Anil Kshetarpal,J. - (1.) The petitioners herein are all the elected office bearers of Gram Panchayat Saini Majra. On 28.01.2021, the Director-cum-Secretary, Department of Village Development and Panchayat, Punjab, has suspended them from the respective offices of Sarpanch and Panches in exercise of powers under Section 20 of the Punjab Panchayati Raj Act, 1994 (hereinafter referred to as "the 1994 Act"). The correctness whereof has been assailed in this writ petition.
(2.) In the considered view of this Court, the following questions arise for consideration: I. Whether by inserting Section 42A in the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter referred to as "the 1948 Act"), the proprietors of the village stand divested of the ownnership of "Jumla Mushtarka Malkan Wa Digar Haqdaran Arazi Hassab Rasad Rakba" land.? If the answer to question No.I is in negative, then the second question, which arises for consideration is- II. Whether the proprietors are entitled to the amount of sale Consideration/compensation of "Jumla Mushtarka Malkan Wa Digar Haqdaran Arazi Hassab Rasad Rakba" land? If the answer to question No. I is in negative and question No.II is in positive, then the question arises for consideration is- III Whether the decision of the Gram Panchayat to distribute the amount of sale consideration amongst the proprietors of "Jumla Mushtarka Malkan Wa Digar Haqdaran Arazi Hassab Rasad Rakba" land is an act of mis-management of the property of the Gram Panchayat?
(3.) Question No.1:- Rule 16 (ii) of The East Punjab Holdings ( Consolidation and Prevention of Fragementation) Rules, 1949, provides that the proprietary rights in respect of the land reserved for common purposes of the village by imposing pro-rata cut on the land holding of the owners at the time of consolidation of holdings shall continue to vest in the proprietary body of the estate or estates concerned and it shall be entered in record of rights as Jumla Malkan Wad Digar Haqdaran Arazi Hasab Rasad Raqba ( hereinafter for short 'Jumla Mustarka Malkan Land'). It would be appropriate to note that way back in the year 1965, a five Judges Bench of the Hon'ble Supreme Court in Ranjit Singh and Other v. State of Punjab and Others, 1965 AIR(SC) 632, expounded that the land so carved out by imposing a pro-rata cut under Section 18 read with Section 23A of 'the 1948 Act' for common use of the villagers would not result in divesting the ownership of the proprietors or proprietary body. The validity of Section 23- A of 'the 1948 Act' was upheld keeping in view the fact that the Punjab is an agrarian State and there is no divesting of the title. Subsequently, another five Judges Bench of the Supreme Court in Ajit Singh v. State of Punjab and Another, 1967 AIR(SC) 856, after examining the question with reference to Article 31A of the Constitution of India, again held that the proprietors would continue to be the owner of the property and there is no divesting of the title. The Supreme Court in Bhagat Singh and Others v. State of Punjab and Others, 1967 AIR(SC) 927, held that reservation of the land by imposing a pro-rata cut for the income of Gram Panchayat is not valid. Thereafter, once again the aforesaid question came to be considered by a Full Bench of this Court in Parkash Singh v. Joint Development Commissioner,2013 SCConlinePunjabandHaryana 26809. While discussing ancillary issue of the nature and manner of vesting of Jumla Mushtarka Malkan in a Gram Panchayat vis-a-vis Proprietors, the bench noticed various types of common land. The bench also noticed that the common land of the village can be divided into three categories, namely Shamlat Deh, which existed prior to the consolidation of holdings and before enactment of the Punjab Village Common Lands (Regulation) Act, 1953, the Pepsu Village Common Lands (Regulation) Act, 1954 and the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as "the 1961 Act"). The second type of land was covered by "Shamlat -Taraf, Patti, Panna and Thola" which vests in the Gram Panchayat, only if the land is used for common purposes of the village. It was also held that 'the 1961 Act', however, does not enact any provision declaring the land reserved as Jumla Mushtarka Malkan as "Shamlat Deh". After noticing the difference between Shamlat Deh, Abadi Deh, private land in the individual / joint ownership, the land recorded as "Shamlat- Taraf, Pattis or Thola" and Jumla Mushtarka Malkan land in the revenue record, the bench declared that the ownership of the Jumla Mushtarka Malkan land does not vest in Gram Panchayat and the ownership thereof continues to vest in the proprietary body. In para 114, the Bench, after relying upon the judgments passed in Ajit Singh (supra), Bhagat Ram (supra) and Johri Mal v. Director Consolidation, 1967 AIR(SC) 1568, held that the ownership of Jumla Mushtarka Malkan land does not vest in the Gram Panchayat. There is another judgment by a five Judges Bench of this Court in Suraj Bhan and Others v. State of Haryana and Another,2017 2 PLR 605. The Bench, after examining the question in the context of vires of the Haryana Municipal (Amendment) Act, 1999 (hereinafter referred to as "the 1999 Act"), held that the proprietorship of the Jumla Mushtarka Malkan Land continues to vest in the proprietary body. ;