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”. Parkash Singh and others v. Joint Development Commissioner, Punjab and others, 2014(2) L.A.R. 1 (P&H Full Bench). 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”. Parkash Singh and others v. Joint Development Commissioner, Punjab and others, 2014(2) L.A.R. 1 (P&H Full Bench). 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. Parkash Singh and others v. Joint Development Commissioner, Punjab and others, 2014(2) L.A.R. 1 (P&H Full Bench). 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. Parkash Singh and others v. Joint Development Commissioner, Punjab and others, 2014(2) L.A.R. 1 (P&H Full Bench). Section 2(g), 7, 11 (Punjab) – East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (50 of 1948), Section 42 – 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 Honble 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 Honble 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. Parkash Singh and others v. Joint Development Commissioner, Punjab and others, 2014(2) L.A.R. 1 (P&H Full Bench). 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. Parkash Singh and others v. Joint Development Commissioner, Punjab and others, 2014(2) L.A.R. 1 (P&H Full Bench). Section 2(g), 7, 11 (Punjab) – East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (50 of 1948), Section 42 – 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. Parkash Singh and others v. Joint Development Commissioner, Punjab and others, 2014(2) L.A.R. 1 (P&H Full Bench). Section 2(g(1), 2(g)(5) -- Shamlat Deh Makbuja Hasab Rasad Malgujari Mundraja Missal Hakiat – Vesting of -- If the land is described in the revenue record as Shamlat Deh followed by any expressions, the same would vest in the Panchayat in terms of Section 2(g)(1) of the Act – Land in dispute is proved to be vesting with the Gram Panchayat in terms of Section 2(g)(1) of the Act and that Section 2(g)(5) of the Act has no applicability to the land in question. The Gram Panchayat of Village Bajghera v. The Financial Commissioner (Revenue) Haryana and others, 2014(2) L.A.R. 65 (P&H DB). Section 7 – Question of title -- Writ jurisdiction in quasi judicial orders -- Scope of -- Contention that Gram Panchayat has not challenged the order passed by the Commissioner, holding that the land does not vest in Panchayat and therefore, no such relief could be granted to the petitioner in the writ petition in the absence of any challenge to that effect – Held, while issuing the writ of Certiorari against the orders of the quasi judicial Tribunal, in exercise of its supervisory jurisdiction, the pleadings are insignificant as it is the record of the subordinate authority or the Tribunal, which is to be examined to find out any error apparent on record -- However, when the writ jurisdiction is exercised without any order of inferior Tribunal or authority, it will be the exercise of the original jurisdiction and the pleadings would be relevant -- Parties were aware of the controversy in respect of title as recorded in an interim order -- Documents required to be examined were produced before the Assistant Collector in proof of their title -- The pure question of law is required to be examined -- Therefore, on the perusal of the records, the writ Court could issue a writ, which is warranted on the facts of the case. The Gram Panchayat of Village Bajghera v. The Financial Commissioner (Revenue) Haryana and others, 2014(2) L.A.R. 65 (P&H DB). Section 7 – Writ jurisdiction – Question of law – Stage for dispute -- Principle of natural justice – A pure question of law can be raised at any stage of proceedings though if a question of fact is raised, the opposite party is required to a notice as a part of the principles of natural justice. The Gram Panchayat of Village Bajghera v. The Financial Commissioner (Revenue) Haryana and others, 2014(2) L.A.R. 65 (P&H DB). Section 7, 13B (Haryana) -- Question of title – Appeal – Revision -- In the proceedings u/s 7 of the Act, it is the Assistant Collector who decides the question of title in the first instance -- The appeal is thus, maintainable before the Collector in terms of Section 13-B(1) of the Act, whereas the Commissioner has been given power of revision under 13-B (2) of the Act. The Gram Panchayat of Village Bajghera v. The Financial Commissioner (Revenue) Haryana and others, 2014(2) L.A.R. 65 (P&H DB). Section 13-A, 13AA(1), 13AA(2) (Haryana) -- Question of title – Appeal – Revision -- An order on the question of title u/s 13-A of the Act is appealable to the Commissioner under Section 13AA(1) of the Act and the Financial Commissioner has been given power of revision under Section 13AA (2) of the Act. The Gram Panchayat of Village Bajghera v. The Financial Commissioner (Revenue) Haryana and others, 2014(2) L.A.R. 65 (P&H DB). Section 7, 11 -- Eviction proceedings – Title dispute – Jurisdiction of -- There is disputed question of title which cannot be decided in proceedings u/s 7 of the Act -- Resolution referred to by the Panchayat of sale of land to respondent does not give any specific Khasra number -- It will be question of evidence as to which portion of the land such resolution pertains -- Such disputed questions of title are better adjudicated in proceedings u/s 11 of the Act -- Panchayat is given liberty to seek settlement of disputed question of title in proceedings u/s 11 of the Act. Gram Panchayat Village Rohno Khurd v. The Joint Director, Panchayats and others, 2014(2) L.A.R. 84 (P&H DB). Section 11 -- Punjab Land Revenue Act, 1887 (XVII of 1887), Section 111, 121 -- Partition of land – Question of title -- An order of partition pre-supposes a title over the land mentioned in such petition -- Since Panchayat was not a party to such proceedings, any decision in a petition for partition will not bind the Panchayat -- It is always open to the Panchayat to claim title over the land, said to be part of the order of partition, in appropriate proceedings -- Since Panchayat has only invoked jurisdiction of the Collector u/s 11-A of the Act, the order of partition shall not be binding on the Panchayat. Gram Panchayat Jagral v. State of Punjab and others, 2014(2) L.A.R. 94 (P&H DB). Section 2(g) – Shamilat deh – Exclusion from -- Jamabandis for the year 1942-43 or 1946-47 does not show that any of the proprietors are in cultivating possession of the land in dispute – In fact, the land is Banjar Qadim and not cultivable -- No proof of share of the proprietors including the petitioners in such land -- Petitioners are not proved to be in possession of land prior to 26.01.1950 nor the land is cultivable, therefore, such land cannot be excluded from being Shamlat Deh. Sukhdev Singh & others v. Gram Panchayat, Village Bhedpura, 2014(2) L.A.R. 102 (P&H DB). Section 11 – East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (50 of 1948), Section 42 – Question of title – Jurisdiction of Consolidation Officer -- Doctrine of merger – Full Bench judgment in Parkash Singh & others’ case 2014(2) L.A.R. 1 – Effect of -- Full Bench has held that the order of Director, Consolidation, is an order of a Tribunal of limited jurisdiction not competent to decide the question of title -- Therefore, any finding recorded in the order passed by the Consolidation Authorities on a question of title would not operate as res judicata, if question of title is raised before the jurisdictional Forum -- The jurisdictional forum is the proceedings u/s 11 of the Act -- It has been observed that the dismissal of the writ petition and the Special Leave Petition will not operate as res judicata – The exception carved out while extending doctrine of merger is where the writ petition and special leave petition have been dismissed assigning reasons for dismissal of the writ petition in respect of land being or not being shamlat deh -- Such assignment of reasons would mean only the reasons to hold that land is not a Shamlat Deh on independent appraisal of the findings on the basis of documents, which might have been produced before the writ Court for the first time -- If the writ petition is dismissed on the basis of the documents as were before the Director Consolidation, the doctrine of merger is applicable, but the merger would be with an order of the Director, Consolidation, a Tribunal of limited jurisdiction -- Such merger will not oust the jurisdiction of the Collector to decide the question of title in terms of the provisions of Section 11 of the Act -- In case, additional documents are examined by the writ court in support of the argument that the land is or is not a shamilat deh, then the findings recorded would oust the jurisdiction of the Collector u/s 11 of the Act -- In that eventuality, the writ court is exercising jurisdiction for the first time in respect of the fact as to whether, the land is shamilat deh or not. Sukhdev Singh & others v. Gram Panchayat, Village Bhedpura, 2014(2) L.A.R. 102 (P&H DB). Section 11 – East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (50 of 1948), Section 42 – Question of title – Jurisdiction of -- Doctrine of merger -- Writ petition was dismissed, affirming the order of the Additional Director, Consolidation -- The Bench referred to Section 2(g) of the Act, but negates the plea only for the reason that ‘Bachat land’ does not fall within Shamlat Deh -- There is no independent appraisal of the documents additional or otherwise, whether the land in question is Shamlat Deh or not -- The Bench has examined the order passed by the Authorities under Section 42 of the 1948 Act to return a finding that it is a Bachat land, therefore, not a Shamlat Deh – Held, such finding would not oust the jurisdiction of the Collector u/s 11 of the Act to decide the question of title. Parkash Singh & others’ case 2014(2) L.A.R. 1 (P&H Full Bench) relied. Sukhdev Singh & others v. Gram Panchayat, Village Bhedpura, 2014(2) L.A.R. 102 (P&H DB). Section 2(g), 4 -- Shamlat Deh Hasab Rasad Khewat -- Land described in the revenue record as Shamlat Deh Hasab Rasad Khewat is a land owned by Panchayat and that the control and management in terms of Section 2 (g) (1) read with Section 4 of the Act. Inder Singh and others v. State of Punjab and others, 2014(2) L.A.R. 116 (P&H DB). Section 2(g), 4 -- Shamlat Deh Hasab Rasad Khewat – Fraudulent decree – Consent by Sarpanch – Validity of -- Sarpanch who appeared as witness admitted in the cross-examination that the Khewatdars used that land for their own benefit and had a share in the Shamlat Deh -- It is the said admission which has been taken into consideration for granting the decree in favour of the petitioners -- Sarpanch is not a person competent to suffer a statement to give the share of land to Panchayat in such a cursory manner -- Panchayat as a owner could not be defrauded of its holding by such cryptic statement of the Sarpanch -- The same has been rightly found to be fraudulent decree. Inder Singh and others v. State of Punjab and others, 2014(2) L.A.R. 116 (P&H DB).
Posted on: Fri, 03 Oct 2014 02:27:18 +0000
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