- (1.) The petitioners pray for issuance of a writ of certiorari for quashing orders dated 31.03.2008(Annexure P-6) and 18.09.2008 (Annexure P-8), passed by the Collector-cum Divisional Deputy Director, Rural Development and Panchayat, Punjab, Chandigarh and the Director, Rural Development and Panchayat Department, Punjab, Chandigarh (exercising the powers of the 'Commissioner'), respectively, under the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as 'the 1961 Act').
(2.) Counsel for the petitioners submits that as the land, in dispute, is "Jumla Mushtarka Malkan Wa Digar Haqdaran"(for short "Jumla Mushtarka Malkan") and in possession of the petitioners, the Gram Panchayat has no right, title or interest therein. It is further submitted that findings recorded by authorities, under the 1961 Act, that land was reserved for common purposes under the East Punjab Holdings(Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter referred to as the 'Consolidation Act'), are factually and legally incorrect. The petitioners have always been in possession of the land, in dispute, and have constructed three rooms and two sheds for storing straw. The petitioners installed an electric meter in 1970, a hand pump and a fodder cutting machine. The petitioners have been in possession of the land, in dispute, prior to 1950, to the knowledge of inhabitants of the village and the Gram Panchayat. The jamabandi for the year 2003-04, relied upon by the Collector and the Commissioner does not record that the land is a "Gair Mumkin Chappar" (pond). It is also argued that order passed by the Divisional Deputy Director-cum-Collector is illegal as no issue was framed much less was an opportunity granted to the petitioners to lead evidence. Counsel for the Gram Panchayat, on the other hand, submits that as, admittedly, the land, in dispute, is "Jumla Mushtarka Malkan", it was reserved during consolidation, under Sections 18, 23 (A) of the Consolidation Act and Rule 16(ii) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949(hereinafter referred to as the 'Consolidation Rules') for the village Panchayat and for other common purposes. The land, in dispute, was a "Chappar"(pond) but the petitioners have encroached upon this land. The orders passed by authorities under the 1961 Act, do not suffer from any error as would require interference. It is further submitted that there is no evidence of existence of any house. The Divisional Deputy Director-cum-Collector has clearly recorded a finding that the land, in dispute, is a "Chappar"(pond) and construction has been raised only on five Marlas.
(3.) We have heard counsel for the parties, perused the impugned orders and find no reason to issue the writ as prayed. Admittedly, the land, as per jamabandi for the year 2003-04, appended by the petitioners, as Annexure P-1 is "Jumla Mushtarka Malkan", i.e., land created during consolidation by applying a pro-rata cut on the holdings of proprietors and reserved for common purposes of the village Panchayat and for other common purposes, in accordance with Sections 18 and 23(A) of the Consolidation Act and Rule 16(ii) of the Consolidation Rules, which read as follows:- Section 18. Lands reserved for common purposes:- (a) that any land specifically assigned for any common purpose shall cease to be so assigned and to assign any other land in its place; (b) that any land under the bed of a stream or torrent flowing through or from the Siwalik mountain range within the State shall be assigned for any common purpose; (c) that if any area under consolidation no land is reserved for any common purpose including extension of the village abadi, or if the land so reserved is inadequate, to assign other land for such purpose Section [23-A. As soon as a scheme comes into force, the management and control of all lands assigned or reserved for common purposes of the village under section 18, (a) in the case of common purposes specified in sub-clause (iv) of clause (bb) of section 2 in respect of which the management and control are to be exercised by the State Government, shall vest in the State Government; and (b) in the case of any other common purpose, shall vest in the panchayat of that village; and the State Government or the Panchayat, as the case may be, shall be entitled to appropriate the income accruing therefrom for the benefit of the village community, and the rights and interests of the owners of such lands shall stand modified and extinguished accordingly: Provided that in case of land assigned or reserved for the extension of village abadi or manure pits for the proprietors and non- proprietors of the village, such land shall vest in the proprietors and non-proprietors to whom it is given under the scheme of consolidation.] Rule 16 of Consolidation Rules: Rule 16(i) XX XX XX 16(ii) In an estate or estates where during Consolidation proceedings there is no Shamlat Deh land or such land is considered inadequate, "land shall be reserved for the village Panchayat and for other common purposes", under section 18 (c) of the Act, out of the common pool of the village 3[at the scale given in the schedule to these rules]. Proprietary rights in respect of land so reserved (except the area reserved for the extension of abadi of the proprietors and non-proprietors) shall vest in the proprietary body of estate or estates concerned and it shall be entered in the column of ownership of records rights as (Jumla Malkan wa Digar Haqdarana Arazi Hasab Rasad Raqba). The management of such land shall be done by the Panchayat of the estate or estates concerned on behalf of the village proprietary body and the Panchayat shall have the right to utilize the income derived from the land so reserved for the common needs and benefit of the estate or estates concerned.].;