PUNJAB & HARYANA HIGH COURT Hon'ble Judges:Hemant Gupta and Fateh Deep Singh JJ. Sukhdev Singh Versus Gram Panchayat, Village Bhedpura, District Patiala

CWP No. 5678 of 2012 ; 12032 of 2012 ; *J.Date :- APRIL 11, 2014 PUNJAB VILLAGE COMMON LANDS (REGULATION) ACT, 1961 Section - 11 , 2(g)(b) EAST PUNJAB HOLDINGS (CONSOLIDATION AND PREVENTION OF FRAGMENTATION) ACT, 1948 Section - 42

Cases Referred to : 1. Cit V/s. Saurashtra Kutch Stock Exchange Ltd., 2008 14 SCC 171 2. Gian Devi Anand V/s. Jeevan Kumar, 1985 1 RCR(Rent) 459 3. Gian Devi V/s. Jiwan Kumar, 1980 17 DLT 197 4. Gram Panchayat, Village Bhedpura V/s. The Additional Director, Consolidation, Punjab, Cwp No. 6883 Of 1995, D:d. 12.04.1996 5. Lily Thomas V/s. Union Of India, 2000 6 SCC 224 6. Parkash Singh V/s. Joint Development Commissioner, Punjab, Cwp No. 2318 Of 2002, D:d. 08.11.2013 7. Sarwan Kumar V/s. Madan Lal Aggarwal, 2003 4 SCC 147 Equivalent Citation(s):2014 (3) RCR(Civ) 449 : 2014 AIJ_PH 1684551JUDGEMENT :- Hemant Gupta, J. 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'). 2 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 prorata 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 prorata 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." 3 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." 4 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. 5 Similarly, the petition under Section 7 of the Act filed by the Panchayat was accepted by the Collector vide order dated 31.05.2012, which was challenged by the petitioners in CWP No.l2032 of 2012. 6 When the writ petition came up for hearing before this Court on 01.10.2013, the Panchayat - respondent No.1 was directed to place on record the following documents: (i) at the time of consolidation proceedings, how much land was required to meet out the common purposes in the village? (ii) how much land was reserved for common purposes by imposing pro-rata cut upon the right holders? (iii) whether the land so retrieved from the right holders was sufficient to meet out the demand of common purposes or not, if this was in excess, how much? (iv) whether any land was reserved for income of the Gram Panchayat or not? 7 After the said order, the Panchayat has filed voluminous set of documents including Wazib-Ul-Arz showing that in Village Bhedpura, 1285 Bigha 13 Biswas is shamlat land and the land of Shamlat Pattian is very meager having different classifications such as 1 Bigha 10 Biswas of Ma-jrua; 1101 Bigha 14 Biswas ofBanjarQadim and 182 Bigha 9 Biswas of Gair Mumkin. The Wazib-Ul-Arz also stipulates that Banjar Qadim area is not to be partitioned at all and the same is reserved for Charand. The Panchayat has also produced on record jamabandi for the year 1942-43 (Annexure R-2) in CWP No.5678 of 2012 reflecting ' Shamlat Deh Hasab Rasad Kabha Arazi Khewat' in the column of ownership and 'Maqbuja Malkan' in the column of possession. It does not show any individual proprietor to be in possession of any specific land. The entire land measuring 1192-18 is reflected as Banjar Qadim. In fact, such jamabandi has been appended by the petitioners in CWP No. 12032 of 2012 as Annexure P-3/T. A perusal of said jamabandi shows that large chunk of land was recorded as 'Shamlat Deh Hasab Rasad Kabha Arazi Khewat' even prior to consolidation that is the case set up in proceedings under Section 42 of the 1948 Act as well. Though it is asserted that such land was partitioned, but there is no proof of partition. The land is described as Banjar Qadim and no individual proprietor is reflected in any part of such land. In terms of Section 2(g) (viii) of the Act, the land which is in cultivating possession of proprietors prior to 26.01.1950 and which is not in excess of the share of the proprietors alone is excluded from being Shamlat Deh. Section 2(g)(viii) reads as under: "2. Definitions - In this Act, unless the context otherwise requires - XX XX XX (g) 'shamlat deh' includes XX but does not include land which x x (viii) was shamlat deh, was assessed to land revenue and has been in the individual cultivating possession of co-sharers not being in excess of their respective shares in such shamlat deh or before the 26th January, 1950; or" 8 A perusal of the jamabandis for the year 1942-43 or 1946-47 does not show that any of the proprietors are in cultivating possession of the land, subject matter of the present writ petitions. In fact, the land is Banjar Qadim and not cultivable. There is no proof of share of the proprietors including the petitioners in such land. The 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. 9 The land which is reserved for common purposes during consolidation alone could be made subject matter of petition under Section 42 of the 1948 Act, but the questions of title including its partition could not be gone into under Section 42 of the 1948 Act. Substantial land was in existence described in the Revenue record as Shamlat Deh even before the consolidation as per the revenue record produced by the petitioners themselves. Thus, the Additional Director, Consolidation, could not have dealt with such land so as to partition the same amongst the proprietors. A Full Bench of this Court in a judgment rendered in CWP No.2318 of 2002 titled 'Parkash Singh & others v. Joint Development Commissioner, Punjab & others' decided on 08.11.2013 has held to the following effect: "We, therefore, hold that:- (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, under Section 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. xxx xxx xxx The affirmation of their orders by dismissal of writ petitions or special leave petitions is an affirmation of their power to order corrections and not an affirmation of a power to decide a question of title or a binding adjudication on a question of title. Even otherwise, an order passed by a tribunal of limited jurisdiction, particularly on a question of title, cannot operate as resjudicata. Let us for a moment accept the argument that in view of dismissal of the writ petition and the special leave petition, the order passed by the Director has merged in the order passed by the High Court or the Supreme Court and, therefore, prohibits the Gram Panchayat from filing a petition under Section 11 of the 1961 Act or operates as resjudicata. The Director Consolidation, is a tribunal of limited jurisdiction, empowered to correct errors and if while correcting an error, has to decide whether land vests or does not vest in a Gram Panchayat, all that would be affirmed and, therefore, merged in the order passed by the High Court or the Supreme Court, would be his power to order corrections, in the scheme or orders passed during Consolidation. By no stretch of imagination, can an order, passed by the High Court or the Supreme Court, dismissing challenge to an order passed by the Director Consolidation, be construed as an order affirming the power of Director Consolidation, to decide a question of title or conferring legitimacy on his order. A tribunal of limited jurisdiction can only decide matters that fall to its limited jurisdiction, in this case the jurisdiction to correct an order and, therefore, cannot possibly operate as resjudicata before the forum assigned with jurisdiction to decide disputed questions of title. (.emphasis supplied.) The principle of resjudicata, applies where the former order, in this case, an order passed by Consolidation authorities was passed by a Court of competent jurisdiction, i.e., a Court competent to decide a question of title. The adjudication by Consolidation authorities would at best be an adjudication by a revenue officer, who is not competent to decide a question of title and is, therefore, neither binding nor final as to a question of title. The order, even if it has recorded a finding on title would not be construed to be a final and binding adjudication on the question of title as the question of title would necessarily have to be left to the jurisdictional forum i.e., the Collector, if the land is "Shamilat Deh" and the Civil Courts if the land is "Jumla Mushtarka Malkan"." 10 In view of the aforesaid judgment, the order of the Additional Director, Consolidation, an authority of limited jurisdiction, could not declare the land to be Bachat land and available for partition amongst the proprietors. Such order passed in exercise of powers conferred under Section 42 of the 1948 Act runs counter to the dictum laid down by the Full Bench. 11 An argument was raised that such order will be applicable to the orders passed by the Additional Director after the judgment of this Court on 08.11.2013. We do not find any merit in the said argument. The judgments of the Courts declare the law, as it was always. Though the Courts some time order that the judgments would have prospective effect, but in the absence of any such restriction, the Full Bench judgment would be applicable in respect of all orders passed by the delegate of the State Government in terms of Section 42 of the 1948 Act. The law declared by the Courts is deemed to be always the law so interpreted. In Sarwan Kumar v. Madan Lal Ag-garwal, (2003) 4SCC147, the Hon'ble Supreme Court has held that interpretation of a provision relates back to the date of the law itself and cannot be prospective of the judgment. When the court decides that the interpretation given to a particular provision earlier was not legal, it declares the law as it stood right from the beginning as per its decision. It has been held to the following effect: "20. .This Court in Gian Devi Anand v. Jeevan Kumar, (1985) 2 SCC 683 did not lay down any new law but only interpreted the existing law which was in force. As was observed by this Court in Lily Thomas v. Union of India, (2000) 6 SCC 224 the interpretation of a provision relates back to the date of the law itself and cannot be prospective of the judgment. When the court decides that the interpretation given to a particular provision earlier was not legal, it declares the law as it stood right from the beginning as per its decision. In Gian Devi v. Jiwan Kumar, (1980) 17DLT197the interpretation given by the Delhi High Court that commercial tenancies were not heritable was overruled being erroneous. Interpretation given by the Delhi High Court was not legal. The interpretation given by this Court declaring that the commercial tenancies heritable would be the law as it stood from the beginning as per the interpretation put by this Court. It would be deemed that the law was never otherwise. Jurisdiction of the civil court has not been taken away by the interpretation given by this Court. This Court declared that the civil court had no jurisdiction to pass such a decree. It was not a question of taking away the jurisdiction it was the declaration of law by this Court to that effect. The civil court assumed the jurisdiction on the basis of the interpretation given by the High Court in Gian Devi case, which was set aside by this Court." In C1T v. Saurashtra Kutch Stock Exchange Ltd., (2008) 14 SCC 171, wherein the Hon'ble Supreme Court observed as under: "35. In our judgment, it is also well settled that a judicial decision acts retrospectively. According to Blackstonian theory, it is not the function of the court to pronounce a "new rule" but to maintain and expound the "old one". In other words, Judges do not make law, they only discover or find the correct law. The law has always been the same. If a subsequent decision alters the earlier one, it (the later decision) does not make new law. It only discovers the correct principle of law which has to be applied retrospectively. To put it differently, even where an earlier decision of the court operated for quite some time, the decision rendered later on would have retrospective effect clarifying the legal position which was earlier not correctly understood. 36. Salmond in his well known work states: "The theory of case law is that a judge does not make law; he merely declares it; and the overruling of a previous decision is a declaration that the supposed rule never was law. Hence any intermediate transactions made on the strength of the supposed rule are governed by the law established in the overruling decision. The overruling is retrospective, except as regards matters that are res ju-dicatae or accounts that have been settled in the meantime." 12 Learned counsel for the petitioners has vehemently argued that since the order passed by the Additional Director, Consolidation, was affirmed by this Court in a writ petition, therefore, the doctrine of merger would be applicable and such issue cannot be permitted to be raised and decided by the Collector in proceedings under Section 11 of the Act. Reference was made to the following extract from the judgment in Parkash Singh's case (supra): "The doctrines of resjudicata and merger are doctrines of public policy coined to confer finality to legal proceedings and cannot be invoked to confer legitimacy on orders that are limited in their jurisdictional ambit to prohibit the jurisdictional forum deciding a question of title. If, however, the writ petitions or the special leave petitions are dismissed after examining the merits or after considering the provisions of the Punjab Village Common Lands (Regulation) Act, etc. or after holding that the Director Consolidation had jurisdiction to decide the dispute, the order passed by the Director Consolidation shall be deemed to have merged in orders passed by the High Court or the Supreme Court, thereby prohibiting the Collector or the appropriate forum, from considering or deciding an application on a question of title. We, therefore, have no hesitation in holding that the doctrine of merger would only apply where the writ petitions and the special leave petitions have been dismissed by assigning reasons for dismissal of the writ petition and the special leave petition." 13 The particular reliance of the petitioners is on the words 'that doctrine of merger would apply, where the Special Leave Petition has been dismissed by assigning reason. It is contended that since writ petition has been dismissed by a speaking order, therefore, doctrine of merger would be applicable. 14 We do not find any merit in the said argument as well. The 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 under Section 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. But in pase, additional documents are examined by the writ court in support of the argument that the land is or is not a shamilatdeh, then the findings recorded would oust the jurisdiction of the Collector under Section 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. 15 In the present case, the Division Bench of this Court has dismissed the writ petition 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 othrwise, 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. 16 We do not find that such finding oust the jurisdiction of the Collector under Section 11 of the Act to decide the question of title. Keeping in view the admitted Revenue record prior to consolidation, the petitioners are not proved to be in cultivating possession prior to 26.01.1950. The land is neither cultivable nor the possession is of any individual nor there is any proof of the share of the petitioners as proprietors. Therefore, the Authorities have rightly found the claim of the petitioners to be without any merit. 17 Thus, we do not find any illegality or irregularity in the findings recorded, which may warrant any interference by this Court in exercise of its writ jurisdiction. 18 Consequently, both the writ petitions are dismissed.