrically opposite stand that the land in dispute was evacuee property and that they were entitled to allotment of the same – Held, such an approach can only be termed mala fide and nothing else -- Private respondents are liable to pay a sum of Rs.5,000/- (per acre) per year for illegal use and occupation of the land in dispute -- However, the private respondents would be at liberty to pursue their suit filed u/s 11 of the 1961 Act, but only after handing over the physical possession.

(Para 15, 19)

B. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 11 (For Punjab) -- Waqf Act, 1995 (43 of 1995), Section 7 – Shamilat deh – Right of lessee – Jurisdiction of -- Land in dispute was mutated in favour of the Gram Panchayat in the year 1957 as it was ‘Shamlat Deh’ in accordance with the Pepsu Village Common lands (Regulation) Act, 1954 – Ever since, the said land has been auctioned regularly by the Gram Panchayat -- Thus, as per the revenue record, the land in dispute was owned by the Gram Panchayat being ‘Shamlat Deh’ -- Except the Court of Collector under the 1961 Act, no other authority has the jurisdiction to determine the question of title whenever there is a dispute regarding title between a Gram Panchayat and a private person.

(Para 15)

C. Code of Civil Procedure, 1908 (V of 1908), Section 11 -- Order without jurisdiction – Up-held by Higher courts -- Doctrine of merger – Res-judicata -- An order obtained by practicing fraud and deceit can be explained in collateral proceedings -- Even though, such an order has been upheld by a higher Court, the same does not merge in the judgment/order of the higher Court because the doctrine of merger is of limited application -- Illegalities cannot be perpetuated --  Doctrine of res judicata also cannot apply in such a situation as the original order is itself without jurisdiction -- Said order is not only without jurisdiction but it has also been obtained with mala fide intention and in collusion with the then Tehsildar-cum-Managing Officer, the petitioners were not party to those proceedings, hence it cannot be binding on them.

(Para 17,18)

A. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g), 4 -- East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (50 of 1948), Section 2(bb), 18, 23-A -- Gram Panchayat land – Shamilat deh – Jumla Malkan land -- Reserved for common purposes -- There are primarily two kinds of lands which are for common purposes -- One is the 'Shamlat Deh' lands, which vest with the Panchayat under Section 4 of the 1961 Act -- Other are the lands are described in the revenue records as 'Jumla Malkan Wa Digar Haqdaran Arazi Hasab Rasad Raqba' ('Jumla Malkan') lands reserved for common purposes under Section 18 of the 1948 Act, the management and control whereof vests in the Gram Panchayat under Section 23 A of the aforesaid 1948 Act.

(Para 8)

B. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g), 4 – Shamilat deh – Eviction from -- In case there is encroachment, it is required to be ascertained whether the common land that had been encroached is 'Shamlat Deh' land and in case it is so, procedure for eviction is to be initiated before the Collector under Section 7 of the 1961 Act.

(Para 12-15)

C. Punjab Gram Panchayat (Common Purposes Land) Eviction and Rent Recovery Act, 1976 (20 of 1976), Section 2,3 -- Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1973 (31 of 1973), Section 4,5 -- East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (50 of 1948), Section 2(bb), 18, 23-A – Jumla Malkan land – Eviction from – In case of encroachments of the gram panchayat lands which are reserved for common purposes under Section 18 of the 1948 Act, then proceedings for eviction are to be initiated in accordance with the provisions of the 1976 Act read with the 1973 Act – This exercise is to be carried out by the Gram Panchayat or the Officer of B.D.P.O. in accordance with law.

(Para 17)

Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 7 – Constitution of India, Article 226 -- Writ jurisdiction -- Shamilat deh -- Eviction proceedings – Who can initiate proceedings – A resident of the village is enable to initiate eviction proceedings against encroacher of shamlat deh – Direction is issued to the Deputy Commissioner to depute some responsible officer to hold a fact-finding enquiry and if the allegations made by the petitioner are found to be correct, issue necessary instructions to the Gram Panchayat to initiate appropriate proceedings in accordance with law -- In addition, the petitioner shall also be at liberty to initiate appropriate proceedings as per the law.

(Para 9)

Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 7 -- Constitution of India, Article 226 -- Shamilat land -- Eviction order – Non-vacation of – Writ jurisdiction -- Direction to the Deputy Commissioner to constitute a team of officers not below the rank of DDPO/SDM to hold a fact finding inquiry and submit the report to him within two months -- If the Deputy Commissioner finds that the Gram Panchayat land is still occupied by unauthorized encroachers against whom eviction order has attained finality, he shall ensure time bound action and to restore the land to the Gram Panchayat with police help, if need be.

(Para 4,5)

Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g), 4 – Land Acquisition Act, 1894 (1 of 1894), Section 6 -- Acquisition of shamlat deh -- Shamlat deh vest in Gram Panchayat -- Individual proprietors or residents of the village have no claim qua such land except that the same is required to be used for common purposes -- In the event of its acquisition, it is the Gram Panchayat who alone is entitled to seek compensation -- Petitioners have no vested right to seek benefit under the rehabilitation policy merely on the ground of raising construction on shamlat land.

(Para 9)

Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g(ii-a) (Punjab) -- Allotment of land from Shamilat land -- Sale was before the cut off date i.e. 9.7.1985 -- Vires of Section 2(g(ii-a) of the Act has been upheld by High Court --- Nature of land has been determined on the basis of revenue record to be an evacuee property -- Provision of Section 2(g)(ii-a) of the Act would apply – Right, title and interest of the Panchayat in such land shall cease and would vest in the allottee – Allotment from shamilat land upheld.

(Para 1,10)

A. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 7 – Ownership – Ejectment -- Gram Panchayat's ownership was never proved by any document or allotment in its favour -- Merely on the strength of the report of the Local Commissioner or the inspection by the Assistant Collector, ownership could not be declared in favour of the Gram Panchayat.

(Para 9)

B. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g), 7 – Shamilat deh -- Ejectment -- Merely because the plot was lying vacant and some of the villagers were using the same for storing cowdung, would not make it shamilat deh land and the Gram Panchayat would not be able to claim title on that basis.

(Para 9)

C. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g), 7 – Shamilat deh – Registered sale deed -- Ejectment -- Registered sale deed had a Map attached in which the boundaries of the plot were specified -- Dispute is also regarding the same plot -- Authorities were not justified to say that the disputed plot was not the same, once the ownership of the plot in question was in the hands of petitioner, then the authorities were not justified in ejecting the petitioners -- Plot in question could not be assumed to be shamilat deh – Ejectment orders, quashed.

(Para 9, 10)

A. Revenue Estate – Abadi deh – Shamilat deh -- “Sharat Wazib-ul-arz” – History of – A revenue estate comprises of private agricultural land, besides common lands, called “Shamilat Deh” and land called “Abadi Deh” – Private agricultural land vests in individual proprietors – The common land was kept apart for common use and was called “Shamilat Deh” – Proprietary and possessory rights in “Shamilat Deh”, vested, in absolute terms, in proprietors – Purpose for which a particular parcel of “Shamilat Deh” could be used, the rights of proprietors and non-proprietors therein were set out, in the “Sharat Wazib-ul-arz”.

(Para 17)

B. Sharat Wazib-ul-arz -- A document that records the bye-laws of a revenue estate also called a village administration paper.

(Para 17)

C. Shamilat deh -- “Sharat Wazib-ul-arz” – Common purposes land -- Right of Proprietors – History of – A proprietor was absolute owner of his share in “Shamilat Deh”, held in common with other proprietors and could, depending upon rights recorded in the “Sharat Wazib-ul-arz”, cultivate, sell, mortgage, lease and even partition the common land – The proprietors had a right to exclude non-proprietors from user of this land -- The share holding of a proprietor was calculated as per his proprietary land holdings or the land revenue paid or the numbers of “ploughs” etc. and was represented by expression like “Hasab Rasad Paimana Malkiat”, “Hasab Rasad Raqba Khewat”, “Hissa Sola (16), Hasaab Rasad Malguzari etc. that generally followed the words “Shamilat Deh” -- The cultivated land in “Shamilat Deh” was cultivated by proprietors in accordance with their share holdings -- Large tracts of land were left for pastures called “Charagah” or “Charand” -- The “Shamilat Deh” of a revenue estate was used for common purposes like pasture (Charand), Johar (pond) or Chappar, streets paths, cremation grounds, school, chaupals etc., but more often than not its user was confined to proprietors -- The non-proprietors, though, an integral part of agrarian societies, were excluded from ownership and in many villages from the user of common land.

(Para 17)

D. Shamilat Taraf, Shamilat Patti, Pana or Thola – Right of Proprietor -- “Shamilat Taraf, Shamilat Patti, Pana or Thola”, land vests in members of the “Taraf, Patti, Pana or Thola” and not in the entire proprietary body of a village.

(Para 18)

E. Abadi deh – Lal Lakir -- Shamilat deh – Common purposes land – Vesting of -- History of – Though agricultural land of a revenue estate, was demarcated into khewats, khataunis and khasra numbers, the land that fell within the “Lal Lakir” and was called “Abadi Deh” (the residential area of a revenue estate) was, a “no mans land”, for a revenue officer -- A revenue officer did not venture into the “Abadi Deh” situated within the “Lal Lakir”, or demarcate khewats, khatonies or khasra numbers -- A single khewat, khatoni and khasra number was allotted to the “Abadi Deh” -- The normal rule of ownership of land within “Abadi Deh” was and is even today that ownership, follows possession -- However, paths, ponds, cremation grounds, graveyards, streets, chaupals, etc., used for common purposes by residents whether located within or outside the “Abadi Deh” were assigned separate numbers and as they were used for common purposes and were treated as “Shamilat Deh”.

(Para 19)

F. East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (50 of 1948), Section 2(bb)(iv), 18, 23-A -- Common purposes -- Jumla Mushtarka Malkan wa Digar Haqdarana Arazi Hasab Rasad Raqba -- Jumla Mushtarka Malkan – Shamilat deh – Vesting of -- Consolidation Act was enacted in 1948 brought into existence, a new variety of common land, distinct and separate from “Shamilat Deh”, called “Jumla Mushtarka Malkan wa Digar Haqdarana Arazi Hasab Rasad Raqba” (for short “Jumla Mushtarka Malkan”), to be created after applying a pro-rata cut on the holdings of proprietors -- The Consolidation Act, amongst other matters provided for extension of village abadi, reservation of land for the village panchayat and other common purposes like village path, drains, village wells, ponds, tanks, schools, play grounds, dispensary, hospitals etc. -- Section 18 of the Consolidation Act placed a statutory obligation upon the Consolidation Officer to reserve land for common purposes, if common land in an estate was insufficient -- Section 23-A of the Consolidation Act provides that as soon as a scheme comes into force, “the management and control” of all lands assigned or reserved for common purposes of the village shall vest in the State Government relating to common purposes specified in sub-clause (iv) of clause (bb) of Section 2 and in case of any other common purpose, in the panchayat of the village.

(Para 20)

G. Shamilat deh – Jumla Mushtarka Malkan -- “Shamilat Deh” and “Jumla Mushtarka Malkan” are two distinct varieties of common land, the former was in existence before consolidation whereas the latter was created during consolidation.

(Para 21)

H. Missal Haqiat – Meaning of -- First jamabandi prepared after consolidation.

(Para 27)

I. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g) -- Shamilat deh – Panchayat deh – Gram Panchayat deh -- Though, the generic term used for common land is “Shamilat Deh” but revenue authorities tend to use the expression “Panchayat Deh” and “Gram Panchayat Deh” etc., while describing “Shamilat Deh”.

(Para 33)

J. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g) – Common land -- Shamilat deh – Shamilat Patti, Pana, Thola & Taraf -- Jumla Mushtarka Malkan -- Common land of village can be divided into three separate and distinct categories, namely, “Shamilat Deh” i.e. land that existed prior to the Consolidation, prior to enactment of the 1953, 1954 and 1961 Acts and came to vest in a Gram Panchayat, under the 1953, 1954 and 1961 Acts, “Shamilat Patti, Pana, Thola & Taraf” etc., which vest in a Gram Panchayat only if this land is used for common purposes of the village, as per the revenue record and land described as “Jumla Mushtarka Malkan”, which was created, under the Consolidation Act and came to vest in a Gram Panchayat or the State Government, for management and control, alone.

(Para 34)

K. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961) , Section 2(g) -- East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (50 of 1948), Section 2(bb) -- Shamilat deh – Jumla Mushtarka Malkan -- The 1961 Act does not enact any provision declaring land reserved as “Jumla Mushtarka Malkan” as “Shamilat Deh”.

(Para 36)

L. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g), 11, 13, 13-A -- East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (50 of 1948), Section 42 -- Shamilat deh -- Title dispute – Power of Consolidating authorities -- Held,

(a) Consolidation authorities, are tribunals of limited jurisdiction;

(b)   Consolidation authorities exercise powers of revenue officers, under the 1887 Act, a power to record and update fiscal entries and prepare record of rights;

(c)   but are not empowered to decide a question of title or vest/divest a party of its title;

(d)   the only authority empowered to determine a question, whether the land is “Shamilat Deh”, between a Gram Panchayat and a private individual was the Civil Court but after enactment of Sections 11, 13 and 13-A of the 1961 Act, the Collector; and

(e)   if the land is “Jumla Mushtarka Malkan”, an appropriate forum.

As a necessary consequence an order passed by the Director Consolidation, u/s 42 of the Consolidation Act holding that the land in dispute vests or does not vest in a Gram Panchayat is an order passed on an illegal assumption or appropriation of jurisdiction rendering the exercise of powers by the Director Consolidation null and void in its inception and in its operation and at best an order passed by a tribunal of limited jurisdiction that is not binding on the proprietary or possessory rights of the Gram Panchayat or a private individual before a Court or a Tribunal statutorily empowered to decide such a dispute.

(Para 38-52)

M. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g), 7, 11 (Punjab) -- East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (50 of 1948), Section 18, 44 -- Jumla Mushtarka Malkan land – Dispute of Title – Jurisdiction of Authorities under 1961 Act – Jurisdiction of Civil Court -- “Jumla Mushtarka Malkan” land is not included in “Shamilat Deh” -- Collector, u/s 11 of the 1961 Act has no jurisdiction -- Jurisdiction of a Civil Court is not barred -- Only forum available to a person, who raises a dispute regarding title in “Jumla Mushtarka Malkan” is the principal Court of civil jurisdiction having jurisdiction in the matter, as provided by Section 9 of the Code of Civil Procedure, i.e., a Civil Court -- Where a party seeks to raise a plea that the land is not “Jumla Mushtarka Malkan” etc., he shall be obliged to approach a Civil Court, exercising jurisdiction in accordance with Section 9 of the Code of Civil Procedure till such time as the State does not provide an appropriate forum.

(Para 56-63)

N. East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (50 of 1948), Section 42 – Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g), 7, 11 (Punjab) – Title dispute -- Power of Consolidation Authorities – Decision by Consolidation officer affirmed by High Court and Supreme Court – Effect of --

(1)    The State or its delegate, exercising power under Section 42 and authorities under the Consolidation Act are tribunals of limited jurisdiction.

(2)    Consolidation authorities have no power to decide disputed questions of title in respect of lands, or any right, title or interest therein.

(3)    The State or its delegate, may in the exercise of power under Section 42 of the Consolidation Act order correction of errors, in accordance with law;

(4)    While exercising powers under Section 42 of the Consolidation Act, if it is held that the land, in dispute, vests or does not vest in a Gram Panchayat such an order would be construed to be an opinion recorded by a Tribunal of limited jurisdiction and an order so passed would not operate as resjudicata to be binding upon parties or the Collector, exercising power under Section 11 of the 1961 Act, or the jurisdictional forum, constituted for deciding a question of title.

(5)    If a writ petition or special leave petition filed to challenge an order passed under Section 42 of the Consolidation Act is dismissed without assigning any reason, by use of the words “dismissed”, “no merits, dismissed” or such like similar expressions, the order passed under Section 42 of the Consolidation Act shall not merge in the order passed by the High Court or the Hon’ble Supreme Court, so as to operate as resjudicata or prohibit the Gram Panchayat from approaching the jurisdictional forum, or.

(6)    If an order passed under Section 42 of the Consolidation Act has not been challenged in a writ petition or before the Hon'ble Supreme Court, such order shall be ignored, by the Collector exercising power under Section 11 of the 1961 Act, as Section 13-B clearly postulates that notwithstanding anything to the contrary in any law or any agreement, instruments, custom or usage or any decree or order of any court or other authority, the provisions of the 1961 Act shall prevail.

(7)    If, however, the order passed by the Director Consolidation has been affirmed, by the High Court or in a special leave petition or an appeal before the Hon'ble Supreme Court on merits, the order passed by the Director Consolidation shall be deemed to have merged in orders passed under Articles 226 and 136 of the Constitution of India and would, therefore, on the basis of the doctrine of rule estoppel, merger and the order of precedence among courts, prohibit the Gram Panchayat from filing a petition under Section 11 of the 1961 Act, the Collector from entertaining such a petition, or where the land is “Jumla Mushtarka Malkan” the Civil Court.

(Para 64-96)

O. East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (50 of 1948), Section 42 – Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g), 7, 11 (Punjab) – Title dispute -- Fraud – Order of Consolidation officer affirmed by High Court and Supreme Court – Effect of – Jurisdiction of Collector – An order obtained by fraud cannot be said to have merged into an order passed by the High Court or the Supreme Court -- Aggrieved party may validly raise a plea of fraud and collusion before the Collector, exercising power u/s 11 of the Act -- If the aggrieved party fails to prove its plea of fraud or collusion, such an order shall be deemed to have merged in orders passed by the High Court or the Hon’ble Supreme Court.

(Para 97-103)

A. Constitution of India, Article 243U – Punjab Municipal Act, 1911 (3 of 1911), Section 13 – Punjab Municipal (President & Vice President) Election Rules, 1994, Rule 3(1) -- Tenure of municipality – Starting point -- ‘First meeting’ – It is the mandatory requirement that Deputy Commissioner shall convene the first meeting within fourteen days of the publication of notification of the election of newly elected members and he cannot delay convening of the first meeting -- Once a date for convening a meeting of a newly constituted Municipality is fixed by the Deputy Commissioner under Rule 3 (1) of the Rules of 1994, the requirement of Section 13 (1) of the Act is complete and duration of the Municipality is to be counted from the said date irrespective of the fact whether in the said meeting the oath of allegiance was taken by the newly elected members or nor, and election of the President/Vice-President was held or not, or postponed for one reason or the other -- In no circumstance, the duration of a Municipality can be extended beyond five years.

(Para 12-14)

B. Punjab Municipal (President & Vice President) Election Rules, 1994, Rule 3(1) – First meeting -- First meeting of a Municipal Council convened by the Deputy Commissioner under Rule 3 (1) of the Rules of 1994 is a statutory meeting and such a meeting cannot be termed as special or general meeting.

(Para 12)

Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961) – Interest evacuee -- Shamilat-deh – The effect of the Administration of the Evacuee Property Act was not to take away the character of Shamilat-deh as Shamilat-deh but only to vest in the Custodian such interest as the evacuee possessed in the Shamilat-deh, Gram Panchayat of Village Jamalpur’s case, AIR 1`985 (SC) 1394 relied.

(Para 2, 3)