- (1.) This order shall dispose of aforementioned two writ petitions i.e. CWP No. 5678 of 2012 and CWP No. 12032 of 2012. However, for facility of reference the facts are taken from CWP No. 5678 of 2012, wherein challenge is to the orders passed by the Collector and affirmed by the Commissioner in proceedings under Section 11 of the Punjab Village Common Lands (Regulation) Act, 1961 (for short 'the Act'). The petitioners earlier filed an application under Section 42 of the East Punjab Holdings (Consolidation & Prevention of Fragmentation) Act, 1948 (for short 'the 1948 Act') asserting that before consolidation, there was total 1194 Bighas 2 Biswas land of Shamlat Deh Hasab Rasad Raqba Khewat and such land was under the possession of the right-holders of the village. This land was partitioned during consolidation according to the shares of the right-holders of the village and was included in the Khatas of right-holders, as is made out from Naksha Hakdaran. However, during consolidation to fulfill the common purposes of the village, the Consolidation Department applied pro-rata cut in respect of the land holding of all the khewatdars of the village. The cut was imposed more than the land required to be used for common purposes leaving substantial land as Bachat land by the Consolidation Department. The petitioners including their predecessors-in-interest claimed partition of such Bachat land. The Additional Director, Consolidation, exercising the powers of the State Government allowed such petition on 17.04.1995. Such order was challenged by the Panchayat before this Court by way of CWP No. 6883 of 1995 titled as 'Gram Panchayat, Village Bhedpura v. The Additional Director, Consolidation, Punjab & others'. Such writ petition was dismissed on 12.04.1996. The Division Bench dealt with the argument of the Panchayat that application under Section 42 of the 1948 Act was filed after delay of 38 years and, thus, not maintainable. The Bench rejected such argument. However, in respect of Bachat land, reference was made to Rule 16(ii) of the East Punjab Holding (Consolidation and Prevention of Fragmentation) Rules, 1949 to hold that the land can be reserved for common purposes only when there was no shamlat land or such land was considered inadequate. The Bench returned a finding that some land was taken out of the proprietorship of each proprietor by imposing a pro-rata cut with a view to meet the common purpose of the village. After providing for the common purpose of the village, if some land was still left, the same had to be distributed amongst the proprietors according to their land holding. Such land could not have been made over to the Panchayat for the income of the Panchayat. The Bench held to the following effect: "In this case, in the scheme of consolidation, some land was taken out of the proprietorship of each proprietor by imposing a pro-rata cut on his holding with a view to meet the common purpose of the village. After providing for the common purpose of the village, some land was still left. That land had to be distributed amongst the proprietors according to hasab rasad raqba khewat. The land, which is known as Bachat land, could not have been made over to the Panchayat for the income of the Panchayat, 'Bachat land' would not vest in the Panchayat. If previously, the land was being leased out by the Gram Panchayat that would be no bar in asserting that the act of the Gram Panchayat was wrong and the 'Bachat land' never vested in the Panchayat. Mutation which was earlier entered in the name of the Panchayat would not change the legal position."
(2.) The Bench, also considered an argument that land in question was shamlat deh under Section 2(g) of the Act. Such argument was negated by holding that the land in question was Bachat land and that such land is the ownership of the proprietors of the village. The Bench observed as under: "Next point raised by the learned counsel for the petitioner - Gram Panchayat is that the land in question was shamlat deh under Section 2(g) of the Punjab Village Common Lands (Regulation) Act, 1961. Suffice it to say that the land in question was 'Bachat land'. Bachat land is the ownership of the proprietors of the village."
(3.) The Special Leave Petition against the said order was allowed and Civil Appeal No. 2806 of 1997 came up for hearing before the Hon'ble Supreme Court on 10.05.1999. The same was dismissed for non-prosecution, as none appeared on behalf of the Panchayat. After the aforesaid orders were passed, Panchayat initiated proceedings under Section 11 of the Act. It is the said application under Section 11 of the Act, wherein the Panchayat produced voluminous record of granting lease of the land from 1972. On 31.01.2011, after considering the entire record, the Collector held that from the Revenue record, Panchayat is owner and in possession and that the Panchayat is leasing out the land to different cultivators from the year 1972-73 to 1992-93 (Exs. P-1 to P-75). In respect of proceedings under Section 42 of the Act, the Collector held that the Panchayat has not properly pursued its case before the Courts, as Panchayat was in connivance with Khewatdars leading to the dismissal of Civil Appeal before the Supreme Court for want of prosecution. It also held that Additional Director, Consolidation had no right to decide the land of Shamlat Deh. Such order was affirmed by the Commissioner on 22.02.2012. Both the aforesaid orders are under challenge in CWP No. 5678 of 2012.;