JASWANT SINGH,J. - (1.) A Division Bench of this Court vide order dated 30.5.2013 while hearing the above mentioned two writ petitions bearing CWP No.22719 of 2012 and CWP No.23015 of 2012 noticed that there is an apparent conflict of opinion between two Division Bench judgments of this Court on the issue involved and passed the following order: "As there is an apparent conflict of opinion between two Division Bench judgments of this Court in "Jagir Singh Versus Gram Panchayat, Village Mirzapur and others", CWP No.3182 of 1985, decided on 19.09.1988, and " Gram Panchayat Pangaltu Versus The State of Haryana and others", CWP No.18122 of 1995, decided on 19.02.2013, as to date of applicability of Section 4(3) (ii) of the Punjab Village Common Lands (Regulation) Act, 1961, it would be appropriate that the matter be placed before Hon'ble the Acting Chief Justice, for constituting a larger Bench, if deemed appropriate. A copy of this order be placed on the file of connected case." Accordingly, the matter has been ordered to be listed before this Full Bench by Hon'ble the Chief Justice.
(2.) BEFORE proceeding further, it would be appropriate to examine both the conflicting judgments separately, which is as under: (i) So far as the judgment passed in CWP No.3182 of 1985, decided on 19.09.1988 titled as Jagir Singh Versus Gram Panchayat, Village Mirzapur and others reported in 1989 PLJ 494 is concerned, the same was regarding an interpretation of Section 2 (g)(vi) of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter to be referred as "the Act") as amended by the Haryana Act No.2 of 1981, as the matter pertained to State of Haryana. In that case, Gram Panchayat of Village Mirzapur filed an application under Section 7 (2) of the Act before the Assistant Collector for ejectment of Jagir Singh from 9 marla in Khasra No.156 and 3 kanal 17 marlas in Khasra No.158 in dispute, which was opposed by raising a dispute of title. It was further pleaded by said Jagir Singh that he had constructed a house over the land in dispute long time back and by virtue of Section 2 (g)(vi) of the Act, it stood excluded from the definition of Shamilat deh, however, the contention regarding construction of house upto the extent of area measuring 9 (nine) marla comprised in Khasra No.156 was accepted by the learned Assistant Collector, but regarding the remaining land measuring 3 kanal 17 marlas, it was held that the same is a shamilat and was not falling within the exception clause, thus, the eviction order was passed. Aggrieved against the order of learned Assistant Collector regarding exemption of 9 marla land, the Gram Panchayat filed an appeal before the learned Collector, who accepted the same while ordering the eviction of Jagir Singh from 9 marlas land also. Jagir Singh filed a revision before the learned Commissioner but remained unsuccessful and ultimately, the writ petition was filed by said Jagir Singh before this Court regarding 9 marla land only and there was no challenge regarding land measuring 3 kanal 17 marlas. The learned Division Bench noticed that Section 2 (g)(vi) of the Principal Act reads as under: "2(g)(vi) - "Shamilat deh" or "Charand" includes........... but does not include land which............... lies outside the abadi deh and is used as gitwar, bara, manure pit or house or for cottage industry;" Learned Division Bench further noticed that abovesaid clause (vi) above quoted was later on substituted by Haryana Act No.2 of 1981 by the following clause; "(vi) lies outside the abadi deh and was being used as gitwar, bara, manure pit, house or for cottage industry, immediately before the commencement of this Act." After taking into consideration the amendment of 1981 , learned Division Bench came to the conclusion that clause (vi) has been substituted w.e.f the date of amending Act, when it was published in the Gazette on 12.2.1981 by virtue of Section 4 of the Amending Act whereas the other provisions of the Amending Act were substituted w.e.f 4th day of May 1961. Thus, the learned Division Bench came to the conclusion that the clause (vi) is amended prospectively whereas rest of the amendment is retrospective. Keeping in view the facts of the case that the petitioner Jagir Singh had constructed his house more than 20 years ago before the enforcement of the Amending Act (i.e 1981) the writ petition was allowed and the orders of the learned Collector and that of the Commissioner were quashed. (ii) However, in an identical case of Gram Panchayat Pangaltu Versus The State of Haryana and others", decided on 19.2.2013 in CWP No.18122 of 1995, situated in the State of Haryana wherein private respondent No.4 therein was found to have constructed his house 20 to 25 years before coming into force the Act No.2 of 1981, a Division Bench of this Court came to the conclusion that the word "this Act" referred in the Amending Act means the Punjab Village Common Lands (Regulation) Act, 1961 and not Act No.2 of 1981 and thus, the learned Division Bench was of the view that respondent No.4 therein has not produced any evidence that his house was constructed prior to 4.5.1961 i.e the date of commencement of 1961 Act and it further came to the conclusion that the learned Collector has misread the Section 2 (g)(vi) of the Act. It is noteworthy to mention here that as far as applicability of 1961 Act in State of Punjab is concerned, Clause (vi) of Section 2 (g) of the Act of 1961 was amended by way of Punjab Act No.19 of 1976 on account of certain difficulties, which had arisen due to the passing of judgments by this Court including one reported as Jagdev Singh and Ors. Vs. The Commissioner, Ambala Division and Ors 1976 PLJ Page 118 wherein it has been held that in view of the exclusion clause as contained in Section 2 (g)(vi) of the Act, the land lying outside abadi deh and which is used as house etc is excluded from the operation of the Act. Consequently, clause (vi) of the Parent Act was substituted by way of an amendment Act 1976 in the State of Punjab in the following terms: "(vi) lies outside the abadi deh and was being used as gitwar, bara, manure pit, a house or for cottage industry immediately before the commencement of this Act." Thereafter, a similar amendment was made in the State of Haryana by way of an Amendment Act No.2 of 1981, which has already been reproduced and discussed hereinabove. In the present cases i.e CWP No.22719 of 2012, the petitioners, who are the legal heirs of original respondent Nos.5 & 15, have laid challenge to the impugned order dated 17.5.2012 (P.1) passed by respondent No.2 -Divisional Deputy Director Rural Development CWP No.22719 of 2012 (O&M) #6# and Panchayat -cum -Collector vide which a petition filed under Section 11 by the Gram Panchayat Arnoli, Tehsil and District Patiala has been accepted and the Gram Panchayat has been declared as owner of the agricultural land measuring 108 bigha 12 biswas and the same was affirmed by the learned Commissioner -respondent No.1 while passing the impugned order dated 2.11.2012 (P.2) thereby dismissing the appeal of the petitioners. The Gram Panchayat is claiming the ownership on the basis of mutation dated 28.5.1959 as well as the revenue record i.e jamabandi etc whereas the petitioners are claiming that they are in possession of the land in dispute since 1950, therefore, the land in dispute does not come within the definition of Shamilat in view of exclusion clause under the provisions of Section 2 (g) Act of 1961. Similarly, in CWP No.23015 of 2012, Ujagar Singh and others Vs. Director Rural Development, the land in dispute is the same as in CWP No.22719 of 2012, which has been filed by the remaining original respondents in the proceedings initiated against them under Section 11 of the Act of 1961 by the Gram Panchayat.
(3.) LEARNED counsel for the petitioners has argued that the Amending Act of 1976 thereby inserting the the words "immediately preceding the commencement of this Act" in clause (ii) Sub Section (3) of Section 4 means the Amending Act i.e Punjab Act No.19 of 1976 and not the Parent Act of 1961 as the Amendment relates to the substantive law, which is always prospective until and unless made applicable retrospectively and a substantive law cannot be applied retrospectively merely by presumptions. It is further argued that although the High Powered Committee in its recommendations dated 29.1.1975 preceding to the Amendment of 1976 postulated for addition of the words "at the commencement of the Principal Act" but it seems that the same was not accepted by the legislature, which is clear from the Amendment Bill No.7 -PLA of 1976 wherein the words "immediately preceding the commencement of this Act" were inserted resulting into the Amendment Act, 1976. Reliance is placed upon a judgment of Hon'ble Supreme Court reported as Shyam Sunder and another Vs. Ram Kumar and another AIR 2001 Supreme Court 2471. On the other hand, it is submitted on behalf of the State of Punjab that the intention of the Legislature was to add the amended provisions including Clause (ii) of Sub Section (3) of Section 4 w.e.f 4.5.1961 i.e the date on which, the Principal Act of 1961 was enforced as the same is clear from the recommendations dated 29.1.1975 of the High Powered Committee on Panchayati Raj - Amendments in the Punjab Village Common Lands (Regulation) Act, 1961 thereby proposing certain Amendments in the Act of 1961. Learned counsel appearing for the Gram Panchayat has contended that the Amendment in question is only a clarificatory in nature, which deals with a procedural law thereby incorporating the period of 12 years of Limitation and that cannot be construed to be an Amendment in substantive law and thus, the same is to be applied from the date of commencement of the Act of 1961 and not from the Amendment of 1976.;