Latest Law on Rent and Revenue 2012 (2) L.A.R..............

Acquisition of houses

Development of infrastructure or industrialization -- Majority of people spend their lifetime savings for building a small house so that their families may be able to live with a semblance of dignity -- Therefore, it is wholly unjust, arbitrary and unreasonable to deprive such persons of their houses by way of the acquisition of land in the name of development of infrastructure or industrialisation. Raghbir Singh Sehrawat v. State of Haryana and others, 2012(2) L.A.R. 130 (SC).

Acquisition of land

Land Acquisition Act, 1894 -- Annuity – Rehabilitation policy – Jurisdiction of Reference Court – Policy regarding rehabilitation and/or re-settlement of the oustees land owners cannot be subject-matter of adjudication before the reference court u/s 18 of the Act – Reference court did not have the jurisdiction to deal with the issue regarding grant of annuity or any other benefit in terms of the policy framed by the government while dealing with the reference under the Act. Prem Singh and others v. State of Haryana and others, 2012(2) L.A.R. 616 (P&H).

Land Acquisition Act, 1894 -- Challenge to acquisition -- Non-filing of Objections – Effect of – Explanation that petitioner had no knowledge of acquisition proceedings, cannot be accepted – Petitioner company is not managed by illiterate, rustic persons -- By its own showing the company promotes and builds colonies and townships and, therefore, must have been aware of acquisition proceedings -- It appears that the petitioner did not choose to file objections, confident that it would be able to seek release of its land under various policies, framed by the Government – Failure to the objections, u/s 5-A., dilutes the petitioner's challenge to acquisition proceedings. Vaishnavi Promoters and Builders, New Delhi v. State of Haryana and others, 2012(2) L.A.R. 487 (P&H DB).

Land Acquisition Act, 1894 -- Non-serving of Notice – Effect of -- Notices were delivered to some of the landowners, who acknowledged the receipt thereof, however, the notices issued to the appellant and his wife were not served upon them -- Land Acquisition Collector proceeded to decide the objections by assuming that the notice has been delivered to all the objectors – Appellant had not been given opportunity of hearing as per the mandate of Section 5A(2) -- Acquisition of his land is declared illegal and quashed. Raghbir Singh Sehrawat v. State of Haryana and others, 2012(2) L.A.R. 130 (SC).

Land Acquisition Act, 1894 -- Object of Objections u/s 5-A – Natural justice -- Before any person is deprived of his land by way of compulsory acquisition, he must get an opportunity to oppose the decision of the State Government and/or its agencies/instrumentalities to acquire the particular parcel of land -- Objector can make an effort to convince the Land Acquisition Collector to make recommendation against the acquisition of his land -- He can also point out that land proposed to be acquired is not suitable for the purpose specified in the notification issued u/s 4(1) -- Not only this, he can produce evidence to show that another piece of land is available and the same can be utilized for execution of the particular project or scheme -- Collector should give a fair opportunity of hearing to the objector and objectively consider his plea against the acquisition of land -- Only thereafter, he should make recommendations supported by brief reasons as to why the particular piece of land should or should not be acquired and whether or not the plea put forward by the objector merits acceptance -- Recommendations made by the Collector must reflect objective application of mind to the objections filed by the landowners and other interested persons. Raghbir Singh Sehrawat v. State of Haryana and others, 2012(2) L.A.R. 130 (SC).

Land Acquisition Act, 1894 -- Possession of land -- Rojnamcha Vakyati -- Entries in Girdawari/Record of cultivation shows appellant in possession – Genuineness and correctness of the entries contained in the Girdawaris is not questioned – Therefore, no reason to disbelieve or discard the same -- Rojnamcha Vakyati prepared by Sadar Kanungo and three Patwaris showing delivery of possession to Senior Manager (IA), HSIIDC, which is a self serving document, cannot be made basis for recording a finding that possession of the acquired land had been taken by the concerned revenue authorities -- Crops were standing on several parcels of land, possession thereof could not have been taken without giving notice to the landowners -- It was humanly impossible to give notice to large number of persons on the same day and take actual possession of land total measuring 214 Acres 5 Kanals and 2 Marlas – Held, record prepared by the revenue authorities showing delivery of possession of the acquired land to HSIIDC has no legal sanctity -- High Court committed serious error by dismissing the writ petition on the specious ground that possession of the acquired land had been taken and the same vested in the State Government in terms of Section 16. Raghbir Singh Sehrawat v. State of Haryana and others, 2012(2) L.A.R. 130 (SC).

Public purpose -- Some people set up small industrial unit after seeking permission from the competent authority -- Before acquiring private land the State and/or its agencies/instrumentalities should, as far as possible, use land belonging to the State for the specified public purposes -- If the acquisition of private land becomes absolutely necessary, then too, the concerned authorities must strictly comply with the relevant statutory provisions and the rules of natural justice. Raghbir Singh Sehrawat v. State of Haryana and others, 2012(2) L.A.R. 130 (SC).

Rehabilitation policy – Allotment of plot – Purpose of -- Reason for not allotting 3 marlas of plot is, as in terms of rehabilitation policy, the petitioner is entitled to only 1 marla of plot -- Purchase of three marlas before the acquisition does not entitle her to claim three plots -- Policy is to rehabilitate and not to provide plots to the persons, affected by acquisition -- Process of rehabilitation is to accommodate the persons displaced by acquisition and not to give them equivalent land – Held, neither in law nor in equity, the petitioner has any justified claim for claiming a plot measuring 3 marlas. Shyama Bansal v. Shri Mata Mansa Devi Shrine Board, Panchkula, 2012(2) L.A.R. 259 (P&H DB).

Additional market value

Land Acquisition Act, 1894 – Interest – Appellants are entitled to get interest on the additional market value including solatium. Mehrawal Khewaji Trust (Regd.), Faridkot & others v. State of Punjab & others, 2012(2) L.A.R. 123 (SC).

Ad-valorem Court fees

Court-fees Act, 1870 -- Cancellation of sale deed – Declaratory suit – Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed -- But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non-est, or illegal or that it is not binding on him – Section 7(iv)(c) provides that in suits for a declaratory decree with consequential relief, the court fee shall be computed according to the amount at which the relief sought is valued in the plaint -- The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of Section 7. Suhrid Singh @ Sardool Singh v. Randhir Singh & Ors., 2012(2) L.A.R. 333 (SC).

Court-fees Act, 1870 – Cancellation of sale deed – Declaratory suit – Difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to ‘A’ and ‘B’/Two brothers -- ‘A’ executes a sale deed in favour of ‘C’ -- Subsequently ‘A’ wants to avoid the sale -- ‘A’ has to sue for cancellation of the deed -- On the other hand, if ‘B’, who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by ‘A’ is invalid/void and nonest/ illegal and he is not bound by it -- In essence both may be suing to have the deed set aside or declared as non-binding -- But the form is different and court fee is also different -- If ‘A’, the executant of the deed, seeks cancellation of the deed, he has to pay ad-valorem court fee on the consideration stated in the sale deed -- If ‘B’, who is a non-executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs. 19.50 under Article 17(iii) of Second Schedule of the Act -- But if ‘B’, a nonexecutant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad-valorem court fee as provided under Section 7(iv)(c) of the Act. Suhrid Singh @ Sardool Singh v. Randhir Singh & Ors., 2012(2) L.A.R. 333 (SC).

Court-fees Act, 1870 – Cancellation of sale deed – Declaratory suit – Prayer is for a declaration that the deeds do not bind the “co-parcenery” and for joint possession -- Plaintiff in the suit was not the executant of the sale deeds -- Therefore, the court fee was computable under section 7(iv)(c) of the Act -- Trial court and the High Court were therefore not justified in holding that the effect of the prayer was to seek cancellation of the sale deeds or that therefore court fee had to be paid on the sale consideration mentioned in the sale deeds -- Trial court is directed to calculate the court fee in accordance with Section 7(iv)(c) read with Section 7(v) of the Act, as indicated above, with reference to the plaint averments. Suhrid Singh @ Sardool Singh v. Randhir Singh & Ors., 2012(2) L.A.R. 333 (SC).

Sale deed – Challenge to -- Plaintiff, who is executant of the deed has sought declaration that the transfer deed in favour of the defendant is null and void -- Since the plaintiff himself is executant of the deed and he seeks cancellation of the deed, he is no doubt required to pay advalorem court fee for the consideration paid on the sale deed but in the present case no sale consideration has been paid by the defendants -- Even the possession has also not been claimed by the plaintiff -- Order passed by the trial Court, requiring the plaintiff to pay the ad-velorum court fee in terms of Section 7 (4) (c) of the Court Fees Act set aside by holding that the plaintiff is not required to affix the advalorem court fee at the market value of the property. Surjit Singh v. Karamjit Kaur, 2012(2) L.A.R. 437 (P&H).

Adverse possession

Easement of necessity – Way from courtyard – Ownership rights have been acquired by plaintiffs in the house in their possession by operation of law, i.e., by way of adverse possession -- House in possession of both the parties are contiguous to each other -- No other way for going through the cattle shed except by passing through the courtyard of plaintiff and defendant has been using as such for the last 40-45 years – Defendant has not acquired easement of prescription, he has acquired easement of necessity. Hari Singh and others v. Jaswant Singh, 2012(2) L.A.R. 212 (P&H).

Affidavit in support of Public interest litigation

Non-compliance of -- Public Interest Litigation, require the petitioners to file a specific affidavit showing their credentials and also stating that petitioners are public spirited persons and they have no personal interest in the matter – In the writ petition specific stand is that present petition is being filed in the public interest and petitioners are the public spirited persons -- Moreover, Court has taken cognizance of the matter keeping in view the larger public interest involved, same cannot be thrown out on the hypertechnical ground. Amit Jain and others v. State of U.T., Chandigarh and others, 2012(2) L.A.R. 64 (P&H DB).

Agreement to sell

Registration Act, 1908 -- Unregistered document -- There is no bar as per Section 17(1A) to seek the decree of specific performance of contract in respect of an unregistered contract of sale. Didar Singh v. Nasib Kaur and others, 2012(2) L.A.R. 198 (P&H).

Agricultural produce

Punjab Agricultural Produce Markets Act, 1961 -- Sale, Purchase, Storage and Processing of – No person, unless exempted by Rules made under this Act, shall set up, establish or continue or allowed to be continued any place for the purchase, sale, storage and processing of the agricultural produce so notified or purchase, sell, store or process such agricultural produce except under a licence granted in accordance with the provisions of this Act. Pepsico India Holdings Private Limited v. State of Punjab and others, 2012(2) L.A.R. 274 (P&H DB).

Allotment by negotiation

Capital of Punjab (Development and Regulation) Act, 1952 -- Liquor Vendor’s site – Government can sell, lease or transfer either by auction, allotment or otherwise any land or building belonging to the Government in on such terms and conditions as provided by any Rules made under the Act -- Allotment of the land to the successful bidders of liquor vends by private negotiation is in violation of Section 3 of the Act and as well in violation of Article 14 of the Constitution. Amit Jain and others v. State of U.T., Chandigarh and others, 2012(2) L.A.R. 64 (P&H DB).

Allotment of land

Displaced Persons (Compensation and Rehabilitation) Act, 1954 -- Re-opening of matter after two decades – Expression “Any time”  – Scope of -- An expression “any time” contained u/s 24 must be a reasonable time and the intervention by the authority for cancellation could not be after such a long period, especially when the allottee himself had not been guilty of any fraud -- If the State had allowed for the allotment to stay with the allottee for 2 decades, it would not be justified for the State to reopen the issue after such a long time. Suba Ram (deceased) through his LRs and others v. The State of Haryana and others, 2012(2) L.A.R. 424 (P&H).

Allotment of plot

Acquisition of land -- Rehabilitation policy – Reason for not allotting 3 marlas of plot is, as in terms of rehabilitation policy, the petitioner is entitled to only 1 marla of plot -- Purchase of three marlas before the acquisition does not entitle her to claim three plots -- Policy is to rehabilitate and not to provide plots to the persons, affected by acquisition -- Process of rehabilitation is to accommodate the persons displaced by acquisition and not to give them equivalent land – Held, neither in law nor in equity, the petitioner has any justified claim for claiming a plot measuring 3 marlas. Shyama Bansal v. Shri Mata Mansa Devi Shrine Board, Panchkula, 2012(2) L.A.R. 259 (P&H DB).

Concealment in application form -- Cancellation of plot -- While making a declaration in application Form, the allottee had tried to mislead the respondents as he had averred that he had applied for another plot in another category (size wise), whereas he had applied for the same size plot -- Clause 4 of the instructions for filling up the application categorically empowers the respondents to cancel the allotment/application, if they perceive that the allottee had misled the respondents by making an application for allotment of plot vide two separate application forms – Cancellation of plot by respondents, upheld. Rajnish Bansal and others v. State of Punjab and others, 2012(2) L.A.R. 272 (P&H DB).

Existing Mandi not going to be de-notified after creation of New Mandi Township -- Arhatias/Licensee of existing Mandi not to be displaced or uprooted, are not entitled to allotment of plots in New Mandi Township at reserve price. Brij Lal and others v. State of Punjab and others, 2012(2) L.A.R. 378 (P&H DB).

Allotment of plot to Riot victims residing in Punjab

Legality of clause -- GMADA plots -- GMADA decided to allot plots to riot affected families/persons, who are red card holders, and are residing continuously in the State of Punjab since 1986 -- Not an unreasonable or arbitrary Clause to strike it down -- State of Punjab, through GMADA, is well within its right to provide plots to those riot victims who reside in the State of Punjab. Baldev Singh and others v. State of Punjab and another, 2012(2) L.A.R. 447 (P&H DB).

Allotment Policy, 1998

Clause 3 -- Punjab Agricultural Produce Markets Act, 1961 (23 of 1961), Section 6(1) – Mandi Township – Creation of – Allotment of plot -- Existing Mandi not going to be de-notified after creation of New Mandi Township -- Arhatias/Licensee of existing Mandi not to be displaced or uprooted, are not entitled to allotment of plots in New Mandi Township at reserve price. Brij Lal and others v. State of Punjab and others, 2012(2) L.A.R. 378 (P&H DB).

Annuity

Land Acquisition Act, 1894 -- Rehabilitation policy – Jurisdiction of Reference Court – Reference court did not have the jurisdiction to deal with the issue regarding grant of annuity or any other benefit in terms of the policy framed by the government while dealing with the reference under the Act. Prem Singh and others v. State of Haryana and others, 2012(2) L.A.R. 616 (P&H).

Any time

Displaced Persons (Compensation and Rehabilitation) Act, 1954 -- Allotment of land – Re-opening of matter after two decades – An expression “any time” contained u/s 24 must be a reasonable time and the intervention by the authority for cancellation could not be after such a long period, especially when the allottee himself had not been guilty of any fraud -- If the State had allowed for the allotment to stay with the allottee for 2 decades, it would not be justified for the State to reopen the issue after such a long time. Suba Ram (deceased) through his LRs and others v. The State of Haryana and others, 2012(2) L.A.R. 424 (P&H).

Appeal

Limitation – Communication of order -- It is obligatory for the authorities making the order to communicate it to the concerned party and the period of limitation for any appeal against the order is reckonable from the date of such communication of written order itself – Prescribed period of limitation would only commence from the date on which the order was received by the party concerned, unless and until there is a strong and positive evidence of acquisition of knowledge of the impugned order. Jain Motors Regd. Patiala v. The State Transport Appellate Tribunal & Ors., 2012(2) L.A.R. 394 (P&H).

Appointment of Lambardar

Appellant had encroached upon street adjoining his house, though the encroachment stood removed yet it did not behove a person who was seeking appointment as Lambardar. Dilbag Singh v. State of Haryana and others, 2012(2) L.A.R. 247 (P&H DB).

Appellate Authority’s power -- Commissioner came to the conclusion that private respondent was younger in age, economically sound, better educated and was having better social status, but these facts were not properly appreciated by the Collector -- Order of the Collector was set aside and respondent No.4 was appointed as Lambardar of the village -- Order of the Commissioner was upheld by the Financial Commissioner and further by the Ld. Single Judge – Held, private respondent is a better candidate, therefore, the learned Single Judge, rightly declined to interfere in the orders of the revenue authorities, appointing private respondent as Lambardar of the village. Talwinder Singh v. Financial Commissioner (Co-operation), Punjab, Chandigarh and others, 2012(2) L.A.R. 3 (P&H DB).

Choice of Collector – Collector not only found private respondent as a better candidate, but it was also found that the appellant had got prepared a false voter identity card in the name of his wife, though he was not married at all – In criminal case, private respondent, had already been acquitted before initiation of the proceedings for appointment of Lambardar -- District Collector had rightly appointed private respondent being an Ex-Serviceman, as Lambardar --  Choice of the Collector in the matter of appointment of Lambardar should not be interfered on superficial grounds, until and unless the order of the Collector in this regard suffers from patent illegality. Kushal Pal v. State of Haryana and others, 2012(2) L.A.R. 19 (P&H DB).

Comparative merits – Age of the private respondent was 23 years, whereas the appellant was about 42 years -- Though the appellant have passed higher secondary and private respondent was only 10th class pass yet the candidature of private respondent had been supported by more persons from the village and Sub Divisional Magistrate-cum-Assistant Collector 1st Grade, the Tehsildar-cum-Assistant Collector Grade II, and Naib Tehsildar-cum-Assistant Collector Grade II, had recommended the candidature of respondent No.4 -- Appointment of private respondent as a Lambardar upheld. Harinder Singh v. Divisional Commissioner, Patiala and others, 2012(2) L.A.R. 250 (P&H DB).

Criminal case – Moral Turpitude -- Criminal case registered u/ss 323, 324, 325, 452, 148, 149 IPC, and appointed candidate was acquitted much prior to the date of inviting applications – Held, registration of the said criminal case could not have been taken into consideration, particularly when the offences in that case did not relate to moral turpitude. Talwinder Singh v. Financial Commissioner (Co-operation), Punjab, Chandigarh and others, 2012(2) L.A.R. 3 (P&H DB).

Criminal Case – Pendency of – Relevancy of -- Respondent is involved in a criminal case -- Charges have been framed by a court of law and the said respondent would be required to stand trial -- In such circumstances, although the respondent is eligible to compete for the post of Lambardar, however, would not be suitable. Jagdish v. State of Haryana and others, 2012(2) L.A.R. 536 (P&H).

Election Kanungo – Candidature of – Contention that private respondent at the time of initial appointment was working as Election Kanungo – Held, merely taking employment is no bar for appointment on post of Lambardar – No merit in the contention. Sukhdev Singh v. The State of Punjab and others, 2012(2) L.A.R. 92 (P&H DB).

Interim order of stay – Challenge to -- L.P.A. against the interim order passed by the learned Single Judge, whereby while admitting the writ petition, the operation of the order passed by the Financial Commissioner, has been stayed – Grouse of the appellant is that due to stay at present nobody is functioning as Lambardar in village – Held, Ld. Single Judge totally ignored the fact that even before his appointment as Lambardar, the appellant was working as Sarbrah Lambardar of the village -- After his appointment as Lambardar by the Collector, not only the sanad of Lambardari was issued, but he had also started functioning on the said post -- In such circumstances, the order of the Financial Commissioner should not have been stayed – Due to stay there will be no Lambardar in the village due to which day to day functions to be performed by the Lambardar will be affected and the villagers will not be able to get their work done – Stay vacated. Harbans Singh v. State of Punjab and others, 2012(2) L.A.R. 392 (P&H DB).

Mere fact that the fore-fathers of the appellant had remained Lambardar of the village is no ground to consider the candidature of the appellant in preference to private respondent. Harinder Singh v. Divisional Commissioner, Patiala and others, 2012(2) L.A.R. 250 (P&H DB).

Speaking order -- Facts that whether the petitioner had intentionally furnished the certificate of Majhbi Sikh to the Army authorities for selection of his son in the army or it was inadvertently recorded as Majhbi Sikh instead of Jat Sikh, further fact that respondent is in illegal possession of Gurdwara land and he is not paying any rent are not taken into consideration – Further contended that respondent is also defaulter of the lai/mai loan for ten years and as such he could not be considered suitable for appointment to the post of Lambardar – Case is remanded to the Financial Commissioner, Haryana to re-consider the evidence on record and pass speaking order by recording specific findings. Manmohan Singh v. Financial Commissioner, Haryana and others, 2012(2) L.A.R. 417 (P&H).

Arrears of rent

Assessment of – Object of -- Haryana Urban (Control of Rent and Eviction) Act, 1973 -- Object of the legislature behind enacting Section 13 (2)(i) proviso is to save the tenant from eviction because of short tender that is why a duty has been cast upon the Rent Controller to assess the arrears of rent, interest and cost which is to be paid by the tenant to the landlord as arrears of rent. M/s Belliss India Limited v. Shri Ram Chand Gupta (dead) through his LRs and  others, 2012(2) L.A.R. 582 (P&H).

Rent Act -- First date of hearing – Provisional assessment of rent – Non-tender of – Tenant did not comply with the order by which rent was provisionally assessed and he was asked to tender the same on the first date of hearing – Tenant deserves to be evicted. Anil Kumar v. Ghanshyam Dass, 2012(2) L.A.R. 624 (P&H).

Assessment of Arrears of rent

Object of -- Haryana Urban (Control of Rent and Eviction) Act, 1973 -- Object of the legislature behind enacting Section 13 (2)(i) proviso is to save the tenant from eviction because of short tender that is why a duty has been cast upon the Rent Controller to assess the arrears of rent, interest and cost which is to be paid by the tenant to the landlord as arrears of rent. M/s Belliss India Limited v. Shri Ram Chand Gupta (dead) through his LRs and  others, 2012(2) L.A.R. 582 (P&H).

Assessment of provisional rent

Rent Act – Set off -- Tenant claimed Set off for installation of tubewell, construction of service road connecting the factory to the main road and for repair and paint of the demised premises which is a pure question of fact and cannot be gone into at this stage of summary assessment of the provisional rent -- Tenant cannot claim ‘set off’ at the stage of assessment of provisional rent as it requires detailed enquiry and cannot be decided in the summary assessment of provisional rent. M/s Belliss India Limited v. Shri Ram Chand Gupta (dead) through his LRs and  others, 2012(2) L.A.R. 582 (P&H).

Award

Land Acquisition Act, 1894 -- Belting system -- Market Value – Determination of -- Entire property acquired abuts the main road and the whole of the property has been used for a single purpose -- ‘Belting system’ (dividing land into different belts for determination of market value) will not apply – Both conditions (i) the lands were similarly placed and were surrounded by developed areas and (ii) that all acquired lands were intended to be used for the same purpose are satisfied – Court, would apply the same value for the whole property, where the extent itself is not very large and situate in the proximity of developed markets and on the GT Road. Ch. Vidya Bhushan (died) through his LRs and others v. Haryana State though the Collector, Karnal, and others, 2012(2) L.A.R. 380 (P&H).

Land Acquisition Act, 1894 -- Market Value – Determination of -- Property secured by a public authority in public auction in competitive bids is perhaps the best method of ascertaining a market value. Ch. Vidya Bhushan (died) through his LRs and others v. Haryana State though the Collector, Karnal, and others, 2012(2) L.A.R. 380 (P&H).

Land Acquisition Act, 1894 -- Solatium –Interest -- Entitlement of – Since the award of the District Judge had been passed on 09.11.1983, that is, the period subsequent to the introduction of the Land Acquisition Bill in the Parliament on 30.04.1982 in terms of Section 23(1A), the claimants are entitled to solatium @ 30% on the respective amounts due for the two properties covered under the two awards -- On the aggregate of the respective amounts, the additional amount shall also draw interest at 12% p.a. from the date of Section 4(1) notification till the Collector’s awards -- As regards the additional amount so determined, the petitioners would be entitled to interest as provided under section 28 of the Land Acquisition Act, from the date of S.4(1) notification, since the possession had been taken even prior to the notification, till the date of payment. Ch. Vidya Bhushan (died) through his LRs and others v. Haryana State though the Collector, Karnal, and others, 2012(2) L.A.R. 380 (P&H).

Land Acquisition Act, 1894 (1 of 1894) – Mandatory period – Limitation -- Stay order of the High Court remained operative for the period 24.9.1984 to 11.1.1996 -- Whether Section 11A of the Act permits exclusion of time that was taken in obtaining the certified copy of the judgment and order passed by the High Court and the period from the date the certified copy was obtained and it was brought to the notice of the authority – Held, period prescribed in Section 11A is mandatory -- No justification to read the provisions of the Limitation Act, 1963 and particularly Section 12 thereof into it -- Period cannot be excluded under explanation appended to Section 11A of the Act. Mulchand Khanumal Khatri v. State of Gujarat & Others, 2012(2) L.A.R. 73 (SC).

Land Acquisition Act, 1894 (1 of 1894) -- Mandatory period -- Section 11A mandates that an award shall be made by the Collector u/s 11 of the Act within a period of two years from the date of the publication of the declaration -- Non-adherence to this period results in entire acquisition proceedings being lapsed -- Declaration u/s 6 published before the commencement of the Amendment Act, the award shall be made within a period of two years from such commencement (24.9.1984) -- Period during which any action or proceeding relating to acquisition taken pursuant to such declaration remains stayed by an order of the court, shall be excluded -- Period prescribed in Section 11A is mandatory. Mulchand Khanumal Khatri v. State of Gujarat & Others, 2012(2) L.A.R. 73 (SC).

Punjab Town Improvement Act, 1922 -- Power of President of Tribunal – Quorum – Tribunal is to consist of a President and two assessors -- Evidence recorded by the President of Tribunal -- The arguments have been heard by the President and the award has been announced by him alone -- Only reference made in one para is to the discussion made with the assessors – Held, President alone who has announced the award was not competent to do so – Award is quashed, matters referred back to the Tribunal. Avtar Singh and others v. The District Judge, Rupnagar and others, 2012(2) L.A.R. 647 (P&H DB).

Bachat land

Common purposes -- If the misdirected notion of distribution of ‘bachat’ lands amongst the proprietors is accepted and the public assets are captived to fulfill individual’s greed, the Gram Panchayats will be left with no means to stand as the institutions of ‘self governance’ -- It cannot be overlooked that the village community is not comprising the ‘proprietors’ only -- There are several landless communities who also live in that very village and are equally entitled to the amenities like school, hospital, water supply and above all a small house for shelter. Amar Singh v. Financial Commissioner, Haryana & Ors., 2012(2) L.A.R. 314 (P&H).

Common purposes -- Petitioner has nowhere disputed that the land in dispute was not ‘reserved’ or ‘assigned’ for ‘common purposes’ under the Consolidation Scheme -- Being an admitted fact, the phrase ‘bachat land’ which is otherwise alien to the scheme of the Act, cannot be applied to the suit land for the reason that ‘common purposes’ cannot be in a static form and is rather a continuous process. Amar Singh v. Financial Commissioner, Haryana & Ors., 2012(2) L.A.R. 314 (P&H).

Jumla Mushtarka Malkan -- “Jumla Mushtarka Malkan” is neither “Bachat Land” nor are the two expressions, 'synonymous' or 'interchangeable' -- Jumla Mushtarka Malkan land cannot be partitioned or distributed amongst proprietors as it is reserved for common purposes -- Bachat Land, on the other hand, is land left over, after reserving land for the Gram Panchayat and for other common purposes and is generally redistributed amongst proprietors at the time of consolidation – Private respondents may, however, approach the Collector, u/s 11 of the Punjab Village Common Lands (Regulation) Act, 1961, for adjudication of any plea that this land was not reserved for common purposes and is wrongly reserved as “Jumla Mushtarka Malkan”. Gram Panchayat, Channo/Mallaheri v. Director, Consolidation of Holdings, Punjab and others, 2012(2) L.A.R. 241 (P&H DB).

Shamilat deh -- Land that is created after applying a pro-rata cut is recorded as Jumla Mushtarka Malkan whereas the land, in dispute, is admittedly Shamilat Deh, which negates the plea raised by the petitioners that the land, in dispute, was created after applying a pro-rata cut on the holdings of proprietors or is Bachat Land. Mehar Singh and others v. Gram Panchayat Sehjo Majra and others, 2012(2) L.A.R. 513 (P&H DB).

Shamilat deh -- Shamlat Deh Hasab Hissas Paimana Malkiat -- Contention that land is recorded as “Shamlat Deh Hasab Hissas Paimana Malkiat” and not Shamilat Deh, it continues to vest in proprietors, is legally flawed -- After enactment of the Punjab Village Common Lands (Regulation) Act, 1953, land described as Shamilat Deh came to vest in the Gram Panchayat -- Ownership of proprietors stood extinguished and expression like “Hasab Hissas Paimana Malkiat” that followed the words “Shamilat Deh”, relevant before the 1953 Act as it denoted the manner of calculating shareholding of proprietors, were rendered irrelevant as Shamilat Deh vested in a Gram Panchayat. Mehar Singh and others v. Gram Panchayat Sehjo Majra and others, 2012(2) L.A.R. 513 (P&H DB).

Bag barani

Meaning of -- An orchard. Bundi Ram (deceased) through his LRs v. Commissioner, Ambala Division Ambala and others, 2012(2) L.A.R. 456 (P&H DB).

Banjar Qadim

Banjar Quadim is the land, which has remained fallow for eight harvests -- Thereby ruling out any possibility of anyone being in cultivating possession. Hakam Singh v. Director, Rural Development and Panchayats, Punjab and others, 2012(2) L.A.R. 641 (P&H DB).

Punjab Village Common Lands (Regulation) Act, 1961 -- In order to claim exclusion under Section 2(g)(iii) of the Act, a person is required to prove that Shamilat Deh was partitioned and brought under “cultivation” by individual land owners before 26.01.1950 or as per Section 2(g)(viii) of the 1961 Act that Shamilat Deh, was assessed to land revenue and was in the “individual cultivating possession of cosharers” not being in excess of their respective shares in such Shamilat Deh on or before 26.01.1950 -- It is “cultivating possession” and not mere possession that excludes land from Shamilat Deh -- Where the land is Banjar Qadim and Banjar Jadid etc., a presumption arises that the land was not being cultivated and was, therefore, not in cultivating possession of proprietors so as to exclude it from Shamilat Deh.Amarjit Singh v. State of Punjab and others, 2012(2) L.A.R. 432 (P&H DB).

Punjab Village Common Lands (Regulation) Act, 1961 -- Shamilat deh – Cultivation possession -- Land, in dispute was Banjar Kadim as on 09.01.1954 – Land, therefore, could not be in the cultivating possession of the private respondents or their predecessors on or before 26.01.1950 -- Even if the matter is examined from the angle of Section 4(3)(ii), the private respondents could not prove that 12 years immediately before the date of commencement of the Act, the land was in their cultivating possession – Order of Collector declaring Gram Panchayat as owner, upheld. Gram Panchayat, Mavi Sappan v. Director, Rural Development and Panchayat Deptt., Punjab and others, 2012(2) L.A.R. 390 (P&H DB).

Punjab Village Common Lands (Regulation) Act, 1961 -- Shamilat deh – Gair Mumkin Makbooja Charand -- Land, in dispute was “Banjar Qadim”, i.e., the land, which has remained fallow for eight harvests, on the date of coming into force of the 1961 Act -- Jamabandi for the year 1960-61, records the user of land as “Gair Mumkin Makbooja Charand”, i.e., land used as a `pasture' -- As land, is “Banjar Qadim” and used for a common purpose, i.e., a grazing ground, is “Shamilat Deh”. Hakam Singh v. Director, Rural Development and Panchayats, Punjab and others, 2012(2) L.A.R. 641 (P&H DB).

Punjab Village Common Lands (Regulation) Act, 1961 -- Shamilat deh – Petitioners have claimed exclusion of land from Shamilat deh on the ground that it does not satisfy the mandate of Section 2(g)(5) as there is no evidence that the land in dispute, which is admittedly recorded as Banjar Qadim, was ever used for common purposes as per the revenue record – Held, the material date to prove exclusion is 04.05.1961 -- Petitioners have failed, to prove by leading cogent evidence, that the land in dispute was not being used for common purpose despite the fact that it was recorded as Banjar Qadim on 04.05.1961 – Petition dismissed. Darshan Singh v. Joint Development Commissioner (IRD) and others, 2012(2) L.A.R. 494 (P&H DB).

Punjab Village Common Lands (Regulation) Act, 1961 -- Shamilat deh – Whether land, which is recorded in revenue record as “Shamilat Deh Hasab Rasad Araji Khewat” before 26.1.1950 and is shown to be in possession of proprietors, deserves to be excluded from the definition of Shamilat deh, in terms of Sections 2(g)(iii) and 2(g)(viii), even if the nature of the land is Banjar Qadim – Held, it is “cultivating possession” before 26.1.1950, which is recognized by legislature, sufficient to exclude land from the definition of ‘Shamilat deh’ and not mere possession -- Revenue authorities have committed a patent error in this regard by holding that as the petitioners, through their predecessor-in-interest, were in possession before 26.1.1950, the land in dispute is excluded from the definition of Shamilat deh. Gram Panchayat Village Chaura v. State of Punjab and others, 2012(2) L.A.R. 587 (P&H DB).

Basement

Haryana Development and Regulation of Urban Areas Act, 1975 -- Independent dwelling unit – Basement is not an independent residential floor, therefore, the same is not transferable independently -- Circular permitting registration of the sale deed in respect of the basement and ground floor, is legal and valid and does not suffer from any illegality -- Basement is not habitable and the dwelling unit, therefore, it cannot be transferred as an independent unit -- Two sale deeds were executed i.e. in respect of the ground floor and another sale deed bearing in respect of the basement in favour of the same vendee -- No violation of either the statute or Circular. Nivedita Sharma v. The State of Haryana and others, 2012(2) L.A.R. 58 (P&H DB).

Belting system

Land Acquisition Act, 1894 -- Market Value – Determination of -- Entire property acquired abuts the main road and the whole of the property has been used for a single purpose -- ‘Belting system’ (dividing land into different belts for determination of market value) will not apply – Both conditions (i) the lands were similarly placed and were surrounded by developed areas and (ii) that all acquired lands were intended to be used for the same purpose are satisfied – Court, would apply the same value for the whole property, where the extent itself is not very large and situate in the proximity of developed markets and on the GT Road. Ch. Vidya Bhushan (died) through his LRs and others v. Haryana State though the Collector, Karnal, and others, 2012(2) L.A.R. 380 (P&H).

Bhondedars

Occupancy rights -- For acquiring the occupancy rights in the land, one has to fulfill necessary conditions as mentioned in Section 5 of the Punjab Tenancy Act, 1887 -- He must fall within the definition of tenant; must be in occupation of the land and paying marginal rent not beyond the land revenue; and there must be implied or express agreement of never to eject between him and the landlord -- Petitioners do not fall in any of the categories of tenant prescribed u/s 5 of the Punjab Tenancy Act, 1887 -- Petitioners, who were Bhondedars and not the tenants cannot deem to have acquired the occupancy rights in the land in dispute. Jeeta and others v. Gram Panchayat Kherlijita and others, 2012(2) L.A.R. 592 (P&H).

Occupancy rights -- Only a tenant, who is in occupation of the land for a certain period and is paying no rent thereof beyond the amount of the land revenue, has a right of occupancy in the said land -- Petitioners, who were Bhondedars and were continuously in cultivating possession as Bhondedars, cannot be said to be tenants in the land in dispute -- Their occupation was as Bhondedars for rendering service to the villagers -- The status of Bhondedars is equal to Dohlidars and not of a tenant. Jeeta and others v. Gram Panchayat Kherlijita and others, 2012(2) L.A.R. 592 (P&H).

Punjab Village Common Lands (Regulation) Act, 1961 -- Occupancy rights -- Section 4 only provides that the existing rights, title or interests of persons, recorded in the revenue record as occupancy tenants Dholidars, Bhondedars etc. shall not be affected by sub-section (1) or sub-section (2) of Section 4 -- That means such land will not vest in the Panchayat -- This provision does not lay down that the Dholidars or Bhondedars should be considered as occupancy tenants or equivalent to them. Jeeta and others v. Gram Panchayat Kherlijita and others, 2012(2) L.A.R. 592 (P&H).

Bonafide need

NRI landlord – Argument that respondent was residing in an accommodation nearby which was sufficient for his use and occupation and thus, there was no bona fide need for the demised premises is without any merit, as on fulfilling all the ingredients of Section 13-B of the East Punjab Urban Rent Restriction Act, 1949, an NRI landlord is entitled to get one tenanted premises vacated as per his choice. Braham Kumar v. Sukhdev Singh, 2012(2) L.A.R. 319 (P&H).

NRI landlord – Presumption -- There was relationship of landlord and tenant between the parties and respondent is an NRI and owner of the demised premises for the last more than five years prior to the filing the petition -- Thus, the respondent fulfilled all the necessary ingredients for seeking relief u/s 13-B of the East Punjab Urban Rent Restriction Act, 1949 -- Once the aforesaid ingredients have been fulfilled, a presumption with regard to bona fide requirement of the landlord for use and occupation of the demised premises is drawn in his favour and such a presumption can be rebutted only by making out a very strong case by the tenant. Braham Kumar v. Sukhdev Singh, 2012(2) L.A.R. 319 (P&H).

Bonafide purchaser

Right of -- Jumla Mushtarka Malkan Khewat – Partition by void order -- Claim that as the petitioner purchased the land, in dispute, from a proprietor after an order of partition was passed by the Director Consolidation, they are bonafide purchasers and should, therefore, be protected -- Order passed by the Director Consolidation was without jurisdiction and 'void-ab-initio' -- Foundation of the sale deed, is a void order, passed on an illegal assumption of jurisdiction and, therefore, does not divest the Gram Panchayat of its rights, or confer rights upon the petitioners as bonafide purchasers. Ishar Singh and another v. Director, Rural Development & Panchayat, Punjab and others, 2012(2) L.A.R. 654 (P&H DB).

Bood

Land is described as Bood, i.e., uneven land in the shape of khuds etc., which is uncultivable. Naresh and others v. State of Haryana and others, 2012(2) L.A.R. 659 (P&H DB).  

Cancellation of plot

Concealment in application form -- While making a declaration in application Form, the allottee had tried to mislead the respondents as he had averred that he had applied for another plot in another category (size wise), whereas he had applied for the same size plot -- Clause 4 of the instructions for filling up the application categorically empowers the respondents to cancel the allotment/application, if they perceive that the allottee had misled the respondents by making an application for allotment of plot vide two separate application forms – Cancellation of plot by respondents, upheld. Rajnish Bansal and others v. State of Punjab and others, 2012(2) L.A.R. 272 (P&H DB).

Cancellation of sale deed

Court-fees Act, 1870 -- Declaratory suit – Ad-valorem Court fees -- Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed -- But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non-est, or illegal or that it is not binding on him – Section 7(iv)(c) provides that in suits for a declaratory decree with consequential relief, the court fee shall be computed according to the amount at which the relief sought is valued in the plaint -- The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of Section 7. Suhrid Singh @ Sardool Singh v. Randhir Singh & Ors., 2012(2) L.A.R. 333 (SC).

Court-fees Act, 1870 – Declaratory suit – Ad-valorem Court fees -- Difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to ‘A’ and ‘B’/Two brothers -- ‘A’ executes a sale deed in favour of ‘C’ -- Subsequently ‘A’ wants to avoid the sale -- ‘A’ has to sue for cancellation of the deed -- On the other hand, if ‘B’, who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by ‘A’ is invalid/void and nonest/ illegal and he is not bound by it -- In essence both may be suing to have the deed set aside or declared as non-binding -- But the form is different and court fee is also different -- If ‘A’, the executant of the deed, seeks cancellation of the deed, he has to pay ad-valorem court fee on the consideration stated in the sale deed -- If ‘B’, who is a non-executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs. 19.50 under Article 17(iii) of Second Schedule of the Act -- But if ‘B’, a nonexecutant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad-valorem court fee as provided under Section 7(iv)(c) of the Act. Suhrid Singh @ Sardool Singh v. Randhir Singh & Ors., 2012(2) L.A.R. 333 (SC).

Court-fees Act, 1870 – Declaratory suit – Ad-valorem Court fees -- Prayer is for a declaration that the deeds do not bind the “co-parcenery” and for joint possession -- Plaintiff in the suit was not the executant of the sale deeds -- Therefore, the court fee was computable under section 7(iv)(c) of the Act -- Trial court and the High Court were therefore not justified in holding that the effect of the prayer was to seek cancellation of the sale deeds or that therefore court fee had to be paid on the sale consideration mentioned in the sale deeds -- Trial court is directed to calculate the court fee in accordance with Section 7(iv)(c) read with Section 7(v) of the Act, as indicated above, with reference to the plaint averments. Suhrid Singh @ Sardool Singh v. Randhir Singh & Ors., 2012(2) L.A.R. 333 (SC).

Capital of Punjab (Development and Regulation) Act, 1952 (27 of 1952)

Section 3 – Constitution of India, Article 14 -- Liquor Vendor’s site – Allotment by negotiation -- Government can sell, lease or transfer either by auction, allotment or otherwise any land or building belonging to the Government in on such terms and conditions as provided by any Rules made under the Act -- Allotment of the land to the successful bidders of liquor vends by private negotiation is in violation of Section 3 of the Act and as well in violation of Article 14 of the Constitution. Amit Jain and others v. State of U.T., Chandigarh and others, 2012(2) L.A.R. 64 (P&H DB).

Section 3 – Excise Policy 2012-13 – Liquor Vendor’s site -- As per the Excise Policy, permission to run liquor vend on a particular location can be refused by the Administration for the public morality, public health and public order -- Congestion of traffic is a valid ground to refuse permission -- Keeping in mind public safety, liquor vends in the pre-fabricated temporary structures over the Government land, which is reserved for the expansion of road and slow carriage ways near the roundabouts and traffic lights should not be allowed. Amit Jain and others v. State of U.T., Chandigarh and others, 2012(2) L.A.R. 64 (P&H DB).

Section 3 – Excise Policy 2012-13 – Tavern site -- Provision for Toilet -- As per condition of the Excise Policy, tavern must have toilets -- Admittedly, there is no sewer line connecting to these liquor vends and tavern – Held, in the absence of toilet in the tavern, same cannot be allowed to run and permission should have been refused on the ground of public morality, public health and public order. Amit Jain and others v. State of U.T., Chandigarh and others, 2012(2) L.A.R. 64 (P&H DB).

Section 3 – Land for roads -- Liquor Vendor’s site -- Land which has been reserved for the expansion of the roads and slow carriage ways must be regarded as a part of the road and cannot be utilized for any other purpose whatsoever and grant of the lease on such land to open the liquor vends and tavern cannot be considered to be legal. Amit Jain and others v. State of U.T., Chandigarh and others, 2012(2) L.A.R. 64 (P&H DB).

Chandigarh Periphery

Punjab New Capital (Periphery) Control Act, 1952 -- Punjab Regional and Town Planning and Development Act, 1995 -- Periphery policy declared by the State of Punjab on 20th January 2006 – Controlled area – Planning area -- Periphery of Chandigarh which initially comprised of villages may have essentially lost its rural character and these villages have become a source of cheap and affordable housing to those who cannot afford to bear the expenses of the city -- Periphery Policy, therefore, rightly takes into consideration the changing ground realities which are never static like shifting stands -- Provisions of the 1995 Act, the Periphery Control Act and the Periphery Policy converge on the need for a planned integrated development of the city, its periphery and its adjoining areas -- Periphery Control Act as well as the 1995 Act should be given strict effect to ensure regulated development in the peripheral area as well as in the immediate vicinity of such area. Aalok Jagga v. Union of India and others, 2012(2) L.A.R. 146 (P&H DB).

Punjab New Capital (Periphery) Control Act, 1952 -- Term 10 miles – Interpretation of -- Term “adjacent to” would necessarily imply an area within 10 miles of the boundary and also beyond it -- Any other interpretation can result in horrendous situation where there is planned growth within an area of 10 miles but immediately beyond the said limit there is unplanned development. Aalok Jagga v. Union of India and others, 2012(2) L.A.R. 146 (P&H DB).

Change in Nature of Land

Punjab Village Common Lands (Regulation) Rules, 1964 – Sanction of Government – Requirement of -- Entry of the revenue record is ‘Gair Mumkin Shamshan Bhumi’ and its nature is sought to be changed as commercial -- Once the nature of the land is to be changed from ‘Gair Mumkin Shamshan Bhumi’ to commercial then it does not remain within the competence of the Gram Panchayat to pass any final resolution -- It would always be subject to the sanction of the Government, which has not been given – Resolution set aside. Hinduwan Shamshan Bhumi, Tosham v. State of Haryana and others, 2012(2) L.A.R. 31 (P&H DB).

Choice of Collector

Appointment of Lambardar – FIR against candidate -- Collector not only found private respondent as a better candidate, but it was also found that the appellant had got prepared a false voter identity card in the name of his wife, though he was not married at all – In criminal case, private respondent, had already been acquitted before initiation of the proceedings for appointment of Lambardar -- District Collector had rightly appointed private respondent being an Ex-Serviceman, as Lambardar --  Choice of the Collector in the matter of appointment of Lambardar should not be interfered on superficial grounds, until and unless the order of the Collector in this regard suffers from patent illegality. Kushal Pal v. State of Haryana and others, 2012(2) L.A.R. 19 (P&H DB).

Civil Court decree

Land Acquisition Act, 1894 -- Reference Court – Power of -- After a Civil Court decree determines rights of parties, no party can resile from the same unless the decree itself is set aside -- Adjudication of Civil Court proceedings could not have been reopened by a Reference Court. Ch. Vidya Bhushan (died) through his LRs and others v. Haryana State though the Collector, Karnal, and others, 2012(2) L.A.R. 380 (P&H).

Civil Posts

Panchayat Secretaries – Fact that the Government has been authorized to create posts or to make recruitment makes the Panchayat Secretaries, is a method of recruitment -- Panchayat Samities get salary from the Samiti funds -- It is the status of the employer, which is relevant to determine the corresponding status of the employees -- Employees of statutory Boards and Corporations or for that matter an instrumentality of the State may be entitled to the protection of the fundamental rights being State within the meaning of Article 12 of the Constitution of India, but that does not make the employees of such statutory Boards and corporations and other instrumentalities of the State, holder of a civil post entitled to protection of Part XIV of the Constitution of India. Rajwinder Singh and others v. State of Punjab and another, 2012(2) L.A.R. 322 (P&H DB).

Code of Civil Procedure, 1908 (V of 1908)

Order 2 Rule 2 – Constitution of India, Article 226, 227 – Writ petition -- Principle of Estoppels -- Petitioner claiming three Marla of plot – One marla plot was allotted – Writ petition filed claiming allotment of plots within the vicinity of the acquired land and the writ petition was disposed of – Though the said writ petition was filed after the claim of 3 marlas of plot was declined and in fact, after the possession of 1 marla of plot was taken by the petitioner without any objection, but the petitioner has not made any grievance in the said writ petition that she is entitled to a plot measuring 3 marlas – Held, the present writ petition is barred on the principles of Order 2 Rule 2 of the Code of Civil Procedure and by an act of estoppels. Shyama Bansal v. Shri Mata Mansa Devi Shrine Board, Panchkula, 2012(2) L.A.R. 259 (P&H DB).

Order 7 Rule 10-A -- Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), 13-A, 13AA – Shamilat deh – Title dispute – Jurisdiction of – Effect of amendment -- Though in the new provision of Section 13A, no provision was made for transfer of the pending cases to the Court of the Collector, having jurisdiction in the area, but under sub-section (2) of Section 13-A of the Act of 1961, a specific provision has been made that the procedure for deciding the suits under sub-section (1) shall be the same as laid down in the Code of Civil Procedure -- Thus, by taking the help of Order 7 Rule 10-A of the Code of Civil Procedure, the Assistant Collector Ist Grade could have transferred the pending title suits to the court of competent jurisdiction, i.e. the Collector, having jurisdiction in the area, instead of deciding the same himself -- But, in the instant case, the Assistant Collector Ist Grade has passed the decree himself on 21.11.2000, when he was having no jurisdiction to decide the title suits. Therefore, in our opinion, the decree dated 21.11.2000 passed by the Assistant Collector Ist Grade was wholly without jurisdiction and a nullity. Orion Infrastructure Ltd. v. The Commissioner, Gurgaon Division, Gurgaon and others, 2012(2) L.A.R. 337 (P&H DB).

Section 9 – Indian Easements Act, 1882 (5 of 1882), Sections 4, 12, 18 -- Customary easement – Jurisdiction of Civil Court -- Decision of the Tahsildar after a summary enquiry with reference to the ‘previous custom’ is open to challenge in a civil suit and subject to the decision of the civil court -- Contention that Tahsildar alone has the jurisdiction, and not the civil court, to decide upon the existence or otherwise of a customary easement (relating to right of way or right to take water, to a person’s land), rejected. Smt. Ramkanya Bai & another v. Jagdish & others, 2012(2) L.A.R. 23 (SC).

Section 144 – Constitution of India, Article 227 -- Restitution of possession -- Article 227 of the Constitution of India confers vast powers on this Court to prevent the abuse of process of law by the inferior Courts and to see that the stream of administration of justice remains clean and pure -- For securing the ends of justice, High Court can interfere with an order which causes miscarriage of justice or is palpably illegal or is unjustified -- Since the petitioner has been dispossessed from the demised premises in a wholly unjustified and palpably wrong manner -- Status of the JD-petitioner is to be restored back. Madan Lal v. Nirmal Kumari and others, 2012(2) L.A.R. 205 (P&H).

Section 144 – Restitution of  possession -- Jurisdiction to make restitution is inherent in every Court and will be exercised whenever the justice of the case demands -- It will be exercised under inherent powers where the case strictly falls within the ambit of Section 144 of the Civil Procedure Code. Madan Lal v. Nirmal Kumari and others, 2012(2) L.A.R. 205 (P&H).

Collusive decree

Fraud -- Limitation -- Once it has been held that the land in dispute is Shamlat Deh and the decree was obtained by fraud and collusion, it can be challenged at any time. Gram Panchayat Gulalta v. State of Haryana and others, 2012(2) L.A.R. 669 (P&H DB).

Title dispute – Res-judicata – No documentary evidence led by private respondent to prove that he is owner of the land in dispute except for the decree dated 18.04.1974, which is based upon collusion of the earlier Sarpanch – Incidental finding on title in an earlier suit will not be binding in a later suit or proceeding where title is directly in question, unless it is established that it was necessary in the earlier suit to decide the question of title for granting or refusing injunction and that the relief for injunction was founded or based on the finding on title – No such finding recorded in the suit for permanent injunction filed by private respondent who had not sought any declaration of his title over the land in dispute -- Matter is remanded back to A.C. 1st Grade, to decide the case on merits. Gram Panchayat Gulalta v. State of Haryana and others, 2012(2) L.A.R. 669 (P&H DB).

Common land

Right to sale -- Though the land may have been reserved or used by the proprietors of the patti for the purpose of resting, convening meetings, but the same having been not for the purpose of exclusive use of any individual and it having been reserved for the common purpose of the community, is the common land vesting in the gram panchayat, therefore, vendors of the defendant could not transfer the site in dispute to the defendant treating the same to be their own -- Had it been outside the red line, then the status could be treated as different but the land falling within the red line of the village and used for the common purpose could not be said to be the ownership of the proprietors of the patti. Jagtar Singh v. Shingara Singh and another, 2012(2) L.A.R. 633 (P&H).

Common purposes

Consolidation Scheme -- Bachat land – If the misdirected notion of distribution of ‘bachat’ lands amongst the proprietors is accepted and the public assets are captived to fulfill individual’s greed, the Gram Panchayats will be left with no means to stand as the institutions of ‘self governance’ -- It cannot be overlooked that the village community is not comprising the ‘proprietors’ only -- There are several landless communities who also live in that very village and are equally entitled to the amenities like school, hospital, water supply and above all a small house for shelter. Amar Singh v. Financial Commissioner, Haryana & Ors., 2012(2) L.A.R. 314 (P&H).

Consolidation Scheme -- Bachat land – Petitioner has nowhere disputed that the land in dispute was not ‘reserved’ or ‘assigned’ for ‘common purposes’ under the Consolidation Scheme -- Being an admitted fact, the phrase ‘bachat land’ which is otherwise alien to the scheme of the Act, cannot be applied to the suit land for the reason that ‘common purposes’ cannot be in a static form and is rather a continuous process. Amar Singh v. Financial Commissioner, Haryana & Ors., 2012(2) L.A.R. 314 (P&H).

Consolidation Scheme -- Shamilat deh -- Suit land was utilized, reserved or assigned for a ‘common purpose’, its ownership stands vested in the Gram Panchayat as a part of the shamlat deh. Amar Singh v. Financial Commissioner, Haryana & Ors., 2012(2) L.A.R. 314 (P&H).

Title dispute -- Petitioners have failed to prove that they are proprietors or in possession of the land in question -- Rather, it has come on record that land in dispute is owned by Gram Panchayat, which has been used for the benefit of the village much less for common purposes as Gair Mumkin Gadda Khad, Gair Mumkin Abadi, Gair Mumkin Hadda Rori, Gair Mumkin Cremation Ground (Shamshan Bhumi) and Gair Mumkin Chappar (Pond) – Petitioners not succeeded in proving their title, writ petition dismissed. Bal Kishan and others v. State of Punjab and others, 2012(2) L.A.R. 483 (P&H DB).

Communication of order

Appeal – Limitation – It is obligatory for the authorities making the order to communicate it to the concerned party and the period of limitation for any appeal against the order is reckonable from the date of such communication of written order itself – Prescribed period of limitation would only commence from the date on which the order was received by the party concerned, unless and until there is a strong and positive evidence of acquisition of knowledge of the impugned order. Jain Motors Regd. Patiala v. The State Transport Appellate Tribunal & Ors., 2012(2) L.A.R. 394 (P&H).

Comparative merits

Appointment of Lambardar – Age of the private respondent was 23 years, whereas the appellant was about 42 years -- Though the appellant have passed higher secondary and private respondent was only 10th class pass yet the candidature of private respondent had been supported by more persons from the village and Sub Divisional Magistrate-cum-Assistant Collector 1st Grade, the Tehsildar-cum-Assistant Collector Grade II, and Naib Tehsildar-cum-Assistant Collector Grade II, had recommended the candidature of respondent No.4 -- Appointment of private respondent as a Lambardar upheld. Harinder Singh v. Divisional Commissioner, Patiala and others, 2012(2) L.A.R. 250 (P&H DB).

Appointment of Lambardar – Appellate Authority’s power -- Commissioner came to the conclusion that private respondent was younger in age, economically sound, better educated and was having better social status, but these facts were not properly appreciated by the Collector -- Order of the Collector was set aside and respondent No.4 was appointed as Lambardar of the village -- Order of the Commissioner was upheld by the Financial Commissioner and further by the Ld. Single Judge – Held, private respondent is a better candidate, therefore, the learned Single Judge, rightly declined to interfere in the orders of the revenue authorities, appointing private respondent as Lambardar of the village. Talwinder Singh v. Financial Commissioner (Co-operation), Punjab, Chandigarh and others, 2012(2) L.A.R. 3 (P&H DB).

Compensation to tenant

Punjab Tenancy Act -- Ejectment of tenant – Contention that no order of eviction could have been passed without compensating the tenant u/s 70 or 71 -- Question of payment of compensation arises only if there is a statement of claim by a tenant seeking for compensation for improvement on the land or for disturbance and the ground providing for compensation -- Disturbance contemplated u/s 70 is to be read in the context of Section 69 which provides for a tenant to claim compensation for the efforts taken by the tenant to clear waste land for bringing into cultivation -- No such application made – Order of ejectment passed by the Authorities affirmed. Molar and others v. The State of Haryana and others, 2012(2) L.A.R. 407 (P&H).

Condonation of delay

East Punjab Urban Rent Restriction Act, 1949 -- Leave to defend – Limitation – Application for leave to contest is to be filed within 15 days from the date of service – No fault can be found in order of Rent Controller declining the application for condonation of delay u/s 5 of the Limitation Act, 1963. Vinod Chawla v. Surinder Singh and others, 2012(2) L.A.R. 21 (P&H).

Consolidation proceedings

Jurisdiction of civil court -- Suit for declaration with consequential relief of permanent injunction challenging the order passed by Competent Authority in consolidation proceedings u/s 21 (3) of Consolidation Act, 1948 on the plea that less land was allotted to the plaintiff – Remedy was available to the appellant-plaintiff to go in appeal before the Settlement Commissioner u/s 21(3) of the Act -- Jurisdiction of Civil Court has been specifically barred u/s 44 of the Act. Ranbir Singh v. Gram Panchayat, Village Bandhwari and others, 2012(2) L.A.R. 675 (P&H).

Consolidation Scheme

Common purposes -- Bachat land – If the misdirected notion of distribution of ‘bachat’ lands amongst the proprietors is accepted and the public assets are captived to fulfill individual’s greed, the Gram Panchayats will be left with no means to stand as the institutions of ‘self governance’ -- It cannot be overlooked that the village community is not comprising the ‘proprietors’ only -- There are several landless communities who also live in that very village and are equally entitled to the amenities like school, hospital, water supply and above all a small house for shelter. Amar Singh v. Financial Commissioner, Haryana & Ors., 2012(2) L.A.R. 314 (P&H).

Common purposes -- Bachat land – Petitioner has nowhere disputed that the land in dispute was not ‘reserved’ or ‘assigned’ for ‘common purposes’ under the Consolidation Scheme -- Being an admitted fact, the phrase ‘bachat land’ which is otherwise alien to the scheme of the Act, cannot be applied to the suit land for the reason that ‘common purposes’ cannot be in a static form and is rather a continuous process. Amar Singh v. Financial Commissioner, Haryana & Ors., 2012(2) L.A.R. 314 (P&H).

Common purposes -- Shamilat deh -- Suit land was utilized, reserved or assigned for a ‘common purpose’, its ownership stands vested in the Gram Panchayat as a part of the shamlat deh. Amar Singh v. Financial Commissioner, Haryana & Ors., 2012(2) L.A.R. 314 (P&H).

Constitution of India

Article 14 -- Capital of Punjab (Development and Regulation) Act, 1952 (27 of 1952), Section 3 – Liquor Vendor’s site – Allotment by negotiation -- Government can sell, lease or transfer either by auction, allotment or otherwise any land or building belonging to the Government in on such terms and conditions as provided by any Rules made under the Act -- Allotment of the land to the successful bidders of liquor vends by private negotiation is in violation of Section 3 of the Act and as well in violation of Article 14 of the Constitution. Amit Jain and others v. State of U.T., Chandigarh and others, 2012(2) L.A.R. 64 (P&H DB).

Article 14 – Equality -- Petitioner cannot claim any right on the basis of illegality committed by the respondents in respect of another person -- There cannot be any equality in illegality. Nivedita Sharma v. The State of Haryana and others, 2012(2) L.A.R. 58 (P&H DB).

Article 14,16, 309 --  Punjab Gram Panchayat Act, 1952, Section 16(4) – Panchayat Secretaries – Status of Civil post/Government servant -- Petitioners challenged the legality of Section 16 (4) of the Punjab Gram Panchayat Act, 1952, by declaring the same as ultra vires to Articles 14 and 16 of the Constitution of India – Held, the Act has been framed within its legislative competence and in terms of Article 309, the state legislature can regulate the recruitment and conditions of service -- The impugned enactment is in terms of article 309 of the constitution and cannot be said to violative of Article 14 or 16 as the petitioner have no vested right to be civil servant -- Power to regulate the recruitment to civil post also includes power not to treat a service as a civil service -- Therefore, the claim of the petitioners that they should be treated as a Government servant is a mere wish and not a right. Rajwinder Singh and others v. State of Punjab and another, 2012(2) L.A.R. 322 (P&H DB).

Article 21 – GMADA plots -- Allotment of plot to Riot victims residing in Punjab – Legality of clause -- GMADA decided to allot plots to riot affected families/persons, who are red card holders, and are residing continuously in the State of Punjab since 1986 -- Apparently, the reason for laying down a condition of “continuously residing in Punjab since 1986”, is to ensure that riot victims, residing in Punjab, could not go back to the place of their original abode, have no other residence, are in bona fide need of a house in Punjab – Not an unreasonable or arbitrary Clause to strike it down -- State of Punjab, through GMADA, is well within its right to provide plots to those riot victims who reside in the State of Punjab -- No violation of any law much less of Article 21 of the Constitution of India. Baldev Singh and others v. State of Punjab and another, 2012(2) L.A.R. 447 (P&H DB).

Article 226 – Writ jurisdiction -- Delay in filing the writ petition – Public property -- Where fraud or collusion is the foundation of a case particularly if it involves public property, a Court, exercising power under Article 226 of the Constitution, may, in the exercise of its discretion and depending upon the facts and circumstances of a case, entertain a petition, so as to protect public property from unscrupulous elements. Gram Panchayat Village Sahni and another v. State of Punjab and others, 2012(2) L.A.R. 566 (P&H DB).

Article 226, 227 – Code of Civil Procedure, 1908 (V of 1908), Order 2 Rule 2 – Writ petition -- Principle of Estoppels -- Petitioner claiming three Marla of plot – One marla plot was allotted – Writ petition filed claiming allotment of plots within the vicinity of the acquired land and the writ petition was disposed of – Though the said writ petition was filed after the claim of 3 marlas of plot was declined and in fact, after the possession of 1 marla of plot was taken by the petitioner without any objection, but the petitioner has not made any grievance in the said writ petition that she is entitled to a plot measuring 3 marlas – Held, the present writ petition is barred on the principles of Order 2 Rule 2 of the Code of Civil Procedure and by an act of estoppels. Shyama Bansal v. Shri Mata Mansa Devi Shrine Board, Panchkula, 2012(2) L.A.R. 259 (P&H DB).

Article 226,227 -- Maintainability of Public Interest Litigation Rules, 2010, Rule 2 – Public interest litigation -- Want of affidavit -- Non-compliance of -- Public Interest Litigation, require the petitioners to file a specific affidavit showing their credentials and also stating that petitioners are public spirited persons and they have no personal interest in the matter – In the writ petition specific stand is that present petition is being filed in the public interest and petitioners are the public spirited persons -- Moreover, Court has taken cognizance of the matter keeping in view the larger public interest involved – Held, since this Court has taken cognizance of the matter, same cannot be thrown out on the hypertechnical ground. Amit Jain and others v. State of U.T., Chandigarh and others, 2012(2) L.A.R. 64 (P&H DB).

Article 226,227 -- Punjab Municipal Corporation Act, 1976 (42 of 1976), Section 3 – Declaration of Urban area – Legislative function -- Challenge to -- Once it has been held that the process of declaration of an urban area into a Municipal Corporation is essentially a legislative function, the only ground on which it can be challenged is the ground of unconstitutionality or ultra vires. Ajay Kumar and others v. State of Punjab and others, 2012(2) L.A.R. 290 (P&H).

Article 226,227 -- Punjab Panchayati Raj Act, 1994 (9 of 1994), Section 13-A, 20 – De-notification of Sarpanch – Illegal order -- Writ jurisdiction -- Totally illegal order contrary to provisions of the statute and State Government denotifying the name of private respondent as Sarpanch by notification – Held, the same was rightly challenged by filing the writ petition and the Court was fully justified in allowing the said petition. Sukhdev Singh v. State of Punjab and others, 2012(2) L.A.R. 6 (P&H DB).

Article 227 -- Code of Civil Procedure, 1908 (V of 1908), Section 144 – Restitution of possession -- Article 227 of the Constitution of India confers vast powers on this Court to prevent the abuse of process of law by the inferior Courts and to see that the stream of administration of justice remains clean and pure -- For securing the ends of justice, High Court can interfere with an order which causes miscarriage of justice or is palpably illegal or is unjustified -- Since the petitioner has been dispossessed from the demised premises in a wholly unjustified and palpably wrong manner -- Status of the JD-petitioner is to be restored back. Madan Lal v. Nirmal Kumari and others, 2012(2) L.A.R. 205 (P&H).

Article 227 -- Displaced Persons (Compensation and Rehabilitation) Act, 1954 (44 of 1954), Section 24 – Cancellation of land – Writ jurisdiction -- Displaced Persons, who played fraud not only with the vendees but with the Government and sold the land without there being any title on the same, should not be permitted to invoke the equitable jurisdiction of the High Court under Article 226 of the Constitution of India. Iqbal Singh and others v. Financial Commissioner (Revenue) and Secretary and others, 2012(2) L.A.R. 193 (P&H DB).

Constructed houses

Shamilat deh – Public premises – Eviction from -- Collector was required to prima facie consider and decide, whether these houses were excluded from “Shamilat Deh” in terms of Section 2(g)(4a) or Section 2(g)(vi) and/or Section 4(1)(b) of the Punjab Village Common Lands (Regulation) Act, 1961 – A pre-condition to the Collector, exercising jurisdiction, under the Public Premises Act, is a prima facie finding, that the land is public premises, i.e., was “Shamilat Deh”, under the 1961 Act, as defined under section 2(g)(1) of the 1961 Act – Collector and the Commissioner have not recorded any finding, in their orders, whether the land was “Shamilat Deh” -- Matter is remitted to the Collector to decide whether land, in dispute, was “Shamilat Deh” as provided by section 2(g)(1) or is excluded from “Shamilat Deh”, by virtue of sections 2(g), (4a) and 4 (1)(b) of the 1961 Act. Bahadur Singh and others v. The State of Haryana and others, 2012(2) L.A.R. 440 (P&H DB).

Controlled area

Punjab New Capital (Periphery) Control Act, 1952 -- Punjab Regional and Town Planning and Development Act, 1995 -- Periphery policy declared by the State of Punjab on 20th January 2006 – Chandigarh Periphery -- Planning area -- Periphery of Chandigarh which initially comprised of villages may have essentially lost its rural character and these villages have become a source of cheap and affordable housing to those who cannot afford to bear the expenses of the city -- Periphery Policy, therefore, rightly takes into consideration the changing ground realities which are never static like shifting stands -- Provisions of the 1995 Act, the Periphery Control Act and the Periphery Policy converge on the need for a planned integrated development of the city, its periphery and its adjoining areas -- Periphery Control Act as well as the 1995 Act should be given strict effect to ensure regulated development in the peripheral area as well as in the immediate vicinity of such area. Aalok Jagga v. Union of India and others, 2012(2) L.A.R. 146 (P&H DB).

Court Fees Act, 1870 (7 of 1870)

Section 7 – Cancellation of sale deed – Declaratory suit – Ad-valorem Court fees -- Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed -- But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non-est, or illegal or that it is not binding on him – Section 7(iv)(c) provides that in suits for a declaratory decree with consequential relief, the court fee shall be computed according to the amount at which the relief sought is valued in the plaint -- The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of Section 7. Suhrid Singh @ Sardool Singh v. Randhir Singh & Ors., 2012(2) L.A.R. 333 (SC).

Section 7 – Cancellation of sale deed – Declaratory suit – Ad-valorem Court fees -- Difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to ‘A’ and ‘B’/Two brothers -- ‘A’ executes a sale deed in favour of ‘C’ -- Subsequently ‘A’ wants to avoid the sale -- ‘A’ has to sue for cancellation of the deed -- On the other hand, if ‘B’, who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by ‘A’ is invalid/void and nonest/ illegal and he is not bound by it -- In essence both may be suing to have the deed set aside or declared as non-binding -- But the form is different and court fee is also different -- If ‘A’, the executant of the deed, seeks cancellation of the deed, he has to pay ad-valorem court fee on the consideration stated in the sale deed -- If ‘B’, who is a non-executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs. 19.50 under Article 17(iii) of Second Schedule of the Act -- But if ‘B’, a nonexecutant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad-valorem court fee as provided under Section 7(iv)(c) of the Act. Suhrid Singh @ Sardool Singh v. Randhir Singh & Ors., 2012(2) L.A.R. 333 (SC).

Section 7 – Cancellation of sale deed – Declaratory suit – Ad-valorem Court fees -- Prayer is for a declaration that the deeds do not bind the “co-parcenery” and for joint possession -- Plaintiff in the suit was not the executant of the sale deeds -- Therefore, the court fee was computable under section 7(iv)(c) of the Act -- Trial court and the High Court were therefore not justified in holding that the effect of the prayer was to seek cancellation of the sale deeds or that therefore court fee had to be paid on the sale consideration mentioned in the sale deeds -- Trial court is directed to calculate the court fee in accordance with Section 7(iv)(c) read with Section 7(v) of the Act, as indicated above, with reference to the plaint averments. Suhrid Singh @ Sardool Singh v. Randhir Singh & Ors., 2012(2) L.A.R. 333 (SC).

Section 7 – Sale deed – Challenge to -- Advalorem court fees -- Plaintiff, who is executant of the deed has sought declaration that the transfer deed in favour of the defendant is null and void -- Since the plaintiff himself is executant of the deed and he seeks cancellation of the deed, he is no doubt required to pay advalorem court fee for the consideration paid on the sale deed but in the present case no sale consideration has been paid by the defendants -- Even the possession has also not been claimed by the plaintiff -- Order passed by the trial Court, requiring the plaintiff to pay the ad-velorum court fee in terms of Section 7 (4) (c) of the Court Fees Act set aside by holding that the plaintiff is not required to affix the advalorem court fee at the market value of the property. Surjit Singh v. Karamjit Kaur, 2012(2) L.A.R. 437 (P&H).

Criminal case

Appointment of Lambardar – Moral Turpitude -- Criminal case registered u/ss 323, 324, 325, 452, 148, 149 IPC, and appointed candidate was acquitted much prior to the date of inviting applications – Held, registration of the said criminal case could not have been taken into consideration, particularly when the offences in that case did not relate to moral turpitude. Talwinder Singh v. Financial Commissioner (Co-operation), Punjab, Chandigarh and others, 2012(2) L.A.R. 3 (P&H DB).

Appointment of Lambardar – Respondent is involved in a criminal case -- Charges have been framed by a court of law and the said respondent would be required to stand trial -- In such circumstances, although the respondent is eligible to compete for the post of Lambardar, however, would not be suitable. Jagdish v. State of Haryana and others, 2012(2) L.A.R. 536 (P&H).

Cultivation possession

Punjab Village Common Lands (Regulation) Act, 1961 -- Shamilat deh – Banjar Quadim – Banjar Jadid – Chahi, Barani or nahri -- In order to claim exclusion under Section 2(g)(iii), a person is required to prove that Shamilat Deh was partitioned and brought under “cultivation” by individual land owners before 26.01.1950 or as per Section 2(g)(viii) of the 1961 Act that Shamilat Deh, was assessed to land revenue and was in the “individual cultivating possession of cosharers” not being in excess of their respective shares in such Shamilat Deh on or before 26.01.1950 -- It is “cultivating possession” and not mere possession that excludes land from Shamilat Deh -- If the land is Chahi, Barani or nehri, etc., an inference would arise that proprietors were in cultivating possession -- Where the land is Banjar Qadim and Banjar Jadid etc., a presumption arises that the land was not being cultivated and was, therefore, not in cultivating possession of proprietors so as to exclude it from Shamilat Deh -- Land vests in the Gram Panchayat as Shamilat Deh. Amarjit Singh v. State of Punjab and others, 2012(2) L.A.R. 432 (P&H DB).

Punjab Village Common Lands (Regulation) Act, 1961 -- Shamilat deh – Exclusion from -- Section 2(g) (viii) excludes such land from the purview of Shamlat Deh, which is in individual cultivating possession of co-sharers, not being in excess of their respective share in such a Shamlat Deh on or before 26.1.1950 -- Land described as Taal, which is a pool could not be cultivable -- Other land is described as Bood, i.e., uneven land in the shape of khuds etc., which is also uncultivable – No reference made to any other document to establish that predecessor-in-interest being in cultivating possession of the land in question -- Collector, Commissioner and the Financial Commissioner have consistently held that the petitioners have failed to prove their individual cultivating possession on or before 26.1.1950, do not suffer from any infirmity much less illegality. Naresh and others v. State of Haryana and others, 2012(2) L.A.R. 659 (P&H DB).

Punjab Village Common Lands (Regulation) Act, 1961 -- Shamilat deh – Exclusion from -- Proprietary possession -- Jamabandi for the year 1945-46 records the possession of “Makbuja malkan,” i.e. possession of the entire proprietary body, in common, with no particular co-sharer in possession of any particular portion of the land, much less in cultivating possession -- It is “cultivating possession” and not mere “proprietary possession” that excludes land from Shamilat Deh, under section 2(g)(iii) and (viii) -- Land in dispute is described as a gair mumkin nadi, or banjar kadim (uncultivated old fallow) and only three Khasras No. i.e. 56 (3-14), 57 min (1-10), 58 (28-7) are recorded as bag barani i.e. an orchard but without recording the possession of any individual proprietor, much less any of the petitioners -- It is, therefore, apparent that the revenue record, produced by the petitioners, does not prove that the petitioners were in “cultivating possession” prior to 26.01.1950 so as to exclude, the land in dispute, from Shamilat Deh, but, in fact, establishes the contrary, i.e., the vesting of this land in the Gram Panchayat. Bundi Ram (deceased) through his LRs v. Commissioner, Ambala Division Ambala and others, 2012(2) L.A.R. 456 (P&H DB).

Punjab Village Common Lands (Regulation) Act, 1961 -- Shamilat deh – Banjar Qadim – Land, in dispute was Banjar Kadim as on 09.01.1954 – Land, therefore, could not be in the cultivating possession of the private respondents or their predecessors on or before 26.01.1950 -- Even if the matter is examined from the angle of Section 4(3)(ii), the private respondents could not prove that 12 years immediately before the date of commencement of the Act, the land was in their cultivating possession – Order of Collector declaring Gram Panchayat as owner, upheld. Gram Panchayat, Mavi Sappan v. Director, Rural Development and Panchayat Deptt., Punjab and others, 2012(2) L.A.R. 390 (P&H DB).

Punjab Village Common Lands (Regulation) Act, 1961 -- Shamilat deh – Exclusion from -- It requires the petitioners to prove that the land was Shamilat Deh, was assessed to land revenue and has been in the individual cultivating possession as co-sharers not being in excess of their respective shares on or before 26.01.1950 -- Petitioners have failed to adduce any evidence to prove their individual cultivating possession or the possession of co-sharers/ proprietors not in excess of their respective shares -- Most of this land is gair mumkin nadi or banjar kadim -- A gair mumkin nadi i.e. a river cannot be in cultivating possession of individual proprietors -- During the dry season, the river bed may be used for cultivation but this alone would not exclude the land from Shamilat Deh -- Furthermore, the absence of any entry in the jamabandi or a khasra girdawari to prove such possession, it is held that the petitioners were not in cultivating possession as required by Section 2(g)(viii). Bundi Ram (deceased) through his LRs v. Commissioner, Ambala Division Ambala and others, 2012(2) L.A.R. 456 (P&H DB).

Customary easement

Jurisdiction of Civil Court -- Decision of the Tahsildar after a summary enquiry with reference to the ‘previous custom’ is open to challenge in a civil suit and subject to the decision of the civil court -- Contention that Tahsildar alone has the jurisdiction, and not the civil court, to decide upon the existence or otherwise of a customary easement (relating to right of way or right to take water, to a person’s land), rejected. Smt. Ramkanya Bai & another v. Jagdish & others, 2012(2) L.A.R. 23 (SC).

Damages

Punjab Village Common Lands (Regulation) Act, 1961 -- Quasi judicial authorities/Courts – Power of -- No specific provision under the Act for imposing penalty for use and occupation – Petitioner was held liable to pay damages to the Gram Panchayat for unauthorized use and occupation of the land from the date, the petitioner has been declared unauthorized occupant of the land by the Competent Court – Damages assessed for all the crops on the basis of “Jhad Paidawar” crop-wise, value of which shall be paid by the petitioner along with interest @ 9% per annum calculated on bank basis till the date of payment -- This is in the nature of damages/mense profits for unauthorized use and occupation of land of Gram Panchayat by the petitioner, it is not penalty -- Power to restitute by way of damages is inherent in the quasi judicial authorities / Courts -- Unscrupulous litigants cannot drive benefit of technicalities of law by agitating the matter time and again. Pyare Lal v. Financial Commissioner, Haryana and others, 2012(2) L.A.R. 48 (P&H DB).

Death of member

Haryana Co-operative Societies Act, 1984 -- Nominee – Legal heirs – Right of – Nominee does not get any right to inherit the right of the deceased member -- Nominee has a limited right -- Section 23, is not meant to have overreaching effect over the general law of inheritance and would not confer any right over the property of the deceased member merely on the ground of being a nominee -- Nominee may be entitled to ask for transfer of share on his name but this would not make others to loose their right of inheritance -- Transferring of share, if done, would be only an interim arrangement -- Inheritance has to be governed by the law of inheritance. Inder Singh v. The Assistant Registrar, Cooperative Societies, Jind and others, 2012(2) L.A.R. 627 (P&H).

Death of Sarpanch

Substitution of functionaries -- Authorised Panch – Power of -- All the duties and functions to be performed by the office of the Sarpanch shall also be performed by the authorised Panch having charge of the office of the Sarpanch -- Every authorised Panch to officiate the office of Sarpanch shall have same powers for the period he remains in the office, which usually can be exercised by the Sarpanch. Jeet Singh Panch v. State of Punjab and others, 2012(2) L.A.R. 252 (P&H).

Substitution of functionaries -- Authorised Panch – Power of -- Suspension of Sarpanch does not mean that entire development works of the village shall not be allowed to proceed with -- Authorised Panch can spend money for the development work in the village as per valid resolution and prevailing law during the period Sarpanch remains suspended or post of Sarpanch remains unfilled due to suspension, removal or death of elected Sarpanch. Jeet Singh Panch v. State of Punjab and others, 2012(2) L.A.R. 252 (P&H). 

Declaration of Urban area

Punjab Municipal Corporation Act, 1976 -- Legislative function -- Challenge to -- Once it has been held that the process of declaration of an urban area into a Municipal Corporation is essentially a legislative function, the only ground on which it can be challenged is the ground of unconstitutionality or ultra vires. Ajay Kumar and others v. State of Punjab and others, 2012(2) L.A.R. 290 (P&H).

Punjab Municipal Corporation Act, 1976 -- Role of Guidelines – Note relating to  Municipal Council reveals that the parameters like population, tourist potential, geographical importance and other non agricultural activities have been noticed -- Question which arises is whether the guideline which talks of population would be mandatory and would supersede the statute itself – Held, this could not be so, guidelines, had no statutory force and were merely in the nature of executive instructions -- By issuance of guidelines a situation cannot be created where population would become the supervening factor for declaration of an urban area into a municipal corporation and that the other statutory parameters would pale into insignificance. Ajay Kumar and others v. State of Punjab and others, 2012(2) L.A.R. 290 (P&H).

Punjab Municipal Corporation Act, 1976 -- Statutory provisions viz. Section 3 deals with many parameters and not population alone. Ajay Kumar and others v. State of Punjab and others, 2012(2) L.A.R. 290 (P&H).

Declaratory suit

Court-fees Act, 1870 -- Cancellation of sale deed – Ad-valorem Court fees -- Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed -- But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non-est, or illegal or that it is not binding on him – Section 7(iv)(c) provides that in suits for a declaratory decree with consequential relief, the court fee shall be computed according to the amount at which the relief sought is valued in the plaint -- The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of Section 7. Suhrid Singh @ Sardool Singh v. Randhir Singh & Ors., 2012(2) L.A.R. 333 (SC).

Court-fees Act, 1870 – Cancellation of sale deed – Ad-valorem Court fees -- Difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to ‘A’ and ‘B’/Two brothers -- ‘A’ executes a sale deed in favour of ‘C’ -- Subsequently ‘A’ wants to avoid the sale -- ‘A’ has to sue for cancellation of the deed -- On the other hand, if ‘B’, who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by ‘A’ is invalid/void and nonest/ illegal and he is not bound by it -- In essence both may be suing to have the deed set aside or declared as non-binding -- But the form is different and court fee is also different -- If ‘A’, the executant of the deed, seeks cancellation of the deed, he has to pay ad-valorem court fee on the consideration stated in the sale deed -- If ‘B’, who is a non-executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs. 19.50 under Article 17(iii) of Second Schedule of the Act -- But if ‘B’, a nonexecutant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad-valorem court fee as provided under Section 7(iv)(c) of the Act. Suhrid Singh @ Sardool Singh v. Randhir Singh & Ors., 2012(2) L.A.R. 333 (SC).

Court-fees Act, 1870 – Cancellation of sale deed – Ad-valorem Court fees -- Prayer is for a declaration that the deeds do not bind the “co-parcenery” and for joint possession -- Plaintiff in the suit was not the executant of the sale deeds -- Therefore, the court fee was computable under section 7(iv)(c) of the Act -- Trial court and the High Court were therefore not justified in holding that the effect of the prayer was to seek cancellation of the sale deeds or that therefore court fee had to be paid on the sale consideration mentioned in the sale deeds -- Trial court is directed to calculate the court fee in accordance with Section 7(iv)(c) read with Section 7(v) of the Act, as indicated above, with reference to the plaint averments. Suhrid Singh @ Sardool Singh v. Randhir Singh & Ors., 2012(2) L.A.R. 333 (SC).

Decree of Civil Court

Punjab Village Common Lands (Regulation) Act, 1961 -- Shamilat deh – Title dispute – Jurisdiction of civil Court – Decree dated 01.12.1980 was passed in Civil Suit No.135/25.04.1980, instituted after the insertion of Section 13, which debars a Civil Court from deciding question of any right, title or interest in favour of any party in respect of the land vested or deemed to have been vested in shamilat deh – Held, decree dated 01.12.1980 has to be ignored as being without jurisdiction. Ranjit Singh and others v. State of Punjab and others, 2012(2) L.A.R. 409 (P&H DB).

Delay

East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 -- Path – Non-providing of – Explanation for delay offered by private respondent that he was using a private path with consent of the petitioner and only when the petitioner blocked the passage, he was compelled to approach Consolidation authorities, has been accepted by the Commissioner – No reason to differ with the impugned findings or any error of jurisdiction or of law in the order, providing a path. Ram Kumar v. The Commissioner, Gurgaon Division, Gurgaon and another, 2012(2) L.A.R. 547 (P&H DB).

Delay in filing the writ petition

Public property -- Where fraud or collusion is the foundation of a case particularly if it involves public property, a Court, exercising power under Article 226 of the Constitution, may, in the exercise of its discretion and depending upon the facts and circumstances of a case, entertain a petition, so as to protect public property from unscrupulous elements. Gram Panchayat Village Sahni and another v. State of Punjab and others, 2012(2) L.A.R. 566 (P&H DB).

Delay of 48 years

Limitation – Petitioner failed to furnish any plausible explanation for 48 years' delay in filing a petition under Section 42 of the Consolidation Act -- Petitioner is disentitle to any relief. Dharampal v. The Director Consolidation Department, Haryana, Panchkula, and others, 2012(2) L.A.R. 662 (P&H DB). 

De-notification of Sarpanch

Illegal order -- Writ jurisdiction -- Totally illegal order contrary to provisions of the statute and State Government denotifying the name of private respondent as Sarpanch by notification – Held, the same was rightly challenged by filing the writ petition and the Court was fully justified in allowing the said petition. Sukhdev Singh v. State of Punjab and others, 2012(2) L.A.R. 6 (P&H DB).

Different sale deeds

Land Acquisition Act, 1894 – Market Value – Where sale deeds pertaining to different transactions are relied on behalf of the Government, the transaction representing the highest value should be preferred to the rest unless there are strong circumstances justifying a different course -- It is not desirable to take an average of various sale deeds placed before the authority/court for fixing fair compensation. Mehrawal Khewaji Trust (Regd.), Faridkot & others v. State of Punjab & others, 2012(2) L.A.R. 123 (SC).  

Dilapidated condition of building

Punjab Public Premises laws -- Lease not extended – Unauthorized occupants -- Building, in which the post office is running, is an old building and in dilapidated condition – Running of a public office, like the post office, in such a building is neither safe nor in public interest. It may result into any mis-happening at any time – Contention that due to the financial crunch, the Union of India is not in a position to construct the new building for housing the post office, cannot be accepted -- Denial of relationship of landlord and tenant by the Union of India is totally unwarranted – Writ was rightly dismissed with costs of Rs. 50,000/-. Union of India and others v. Municipal Council, Muktsar and others, 2012(2) L.A.R. 89 (P&H DB).

Displaced Persons (Compensation and Rehabilitation) Act, 1954 (44 of 1954)

Section 24 – Allotment of land – Re-opening of matter after two decades – Expression “Any time”  – Scope of -- An expression “any time” contained u/s 24 must be a reasonable time and the intervention by the authority for cancellation could not be after such a long period, especially when the allottee himself had not been guilty of any fraud -- Notification from the Public Works Department treating the property as having perennial source of water supply had been made in the year 1962 and it could not have been a mere secret act -- If the State had allowed for the allotment to stay with the allottee for 2 decades, it would not be justified for the State to reopen the issue after such a long time. Suba Ram (deceased) through his LRs and others v. The State of Haryana and others, 2012(2) L.A.R. 424 (P&H).

Section 24 – Constitution of India, Article 227 -- Cancellation of land – Writ jurisdiction -- Displaced Persons, who played fraud not only with the vendees but with the Government and sold the land without there being any title on the same, should not be permitted to invoke the equitable jurisdiction of the High Court under Article 226 of the Constitution of India. Iqbal Singh and others v. Financial Commissioner (Revenue) and Secretary and others, 2012(2) L.A.R. 193 (P&H DB).

Doctrine of estoppels

Doctrine of estoppels has evolved from the principles of equity and good conscience -- Doctrine postulates that where an offer is made and the party receiving the offer, believes the bonafides of the offer and so alters its position, as to render it inequitable and contrary to good conscious to allow the first party to retract from its offer, the first party would be estopped from retracting its offer -- Section 115 of the Indian Evidence Act incorporates the doctrine of estoppels and enables a party to invoke the doctrine against the party retracting its offer. Kesar Singh and another v. State of Punjab through its Director, Rural Development and Panchayats, Punjab and another, 2012(2) L.A.R. 606 (P&H Full Bench).

Doctrine of estoppels shall not be invoked to defeat a statutory provision or to enable a party to allege that though the offer is contrary to statute, the party making the offer should be held to its offer -- Doctrine of estoppels cannot be invoked to legitimise an illegality and enforce an obligation that is contrary to law. Kesar Singh and another v. State of Punjab through its Director, Rural Development and Panchayats, Punjab and another, 2012(2) L.A.R. 606 (P&H Full Bench).

Punjab Village Common Lands (Regulation) Act, 1961 -- Punjab Village Common Lands (Regulation) Rules, 1964 -- Transfer of public property against the Statute – A Gram Panchayat holds property, in trust, for and on behalf of inhabitants of a village and shall deal with its property only in accordance with statutory provisions set out in the 1961 Act and the Rules, 1964 -- Any deviation from the Act, 1961 or the 1964 Rules would render transfer of land whether of ownership or possession, null and void -- A sale made by a Gram Panchayat without previous approval of the Government shall be null and void and no amount of acquiescence, negligence or error on the part of a Gram Panchayat shall have the affect of conferring legitimacy upon such a transaction – Doctrine of estoppels would not be attracted. Judgment in Smt. Malkhani's case, 2001(4) R.C.R.(Civil), 25 is over-ruled. Kesar Singh and another v. State of Punjab through its Director, Rural Development and Panchayats, Punjab and another, 2012(2) L.A.R. 606 (P&H Full Bench).

Punjab Village Common Lands (Regulation) Rules, 1964 -- Transfer of public property against the Statute -- Mutation – Effect of -- An authority dealing with public property, cannot deviate from the statute, rules or instructions that govern transfer of its property -- Even where a Gram Panchayat has by resolution, transferred property, delivered possession and mutation of ownership has been sanctioned, such a transfer, if made in violation of Rule 12, would be null and void -- Doctrine of estoppels, cannot be invoked -- Gram Panchayat shall not be estopped from alleging the illegality of such a transfer or the unauthorised possession of such a vendee. Judgment in Smt. Malkhani's case, 2001(4) R.C.R.(Civil), 25 is over-ruled. Kesar Singh and another v. State of Punjab through its Director, Rural Development and Panchayats, Punjab and another, 2012(2) L.A.R. 606 (P&H Full Bench).

Writ petition -- Petitioner claiming three Marla of plot – One marla plot was allotted – Writ petition filed claiming allotment of plots within the vicinity of the acquired land and the writ petition was disposed of – Though the said writ petition was filed after the claim of 3 marlas of plot was declined and in fact, after the possession of 1 marla of plot was taken by the petitioner without any objection, but the petitioner has not made any grievance in the said writ petition that she is entitled to a plot measuring 3 marlas – Held, the present writ petition is barred on the principles of Order 2 Rule 2 of the Code of Civil Procedure and by an act of estoppels. Shyama Bansal v. Shri Mata Mansa Devi Shrine Board, Panchkula, 2012(2) L.A.R. 259 (P&H DB).

Dohlidars

Bhondedars – Occupancy rights -- Only a tenant, who is in occupation of the land for a certain period and is paying no rent thereof beyond the amount of the land revenue, has a right of occupancy in the said land -- Petitioners, who were Bhondedars and were continuously in cultivating possession as Bhondedars, cannot be said to be tenants in the land in dispute -- Their occupation was as Bhondedars for rendering service to the villagers -- The status of Bhondedars is equal to Dohlidars and not of a tenant. Jeeta and others v. Gram Panchayat Kherlijita and others, 2012(2) L.A.R. 592 (P&H).

Duty of Government

Land Acquisition Act, 1894 -- Urgency powers for acquisition of land – Use of power of urgency under Section 17(1) and (4) of the Act ipso facto does not result in elimination of enquiry u/s 5A -- Satisfaction of the government on twin aspects viz; (i) need for immediate possession of the land for carrying out the stated purpose and (ii) urgency is such that necessitates dispensation of enquiry is a must and permits no departure for a valid exercise of power under Section 17(1) and (4). Ram Dhari Jindal Memorial Trust v. Union of India and others, 2012(2) L.A.R. 95 (SC).

Easement of necessity

Adverse possession -- Way from courtyard – Ownership rights have been acquired by plaintiffs in the house in their possession by operation of law, i.e., by way of adverse possession -- House in possession of both the parties are contiguous to each other -- No other way for going through the cattle shed except by passing through the courtyard of plaintiff and defendant has been using as such for the last 40-45 years – Defendant has not acquired easement of prescription, he has acquired easement of necessity. Hari Singh and others v. Jaswant Singh, 2012(2) L.A.R. 212 (P&H).

East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (50 of 1948)

Section 18, 23(A) -- East Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949, Rule 16(ii) -- Jumla Mushtarka Malkan Wa Digar Haqdaran Hasab Rasad Arazi Khewat – Partition of land – Permissibility of -- Land, so reserved, falls to the possessory title of the Gram Panchayat whereas proprietary title continues to vest in proprietors -- Gram Panchayat is empowered to enter possession of such land and use it for the common purpose assigned during consolidation or such other common purposes as may be permissible -- Order passed by the Director Consolidation holding that the land does not vest in the Gram Panchayat and directing partition of this land, is without jurisdiction. Ishar Singh and another v. Director, Rural Development & Panchayat, Punjab and others, 2012(2) L.A.R. 654 (P&H DB).

Section 20, 23A – Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g) -- Consolidation Scheme -- Common purposes -- Shamilat deh -- Suit land was utilized, reserved or assigned for a ‘common purpose’, its ownership stands vested in the Gram Panchayat as a part of the shamlat deh. Amar Singh v. Financial Commissioner, Haryana & Ors., 2012(2) L.A.R. 314 (P&H).

Section 20, 23A – Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g) -- Consolidation Scheme -- Common purposes -- Bachat land – Petitioner has nowhere disputed that the land in dispute was not ‘reserved’ or ‘assigned’ for ‘common purposes’ under the Consolidation Scheme -- Being an admitted fact, the phrase ‘bachat land’ which is otherwise alien to the scheme of the Act, cannot be applied to the suit land for the reason that ‘common purposes’ cannot be in a static form and is rather a continuous process. Amar Singh v. Financial Commissioner, Haryana & Ors., 2012(2) L.A.R. 314 (P&H).

Section 20, 23A – Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g) -- Consolidation Scheme -- Common purposes -- Bachat land – The 73rd Amendment of the Constitution has portrayed the Gram Panchayats as the democratic form of governance at the grass-root level -- Eleventh Schedule (Article 243G) of the Constitution obligates Gram Panchayats to implement several social welfare schemes in the village for which the land and funds both are needed -- If the misdirected notion of distribution of ‘bachat’ lands amongst the proprietors is accepted and the public assets are captived to fulfill individual’s greed, the Gram Panchayats will be left with no means to stand as the institutions of ‘self governance’ -- It cannot be overlooked that the village community is not comprising the ‘proprietors’ only -- There are several landless communities who also live in that very village and are equally entitled to the amenities like school, hospital, water supply and above all a small house for shelter. Amar Singh v. Financial Commissioner, Haryana & Ors., 2012(2) L.A.R. 314 (P&H).

Section 21(3), 44 – Consolidation proceedings – Jurisdiction of civil court -- Suit for declaration with consequential relief of permanent injunction challenging the order passed by Competent Authority in consolidation proceedings u/s 21 (3) of Consolidation Act, 1948 on the plea that less land was allotted to the plaintiff – Remedy was available to the appellant-plaintiff to go in appeal before the Settlement Commissioner u/s 21(3) of the Act -- Jurisdiction of Civil Court has been specifically barred u/s 44 of the Act. Ranbir Singh v. Gram Panchayat, Village Bandhwari and others, 2012(2) L.A.R. 675 (P&H).

Section 42 -- East Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949, Rule 16 -- Jumla Mushtarka Malkan -- Rule 16(ii), provides that if, in a revenue estate, there is no “Shamilat Deh” or it is inadequate, consolidation authorities shall apply a pro-rata cut on the holdings of proprietors and reserve land for the Gram Panchayat and for other common purposes -- Land so created is known as “Jumla Mushtarka Malkan” -- Ownership of such land vests in the proprietors but its management and control vests in a Gram Panchayat -- Land, therefore, cannot be partitioned. Gram Panchayat, Channo/Mallaheri v. Director, Consolidation of Holdings, Punjab and others, 2012(2) L.A.R. 241 (P&H DB).

Section 42 -- East Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949, Rule 16 -- Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 11 (Punjab) -- Jumla Mushtarka Malkan -- Bachat Land -- “Jumla Mushtarka Malkan” is neither “Bachat Land” nor are the two expressions, 'synonymous' or 'interchangeable' -- Jumla Mushtarka Malkan land cannot be partitioned or distributed amongst proprietors as it is reserved for common purposes -- Bachat Land, on the other hand, is land left over, after reserving land for the Gram Panchayat and for other common purposes and is generally redistributed amongst proprietors at the time of consolidation – Private respondents may, however, approach the Collector, u/s 11 of the Punjab Village Common Lands (Regulation) Act, 1961, for adjudication of any plea that this land was not reserved for common purposes and is wrongly reserved as “Jumla Mushtarka Malkan”. Gram Panchayat, Channo/Mallaheri v. Director, Consolidation of Holdings, Punjab and others, 2012(2) L.A.R. 241 (P&H DB).

Section 42 – Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 11 -- Title dispute – Vesting in Panchayat or not -- Jurisdiction of Consolidation authorities -- Consolidation authorities, much less the Director, exercising power under Section 42 of the Consolidation Act, had no jurisdiction to decide whether land vests or does not vest in a Gram Panchayat -- Only authority empowered to decide such a question is the Collector, exercising power under the 1961 Act. Mehar Singh and others v. Gram Panchayat Sehjo Majra and others, 2012(2) L.A.R. 513 (P&H DB).

Section 42 – Bachat land – Shamilat deh -- Land that is created after applying a pro-rata cut is recorded as Jumla Mushtarka Malkan whereas the land, in dispute, is admittedly Shamilat Deh, which negates the plea raised by the petitioners that the land, in dispute, was created after applying a pro-rata cut on the holdings of proprietors or is Bachat Land. Mehar Singh and others v. Gram Panchayat Sehjo Majra and others, 2012(2) L.A.R. 513 (P&H DB).

Section 42 – Punjab Village Common Lands (Regulation) Act, 1953 (1 of 1954), Section 2(g) – Bachat land – Shamilat deh -- Shamlat Deh Hasab Hissas Paimana Malkiat -- Contention that land is recorded as “Shamlat Deh Hasab Hissas Paimana Malkiat” and not Shamilat Deh, it continues to vest in proprietors, is legally flawed -- After enactment of the 1953 Act, land described as Shamilat Deh came to vest in the Gram Panchayat -- Ownership of proprietors stood extinguished and expression like “Hasab Hissas Paimana Malkiat” that followed the words “Shamilat Deh”, relevant before the 1953 Act as it denoted the manner of calculating shareholding of proprietors, were rendered irrelevant as Shamilat Deh vested in a Gram Panchayat. Mehar Singh and others v. Gram Panchayat Sehjo Majra and others, 2012(2) L.A.R. 513 (P&H DB).

Section 42 – Path – Non-providing of -- Consolidation authorities are duty bound to provide a path to each parcel of the land and if not, so provided, a party may validly file a petition u/s 42 of the Consolidation Act, but after furnishing an explanation for delay. Ram Kumar v. The Commissioner, Gurgaon Division, Gurgaon and another, 2012(2) L.A.R. 547 (P&H DB).

Section 42 – Path – Non-providing of – Delay – Explanation of -- Explanation for delay offered by private respondent that he was using a private path with consent of the petitioner and only when the petitioner blocked the passage, he was compelled to approach Consolidation authorities, has been accepted by the Commissioner – No reason to differ with the impugned findings or any error of jurisdiction or of law in the order, providing a path. Ram Kumar v. The Commissioner, Gurgaon Division, Gurgaon and another, 2012(2) L.A.R. 547 (P&H DB).

Section 42 – Power of Director Consolidation -- Upon conclusion of consolidation proceedings, Consolidation Authorities are functus officio and may only pass orders with respect to pending appeals/revisions or in accordance with powers conferred by Section 42 of the Consolidation Act. Gram Panchayat Village Sahni and another v. State of Punjab and others, 2012(2) L.A.R. 566 (P&H DB).

Section 42 – Punjab Village Common Lands (Regulation) Rules, 1964, Rule 5 -- Exchange of land – Power of Director Consolidation – Existence of an error or an illegality is a sine qua non, for exercise of power u/s 42 of the Consolidation Act – Impugned orders do not record any error or illegality in consolidation proceedings -- Orders were passed on the basis of resolutions passed by the Gram Panchayat, accepting that land should be transferred to private parties and in exchange, their land should be allotted to the Gram Panchayat -- Consolidation Act does not confer any power upon Consolidation Authorities to affect an exchange of Gram Panchayat land. Gram Panchayat Village Sahni and another v. State of Punjab and others, 2012(2) L.A.R. 566 (P&H DB).

Section 42 – Power of Director Consolidation -- Authority exercising power u/s 42 of the 1948 Act cannot examine any order, which has not been passed by any officer under the 1948 Act. Jagir Singh and another v. State of Punjab and others, 2012(2) L.A.R. 573 (P&H DB).

Section 42 – Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 5(5), 15(2)(f) -- Punjab Village Common Lands (Regulation) Rules, 1964, Rule 5 – Exchange of shamilat land -- Power of Director Consolidation -- Director Consolidation does not possess power under the 1961 Act to effect an exchange of shamlat land with the land of the proprietary body of the village as the jurisdiction to exchange its land vests with the Gram Panchayat, who would first form an opinion that the exchange of shamlat deh is necessary for the benefit of inhabitants of the village and then forward it to the State Government for its approval -- Exchange would come into being only after formal approval is given by the Government, which has to be as per the parameters laid down in Rule 5 of the Rules. Jagir Singh and another v. State of Punjab and others, 2012(2) L.A.R. 573 (P&H DB).

Section 42 -- Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 11, 13-B – Title dispute – Reference sent to a Larger Bench with respect to following questions: 1. Whether a Director Consolidation, exercising power under the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 can decide whether land vests or does not vest in a Gram Panchayat? 2. If answer to the first question is in the negative, then whether an order passed by a Director Consolidation, determining ownership of a Gram Panchayat, affirmed by the High Court and the Supreme Court operates as res-judicata in a subsequent petition, filed under Section 11 of the Act? 3. Whether Section 13-B of the Act empowers the Collector, exercising jurisdiction under Section 11 of the Act, to disregard an order passed by the Director Consolidation, that has been affirmed by the High Court and the Hon’ble Supreme Court? 4. Whether a plea that the order passed by the Director Consolidation was obtained by fraud can be raised after the order has been affirmed by the High Court and the Hon’ble Supreme Court?” In addition to the questions framed, ancillary issues relating to merger of orders passed by Director Consolidation, in orders passed by the High Court and the Hon'ble Supreme Court, the principles of primacy of judicial precedents, the question whether Consolidation authorities in the garb of making good deficiency of allotment to a landowner, can direct that such deficiency be made good from “Shamilat Deh” or “Jumla Mushtarka Malkan”, the difference between “Jumla Mushtarka Malkan” and “Bachat Land”, the nature and the manner of vesting of “Jumla Mushtarka Malkan” in a Gram Panchayat and proprietors and other questions of general importance arise for consideration -- The questions raised in the reference and posed in this paragraph, are of significant public importance as large tracts, of panchayat land, have been partitioned by Consolidation authorities and apportioned amongst proprietors, though, the land was “Shamilat Deh” or “Jumla Mushtarka Malkan” – Matter referred to Chief Justice for constitution of Larger Bench, if deemed appropriate. Parkash Singh and others v. Joint Development Commissioner, Punjab and others, 2012(2) L.A.R. 578 (P&H DB).

Section 42 -- East Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949, Rule 16(ii) -- Jumla Mustarka Malkan – Shamilat deh – Shortage during consolidation – Power of Consolidation Officer -- Land created as Jumla Mustarka Malkan, during consolidation, vests in the proprietary body of the village but its management and control remains with the Panchayat in terms of Rule 16(ii) of the Rules – In case there is any shortage/'Kami Peshi’ in the holding of a private person, during consolidation, it cannot be made good from the land of Jumla Mustarka Malkan or from Shamilat deh, rather it is the duty of the Consolidation Officer to have a careful re-look at the entire record to find out the person(s) to whom excess land has been allotted during consolidation, and the said land has to be retrieved in order to provide it to the person, claiming shortage in his holding. Gram Panchayat, Village Khup Kalan v. The Deputy Director, Consolidation of Holdings, Punjab and others, 2012(2) L.A.R. 604 (P&H DB).

Section 42 – Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 11, 13-B -- Jumla Mushtarka Malkan Khewat – Partition of – Possessory title of Gram Panchayat – Determination of -- Power of Director Consolidation -- After conclusion of consolidation proceedings, authorities under the Consolidation Act are functus officio and have no jurisdiction to determine whether the land vests or does not vest in a Gram Panchayat -- An order directing partition of the “Jumla Mushtarka Malkan Khewat” would require the Director Consolidation to record a finding that the land does not fall to the possessory title of the Gram Panchayat -- Right to decide such a dispute vests in the Collector, exercising powers under Section 11 of the 1961 Act -- Order passed by the Director Consolidation holding that the land does not vest in the Gram Panchayat and directing partition of this land, is without jurisdiction, null and void and were rightly ignored by the Collector and the Appellate Authority, while deciding question of title. Ishar Singh and another v. Director, Rural Development & Panchayat, Punjab and others, 2012(2) L.A.R. 654 (P&H DB).

Section 42 – Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 11 -- Jumla Mushtarka Malkan Khewat – Partition by void order -- Bonafide purchaser – Right of -- Claim that as the petitioner purchased the land, in dispute, from a proprietor after an order of partition was passed by the Director Consolidation, they are bonafide purchasers and should, therefore, be protected -- Order passed by the Director Consolidation was without jurisdiction and 'void-ab-initio' -- Foundation of the sale deed, is a void order, passed on an illegal assumption of jurisdiction and, therefore, does not divest the Gram Panchayat of its rights, or confer rights upon the petitioners as bonafide purchasers. Ishar Singh and another v. Director, Rural Development & Panchayat, Punjab and others, 2012(2) L.A.R. 654 (P&H DB).

Section 42 – Finding of fact – Writ jurisdiction -- Commissioner has perused the entire record and has only, thereafter, recorded a finding that relevant khasra numbers have been assigned correct measurement -- Petitioner has not produced any clear or cogent material to establish that during consolidation the path and other khasra numbers were demarcated wrongly -- No reason to interfere with findings of fact. Dharampal v. The Director Consolidation Department, Haryana, Panchkula, and others, 2012(2) L.A.R. 662 (P&H DB). 

Section 42 – Pendency of civil suit – Non-discloser of -- Writ is liable to be dismissed for failure to disclose the inter parties litigation, before Civil Courts, where the petitioner's plea that the wall, which is the cause for the dispute, is located in his land, has been rejected. Dharampal v. The Director Consolidation Department, Haryana, Panchkula, and others, 2012(2) L.A.R. 662 (P&H DB). 

Section 42 – East Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949,  Rule 18 -- Limitation – Delay of 48 years -- Petitioner failed to furnish any plausible explanation for 48 years' delay in filing a petition under Section 42 of the Consolidation Act -- Petitioner is disentitle to any relief. Dharampal v. The Director Consolidation Department, Haryana, Panchkula, and others, 2012(2) L.A.R. 662 (P&H DB).

East Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949

Rule 16 -- East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (50 of 1948), Section 42 -- Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 11 (Punjab) -- Jumla Mushtarka Malkan -- Bachat Land -- “Jumla Mushtarka Malkan” is neither “Bachat Land” nor are the two expressions, 'synonymous' or 'interchangeable' -- Jumla Mushtarka Malkan land cannot be partitioned or distributed amongst proprietors as it is reserved for common purposes -- Bachat Land, on the other hand, is land left over, after reserving land for the Gram Panchayat and for other common purposes and is generally redistributed amongst proprietors at the time of consolidation – Private respondents may, however, approach the Collector, u/s 11 of the Punjab Village Common Lands (Regulation) Act, 1961, for adjudication of any plea that this land was not reserved for common purposes and is wrongly reserved as “Jumla Mushtarka Malkan”. Gram Panchayat, Channo/Mallaheri v. Director, Consolidation of Holdings, Punjab and others, 2012(2) L.A.R. 241 (P&H DB).

Rule 16 -- East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (50 of 1948), Section 42 -- Jumla Mushtarka Malkan -- Rule 16(ii), provides that if, in a revenue estate, there is no “Shamilat Deh” or it is inadequate, consolidation authorities shall apply a pro-rata cut on the holdings of proprietors and reserve land for the Gram Panchayat and for other common purposes -- Land so created is known as “Jumla Mushtarka Malkan” -- Ownership of such land vests in the proprietors but its management and control vests in a Gram Panchayat -- Land, therefore, cannot be partitioned. Gram Panchayat, Channo/Mallaheri v. Director, Consolidation of Holdings, Punjab and others, 2012(2) L.A.R. 241 (P&H DB).

Rule 16(ii) -- East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (50 of 1948), Section 42 -- Jumla Mustarka Malkan – Shamilat deh – Shortage during consolidation – Power of Consolidation Officer -- Land created as Jumla Mustarka Malkan, during consolidation, vests in the proprietary body of the village but its management and control remains with the Panchayat in terms of Rule 16(ii) of the Rules – In case there is any shortage/'Kami Peshi’ in the holding of a private person, during consolidation, it cannot be made good from the land of Jumla Mustarka Malkan or from Shamilat deh, rather it is the duty of the Consolidation Officer to have a careful re-look at the entire record to find out the person(s) to whom excess land has been allotted during consolidation, and the said land has to be retrieved in order to provide it to the person, claiming shortage in his holding. Gram Panchayat, Village Khup Kalan v. The Deputy Director, Consolidation of Holdings, Punjab and others, 2012(2) L.A.R. 604 (P&H DB).

Rule 16(ii) -- East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (50 of 1948), Section 18, 23(A) -- Jumla Mushtarka Malkan Wa Digar Haqdaran Hasab Rasad Arazi Khewat – Partition of land – Permissibility of -- Land, so reserved, falls to the possessory title of the Gram Panchayat whereas proprietary title continues to vest in proprietors -- Gram Panchayat is empowered to enter possession of such land and use it for the common purpose assigned during consolidation or such other common purposes as may be permissible -- Order passed by the Director Consolidation holding that the land does not vest in the Gram Panchayat and directing partition of this land, is without jurisdiction. Ishar Singh and another v. Director, Rural Development & Panchayat, Punjab and others, 2012(2) L.A.R. 654 (P&H DB).

Rule 18 -- East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (50 of 1948), Section 42 – Limitation – Delay of 48 years -- Petitioner failed to furnish any plausible explanation for 48 years' delay in filing a petition under Section 42 of the Consolidation Act -- Petitioner is disentitle to any relief. Dharampal v. The Director Consolidation Department, Haryana, Panchkula, and others, 2012(2) L.A.R. 662 (P&H DB). 

East Punjab Urban Rent Restriction Act, 1949 (III of 1949)

Section 13 – Ejectment order -- Conditional order of ejectment, in which the judgment debtor was required to pay the arrears of rent – Held, principle of natural justice required that before issuing the warrant of possession, the judgment debtor must had been heard. Madan Lal v. Nirmal Kumari and others, 2012(2) L.A.R. 205 (P&H).

Section 13 – Unfit and unsafe for human inhabitation – Pleadings -- Whether it is necessary for the landlord to give all the details about the damage and condition of the demised premises if the petition is filed for seeking eviction of the tenant on the ground that the demised premises has become unfit and unsafe for human habitation – Landlords had categorically averred that the building is 100 years old and is falling down and is crumbling at many places -- Held, the landlords have sufficiently pleaded about the ground of building having become unfit and unsafe for human habitation as it was averred that portion of it is falling down and it is crumbling at many places, which could be proved only by leading evidence. Manohar Lal (now deceased) through his LRs v. Dalip Singh, 2012(2) L.A.R. 402 (P&H).

Section 13(2)(i), 15(5) – Unregistered agreement – Relevancy of -- Provisional assessment of rent – Challenge to -- Contention of tenant that clause of incremental increase of rent in un-registered rent deed is not valid cannot be accepted at this stage because the tenant himself accepted the clause of incremental increase by admittedly paying rent at increased rate. Kanwaljit Singh v. Avtar Singh, 2012(2) L.A.R. 400 (P&H).

Section 13-B – NRI landlord – Bonafide need – Argument that respondent was residing in an accommodation nearby which was sufficient for his use and occupation and thus, there was no bona fide need for the demised premises is without any merit, as on fulfilling all the ingredients of Section 13-B of the Act, an NRI landlord is entitled to get one tenanted premises vacated as per his choice and the fact that he was residing in an another accommodation is of no significance, as it is well settled that a landlord is the best judge of his requirements and the tenant cannot dictate his terms with regard to the suitability of the accommodation in his possession. Braham Kumar v. Sukhdev Singh, 2012(2) L.A.R. 319 (P&H).

Section 13-B – NRI landlord – Bonafide need – Presumption of -- There was relationship of landlord and tenant between the parties and respondent is an NRI and owner of the demised premises for the last more than five years prior to the filing the petition -- Thus, the respondent fulfilled all the necessary ingredients for seeking relief under Section 13-B of the Act -- Once the aforesaid ingredients have been fulfilled, a presumption with regard to bona fide requirement of the landlord for use and occupation of the demised premises is drawn in his favour and such a presumption can be rebutted only by making out a very strong case by the tenant. Braham Kumar v. Sukhdev Singh, 2012(2) L.A.R. 319 (P&H).

Section 13-B, 18-A – Leave to defend – Eviction of tenant -- Moment application for leave to defend is dismissed, the order of eviction would follow in terms of provision of Section 13 B of the Act. Smt. Asha Gupta v. Sudershan Kumar Rai, 2012(2) L.A.R. 239 (P&H).

Section 13-B, 18-A -- Limitation Act, 1963 (36 of 1963), Section 5 -- Leave to defend -- Application for leave to contest is to be filed within 15 days from the date of service – No fault can be found in order of Rent Controller declining the application for condonation of delay u/s 5 of the Limitation Act, 1963. Om Parkash’s case (2010) 9 SCC 183 relied. Vinod Chawla v. Surinder Singh and others, 2012(2) L.A.R. 21 (P&H).

Education

Appointment of Lambardar – Comparative merits – Age – Age of the private respondent was 23 years, whereas the appellant was about 42 years -- Though the appellant have passed higher secondary and private respondent was only 10th class pass yet the candidature of private respondent had been supported by more persons from the village and Sub Divisional Magistrate-cum-Assistant Collector 1st Grade, the Tehsildar-cum-Assistant Collector Grade II, and Naib Tehsildar-cum-Assistant Collector Grade II, had recommended the candidature of respondent No.4 -- Appointment of private respondent as a Lambardar upheld. Harinder Singh v. Divisional Commissioner, Patiala and others, 2012(2) L.A.R. 250 (P&H DB).

Ejectment of tenant

Punjab Tenancy Act, 1887 -- Compensation to tenant – Entitlement of -- Contention that no order of eviction could have been passed without compensating the tenant u/s 70 or 71 -- Question of payment of compensation arises only if there is a statement of claim by a tenant seeking for compensation for improvement on the land or for disturbance and the ground providing for compensation -- Disturbance contemplated u/s 70 is to be read in the context of Section 69 which provides for a tenant to claim compensation for the efforts taken by the tenant to clear waste land for bringing into cultivation -- No such application made – Order of ejectment passed by the Authorities affirmed. Molar and others v. The State of Haryana and others, 2012(2) L.A.R. 407 (P&H).

Ejectment order

Rent Act -- Conditional order of ejectment, in which the judgment debtor was required to pay the arrears of rent – Held, principle of natural justice required that before issuing the warrant of possession, the judgment debtor must had been heard. Madan Lal v. Nirmal Kumari and others, 2012(2) L.A.R. 205 (P&H).

Election Kanungo

Candidature of – Appointment of Lambardar – Contention that private respondent at the time of initial appointment was working as Election Kanungo – Held, merely taking employment is no bar for appointment on post of Lambardar – No merit in the contention. Sukhdev Singh v. The State of Punjab and others, 2012(2) L.A.R. 92 (P&H DB).

Election of Chairman

Punjab Panchayat Election Rules, 1994 -- Punjab Panchayati Raj Act, 1994 -- Quorum – Submission of appellant that the quorum/two-third of the 11 member Panches comes out to 7.33, therefore, two-third cannot be 7 number of Panches and only 8 Panches could have completed the quorum -- In view of the provisions and amendment in the Rules, the arguments seems to be convincing. Beant Singh and others v. Dilbagh Singh and others, 2012(2) L.A.R. 372 (P&H).

Election of Municipal Corporation/ Councils/ Panchayats

Punjab Municipal Corporation Act, 1976 – Fairness in election – Videography – Police protection -- (i) The Chief Secretary, Punjab, Director General of Police, Punjab, State Election Commissioner, Punjab and the Chief Election Commissioner, Punjab are directed to ensure that election is conducted in a free and fair manner, without intimidation of the voters etc.; (ii) The incidences of booth capturing if occur anywhere the same shall be immediately reported to officers of the State Election Commission, Punjab and Chief Election Commissioner, Punjab; (iii) It is further directed that adequate police force be deputed at all the polling booths, particularly the sensitive polling stations for maintaining law and order with the sole objective of holding free and fair elections; (iv) If any person(s) asks for personal security then the concerned Superintendent of Police will assess the threat perception and if it is found necessary, the concerned Superintendent of Police will provide security to such person(s) during the period of election; and (v) The petitioners or any other person are at liberty to arrange videography outside the polling station at their own costs and if they express such a desire, they be not prevented from doing so. It is, however, made clear that videography shall not be conducted inside the polling booths to maintain secrecy of the polling. Krishan Kumar Sharma and others v. State of Punjab and others, 2012(2) L.A.R. 117 (P&H DB).  

Election of Panch

Punjab State Election Commission Act, 1994 -- Name in two electoral roll – Effect of --No person is eligible to contest the election if his/her name is registered in the electoral roll for more than one constituency – Plea that an application for cancellation of voter card has been moved to the concerned authority before the Election – Document is required to be proved as per the provisions of CPC, which has not been done – Matter remitted back to Election Tribunal for deciding afresh by affording reasonable opportunity to both the sides to submit their claim. Smt. Varinder Kaur alias Barinder Kaur v. Smt. Gurcharan Kaur and another, 2012(2) L.A.R. 45 (P&H).

Election of Sarpanch

Challenge to – Punjab State Election Commission Act, 1994 -- Presentation of petition though Lawyer and not by the appellants themselves – Maintainability of -- No pleading in written statement -- No issue in this regard has been framed by the Election Tribunal – No evidence to prove the fact that Advocate alone had gone to present the petition or that the appellants were not present at the time of presentation – Held, presentation of petition is not merely a law point, it is a mixed question of law and fact and can only be ascertained after appreciating evidence in this regard -- When the point is neither pleaded nor discussed at any stage before filing of the appeal in High Court, the arguments in this regard cannot be given due weightage. Beant Singh and others v. Dilbagh Singh and others, 2012(2) L.A.R. 372 (P&H).

Challenge to – Punjab State Election Commission Act, 1994 -- Presentation of petition though Lawyer – Maintainability of -- Contention/objection that petition is through advocate and verification of petition was not as per provisions of Civil Procedure Code – Held, arguments are self-contradictory -- On the one hand we are expecting elected Panches to remain away from counsel while presentation of a petition and on the other hand we are trying to stick to technicalities by saying that the petition should be properly verified as to which of the paras are true to the best of knowledge and belief of the petitioners and which have been verified as per advice of the lawyer -- Election petition allowed. Beant Singh and others v. Dilbagh Singh and others, 2012(2) L.A.R. 372 (P&H).

Employees’ scheme

PUDA plot – Petitioner’s basic eligibility was determined in the initial scheme and at no stage, during the process of amendment of schemes, any clause was introduced that original applications of employees, who have, subsequently retired would be rejected -- So called new scheme, admittedly, protects the rights of applicants, who had already applied under the original scheme – Petitioner is entitled to allotment of a plot as he had applied for the same when he was in service. Rup Lal v. State of Punjab and others, 2012(2) L.A.R. 543 (P&H DB).

Entries in jamabandi

Punjab Village Common Lands (Regulation) Act, 1961 – Gair marusi tenant – Proof of tenancy -- Jamabandi entries as Gair Marusi tenants -- In the absence of any resolution or lease deed executed by the Gram Panchayat, in accordance with Rule 6 of the 1964 Rules, entries in the Jamabandis do not confer the status of a tenant so as to enable the petitioners to allege that they are the tenants, protected by the Punjab Land Revenue Act or by the judgment in Sarwan and Rati Ram’s case 1985 PLJ, 262 -- Petitioners are held to be unauthorised occupants of panchayat property and have, therefore, been rightly ordered to be evicted. Bikar Singh and others v. Joint Development Commissioner (IRD) and others, 2012(2) L.A.R. 16 (P&H DB).

Equality

Petitioner cannot claim any right on the basis of illegality committed by the respondents in respect of another person -- There cannot be any equality in illegality. Nivedita Sharma v. The State of Haryana and others, 2012(2) L.A.R. 58 (P&H DB).

Evacuee property

Wakf Act, 1995 – Jurisdiction of civil court -- Jurisdiction of the Civil Court was not barred for entertaining the suit for permanent injunction, since there was no evidence on the record of the case which the State produced that the property in dispute has been declared evacuee property. Tehsildar (Sales), Gurgaon and another v. Roshan Lal and others, 2012(2) L.A.R. 38 (P&H).

Wakf Act, 1995 – Jurisdiction of civil court -- Suit was filed on 7.11.1983, and the Wakf Act, 1995 came into force from 1.1.1996 – Held, matter which is pending in any suit before the commencement of the Act or which is the subject matter of an appeal, there would be no bar for the Civil Court to decide such issues. Tehsildar (Sales), Gurgaon and another v. Roshan Lal and others, 2012(2) L.A.R. 38 (P&H).

Eviction

Public premises – Constructed houses -- Shamilat deh – Collector was required to prima facie consider and decide, whether these houses were excluded from “Shamilat Deh” in terms of Section 2(g)(4a) or Section 2(g)(vi) and/or Section 4(1)(b) of the Punjab Village Common Lands (Regulation) Act, 1961 – A pre-condition to the Collector, exercising jurisdiction, under the Public Premises Act, is a prima facie finding, that the land is public premises, i.e., was “Shamilat Deh”, under the 1961 Act, as defined under section 2(g)(1) of the 1961 Act – Collector and the Commissioner have not recorded any finding, in their orders, whether the land was “Shamilat Deh” -- Matter is remitted to the Collector to decide whether land, in dispute, was “Shamilat Deh” as provided by section 2(g)(1) or is excluded from “Shamilat Deh”, by virtue of sections 2(g), (4a) and 4 (1)(b) of the 1961 Act. Bahadur Singh and others v. The State of Haryana and others, 2012(2) L.A.R. 440 (P&H DB).

Eviction from Jumla Mushtarka Malkan land

Punjab Public Premises laws – Contention that property is “Jumla Mushtarka Malkan” and the petitioners are proprietors of the village, as such have share in the land in question, this land has neither been reserved for common purposes nor is being used for common purposes and the petitioners are in the cultivating possession, as such, have becomes owners to the extent of their shares – Held, no evidence that what was the share of the petitioners and they were in exclusive possession of any part of the land after having a valid partition of the “Jumla Mushtarka Malkan” land – Land as per Jamabandi for the year 1958-59 is Gram Panchayat -- So, all the rights vest in the Gram Panchayat for management and control – Eviction order upheld. Rajdev Singh and another v. Joint Development Commissioner, Punjab and others, 2012(2) L.A.R. 107 (P&H DB). 

Punjab Public Premises laws – Since, the management and control vest in the Gram Panchayat, such land is public premises and ejectment of unauthorized occupant therefrom can be made under both the Acts i.e. Section 5 of the Eviction Act and Section 7 of the Common Lands Act – Whichever remedy, Panchayat deem it appropriate speedy, summary and effective, it can avail. Rajdev Singh and another v. Joint Development Commissioner, Punjab and others, 2012(2) L.A.R. 107 (P&H DB). 

Eviction of tenant

NRI landlord -- East Punjab Urban Rent Restriction Act, 1949 -- Leave to defend – Moment application for leave to defend is dismissed, the order of eviction would follow in terms of provision of Section 13 B of the Act. Smt. Asha Gupta v. Sudershan Kumar Rai, 2012(2) L.A.R. 239 (P&H).

Eviction petition

Punjab Village Common Lands (Regulation) Act, 1961 -- Petition u/s 11 of the Act, claiming ownership of the land in dispute dismissed by the Collector by holding that the Gram Panchayat is owner of the land in dispute -- Question regarding ownership having been decided, inter parties, the petitioners, cannot be heard to urge that they are owners of the land in dispute. Pritam Dass and others v. The Joint Director, Panchayats, Punjab and others, 2012(2) L.A.R. 1 (P&H DB).

Punjab Village Common Lands (Regulation) Act, 1961 -- Res-judicata -- Section 7 of the Act, prescribes a summary procedure for eviction of an unauthorised occupant -- Dismissal of a petition u/s 7 of the Act, does not operate as res-judicata in a subsequent petition. Pritam Dass and others v. The Joint Director, Panchayats, Punjab and others, 2012(2) L.A.R. 1 (P&H DB).

Punjab Village Common Lands (Regulation) Act, 1961 -- Title dispute -- If a question of right, title or interest is raised by any person and a prima-facie case is made out in support thereof, the Collector shall direct the person who has raised such question to submit his claim u/s 11 and till the question is so determined, the application shall remain pending. Gram Panchayat Dholwaha v. Joint Development Commissioner (IRD), Punjab and others, 2012(2) L.A.R. 13 (P&H DB).

Punjab Village Common Lands (Regulation) Act, 1961 -- Title dispute – Power of Commissioner -- Commissioner had no jurisdiction, while deciding an appeal arising from, proceedings u/d 7 of the 1961 Act to decide a question of title -- If the Commissioner was, prima-facie satisfied that a credible question of title has arisen for consideration, he was required to call upon parties to file a petition u/s 11 of the Act and direct that during pendency of proceedings, the petition u/s 7 of the 1961 Act shall be kept in abeyance. Gram Panchayat Dholwaha v. Joint Development Commissioner (IRD), Punjab and others, 2012(2) L.A.R. 13 (P&H DB).

Eviction proceedings

Punjab Village Common Lands (Regulation) Act, 1961 -- Title dispute -- Res-judicata -- Findings recorded u/s 7 do not operate as res judicata in a title suit. Gram Panchayat Village Mulepur v. Sucha Singh (deceased through his LRs.) and others, 2012(2) L.A.R. 682 (P&H DB).

Exchange of land

Power of Director Consolidation – Existence of an error or an illegality is a sine qua non, for exercise of power u/s 42 of the Consolidation Act – Impugned orders do not record any error or illegality in consolidation proceedings -- Orders were passed on the basis of resolutions passed by the Gram Panchayat, accepting that land should be transferred to private parties and in exchange, their land should be allotted to the Gram Panchayat -- Consolidation Act does not confer any power upon Consolidation Authorities to affect an exchange of Gram Panchayat land. Gram Panchayat Village Sahni and another v. State of Punjab and others, 2012(2) L.A.R. 566 (P&H DB).

Punjab Village Common Lands (Regulation) Act, 1961 – Natural justice – Speaking order – Requirement of -- Collector sanctioned exchange of land, without there being any jurisdiction vested in him but said order of Collector has been cancelled on a complaint, in which a preliminary inquiry and regular inquiry has been held -- Order passed is without issuing any show cause notice or providing inquiry report to the petitioners or granting an opportunity to contest the correctness of the reports – Impugned order does not disclose any reasons for cancellation of order – Held, not only judicial or quasi judicial order is to be passed following the principles of natural justice, but also the administrative orders, which affect the civil rights, have to adhere the principle of natural justice -- Impugned order set aside. Milkha Singh and another v. State of Punjab and others, 2012(2) L.A.R. 86 (P&H DB).

Punjab Village Common Lands (Regulation) Act, 1961 – Procedure of -- Before a Gram Panchayat forwards a proposal for exchange of its land, the Gram Panchayat is required to form an opinion that the exchange is necessary for benefit of inhabitants of the village -- An exchange of Gram Panchayat land presupposes the existence of two elements (a) necessary to do so, and (b) for benefit of inhabitants of the village. Hukam Chand and others v. State of Haryana and others, 2012(2) L.A.R. 506 (P&H DB).

Exchange of land with path

Punjab Village Common Lands (Regulation) Rules, 1964 – Gram Panchayat passed resolution, agreeing to exchange the land of a path with land belonging to the petitioners but without recording that the exchange is for any benefit of inhabitants of the village – Gram Panchayat did not bother to apply for approval as required by Rule 5 – Petitioners had encroached upon this path before the resolution of exchange was passed thereby raising an inference that the exchange was effected so as to regularize the petitioners' encroachment of Gram Panchayat land and not to benefit inhabitants of the village -- Party may offer a larger piece of land is irrelevant – An equitable relief can only be granted if the equity, so claimed, is legal and falls within the parameters of law -- Equities, arising in favour of the petitioners, are based upon an illegal resolution and do not confer any right upon the petitioners to pray for protection of their houses – It is a case of prima-facie, collusion between the petitioners and the Gram Panchayat – Petition dismissed. Hukam Chand and others v. State of Haryana and others, 2012(2) L.A.R. 506 (P&H DB).

Exchange of shamilat land

Power of Director Consolidation -- Director Consolidation does not possess power under the Punjab Village Common Lands (Regulation) Act, 1961 to effect an exchange of shamlat land with the land of the proprietary body of the village as the jurisdiction to exchange its land vests with the Gram Panchayat, who would first form an opinion that the exchange of shamlat deh is necessary for the benefit of inhabitants of the village and then forward it to the State Government for its approval -- Exchange would come into being only after formal approval is given by the Government, which has to be as per the parameters laid down in Rule 5 of the Punjab Village Common Lands (Regulation) Rules, 1964. Jagir Singh and another v. State of Punjab and others, 2012(2) L.A.R. 573 (P&H DB).

Exclusion from Shamilat deh

Punjab Village Common Lands (Regulation) Act, 1961 -- Absence of any proof of partition of the “Shamilat Khewat” in 1948, negates the claim of private respondents for exclusion of land, in dispute, from “Shamilat Deh” in terms of section 2(g)(iii). Gram Panchayat Village Mulepur v. Sucha Singh (deceased through his LRs.) and others, 2012(2) L.A.R. 682 (P&H DB).

Punjab Village Common Lands (Regulation) Act, 1961 -- Cultivation possession -- It requires the petitioners to prove that the land was Shamilat Deh, was assessed to land revenue and has been in the individual cultivating possession as co-sharers not being in excess of their respective shares on or before 26.01.1950 -- Petitioners have failed to adduce any evidence to prove their individual cultivating possession or the possession of co-sharers/ proprietors not in excess of their respective shares -- Most of this land is gair mumkin nadi or banjar kadim -- A gair mumkin nadi i.e. a river cannot be in cultivating possession of individual proprietors -- During the dry season, the river bed may be used for cultivation but this alone would not exclude the land from Shamilat Deh -- Furthermore, the absence of any entry in the jamabandi or a khasra girdawari to prove such possession, it is held that the petitioners were not in cultivating possession as required by Section 2(g)(viii). Bundi Ram (deceased) through his LRs v. Commissioner, Ambala Division Ambala and others, 2012(2) L.A.R. 456 (P&H DB).

Punjab Village Common Lands (Regulation) Act, 1961 -- Cultivation possession – Proprietary possession -- Jamabandi for the year 1945-46 records the possession of “Makbuja malkan,” i.e. possession of the entire proprietary body, in common, with no particular co-sharer in possession of any particular portion of the land, much less in cultivating possession -- It is “cultivating possession” and not mere “proprietary possession” that excludes land from Shamilat Deh, under section 2(g)(iii) and (viii) -- Land in dispute is described as a gair mumkin nadi, or banjar kadim (uncultivated old fallow) and only three Khasras No. i.e. 56 (3-14), 57 min (1-10), 58 (28-7) are recorded as bag barani i.e. an orchard but without recording the possession of any individual proprietor, much less any of the petitioners -- It is, therefore, apparent that the revenue record, produced by the petitioners, does not prove that the petitioners were in “cultivating possession” prior to 26.01.1950 so as to exclude, the land in dispute, from Shamilat Deh, but, in fact, establishes the contrary, i.e., the vesting of this land in the Gram Panchayat. Bundi Ram (deceased) through his LRs v. Commissioner, Ambala Division Ambala and others, 2012(2) L.A.R. 456 (P&H DB).

Punjab Village Common Lands (Regulation) Act, 1961 -- Cultivation possession -- Section 2(g) (viii) excludes such land from the purview of Shamlat Deh, which is in individual cultivating possession of co-sharers, not being in excess of their respective share in such a Shamlat Deh on or before 26.1.1950 -- Land described as Taal, which is a pool could not be cultivable -- Other land is described as Bood, i.e., uneven land in the shape of khuds etc., which is also uncultivable – No reference made to any other document to establish that predecessor-in-interest being in cultivating possession of the land in question -- Collector, Commissioner and the Financial Commissioner have consistently held that the petitioners have failed to prove their individual cultivating possession on or before 26.1.1950, do not suffer from any infirmity much less illegality. Naresh and others v. State of Haryana and others, 2012(2) L.A.R. 659 (P&H DB).

Punjab Village Common Lands (Regulation) Act, 1961 -- Gair mumkin nadi -- Wajib-ul-arj -- In order to claim the benefit of section 2(g)(i), the petitioners are required to prove that land becomes or has become Shamilat Deh due to river action or that land in Shamilat Deh was reserved in a village subject to river action -- The best evidence to prove the ingredients of section 2(g)(i) is the record maintained by revenue authorities, under Section 59(1)(D) of the Punjab Land Revenue Act, 1887, read with Chapters 6.1 and 6.5 of the Haryana Land Records Manual recording land affected by diluvion and land created by alluvion and the list of villages where land is subject to river action -- Petitioners have not produced the above record and must, therefore, suffer the consequences of an adverse inference -- Mere fact that a seasonal rivulet passes through the revenue estate or that the land is recorded as a gair mumkin nadi, does not raise an inference that the land has become or becomes Shamilat Deh due to river action or was reserved in a village subject to river action -- Words “gair mumkin nadi” refer to a river and not to land created by river action -- Mere fact that the Wajib-ul-arj records that ownership and possession would remain unchanged despite alluvion and diluvion, or that land lost to river action would be made good from Shamilat Deh, does not raise an inference that the land in dispute is excluded from Shamilat Deh -- In the absence of any revenue record to establish that the land becomes or has become Shamilat Deh due to river action, or that it was Shamilat Deh reserved to make good loss in land due to river action, the land in dispute cannot be excluded from Shamilat Deh and, vests in the Gram Panchayat under Section 2(g)(1) read with Sections 3 and 4 of the Act. Bundi Ram (deceased) through his LRs v. Commissioner, Ambala Division Ambala and others, 2012(2) L.A.R. 456 (P&H DB).

Punjab Village Common Lands (Regulation) Act, 1961 -- Gair mumkin nadi -- Writ for quashing of impugned orders, holding that the land in dispute vests in Gram Panchayat -- Petitioners have not produced any revenue entry or document prepared, in terms of Chapter 6.5 to prove that the land, in dispute, was created by river action or was reserved as “Shamilat Deh” in a village subject to river action – Petitioners, therefore, cannot be allowed to take any benefit merely because a major portion of the land, in dispute, is recorded as a “Gair Mumkin Nadi” -- Jamabandies, the pleadings and the impugned orders, do not disclose any material/ evidence that would prove that the land became “Shamilat Deh” due to river action or was reserved as “Shamilat Deh” in a village, subject to river action, as required by Section 2(g)(i) – Petition dismissed. Krishan Dev and others v. Director Rural Development and Panchayat, Punjab, SAS Nagar and others, 2012(2) L.A.R. 554 (P&H DB).

Punjab Village Common Lands (Regulation) Act, 1961 -- Onus of proof -- Section 2(g)(viii), excludes land from “Shamilat Deh”, if it was in individual cultivating possession of proprietors, in accordance with their share holdings prior to 26.01.1950 -- Petitioners have not produced any evidence on record to establish their individual cultivating possession, as cosharers, in accordance with their share holdings as required by Section 2(g)(viii) of the 1961 Act -- Jamabandi for the year 1946-47, records the cultivation of "Shadi and other persons of a very small tract of land, i.e., 3 kanals and 11 marlas “Chahi” and 26 kanals and 6 Marlas “Chahi” -- Khasra numbers recorded in the jamabandi are different from khasra numbers of the land in dispute -- Onus to tally these numbers lay upon the petitioners -- Petitioners having admitted their tenancy in an other writ petition were even otherwise estopped from challenging the ownership of the Gram Panchayat. Ram Singh and others v. State of Haryana and others, 2012(2) L.A.R. 501 (P&H DB).

Fairness in election

Punjab Municipal Corporation Act, 1976 – Election of Municipal Corporation/Councils/Panchayats – Videography – Police protection -- (i) The Chief Secretary, Punjab, Director General of Police, Punjab, State Election Commissioner, Punjab and the Chief Election Commissioner, Punjab are directed to ensure that election is conducted in a free and fair manner, without intimidation of the voters etc.; (ii) The incidences of booth capturing if occur anywhere the same shall be immediately reported to officers of the State Election Commission, Punjab and Chief Election Commissioner, Punjab; (iii) It is further directed that adequate police force be deputed at all the polling booths, particularly the sensitive polling stations for maintaining law and order with the sole objective of holding free and fair elections; (iv) If any person(s) asks for personal security then the concerned Superintendent of Police will assess the threat perception and if it is found necessary, the concerned Superintendent of Police will provide security to such person(s) during the period of election; and (v) The petitioners or any other person are at liberty to arrange videography outside the polling station at their own costs and if they express such a desire, they be not prevented from doing so. It is, however, made clear that videography shall not be conducted inside the polling booths to maintain secrecy of the polling. Krishan Kumar Sharma and others v. State of Punjab and others, 2012(2) L.A.R. 117 (P&H DB).  

Family partition

Partition of agricultural land required to be reported to the revenue authorities for severing the status of jointness. Suresh Kumar (died) through L.Rs and another v. Shiv Kumar (died) through L.Rs., 2012(2) L.A.R. 285 (P&H).

Registration of – Requirement of – Admissibility in evidence -- Contents of Ex. DW 4/A show that the transaction recorded in the agreement was effected on the date of agreement -- It is not the record of any past transaction which would not require registration -- When the partition has been effected by way of document, the document required registration and in the absence of the same, court has rightly rejected the same as inadmissible in evidence. Suresh Kumar (died) through L.Rs and another v. Shiv Kumar (died) through L.Rs., 2012(2) L.A.R. 285 (P&H).

Finding of fact

Writ jurisdiction -- Commissioner has perused the entire record and has only, thereafter, recorded a finding that relevant khasra numbers have been assigned correct measurement -- Petitioner has not produced any clear or cogent material to establish that during consolidation the path and other khasra numbers were demarcated wrongly -- No reason to interfere with findings of fact. Dharampal v. The Director Consolidation Department, Haryana, Panchkula, and others, 2012(2) L.A.R. 662 (P&H DB). 

FIR against candidate

Appointment of Lambardar – Choice of Collector – Collector not only found private respondent as a better candidate, but it was also found that the appellant had got prepared a false voter identity card in the name of his wife, though he was not married at all – In criminal case, private respondent, had already been acquitted before initiation of the proceedings for appointment of Lambardar -- District Collector had rightly appointed private respondent being an Ex-Serviceman, as Lambardar --  Choice of the Collector in the matter of appointment of Lambardar should not be interfered on superficial grounds, until and unless the order of the Collector in this regard suffers from patent illegality. Kushal Pal v. State of Haryana and others, 2012(2) L.A.R. 19 (P&H DB).

First date of hearing

Rent Act -- Arrears of rent – Provisional assessment of rent – Non-tender of – Tenant did not comply with the order by which rent was provisionally assessed and he was asked to tender the same on the first date of hearing – Tenant deserves to be evicted. Anil Kumar v. Ghanshyam Dass, 2012(2) L.A.R. 624 (P&H).

Forest land

Notification for 20 years – Expiry of 20 years -- Whether a particular piece of land falls or is excluded from the ambit of “Forest Land” is a question of fact to be decided by Forest Department being the custodian of “Forest Lands” and High Court in exercise of its discretionary jurisdiction under Article 226 of the Constitution need not travel beyond the legal issues -- Principal Chief Conservator of Forest, Haryana is directed to constitute a Committee comprising three senior officers of the Forest Department and to be headed by an Officer not below the rank of Additional PCCF or Chief Conservator of Forests, who shall consider each claim in consonance with principles of natural justice and dispose of them with reference to the question whether or not the land(s) in dispute form part of “Forest Land(s). Rakam Singh and others v. State of Haryana and others, 2012(2) L.A.R. 477 (P&H DB).

Framing of issue

Punjab Village Common Lands (Regulation) Act, 1961 -- Requirement of -- Title dispute – Contention that issues have not been framed in the petition filed u/s 11, which is required to be decided as a Civil Suit – Held, non-framing of issues filed u/s 11 of the 1961 Act, would not prejudice right of the petitioners because they were alive to the issues involved and had led their entire oral as well as documentary evidence. Darshan Singh v. Joint Development Commissioner (IRD) and others, 2012(2) L.A.R. 494 (P&H DB).

Fraud

Collusive decree – Limitation -- Once it has been held that the land in dispute is Shamlat Deh and the decree was obtained by fraud and collusion, it can be challenged at any time. Gram Panchayat Gulalta v. State of Haryana and others, 2012(2) L.A.R. 669 (P&H DB).

Gair marusi tenant

Punjab Village Common Lands (Regulation) Rules, 1964 -- Entries in jamabandi – Proof of tenancy -- Jamabandi entries as Gair Marusi tenants -- In the absence of any resolution or lease deed executed by the Gram Panchayat, in accordance with Rule 6 of the 1964 Rules, entries in the Jamabandis do not confer the status of a tenant so as to enable the petitioners to allege that they are the tenants, protected by the Punjab Land Revenue Act or by the judgment in Sarwan and Rati Ram’s case 1985 PLJ, 262 -- Petitioners are held to be unauthorised occupants of panchayat property and have, therefore, been rightly ordered to be evicted. Bikar Singh and others v. Joint Development Commissioner (IRD) and others, 2012(2) L.A.R. 16 (P&H DB).

Gair Mumkin Kabristhan/Maqbooza Ahley Islam

Punjab Village Common Lands (Regulation) Act, 1953 -- Shamilat deh – Vesting of -- At time of coming into force of the Act of 1953, the land in dispute was recorded as shamilat deh, nature of which was recorded as Gair Mumkin Kabristhan/Maqbooza Ahley Islam -- Since in the revenue record, the land in dispute was described as shamilat deh and it was being used for Kabristhan, which was a common purpose of the village, by virtue of Section 3 of the Act of 1953, such land vests in the Gram Panchayat. Punjab Wakf Board v. Gram Panchayat, Dakha and others, 2012(2) L.A.R. 262 (P&H DB).

Shamilat deh – Vesting of -- At the time of coming into force of the Punjab Village Common Lands (Regulation) Act, 1953, the land in dispute was shamilat deh and was being used by the proprietors of the village as Kabristhan – After partition of the country, the Muslims of the village migrated to Pakistan, but merely because majority of the proprietors were Muslims and the disputed land was being used as Kabristhan, it will not make the disputed land as wakf property -- Such shamilat deh, which is used for common purpose by the proprietors of the village, shall vest in the Gram Panchayat, by virtue of Section 3 of the Act of 1953. Punjab Wakf Board v. Gram Panchayat, Dakha and others, 2012(2) L.A.R. 262 (P&H DB).

Shamilat deh – Wakf Property – Notification of – Effect of -- Much before the notification dated 19.9.1970, issued by the Central Government declaring the disputed property as wakf property, the land in dispute already stood mutated in favour of the Gram Panchayat and in the jamabandi for the year 1965-66, name of the Gram Panchayat is recorded as owner of the land in dispute -- It is not the case of the Board that before issuing the notification, any notice was issued to the Gram Panchayat and it was heard -- Merely by issuing a notification u/s 5 (2) of the Wakf Act declaring the disputed land as wakf property, would not divest the Gram Panchayat of its ownership, which stood already vested in it by virtue of the Punjab Village Common Lands (Regulation) Act, 1953 -- Notification with regard to a wakf property is not conclusive qua third party and the same is not binding on it -- Notification was neither conclusive of ownership nor binding on the Gram Panchayat. Punjab Wakf Board v. Gram Panchayat, Dakha and others, 2012(2) L.A.R. 262 (P&H DB).

Gair Mumkin Kallar

Gair Mumkin Kallar is land that cannot be cultivated. Hakam Singh v. Director, Rural Development and Panchayats, Punjab and others, 2012(2) L.A.R. 641 (P&H DB).

Gair Mumkin Makbooja Charand

Gair Mumkin Makbooja Charand is land used as a `pasture' Hakam Singh v. Director, Rural Development and Panchayats, Punjab and others, 2012(2) L.A.R. 641 (P&H DB).

Shamilat deh – Banjar Quadim -- Land, in dispute was “Banjar Qadim”, i.e., the land, which has remained fallow for eight harvests, on the date of coming into force of the 1961 Act -- Jamabandi for the year 1960-61, records the user of land as “Gair Mumkin Makbooja Charand”, i.e., land used as a `pasture' -- As land, is “Banjar Qadim” and used for a common purpose, i.e., a grazing ground, is “Shamilat Deh”. Hakam Singh v. Director, Rural Development and Panchayats, Punjab and others, 2012(2) L.A.R. 641 (P&H DB).

Gair mumkin nadi

Shamilat deh – Exclusion from – Wajib-ul-arj -- In order to claim the benefit of section 2(g)(i) Punjab Village Common Lands (Regulation) Act, 1961, the petitioners are required to prove that land becomes or has become Shamilat Deh due to river action or that land in Shamilat Deh was reserved in a village subject to river action -- The best evidence to prove the ingredients of section 2(g)(i) is the record maintained by revenue authorities, under Section 59(1)(D) of the Punjab Land Revenue Act, 1887, read with Chapters 6.1 and 6.5 of the Haryana Land Records Manual recording land affected by diluvion and land created by alluvion and the list of villages where land is subject to river action -- Petitioners have not produced the above record and must, therefore, suffer the consequences of an adverse inference -- Mere fact that a seasonal rivulet passes through the revenue estate or that the land is recorded as a gair mumkin nadi, does not raise an inference that the land has become or becomes Shamilat Deh due to river action or was reserved in a village subject to river action -- Words “gair mumkin nadi” refer to a river and not to land created by river action -- Mere fact that the Wajib-ul-arj records that ownership and possession would remain unchanged despite alluvion and diluvion, or that land lost to river action would be made good from Shamilat Deh, does not raise an inference that the land in dispute is excluded from Shamilat Deh -- In the absence of any revenue record to establish that the land becomes or has become Shamilat Deh due to river action, or that it was Shamilat Deh reserved to make good loss in land due to river action, the land in dispute cannot be excluded from Shamilat Deh and, vests in the Gram Panchayat under Section 2(g)(1) read with Sections 3 and 4 of the Act. Bundi Ram (deceased) through his LRs v. Commissioner, Ambala Division Ambala and others, 2012(2) L.A.R. 456 (P&H DB).

Shamilat deh – Exclusion from – Writ for quashing of impugned orders, holding that the land in dispute vests in Gram Panchayat -- Petitioners have not produced any revenue entry or document prepared, in terms of Chapter 6.5 to prove that the land, in dispute, was created by river action or was reserved as “Shamilat Deh” in a village subject to river action – Petitioners, therefore, cannot be allowed to take any benefit merely because a major portion of the land, in dispute, is recorded as a “Gair Mumkin Nadi” -- Jamabandies, the pleadings and the impugned orders, do not disclose any material/ evidence that would prove that the land became “Shamilat Deh” due to river action or was reserved as “Shamilat Deh” in a village, subject to river action, as required by Section 2(g)(i) of the Punjab Village Common Lands (Regulation) Act, 1961 – Petition dismissed. Krishan Dev and others v. Director Rural Development and Panchayat, Punjab, SAS Nagar and others, 2012(2) L.A.R. 554 (P&H DB).

Words “gair mumkin nadi” refer to a river and not to land created by river action. Bundi Ram (deceased) through his LRs v. Commissioner, Ambala Division Ambala and others, 2012(2) L.A.R. 456 (P&H DB).

General Clauses Act, 1897 (10 of 1897)

Section 26 -- Punjab Agricultural Produce Markets Act, 1961 (23 of 1961)Section 10, 13 – Licensing of Auction Platform Rules 1981, Rules 4, 21 – Licensee changed the shop – Renewal of Licence – Auction platform – Right of -- Licencee cannot be denied the right of renewal of licence only because in the form of application, a licensee has changed the place of business within the notified area -- No justification to deny to an existing licensee who applies for renewal should lose his auction platform, if he already held one. M/s Sood Brothers v. Union Territory, Chandigarh, 2012(2) L.A.R. 79 (P&H).

GMADA plots

Allotment of plot to Riot victims residing in Punjab – Legality of clause -- GMADA decided to allot plots to riot affected families/persons, who are red card holders, and are residing continuously in the State of Punjab since 1986 -- Apparently, the reason for laying down a condition of “continuously residing in Punjab since 1986”, is to ensure that riot victims, residing in Punjab, could not go back to the place of their original abode, have no other residence, are in bona fide need of a house in Punjab – Not an unreasonable or arbitrary Clause to strike it down -- State of Punjab, through GMADA, is well within its right to provide plots to those riot victims who reside in the State of Punjab -- No violation of any law much less of Article 21 of the Constitution of India. Baldev Singh and others v. State of Punjab and another, 2012(2) L.A.R. 447 (P&H DB).

Guidelines

Punjab Municipal Corporation Act, 1976 -- Role of Guidelines -- Declaration of Urban area -- Note relating to  Municipal Council reveals that the parameters like population, tourist potential, geographical importance and other non agricultural activities have been noticed -- Question which arises is whether the guideline which talks of population would be mandatory and would supersede the statute itself – Held, this could not be so, guidelines, had no statutory force and were merely in the nature of executive instructions -- By issuance of guidelines a situation cannot be created where population would become the supervening factor for declaration of an urban area into a municipal corporation and that the other statutory parameters would pale into insignificance. Ajay Kumar and others v. State of Punjab and others, 2012(2) L.A.R. 290 (P&H).

Haryana Canal and Drainage Act, 1974 (29 of 1974)

Section 17, 18,19,21 -- Watercourse – Procedure of -- Petitioner is not having any water course, moved an application for carving out a water course to irrigate his fields – On such an application a draft scheme is required to be framed u/s 17, thereafter the same is required to be published u/s 18 of the Act -- Thereafter when the scheme is approved, the same is required to be published u/s 19 of the Act -- In case the parties are not agreeing then notice of acquisition of land is required to be given for implementation of the scheme u/s 21 of the Act. Hawa Singh v. Chief Canal Officer/LCU, Haryana Irrigation Department and others, 2012(2) L.A.R. 237 (P&H).

Section 17, 18,19,21 -- Watercourse – Procedure of – Petitioner was agreeing only to carving out water-course on the basis of exchange of land adjoining to the land of private respondent equivalent to the area to be used for carving out water course – Neither the authorities had proceeded to issue any notice to the petitioner u/s 21 of the Act nor he has been afforded opportunity to file objections by the DCO u/s 21(2) of the Act -- Authorities have passed the orders for carving out water-course without following procedure established under the Act -- As such, the entire process is vitiated and is not sustainable in the eyes of law. Hawa Singh v. Chief Canal Officer/LCU, Haryana Irrigation Department and others, 2012(2) L.A.R. 237 (P&H).

Haryana Ceiling on Land Holdings Act, 1972 (26 of 1972)

Section 12(3) – Punjab Security of Land Tenures Act, 1953 (10 of 1953), Section 2(5a) -- Surplus land under Punjab Law – Unutilized land – Status of -- Vesting of -- In Haryana, the provision of Section 12 (3) of the Act of 1972 makes it absolutely clear that the land declared surplus by the Collector (Agrarian) under the provisions of the Punjab Security of Land Tenures Act, 1953, shall vest absolutely in the State on the appointed day free from all encumbrances, irrespective of the fact whether the land was utilised or not by extinguishing all rights and interest of the land owner -- Question of restoring such land to the big land owner or giving notice to him does not arise. Ujagar Singh and others v. The State of Haryana and others, 2012(2) L.A.R. 550 (P&H DB).

Haryana Co-operative Societies Act, 1984 (22 of 1984)

Section 23 - Death of member – Nominee – Legal heirs – Right of – Nominee does not get any right to inherit the right of the deceased member -- Nominee has a limited right -- Section 23 of the Act, is not meant to have overreaching effect over the general law of inheritance and would not confer any right over the property of the deceased member merely on the ground of being a nominee -- Nominee may be entitled to ask for transfer of share on his name but this would not make others to loose their right of inheritance -- Transferring of share, if done, would be only an interim arrangement -- Inheritance has to be governed by the law of inheritance. Inder Singh v. The Assistant Registrar, Cooperative Societies, Jind and others, 2012(2) L.A.R. 627 (P&H).

Haryana Development and Regulation of Urban Areas Act, 1975 (8 of 1975)

Section 3-C – Independent dwelling unit – Basement – Section 3C permits transfer, sale, gift, exchange or lease of an independent dwelling unit -- It also restricts that there can be only three dwelling units on a residential plot -- Basement is not an independent residential floor, therefore, the same is not transferable independently -- Circular dated 27.3.2009, provides for transfer of the basement along with the ground floor or to have proportionate right in the basement in respect of common services – Circular permitting registration of the sale deed in respect of the basement and ground floor, is legal and valid and does not suffer from any illegality -- Basement is not habitable and the dwelling unit, therefore, it cannot be transferred as an independent unit. Nivedita Sharma v. The State of Haryana and others, 2012(2) L.A.R. 58 (P&H DB).

Section 3-C – Independent dwelling unit – Basement – Two sale deeds were executed i.e. in respect of the ground floor and another sale deed bearing in respect of the basement -- Though the two separate instruments of sale were executed, but such instruments of sale are in respect of ground floor and basement in favour of the same vendee -- No violation of either the statute or Circular. Nivedita Sharma v. The State of Haryana and others, 2012(2) L.A.R. 58 (P&H DB).

Haryana Land Records Manual

Chapter 6.1, 6.5 --  Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g)(i) – Punjab Land Revenue Act, 1887 (XVII of 1887), Section 59(D) -- Shamilat deh – Exclusion from – Gair mumkin nadi -- Wajib-ul-arj -- In order to claim the benefit of section 2(g)(i) of the 1961 Act, the petitioners are required to prove that land becomes or has become Shamilat Deh due to river action or that land in Shamilat Deh was reserved in a village subject to river action -- The best evidence to prove the ingredients of section 2(g)(i) is the record maintained by revenue authorities, under Section 59(1)(D) of the Punjab Land Revenue Act, 1887, read with Chapters 6.1 and 6.5 of the Haryana Land Records Manual recording land affected by diluvion and land created by alluvion and the list of villages where land is subject to river action -- Petitioners have not produced the above record and must, therefore, suffer the consequences of an adverse inference -- Mere fact that a seasonal rivulet passes through the revenue estate or that the land is recorded as a gair mumkin nadi, does not raise an inference that the land has become or becomes Shamilat Deh due to river action or was reserved in a village subject to river action -- Words “gair mumkin nadi” refer to a river and not to land created by river action -- Mere fact that the Wajib-ul-arj records that ownership and possession would remain unchanged despite alluvion and diluvion, or that land lost to river action would be made good from Shamilat Deh, does not raise an inference that the land in dispute is excluded from Shamilat Deh -- In the absence of any revenue record to establish that the land becomes or has become Shamilat Deh due to river action, or that it was Shamilat Deh reserved to make good loss in land due to river action, the land in dispute cannot be excluded from Shamilat Deh and, vests in the Gram Panchayat under Section 2(g)(1) read with Sections 3 and 4 of the Act. Bundi Ram (deceased) through his LRs v. Commissioner, Ambala Division Ambala and others, 2012(2) L.A.R. 456 (P&H DB).

Haryana Municipal Election Rules, 1978

Rule 70 -- No-confidence motion against S.C. woman President – Legality of -- Contention that Seat of President for the Municipal Committee once reserved for the S.C. woman category, cannot be changed to the S.C. male category – Held , Rule 70, proviso 2 is clear that if no S.C. woman councilor is available then the seat of President can be given to the S.C. male category -- Since petitioner has been removed from the post of President by way of valid “No Confidence Motion”, therefore, seat was rightly given to the S.C. male category as there was no other woman councilor under the S.C. woman category. Om Pati v. State of Haryana and others, 2012(2) L.A.R. 664 (P&H).

Rule 70 – No-confidence motion against S.C. woman President – Legality of -- Contention that the President from the S.C. woman category can easily be removed by passing “No Confidence Motion” by other councilors belonging to higher caste, therefore, “No Confidence Motion” should not be allowed to be held against the President belonging to S.C  woman councilor -- Further contends that passing resolution against the S.C. category woman President and thereafter, giving the post of President to the S.C. male category, is permitted to be continued then it would be fraud on the constitutional provisions as well as the provisions of Rule 70, whereby 1/3rd posts are to be given to the S.C. woman category – Held, contention has no legal substance, if argument is accepted then there would be no “No Confidence Motion” to remove the President of the Municipality irrespective of her loosing confidence amongst the councilors. Om Pati v. State of Haryana and others, 2012(2) L.A.R. 664 (P&H).

Haryana Public Premises and Land (Eviction and Rent Recovery) Act, 1972 (24 of 1972)

Section 5 -- Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g), 2g(4a), 2g(vi), 4(1)(b) – Constructed houses -- Shamilat deh – Public premises – Eviction from -- Collector was required to prima facie consider and decide, whether these houses were excluded from “Shamilat Deh” in terms of Section 2(g)(4a) or Section 2(g)(vi) and/or Section 4(1)(b) of the 1961 Act – A pre-condition to the Collector, exercising jurisdiction, under the Public Premises Act, is a prima facie finding, that the land is public premises, i.e., was “Shamilat Deh”, under the 1961 Act, as defined under section 2(g)(1) of the 1961 Act – Collector and the Commissioner have not recorded any finding, in their orders, whether the land was “Shamilat Deh” -- Matter is remitted to the Collector to decide whether land, in dispute, was “Shamilat Deh” as provided by section 2(g)(1) or is excluded from “Shamilat Deh”, by virtue of sections 2(g), (4a) and 4 (1)(b) of the 1961 Act. Bahadur Singh and others v. The State of Haryana and others, 2012(2) L.A.R. 440 (P&H DB).

Haryana Urban (Control of Rent and Eviction) Act, 1973 (11 of 1973)

Section 13(2)(i) -- Arrears of rent – Assessment of – Object of -- Object of the legislature behind enacting Section 13 (2)(i) proviso is to save the tenant from eviction because of short tender that is why a duty has been cast upon the Rent Controller to assess the arrears of rent, interest and cost which is to be paid by the tenant to the landlord as arrears of rent. M/s Belliss India Limited v. Shri Ram Chand Gupta (dead) through his LRs and  others, 2012(2) L.A.R. 582 (P&H).

Section 13(2)(i) – Arrears of rent – First date of hearing – Provisional assessment of rent – Non-tender of – Tenant did not comply with the order by which rent was provisionally assessed and he was asked to tender the same on the first date of hearing – Tenant deserves to be evicted. Rajan alias Raj Kumar’s case, 2010 (2) PLR 201 relied. Anil Kumar v. Ghanshyam Dass, 2012(2) L.A.R. 624 (P&H).

Section 13(2)(i) – Refusal by tenant to pay rent -- Provisional assessment of rent – Requirement of -- Tenant has categorically refused to tender the rent -- Hence, there was no obligation on the part of the Rent Controller to assess the provisional rent even if the tenant had made a prayer, after three years of the said statement because that would be after the expiry of statutory period of 15 days. M/s Belliss India Limited v. Shri Ram Chand Gupta (dead) through his LRs and  others, 2012(2) L.A.R. 582 (P&H).

Section 13(2)(i) – Set off -- Assessment of provisional rent – Tenant claimed Set off for installation of tubewell, construction of service road connecting the factory to the main road and for repair and paint of the demised premises which is a pure question of fact and cannot be gone into at this stage of summary assessment of the provisional rent -- Tenant cannot claim ‘set off’ at the stage of assessment of provisional rent as it requires detailed enquiry and cannot be decided in the summary assessment of provisional rent. M/s Belliss India Limited v. Shri Ram Chand Gupta (dead) through his LRs and  others, 2012(2) L.A.R. 582 (P&H).

Illegal order

Writ jurisdiction -- De-notification of Sarpanch – Totally illegal order contrary to provisions of the statute and State Government denotifying the name of private respondent as Sarpanch by notification – Held, the same was rightly challenged by filing the writ petition and the Court was fully justified in allowing the said petition. Sukhdev Singh v. State of Punjab and others, 2012(2) L.A.R. 6 (P&H DB).

Independent dwelling unit

Haryana Development and Regulation of Urban Areas Act, 1975 -- Basement – Section 3C permits transfer, sale, gift, exchange or lease of an independent dwelling unit -- It also restricts that there can be only three dwelling units on a residential plot -- Basement is not an independent residential floor, therefore, the same is not transferable independently -- Circular permitting registration of the sale deed in respect of the basement and ground floor, is legal and valid and does not suffer from any illegality -- Basement is not habitable and the dwelling unit, therefore, it cannot be transferred as an independent unit -- Though the two separate instruments of sale were executed, but such instruments of sale are in respect of ground floor and basement in favour of the same vendee -- No violation of either the statute or Circular. Nivedita Sharma v. The State of Haryana and others, 2012(2) L.A.R. 58 (P&H DB).

Indian Easements Act, 1882 (5 of 1882)

Sections 4, 12, 18 -- Code of Civil Procedure, 1908 (V of 1908), Section 9 – Customary easement – Jurisdiction of Civil Court -- Decision of the Tahsildar after a summary enquiry with reference to the ‘previous custom’ is open to challenge in a civil suit and subject to the decision of the civil court -- Contention that Tahsildar alone has the jurisdiction, and not the civil court, to decide upon the existence or otherwise of a customary easement (relating to right of way or right to take water, to a person’s land), rejected. Smt. Ramkanya Bai & another v. Jagdish & others, 2012(2) L.A.R. 23 (SC).

Section 13 – Easement of necessity – Adverse possession -- Way from courtyard – Where immovable property passes by operation of law, the persons from and to whom it so passes are, for the purpose of this Section, to be deemed, respectively, the transferor and transferee -- Ownership rights have been acquired by plaintiffs in the house in their possession by operation of law, i.e., by way of adverse possession -- Hence, it cannot be said that Section 13 of the Act is not applicable – House in possession of both the parties are contiguous to each other -- No other way for going through the cattle shed except by passing through the courtyard of plaintiff and defendant has been using as such for the last 40-45 years – Defendant has not acquired easement of prescription, he has acquired easement of necessity. Hari Singh and others v. Jaswant Singh, 2012(2) L.A.R. 212 (P&H).

Indian Evidence Act, 1872 (1 of 1872)

Section 115 -- Doctrine of estoppels -- Doctrine of estoppels has evolved from the principles of equity and good conscience -- Doctrine postulates that where an offer is made and the party receiving the offer, believes the bonafides of the offer and so alters its position, as to render it inequitable and contrary to good conscious to allow the first party to retract from its offer, the first party would be estopped from retracting its offer -- Section 115 of the Indian Evidence Act incorporates the doctrine of estoppels and enables a party to invoke the doctrine against the party retracting its offer. Kesar Singh and another v. State of Punjab through its Director, Rural Development and Panchayats, Punjab and another, 2012(2) L.A.R. 606 (P&H Full Bench).

Section 115 -- Doctrine of estoppels -- Doctrine of estoppels shall not be invoked to defeat a statutory provision or to enable a party to allege that though the offer is contrary to statute, the party making the offer should be held to its offer -- Doctrine of estoppels cannot be invoked to legitimise an illegality and enforce an obligation that is contrary to law. Kesar Singh and another v. State of Punjab through its Director, Rural Development and Panchayats, Punjab and another, 2012(2) L.A.R. 606 (P&H Full Bench).

Section 115 -- Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961) 1, 4, 7, 11 -- Punjab Village Common Lands (Regulation) Rules, 1964, Rule 12 -- Punjab Land Revenue Act, 1887 (XVII of 1887), Section 34 – Doctrine of estoppels -- Transfer of public property against the Statute -- Mutation – Effect of -- An authority dealing with public property, cannot deviate from the statute, rules or instructions that govern transfer of its property -- Even where a Gram Panchayat has by resolution, transferred property, delivered possession and mutation of ownership has been sanctioned, such a transfer, if made in violation of Rule 12 of the Rules, would be null and void -- Doctrine of estoppels, cannot be invoked -- Gram Panchayat shall not be estopped from alleging the illegality of such a transfer or the unauthorised possession of such a vendee. Judgment in Smt. Malkhani's case, 2001(4) R.C.R.(Civil), 25 is over-ruled. Kesar Singh and another v. State of Punjab through its Director, Rural Development and Panchayats, Punjab and another, 2012(2) L.A.R. 606 (P&H Full Bench).

Indian Succession Act, 1925 (39 of 1925)

Section 63 – Will – Execution of -- Presence of beneficiary – Effect of -- Fact that the appellant/beneficiary was present at the time of execution of Will and that the testator did not give anything to others from his share in the joint family property are not decisive of the issue relating to genuineness or validity of the Will. Mahesh Kumar (Dead) By L.Rs. v. Vinod Kumar and others, 2012(2) L.A.R. 221 (SC).

Section 63 – Will -- Second Will -- Recital of previous Will – Cancellation of – Requirement of -- Absence of a categorical recital in Will that the earlier Will was cancelled is not relevant because once the execution of the second Will is held as duly proved, the earlier Will automatically becomes redundant because the second Will represents the last wish of the testator. Mahesh Kumar (Dead) By L.Rs. v. Vinod Kumar and others, 2012(2) L.A.R. 221 (SC).

Section 63 – Will – Share to one son – Validity of  -- One son had separated from the family in 1965 after taking his share and other son also got his share in the 2nd partition which took place in 1985 -- Neither of them bothered to look after the parents in their old age -- Attitude of sons left parents with no choice but to live with the appellant/other son who along with his wife and children took care of the old parents and looked after them during their illness -- Therefore, there was nothing unnatural or unusual in the decision of Father to give his share in the joint family property to the appellant -- Any person of ordinary prudence would have adopted the same course and would not have given anything to the ungrateful children from his / her share in the property. Mahesh Kumar (Dead) By L.Rs. v. Vinod Kumar and others, 2012(2) L.A.R. 221 (SC).

Section 63 – Will Attesting Witness – Capacity of -- Mere fact that Attesting witness lives at a distance of about four furlong from the house of father in law of the appellant/beneficiary has no bearing on the issue relating to validity of the Will. Mahesh Kumar (Dead) By L.Rs. v. Vinod Kumar and others, 2012(2) L.A.R. 221 (SC).

Interest

Land Acquisition Act, 1894 -- Award – Solatium – Since the award of the District Judge had been passed on 09.11.1983, that is, the period subsequent to the introduction of the Land Acquisition Bill in the Parliament on 30.04.1982 in terms of Section 23(1A), the claimants are entitled to solatium @ 30% on the respective amounts due for the two properties covered under the two awards -- On the aggregate of the respective amounts, the additional amount shall also draw interest at 12% p.a. from the date of Section 4(1) notification till the Collector’s awards -- As regards the additional amount so determined, the petitioners would be entitled to interest as provided under section 28 of the Land Acquisition Act, from the date of S.4(1) notification, since the possession had been taken even prior to the notification, till the date of payment. Ch. Vidya Bhushan (died) through his LRs and others v. Haryana State though the Collector, Karnal, and others, 2012(2) L.A.R. 380 (P&H).

Interest upon additional market value

Land Acquisition Act, 1894 – Appellants are entitled to get interest on the additional market value including solatium. Mehrawal Khewaji Trust (Regd.), Faridkot & others v. State of Punjab & others, 2012(2) L.A.R. 123 (SC).

Interim order of stay

Challenge to -- Appointment of Lambardar – L.P.A. against the interim order passed by the learned Single Judge, whereby while admitting the writ petition, the operation of the order passed by the Financial Commissioner, has been stayed – Grouse of the appellant is that due to stay at present nobody is functioning as Lambardar in village – Held, Ld. Single Judge totally ignored the fact that even before his appointment as Lambardar, the appellant was working as Sarbrah Lambardar of the village -- After his appointment as Lambardar by the Collector, not only the sanad of Lambardari was issued, but he had also started functioning on the said post -- In such circumstances, the order of the Financial Commissioner should not have been stayed – Due to stay there will be no Lambardar in the village due to which day to day functions to be performed by the Lambardar will be affected and the villagers will not be able to get their work done – Stay vacated. Harbans Singh v. State of Punjab and others, 2012(2) L.A.R. 392 (P&H DB).

Jumla Mushtarka Malkan

Bachat Land -- “Jumla Mushtarka Malkan” is neither “Bachat Land” nor are the two expressions, 'synonymous' or 'interchangeable' -- Jumla Mushtarka Malkan land cannot be partitioned or distributed amongst proprietors as it is reserved for common purposes -- Bachat Land, on the other hand, is land left over, after reserving land for the Gram Panchayat and for other common purposes and is generally redistributed amongst proprietors at the time of consolidation – Private respondents may, however, approach the Collector, u/s 11 of the Punjab Village Common Lands (Regulation) Act, 1961, for adjudication of any plea that this land was not reserved for common purposes and is wrongly reserved as “Jumla Mushtarka Malkan”. Gram Panchayat, Channo/Mallaheri v. Director, Consolidation of Holdings, Punjab and others, 2012(2) L.A.R. 241 (P&H DB).

East Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949 -- Rule 16(ii), provides that if, in a revenue estate, there is no “Shamilat Deh” or it is inadequate, consolidation authorities shall apply a pro-rata cut on the holdings of proprietors and reserve land for the Gram Panchayat and for other common purposes -- Land so created is known as “Jumla Mushtarka Malkan” -- Ownership of such land vests in the proprietors but its management and control vests in a Gram Panchayat -- Land, therefore, cannot be partitioned. Gram Panchayat, Channo/Mallaheri v. Director, Consolidation of Holdings, Punjab and others, 2012(2) L.A.R. 241 (P&H DB).

Shamilat deh – Shortage during consolidation – Power of Consolidation Officer -- Land created as Jumla Mustarka Malkan, during consolidation, vests in the proprietary body of the village but its management and control remains with the Panchayat in terms of Rule 16(ii) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949 – In case there is any shortage/'Kami Peshi’ in the holding of a private person, during consolidation, it cannot be made good from the land of Jumla Mustarka Malkan or from Shamilat deh, rather it is the duty of the Consolidation Officer to have a careful re-look at the entire record to find out the person(s) to whom excess land has been allotted during consolidation, and the said land has to be retrieved in order to provide it to the person, claiming shortage in his holding. Gram Panchayat, Village Khup Kalan v. The Deputy Director, Consolidation of Holdings, Punjab and others, 2012(2) L.A.R. 604 (P&H DB).

Jumla Mushtarka Malkan Khewat

Partition by void order -- Bonafide purchaser – Right of -- Claim that as the petitioner purchased the land, in dispute, from a proprietor after an order of partition was passed by the Director Consolidation, they are bonafide purchasers and should, therefore, be protected -- Order passed by the Director Consolidation was without jurisdiction and 'void-ab-initio' -- Foundation of the sale deed, is a void order, passed on an illegal assumption of jurisdiction and, therefore, does not divest the Gram Panchayat of its rights, or confer rights upon the petitioners as bonafide purchasers. Ishar Singh and another v. Director, Rural Development & Panchayat, Punjab and others, 2012(2) L.A.R. 654 (P&H DB).

Partition of – Possessory title of Gram Panchayat – Determination of -- Power of Director Consolidation -- After conclusion of consolidation proceedings, authorities under the Consolidation Act are functus officio and have no jurisdiction to determine whether the land vests or does not vest in a Gram Panchayat -- An order directing partition of the “Jumla Mushtarka Malkan Khewat” would require the Director Consolidation to record a finding that the land does not fall to the possessory title of the Gram Panchayat -- Right to decide such a dispute vests in the Collector, exercising powers under Section 11 of the Punjab Village Common Lands (Regulation) Act, 1961 -- Order passed by the Director Consolidation holding that the land does not vest in the Gram Panchayat and directing partition of this land, is without jurisdiction, null and void and were rightly ignored by the Collector and the Appellate Authority, while deciding question of title. Ishar Singh and another v. Director, Rural Development & Panchayat, Punjab and others, 2012(2) L.A.R. 654 (P&H DB).

Jumla Mushtarka Malkan land

Punjab Public Premises laws – Eviction -- Contention that property is “Jumla Mushtarka Malkan” and the petitioners are proprietors of the village, as such have share in the land in question, this land has neither been reserved for common purposes nor is being used for common purposes and the petitioners are in the cultivating possession, as such, have becomes owners to the extent of their shares – Held, no evidence that what was the share of the petitioners and they were in exclusive possession of any part of the land after having a valid partition of the “Jumla Mushtarka Malkan” land – Land as per Jamabandi for the year 1958-59 is Gram Panchayat -- So, all the rights vest in the Gram Panchayat for management and control – Eviction order upheld. Rajdev Singh and another v. Joint Development Commissioner, Punjab and others, 2012(2) L.A.R. 107 (P&H DB). 

Punjab Public Premises laws – Eviction -- Since, the management and control vest in the Gram Panchayat, such land is public premises and ejectment of unauthorized occupant therefrom can be made under both the Acts i.e. Section 5 of the Eviction Act and Section 7 of the Common Lands Act – Whichever remedy, Panchayat deem it appropriate speedy, summary and effective, it can avail. Rajdev Singh and another v. Joint Development Commissioner, Punjab and others, 2012(2) L.A.R. 107 (P&H DB). 

Jumla Mushtarka Malkan Wa Digar Haqdaran Hasab Rasad Arazi Khewat

Land described, in the revenue record, as “Jumla Mushtarka Malkan Wa Digar Haqdaran Hasab Rasad Arazi Khewat” is land reserved during consolidation, in accordance with Section 18 and 23(A) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 and Rule 16(ii) of East Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949 for common purposes of the village panchayat and other common purposes. Ishar Singh and another v. Director, Rural Development & Panchayat, Punjab and others, 2012(2) L.A.R. 654 (P&H DB).

Partition of land – Permissibility of -- Land, so reserved, falls to the possessory title of the Gram Panchayat whereas proprietary title continues to vest in proprietors -- Gram Panchayat is empowered to enter possession of such land and use it for the common purpose assigned during consolidation or such other common purposes as may be permissible -- Order passed by the Director Consolidation holding that the land does not vest in the Gram Panchayat and directing partition of this land, is without jurisdiction. Ishar Singh and another v. Director, Rural Development & Panchayat, Punjab and others, 2012(2) L.A.R. 654 (P&H DB).

Jurisdiction of civil court

Consolidation proceedings – Suit for declaration with consequential relief of permanent injunction challenging the order passed by Competent Authority in consolidation proceedings u/s 21 (3) of Consolidation Act, 1948 on the plea that less land was allotted to the plaintiff – Remedy was available to the appellant-plaintiff to go in appeal before the Settlement Commissioner u/s 21(3) of the Act -- Jurisdiction of Civil Court has been specifically barred u/s 44 of the Act. Ranbir Singh v. Gram Panchayat, Village Bandhwari and others, 2012(2) L.A.R. 675 (P&H).

Customary easement – Decision of the Tahsildar after a summary enquiry with reference to the ‘previous custom’ is open to challenge in a civil suit and subject to the decision of the civil court -- Contention that Tahsildar alone has the jurisdiction, and not the civil court, to decide upon the existence or otherwise of a customary easement (relating to right of way or right to take water, to a person’s land), rejected. Smt. Ramkanya Bai & another v. Jagdish & others, 2012(2) L.A.R. 23 (SC).

Punjab Municipal Act, 1911 -- Water tax – Imposition of – Legality of -- When the very legality and jurisdiction of the authority to impose and recover tax is under question -- Jurisdiction of the Civil Court would not be barred. Municipal Committee, Abohar v. Surinder Mohan Ahuja, 2012(2) L.A.R. 219 (P&H).

Shamilat deh – Title dispute – Decree of Civil Court – Effect of -- Decree dated 01.12.1980 was passed in Civil Suit No.135/25.04.1980, instituted after the insertion of Section 13 in the Punjab Village Common Lands (Regulation) Act, 1961, which debars a Civil Court from deciding question of any right, title or interest in favour of any party in respect of the land vested or deemed to have been vested in shamilat deh – Held, decree dated 01.12.1980 has to be ignored as being without jurisdiction. Ranjit Singh and others v. State of Punjab and others, 2012(2) L.A.R. 409 (P&H DB).

Wakf Act, 1995 – Evacuee property – Jurisdiction of the Civil Court was not barred for entertaining the suit for permanent injunction, since there was no evidence on the record of the case which the State produced that the property in dispute has been declared evacuee property. Tehsildar (Sales), Gurgaon and another v. Roshan Lal and others, 2012(2) L.A.R. 38 (P&H).

Wakf Act, 1995 – Evacuee property – Suit was filed on 7.11.1983, and the Wakf Act, 1995 came into force from 1.1.1996 – Held, matter which is pending in any suit before the commencement of the Act or which is the subject matter of an appeal, there would be no bar for the Civil Court to decide such issues. Tehsildar (Sales), Gurgaon and another v. Roshan Lal and others, 2012(2) L.A.R. 38 (P&H).

Jurisdiction of Consolidation authorities

Title dispute – Vesting in Panchayat or not -- Consolidation authorities, much less the Director, exercising power under Section 42 of the Consolidation Act, had no jurisdiction to decide whether land vests or does not vest in a Gram Panchayat -- Only authority empowered to decide such a question is the Collector, exercising power under the Punjab Village Common Lands (Regulation) Act, 1961. Mehar Singh and others v. Gram Panchayat Sehjo Majra and others, 2012(2) L.A.R. 513 (P&H DB).

Jurisdiction of Reference Court

Land Acquisition Act, 1894 -- Acquisition of land -- Annuity – Rehabilitation policy –  Policy regarding rehabilitation and/or re-settlement of the oustees land owners cannot be subject-matter of adjudication before the reference court u/s 18 of the Act – Reference court did not have the jurisdiction to deal with the issue regarding grant of annuity or any other benefit in terms of the policy framed by the government while dealing with the reference under the Act. Prem Singh and others v. State of Haryana and others, 2012(2) L.A.R. 616 (P&H).

Kila Raipur festival

No illegality in the notification dated 11.07.2011 by which restriction has been imposed by the Central Government through notification on exhibition or training of Bull as a performing animal, which means any performance where public is admitted, through on sale of tickets -- Kila Raipur Sports Festival, where various events are being held, is for public entertainment without any sale of ticket -- Notification dated 11.07.2011 is not applicable. Gauraksha Dal v. Union of India and others, 2012(2) L.A.R. 558 (P&H DB).

Land

Standing trees – Ownership of -- It is a well-known maxim that whatever is affixed to the soil/land, becomes in contemplation of law a part of it and is subjected to the same rights of property as the soil/land itself – Even if a person plants the trees on the land belonging to another, the trees come to vest in the landowner and cannot be removed by a person, by whom they were planted -- Landowner must be held entitled to be compensated in this relevant connection and is the legal owner of the trees standing in his land. State of Punjab and another v. Tara Singh and another, 2012(2) L.A.R. 419 (P&H).

Land Acquisition Act, 1894 (1 of 1894)

Section 3(f) – Public purpose -- Public purpose for which the land is acquired can always be changed to another public purpose by the State Government for optimum utilization of the land -- Requirements of the community keep on varying -- Schemes can be varied to meet the changing needs of the public. Jagtar Singh etc. v. State of Punjab etc., 2012(2) L.A.R. 170 (P&H DB).

Section 4, 5-A, 6 -- Acquisition of houses – Development of infrastructure or industrialization -- Majority of people spend their lifetime savings for building a small house so that their families may be able to live with a semblance of dignity -- Therefore, it is wholly unjust, arbitrary and unreasonable to deprive such persons of their houses by way of the acquisition of land in the name of development of infrastructure or industrialisation. Raghbir Singh Sehrawat v. State of Haryana and others, 2012(2) L.A.R. 130 (SC).

Section 4, 5-A, 6 – Acquisition of land -- Object of Objections u/s 5-A – Natural justice -- Before any person is deprived of his land by way of compulsory acquisition, he must get an opportunity to oppose the decision of the State Government and/or its agencies/instrumentalities to acquire the particular parcel of land -- Objector can make an effort to convince the Land Acquisition Collector to make recommendation against the acquisition of his land -- He can also point out that land proposed to be acquired is not suitable for the purpose specified in the notification issued u/s 4(1) -- Not only this, he can produce evidence to show that another piece of land is available and the same can be utilized for execution of the particular project or scheme -- Collector should give a fair opportunity of hearing to the objector and objectively consider his plea against the acquisition of land -- Only thereafter, he should make recommendations supported by brief reasons as to why the particular piece of land should or should not be acquired and whether or not the plea put forward by the objector merits acceptance -- Recommendations made by the Collector must reflect objective application of mind to the objections filed by the landowners and other interested persons. Raghbir Singh Sehrawat v. State of Haryana and others, 2012(2) L.A.R. 130 (SC).

Section 4, 5-A, 6, 9, 11 --  Acquisition of land – Notice of – Non-serving of – Effect of -- Notices were delivered to some of the landowners, who acknowledged the receipt thereof, however, the notices issued to the appellant and his wife were not served upon them -- Land Acquisition Collector proceeded to decide the objections by assuming that the notice has been delivered to all the objectors – Appellant had not been given opportunity of hearing as per the mandate of Section 5A(2) -- Acquisition of his land is declared illegal and quashed. Raghbir Singh Sehrawat v. State of Haryana and others, 2012(2) L.A.R. 130 (SC).

Section 4,5-A,6,17 – Acquisition of land for residential Scheme – Urgency power – Invoking of -- Ordinarily, invocation of urgency power by the government for a Residential Scheme that does not fall in exceptional category cannot be held to be legally sustainable. Ram Dhari Jindal Memorial Trust v. Union of India and others, 2012(2) L.A.R. 95 (SC).

Section 4,5-A,6,17 – Acquisition of land for residential Scheme – Urgency power – Invoking of – Requirement of -- Statement made in notification is to the effect the Lt. Governor, Delhi is satisfied that provisions of section 17(1) are applicable and is further pleased under sub-section (4) to direct that all the provisions of Section 5A shall not apply -- No other material available on record which indicates that there has been application of mind – Power of urgency by the Government u/s 17 for a public purpose like Residential Scheme cannot be invoked as a rule but has to be by way of exception -- Notification u/s 4, 6 quashed, competent authority may now invite objections u/s 5-A of the Act. Ram Dhari Jindal Memorial Trust v. Union of India and others, 2012(2) L.A.R. 95 (SC).

Section 4, 6 – Acquisition of land -- Rehabilitation policy – Allotment of plot – Purpose of -- Reason for not allotting 3 marlas of plot is, as in terms of rehabilitation policy, the petitioner is entitled to only 1 marla of plot -- Purchase of three marlas before the acquisition does not entitle her to claim three plots -- Policy is to rehabilitate and not to provide plots to the persons, affected by acquisition -- Process of rehabilitation is to accommodate the persons displaced by acquisition and not to give them equivalent land – Held, neither in law nor in equity, the petitioner has any justified claim for claiming a plot measuring 3 marlas. Shyama Bansal v. Shri Mata Mansa Devi Shrine Board, Panchkula, 2012(2) L.A.R. 259 (P&H DB).

Section 4, 6 – Publication of notification -- Requirement of publication of notification in the Official Gazette and two local newspapers is mandatory -- Not only this, the Collector is under an obligation to ensure that public notice of the substance of such notification is given at convenient places in the locality. Lalrinvenga (Dead) Through L.Rs. and another v. State of Mizoram and others, 2012(2) L.A.R. 188 (SC).

Section 4, 6 – Publication of notification – Proof of -- High Court upheld the acquisition of land by assuming that notification issued u/s 4(1) must have been published in the Official Gazette because the declaration issued under Section 6 was published in the Official Gazette -- Approach of the High Court was clearly erroneous -- Question whether the notification issued u/s 4(1) was published in the Official Gazette is a question of fact and such question cannot be decided on assumptions and conjectures or inferences. Lalrinvenga (Dead) Through L.Rs. and another v. State of Mizoram and others, 2012(2) L.A.R. 188 (SC).

Section 4, 6 – Publication of notification – Proof of -- Whenever the acquisition of land is challenged on the ground that the notification has not been published as per the mandate of the statute, the authority defending the acquisition is under an obligation to produce evidence in the form of documents to prove that the requirement of publication has been complied. Lalrinvenga (Dead) Through L.Rs. and another v. State of Mizoram and others, 2012(2) L.A.R. 188 (SC).

Section 4, 6, 16 -- Acquisition of land – Possession of – Meaning of – Rojnamcha Vakyati -- Entries in Girdawari/Record of cultivation shows appellant in possession – Genuineness and correctness of the entries contained in the Girdawaris is not questioned – Therefore, no reason to disbelieve or discard the same -- Rojnamcha Vakyati prepared by Sadar Kanungo and three Patwaris showing delivery of possession to Senior Manager (IA), HSIIDC, which is a self serving document, cannot be made basis for recording a finding that possession of the acquired land had been taken by the concerned revenue authorities -- Crops were standing on several parcels of land, possession thereof could not have been taken without giving notice to the landowners -- It was humanly impossible to give notice to large number of persons on the same day and take actual possession of land total measuring 214 Acres 5 Kanals and 2 Marlas – Held, record prepared by the revenue authorities showing delivery of possession of the acquired land to HSIIDC has no legal sanctity -- High Court committed serious error by dismissing the writ petition on the specious ground that possession of the acquired land had been taken and the same vested in the State Government in terms of Section 16. Raghbir Singh Sehrawat v. State of Haryana and others, 2012(2) L.A.R. 130 (SC).

Section 4, 6, 16 -- Acquisition of land – Public purpose -- Some people set up small industrial unit after seeking permission from the competent authority -- Before acquiring private land the State and/or its agencies/instrumentalities should, as far as possible, use land belonging to the State for the specified public purposes -- If the acquisition of private land becomes absolutely necessary, then too, the concerned authorities must strictly comply with the relevant statutory provisions and the rules of natural justice. Raghbir Singh Sehrawat v. State of Haryana and others, 2012(2) L.A.R. 130 (SC).

Section 4, 11, 23, 24 – Market value – Sale deed after notification u/s 4 – Reliance upon – Sale deeds are not relevant as the same were registered after the issuance of notification u/s 4 of the Act. Prem Singh and others v. State of Haryana and others, 2012(2) L.A.R. 616 (P&H).

Section 4, 11, 23, 24 – Market value – Sale deed – Relevancy of – No site plan on record produced by the land owners showing the exact location of the land pertaining to any of the sale deed – Not safe to consider the same for valuation of the acquired land. Prem Singh and others v. State of Haryana and others, 2012(2) L.A.R. 616 (P&H).

Section 4, 23(1A), 28 -- Award – Solatium –Interest -- Entitlement of – Since the award of the District Judge had been passed on 09.11.1983, that is, the period subsequent to the introduction of the Land Acquisition Bill in the Parliament on 30.04.1982 in terms of Section 23(1A), the claimants are entitled to solatium @ 30% on the respective amounts due for the two properties covered under the two awards -- On the aggregate of the respective amounts, the additional amount shall also draw interest at 12% p.a. from the date of Section 4(1) notification till the Collector’s awards -- As regards the additional amount so determined, the petitioners would be entitled to interest as provided under section 28 of the Land Acquisition Act, from the date of S.4(1) notification, since the possession had been taken even prior to the notification, till the date of payment. Ch. Vidya Bhushan (died) through his LRs and others v. Haryana State though the Collector, Karnal, and others, 2012(2) L.A.R. 380 (P&H).

Section 5-A – Acquisition of land – Challenge to -- Objections – Non-filing of – Effect of -- Explanation that petitioner had no knowledge of acquisition proceedings, cannot be accepted – Petitioner company is not managed by illiterate, rustic persons -- By its own showing the company promotes and builds colonies and townships and, therefore, must have been aware of acquisition proceedings -- It appears that the petitioner did not choose to file objections, confident that it would be able to seek release of its land under various policies, framed by the Government – Failure to the objections, u/s 5-A of the Act, dilutes the petitioner's challenge to acquisition proceedings. Vaishnavi Promoters and Builders, New Delhi v. State of Haryana and others, 2012(2) L.A.R. 487 (P&H DB).

Section 5-A – Acquisition of land – Challenge to -- Writ petition was filed after pronouncement of the award and even after mutation of ownership was sanctioned in favour of the Government -- Plea that as petitioner had already filed an application for grant of a license and deposited scrutiny and licence fee, the Government should be estopped from acquiring his land, has to be rejected -- Land, in dispute, has been acquired for a significant public purpose, namely, augmentation of water supply to town -- Acquired land abuts the existing water works in village -- Best piece of land, available for augmenting water works, is the petitioner's land as it adjoins the existing water works in village -- Furthermore, the discretion to grant relief under a policy of exemption rests with a Government -- Government has chosen not to exercise its discretion vis-à-vis the petitioner -- Nature of the project does not entitle the petitioner to any benefit under policies framed by the Government. Vaishnavi Promoters and Builders, New Delhi v. State of Haryana and others, 2012(2) L.A.R. 487 (P&H DB).

Section 5-A, 17 -- Acquisition of land – Urgency powers – Invoking of – Duty of Government -- Use of power of urgency under Section 17(1) and (4) of the Act ipso facto does not result in elimination of enquiry u/s 5A -- Satisfaction of the government on twin aspects viz; (i) need for immediate possession of the land for carrying out the stated purpose and (ii) urgency is such that necessitates dispensation of enquiry is a must and permits no departure for a valid exercise of power under Section 17(1) and (4). Ram Dhari Jindal Memorial Trust v. Union of India and others, 2012(2) L.A.R. 95 (SC).

Section 11, 18, 23 – Award – Market Value – Determination of -- Property secured by a public authority in public auction in competitive bids is perhaps the best method of ascertaining a market value. Ch. Vidya Bhushan (died) through his LRs and others v. Haryana State though the Collector, Karnal, and others, 2012(2) L.A.R. 380 (P&H).

Section 11, 18, 23 – Award – Belting system -- Market Value – Determination of -- Entire property acquired abuts the main road and the whole of the property has been used for a single purpose -- ‘Belting system’ (dividing land into different belts for determination of market value) will not apply – Both conditions (i) the lands were similarly placed and were surrounded by developed areas and (ii) that all acquired lands were intended to be used for the same purpose are satisfied – Court, would apply the same value for the whole property, where the extent itself is not very large and situate in the proximity of developed markets and on the GT Road. Trishala Jain’s case (2011) 6 SCC 47 relied. Ch. Vidya Bhushan (died) through his LRs and others v. Haryana State though the Collector, Karnal, and others, 2012(2) L.A.R. 380 (P&H).

Section 11-A – Award – Mandatory period -- Section 11A mandates that an award shall be made by the Collector u/s 11 of the Act within a period of two years from the date of the publication of the declaration -- Non-adherence to this period results in entire acquisition proceedings being lapsed -- Declaration u/s 6 published before the commencement of the Amendment Act, the award shall be made within a period of two years from such commencement (24.9.1984) -- Period during which any action or proceeding relating to acquisition taken pursuant to such declaration remains stayed by an order of the court, shall be excluded -- Period prescribed in Section 11A is mandatory. Mulchand Khanumal Khatri v. State of Gujarat & Others, 2012(2) L.A.R. 73 (SC).

Section 11-A – Limitation Act, 1963 (36 of 1963), Section 12 -- Award – Mandatory period – Limitation -- Stay order of the High Court remained operative for the period 24.9.1984 to 11.1.1996 -- Whether Section 11A of the Act permits exclusion of time that was taken in obtaining the certified copy of the judgment and order passed by the High Court and the period from the date the certified copy was obtained and it was brought to the notice of the authority – Held, period prescribed in Section 11A is mandatory -- No justification to read the provisions of the Limitation Act, 1963 and particularly Section 12 thereof into it -- Period cannot be excluded under explanation appended to Section 11A of the Act. Mulchand Khanumal Khatri v. State of Gujarat & Others, 2012(2) L.A.R. 73 (SC).

Section 18 – Acquisition of land -- Annuity – Rehabilitation policy – Jurisdiction of Reference Court –Policy regarding rehabilitation and/or re-settlement of the oustees land owners cannot be subject-matter of adjudication before the reference court u/s 18 of the Act – Reference court did not have the jurisdiction to deal with the issue regarding grant of annuity or any other benefit in terms of the policy framed by the government while dealing with the reference under the Act. Prem Singh and others v. State of Haryana and others, 2012(2) L.A.R. 616 (P&H).

Section 18 – Civil Court decree -- Reference Court – Power of -- After a Civil Court decree determines rights of parties, no party can resile from the same unless the decree itself is set aside -- Adjudication of Civil Court proceedings could not have been reopened by a Reference Court. Ch. Vidya Bhushan (died) through his LRs and others v. Haryana State though the Collector, Karnal, and others, 2012(2) L.A.R. 380 (P&H).

Section 18 – Question of title -- Reference Court – Power of -- Reference Court itself lacked jurisdiction to adjudicate on issue of title -- Reference was made only u/s 18 and the Court had no jurisdiction to allow parties to join issues on title -- Reference Court u/s 18 had no power to decide on whoever was entitle to compensation, the only relevant subject could be the quantum of compensation -- Where in a case where there is a dispute regarding an apportionment, if the Collector does not make a reference under Section 30, the Collector could be compelled to make a reference through a direction of a Court – This court cannot accede to the general contention that Section 18 could be converted as 30 reference. Ch. Vidya Bhushan (died) through his LRs and others v. Haryana State though the Collector, Karnal, and others, 2012(2) L.A.R. 380 (P&H).

Section 23 -- Market Value – Factors to be considered -- While fixing market value of the acquired land, the Land Acquisition Collector is required to keep in mind the following factors: (i) Existing geographical situation of the land -- (ii) Existing use of the land -- (iii) Already available advantages, like proximity to National or State High Way or road and/or developed area -- (iv) Market value of other land situated in the same locality/village/area or adjacent or very near the acquired land. Sabhia Mohammed Yusuf Abdul Hamid Mulla (D) by L.Rs. and others v. Special Land Acquisition Officer and others, 2012(2) L.A.R. 519 (SC).

Section 23 -- Market Value – Factors to be considered -- Reference Court had taken notice of the fact that the acquired land was in the proximity of National Highway and the construction of Bridge brought village close to Bombay – Reference Court also noted that civic amenities were available to town prior to 1970 and industrial estates had been developed and concluded that the acquired land was available for non-agricultural use and the only obstruction was the absence of conversion – High Court did not advert to the factors noted by the Reference Court and reduced the amount of compensation by mechanically applying the distance criteria, i.e., distance of the acquired land from Highway adopted in the earlier judgments – Case may be remitted to the High Court for fresh adjudication of the appeals, but keeping in view the fact that a period of 42 years has elapsed, ends of justice will be adequately met by restoring the determination of compensation made by the Reference Court. Sabhia Mohammed Yusuf Abdul Hamid Mulla (D) by L.Rs. and others v. Special Land Acquisition Officer and others, 2012(2) L.A.R. 519 (SC).

Section 23, 24 -- Market Value – Sale deed of small area, 2-1/2 year old – Reliance upon -- Sale deed was two and a half years prior in time of notification u/s 4(1) – No reason to eschew the above sale transaction – Annual increase @ 12% per annum allowed and area of land under sale deed is a smaller one, deduction @ 20% allowed. Mehrawal Khewaji Trust (Regd.), Faridkot & others v. State of Punjab & others, 2012(2) L.A.R. 123 (SC).

Section 23, 24 -- Market Value – Different sale deeds – Preference of -- Where sale deeds pertaining to different transactions are relied on behalf of the Government, the transaction representing the highest value should be preferred to the rest unless there are strong circumstances justifying a different course -- It is not desirable to take an average of various sale deeds placed before the authority/court for fixing fair compensation. Mehrawal Khewaji Trust (Regd.), Faridkot & others v. State of Punjab & others, 2012(2) L.A.R. 123 (SC).  

Section 23, 24, 28, 34 -- Additional market value -- Interest thereupon – Appellants are entitled to get interest on the additional market value including solatium. Mehrawal Khewaji Trust (Regd.), Faridkot & others v. State of Punjab & others, 2012(2) L.A.R. 123 (SC).

Section 24 – Acquisition of land – Market Value -- High Court has reduced compensation on the ground that the land, though was given nonagricultural permission, it could not be treated as a basis for treating the entire land as nonagricultural – Supreme Court disagree with this view – Held, though the claimant has been unable to prove the existence of a hotel, it has been found that some structures for the same existed, therefore, there is some development on the acquired land -- Travellers would stop by and utilize the hotel services provided by the claimants – Land is also adjacent to highway and is only 6 to 8 kms away from internationally famous tourist destination -- Thus, there is great future potential for development with respect to the acquired land -- Potential to which the land is reasonably capable of being used in future by the owner should be taken into account in assessing compensation. Bilkis and others v. State of Maharashtra and others, 2012(2) L.A.R. 452 (SC).

Land for roads

Liquor Vendor’s site -- Land which has been reserved for the expansion of the roads and slow carriage ways must be regarded as a part of the road and cannot be utilized for any other purpose whatsoever and grant of the lease on such land to open the liquor vends and tavern cannot be considered to be legal. Amit Jain and others v. State of U.T., Chandigarh and others, 2012(2) L.A.R. 64 (P&H DB).

Land for Sewerage treatment plant needed by Municipal Council

Punjab Village Common Lands (Regulation) Rules, 1964 -- Transfer of – Resolution by 3/4th majority – Requirement of – Resolution passed, State granting approval for transfer of land to Municipal Council – Contention that said proposal was not supported by 3/4 members of the Panchayat and consequently the entire action was vitiated – Held, rule 12-A of the Rules, 1964 would be applicable, for certain specified situations, there would be no requirement for a 3/4th majority. Namrita Kanwar and others v. The State of Punjab and others, 2012(2) L.A.R. 678 (P&H).

Leave to defend

East Punjab Urban Rent Restriction Act, 1949 -- Eviction of tenant -- Moment application for leave to defend is dismissed, the order of eviction would follow in terms of provision of Section 13 B of the Act. Smt. Asha Gupta v. Sudershan Kumar Rai, 2012(2) L.A.R. 239 (P&H).

East Punjab Urban Rent Restriction Act, 1949 -- Limitation – Condonation of delay -- Application for leave to contest is to be filed within 15 days from the date of service – No fault can be found in order of Rent Controller declining the application for condonation of delay u/s 5 of the Limitation Act, 1963. Vinod Chawla v. Surinder Singh and others, 2012(2) L.A.R. 21 (P&H).

Legal heirs

Haryana Co-operative Societies Act, 1984 -- Death of member – Right of Legal heirs – Nominee – Nominee does not get any right to inherit the right of the deceased member -- Nominee has a limited right -- Section 23, is not meant to have overreaching effect over the general law of inheritance and would not confer any right over the property of the deceased member merely on the ground of being a nominee -- Nominee may be entitled to ask for transfer of share on his name but this would not make others to loose their right of inheritance -- Transferring of share, if done, would be only an interim arrangement -- Inheritance has to be governed by the law of inheritance. Inder Singh v. The Assistant Registrar, Cooperative Societies, Jind and others, 2012(2) L.A.R. 627 (P&H).

Legislative function

Punjab Municipal Corporation Act, 1976  -- Declaration of Urban area – Once it has been held that the process of declaration of an urban area into a Municipal Corporation is essentially a legislative function, the only ground on which it can be challenged is the ground of unconstitutionality or ultra vires. Ajay Kumar and others v. State of Punjab and others, 2012(2) L.A.R. 290 (P&H).

Licence for Potato chips manufacturer

Punjab Agricultural Produce Markets Act, 1961 -- For the purpose of manufacturing potato chips, the petitioner is storing potatoes in his factory premises, which is situated in the market area within the State of Punjab -- Not only this, by processing of the potatoes, petitioner was converting the potatoes into potato chips, therefore, petitioner is covered under Section 6(3) and has rightly obtained licence. Pepsico India Holdings Private Limited v. State of Punjab and others, 2012(2) L.A.R. 274 (P&H DB).

Sine quo non to attract Rule 18(1)(a) is that a person should be supplier or dealer (Purveyor) of perched, fried or cooked food -- Manufacturer of potato chips cannot be regarded as supplier or dealer of the food, therefore, not exempted from taking licence u/s 6 in view of provision of Rule 18(1)(a) of Punjab Agricultural Produce Markets (General) Rules, 1962, therefore, is duty bound and has rightly applied and granted licence under Section 6(3) the Punjab Agricultural Produce Markets Act, 1961. Pepsico India Holdings Private Limited v. State of Punjab and others, 2012(2) L.A.R. 274 (P&H DB).

Licensing of Auction Platform Rules 1981

Rule 4 – Punjab Agricultural Produce Markets Act, 1961 (23 of 1961), Section 10 -- Auction site – Right of Licensee – “Any person” u/s 10 for grant of licence ought not to be seen without reference to the above rule insofar as a claim for an auction platform is made -- A licensee cannot have a right to auction platform if he did not have a right to a shop in some capacity either as an owner or as a tenant. M/s Sood Brothers v. Union Territory, Chandigarh, 2012(2) L.A.R. 79 (P&H).

Rule 4, 21 -- Punjab Agricultural Produce Markets Act, 1961 (23 of 1961), Section 10 -- Renewal of Licence – Auction platform – Right of -- Requirements in the rules state no more than the necessity of having a shop in the premises -- What space it shall be in the auction platform is not set out through any of the provisions of the Act or the rules -- This assumes significance because there is admittedly a shortage of space in the auction platforms and, therefore, there has to be a workable policy to accommodate persons, who are the licensees -- So long as there are no rules or provisions in the Act any such attempt, which will prejudice the existing licence holders, it cannot be tolerated -- A licence granted under the Act and Rules entitles the licensee to run his business anywhere within the area of the Market Committee -- It may be that a new licensee could use his own shop as an auction platform in a situation where no auction platform is available. M/s Sood Brothers v. Union Territory, Chandigarh, 2012(2) L.A.R. 79 (P&H).

Rules 4, 21 – Punjab Agricultural Produce Markets Act, 1961 (23 of 1961)Section 10, 13 – General Clauses Act, 1897 (10 of 1897), Section 26 -- Licensee changed the shop – Renewal of Licence – Auction platform – Right of -- Licencee cannot be denied the right of renewal of licence only because in the form of application, a licensee has changed the place of business within the notified area -- No justification to deny to an existing licensee who applies for renewal should lose his auction platform, if he already held one. M/s Sood Brothers v. Union Territory, Chandigarh, 2012(2) L.A.R. 79 (P&H).

Limitation

Appeal – Communication of order -- It is obligatory for the authorities making the order to communicate it to the concerned party and the period of limitation for any appeal against the order is reckonable from the date of such communication of written order itself – Prescribed period of limitation would only commence from the date on which the order was received by the party concerned, unless and until there is a strong and positive evidence of acquisition of knowledge of the impugned order. Jain Motors Regd. Patiala v. The State Transport Appellate Tribunal & Ors., 2012(2) L.A.R. 394 (P&H).

Delay of 48 years -- Petitioner failed to furnish any plausible explanation for 48 years' delay in filing a petition under Section 42 of the Consolidation Act -- Petitioner is disentitle to any relief. Dharampal v. The Director Consolidation Department, Haryana, Panchkula, and others, 2012(2) L.A.R. 662 (P&H DB). 

East Punjab Urban Rent Restriction Act, 1949 -- Leave to defend – Condonation of delay -- Application for leave to contest is to be filed within 15 days from the date of service – No fault can be found in order of Rent Controller declining the application for condonation of delay u/s 5 of the Limitation Act, 1963. Vinod Chawla v. Surinder Singh and others, 2012(2) L.A.R. 21 (P&H).

Fraud -- Collusive decree – Once it has been held that the land in dispute is Shamlat Deh and the decree was obtained by fraud and collusion, it can be challenged at any time. Gram Panchayat Gulalta v. State of Haryana and others, 2012(2) L.A.R. 669 (P&H DB).

Land Acquisition Act, 1894 (1 of 1894) – Award – Mandatory period – Stay order of the High Court remained operative for the period 24.9.1984 to 11.1.1996 -- Whether Section 11A of the Act permits exclusion of time that was taken in obtaining the certified copy of the judgment and order passed by the High Court and the period from the date the certified copy was obtained and it was brought to the notice of the authority – Held, period prescribed in Section 11A is mandatory -- No justification to read the provisions of the Limitation Act, 1963 and particularly Section 12 thereof into it -- Period cannot be excluded under explanation appended to Section 11A of the Act. Mulchand Khanumal Khatri v. State of Gujarat & Others, 2012(2) L.A.R. 73 (SC).

Limitation Act, 1963 (36 of 1963)

Section 12 – Land Acquisition Act, 1894 (1 of 1894), Section 11-A – Award – Mandatory period – Limitation -- Stay order of the High Court remained operative for the period 24.9.1984 to 11.1.1996 -- Whether Section 11A of the Act permits exclusion of time that was taken in obtaining the certified copy of the judgment and order passed by the High Court and the period from the date the certified copy was obtained and it was brought to the notice of the authority – Held, period prescribed in Section 11A is mandatory -- No justification to read the provisions of the Limitation Act, 1963 and particularly Section 12 thereof into it -- Period cannot be excluded under explanation appended to Section 11A of the Act. Mulchand Khanumal Khatri v. State of Gujarat & Others, 2012(2) L.A.R. 73 (SC).

Section 5 -- East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 13-B, 18-A -- Leave to defend -- Application for leave to contest is to be filed within 15 days from the date of service – No fault can be found in order of Rent Controller declining the application for condonation of delay u/s 5 of the Limitation Act, 1963. Om Parkash’s case (2010) 9 SCC 183 relied. Vinod Chawla v. Surinder Singh and others, 2012(2) L.A.R. 21 (P&H).

Liquor Vendor’s site

As per the Excise Policy, permission to run liquor vend on a particular location can be refused by the Administration for the public morality, public health and public order -- Congestion of traffic is a valid ground to refuse permission -- Keeping in mind public safety, liquor vends in the pre-fabricated temporary structures over the Government land, which is reserved for the expansion of road and slow carriage ways near the roundabouts and traffic lights should not be allowed. Amit Jain and others v. State of U.T., Chandigarh and others, 2012(2) L.A.R. 64 (P&H DB).

Capital of Punjab (Development and Regulation) Act, 1952 -- Allotment by negotiation -- Government can sell, lease or transfer either by auction, allotment or otherwise any land or building belonging to the Government in on such terms and conditions as provided by any Rules made under the Act -- Allotment of the land to the successful bidders of liquor vends by private negotiation is in violation of Section 3 of the Act and as well in violation of Article 14 of the Constitution. Amit Jain and others v. State of U.T., Chandigarh and others, 2012(2) L.A.R. 64 (P&H DB).

Land for roads -- Land which has been reserved for the expansion of the roads and slow carriage ways must be regarded as a part of the road and cannot be utilized for any other purpose whatsoever and grant of the lease on such land to open the liquor vends and tavern cannot be considered to be legal. Amit Jain and others v. State of U.T., Chandigarh and others, 2012(2) L.A.R. 64 (P&H DB).

Locus Standi to file appeal

Punjab Village Common Lands (Regulation) Act, 1961 – Title dispute – Panch filing appeal -- Collector allowed the application u/s 11 by recording a finding that, though, the land belongs to the Gram Panchayat but as it was donated to the petitioners' father, who has constructed a house, the land no longer vests in the Gram Panchayat -- Gram Panchayat did not file any appeal -- A Panch, of the Gram Panchayat, filed an appeal, which was allowed by the appellate authority and the order passed by the Collector was set aside – Contention that as the Gram Panchayat did not file any appeal, the appellate authority could not entertain the appeal, at the behest of a private person, merits summary rejection -- Plea of locus-standi, particularly, when raised in a case of illegal appropriation of public property, cannot be a ground to reject a bonafide appeal. Nasib Kaur and others v. State of Punjab and others, 2012(2) L.A.R. 93 (P&H DB).

Maintainability of Public Interest Litigation Rules, 2010

Rule 2 – Constitution of India, Article 226,227 -- Public interest litigation -- Want of affidavit -- Non-compliance of -- Public Interest Litigation, require the petitioners to file a specific affidavit showing their credentials and also stating that petitioners are public spirited persons and they have no personal interest in the matter – In the writ petition specific stand is that present petition is being filed in the public interest and petitioners are the public spirited persons -- Moreover, Court has taken cognizance of the matter keeping in view the larger public interest involved – Held, since this Court has taken cognizance of the matter, same cannot be thrown out on the hypertechnical ground. Amit Jain and others v. State of U.T., Chandigarh and others, 2012(2) L.A.R. 64 (P&H DB).

Makbuja malkan

Makbuja malkan means possession of the entire proprietary body, in common, with no particular co-sharer in possession of any particular portion of the land, much less in cultivating possession. Bundi Ram (deceased) through his LRs v. Commissioner, Ambala Division Ambala and others, 2012(2) L.A.R. 456 (P&H DB).

Punjab Village Common Lands (Regulation) Act, 1961 -- Shamilat deh – Expression “Makbuja Malkan” denotes the possession of the proprietary body in common with no particular co-sharer being in possession of any part of the land, much less in “cultivating possession” -- Sections 2(g)(iii) and 2(g)(viii) of the 1961 Act exclude land from Shamilat Deh, if it is proved that it is in “cultivating possession”, pursuant to a partition or in “cultivating possession” as a co-sharer -- Appellate authority has committed an error in holding that as the expression “Makbuja Malkan” denotes cultivating possession, it is sufficient to exclude land from Shamilat Deh. Gram Panchayat Balbera v. Director Village Development and Panchayat Punjab and another, 2012(2) L.A.R. 244 (P&H DB).

Market fees

Punjab Agricultural Produce Markets Act, 1961 -- No document produced to say that agreements of sale or purchase of the potatoes were entered in other States and deliveries of potatoes were taken in those States and thereafter the potatoes were transported to the State of Punjab – No evidence placed on record viz. entries on the barriers or builties to prove that potatoes were transported within the State of Punjab by the petitioner himself -- In the absence of any material evidence adverse inference has to be drawn against the petitioner to say that potatoes were delivered in the factory of Punjab and no duty was paid in the other States, therefore, petitioner is duty bound to pay market fee on such purchases in view of Section 23. Pepsico India Holdings Private Limited v. State of Punjab and others, 2012(2) L.A.R. 274 (P&H DB).

Market Value

Acquisition of land – High Court has reduced compensation on the ground that the land, though was given nonagricultural permission, it could not be treated as a basis for treating the entire land as nonagricultural – Supreme Court disagree with this view – Held, though the claimant has been unable to prove the existence of a hotel, it has been found that some structures for the same existed, therefore, there is some development on the acquired land -- Travellers would stop by and utilize the hotel services provided by the claimants – Land is also adjacent to highway and is only 6 to 8 kms away from internationally famous tourist destination -- Thus, there is great future potential for development with respect to the acquired land -- Potential to which the land is reasonably capable of being used in future by the owner should be taken into account in assessing compensation. Bilkis and others v. State of Maharashtra and others, 2012(2) L.A.R. 452 (SC).

Belting system -- Land Acquisition Act, 1894 -- Entire property acquired abuts the main road and the whole of the property has been used for a single purpose -- ‘Belting system’ (dividing land into different belts for determination of market value) will not apply – Both conditions (i) the lands were similarly placed and were surrounded by developed areas and (ii) that all acquired lands were intended to be used for the same purpose are satisfied – Court, would apply the same value for the whole property, where the extent itself is not very large and situate in the proximity of developed markets and on the GT Road. Ch. Vidya Bhushan (died) through his LRs and others v. Haryana State though the Collector, Karnal, and others, 2012(2) L.A.R. 380 (P&H).

Different sale deeds – Preference of -- Land Acquisition Act, 1894 – Where sale deeds pertaining to different transactions are relied on behalf of the Government, the transaction representing the highest value should be preferred to the rest unless there are strong circumstances justifying a different course -- It is not desirable to take an average of various sale deeds placed before the authority/court for fixing fair compensation. Mehrawal Khewaji Trust (Regd.), Faridkot & others v. State of Punjab & others, 2012(2) L.A.R. 123 (SC).  

Factors to be considered -- Land Acquisition Act, 1894 -- Reference Court had taken notice of the fact that the acquired land was in the proximity of National Highway and the construction of Bridge brought village close to Bombay – Reference Court also noted that civic amenities were available to town prior to 1970 and industrial estates had been developed and concluded that the acquired land was available for non-agricultural use and the only obstruction was the absence of conversion – High Court did not advert to the factors noted by the Reference Court and reduced the amount of compensation by mechanically applying the distance criteria, i.e., distance of the acquired land from Highway adopted in the earlier judgments – Case may be remitted to the High Court for fresh adjudication of the appeals, but keeping in view the fact that a period of 42 years has elapsed, ends of justice will be adequately met by restoring the determination of compensation made by the Reference Court. Sabhia Mohammed Yusuf Abdul Hamid Mulla (D) by L.Rs. and others v. Special Land Acquisition Officer and others, 2012(2) L.A.R. 519 (SC).

Factors to be considered -- Land Acquisition Act, 1894 -- While fixing market value of the acquired land, the Land Acquisition Collector is required to keep in mind the following factors: (i) Existing geographical situation of the land -- (ii) Existing use of the land -- (iii) Already available advantages, like proximity to National or State High Way or road and/or developed area -- (iv) Market value of other land situated in the same locality/village/area or adjacent or very near the acquired land. Sabhia Mohammed Yusuf Abdul Hamid Mulla (D) by L.Rs. and others v. Special Land Acquisition Officer and others, 2012(2) L.A.R. 519 (SC).

Public Auction -- Land Acquisition Act, 1894 -- Property secured by a public authority in public auction in competitive bids is perhaps the best method of ascertaining a market value. Ch. Vidya Bhushan (died) through his LRs and others v. Haryana State though the Collector, Karnal, and others, 2012(2) L.A.R. 380 (P&H).

Sale deed – Relevancy of – Land Acquisition Act, 1894 -- No site plan on record produced by the land owners showing the exact location of the land pertaining to any of the sale deed – Not safe to consider the same for valuation of the acquired land. Prem Singh and others v. State of Haryana and others, 2012(2) L.A.R. 616 (P&H).

Sale deed after notification u/s 4 – Reliance upon – Land Acquisition Act, 1894 – Sale deeds are not relevant as the same were registered after the issuance of notification u/s 4 of the Land Acquisition Act, 1894. Prem Singh and others v. State of Haryana and others, 2012(2) L.A.R. 616 (P&H).

Sale deed of small area, 2-1/2 year old – Reliance upon -- Land Acquisition Act, 1894 – Sale deed was two and a half years prior in time of notification u/s 4(1) – No reason to eschew the above sale transaction – Annual increase @ 12% per annum allowed and area of land under sale deed is a smaller one, deduction @ 20% allowed. Mehrawal Khewaji Trust (Regd.), Faridkot & others v. State of Punjab & others, 2012(2) L.A.R. 123 (SC).

Mode of partition

Partition of land – Quality of land and possession – Mode of partition, provides that the partition be made keeping in view the quality of land and the possession at the spot -- Land abutting the road, which was in possession of the appellants, has been equally divided among the co-sharers -- Merely because the appellants were in possession of the said land, they cannot be given the entire land on the road, because as per the mode of partition, the partition was to be effected while taking into account the quality of the land also. Hardeva and Another v. State of Haryana and others, 2012(2) L.A.R. 243 (P&H DB).

Moral Turpitude

Appointment of Lambardar – Criminal case – Criminal case registered u/ss 323, 324, 325, 452, 148, 149 IPC, and appointed candidate was acquitted much prior to the date of inviting applications – Held, registration of the said criminal case could not have been taken into consideration, particularly when the offences in that case did not relate to moral turpitude. Talwinder Singh v. Financial Commissioner (Co-operation), Punjab, Chandigarh and others, 2012(2) L.A.R. 3 (P&H DB).

Motor Vehicles Act, 1988 (59 of 1988)

Section 80, 82, 83, 89 – Punjab Motor Vehicles Rules, 1989, Rule 85 --  Appeal – Limitation – Communication of order -- It is obligatory for the authorities making the order to communicate it to the concerned party and the period of limitation for any appeal against the order is reckonable from the date of such communication of written order itself – Prescribed period of limitation would only commence from the date on which the order was received by the party concerned, unless and until there is a strong and positive evidence of acquisition of knowledge of the impugned order. Jain Motors Regd. Patiala v. The State Transport Appellate Tribunal & Ors., 2012(2) L.A.R. 394 (P&H).

Muslim Wakfs

Trust created by Muslims – Difference between -- There is a vast difference between Muslim Wakfs and Trusts created by Muslims – Basic difference is that Wakf properties are dedicated to God and the “Wakif” or dedicator, does not retain any title over the Wakf properties -- As far as Trusts are concerned, the properties are not vested in God -- Some of the objects of such Trusts are for running charitable organisations such as hospitals, shelter homes, orphanages and charitable dispensaries, which acts, though recognized as pious, do not divest the author of the Trust from the title of the properties in the Trust, unless he relinquishes such title in favour of the Trust or the Trustees -- At times, the dividing line between Public Trusts and Wakfs may be thin, but the main factor always is that while Wakf properties vest in God Almighty, the Trust properties do not vest in God and the trustees in terms of Deed of Trust are entitled to deal with the same for the benefit of the Trust and its beneficiaries. Maharashtra State Board of Wakfs v. Shaikh Yusuf Bhai Chawla and others, 2012(2) L.A.R. 469 (SC).

Mutation

Doctrine of estoppels -- Transfer of public property against the Statute -- An authority dealing with public property, cannot deviate from the statute, rules or instructions that govern transfer of its property -- Even where a Gram Panchayat has by resolution, transferred property, delivered possession and mutation of ownership has been sanctioned, such a transfer, if made in violation of Rule 12 of the Punjab Village Common Lands (Regulation) Rules, 1964, would be null and void -- Doctrine of estoppels, cannot be invoked -- Gram Panchayat shall not be estopped from alleging the illegality of such a transfer or the unauthorised possession of such a vendee. Judgment in Smt. Malkhani's case, 2001(4) R.C.R.(Civil), 25 is over-ruled. Kesar Singh and another v. State of Punjab through its Director, Rural Development and Panchayats, Punjab and another, 2012(2) L.A.R. 606 (P&H Full Bench).

Shamilat deh – Vesting of -- Contention that mutation does not confer title, the mere recording of a mutation by revenue authorities does not divest the petitioners of their title, cannot be accepted -- Land, in dispute, was Shamilat Deh and came to vest in the Gram Panchayat under a statutory declaration contained in the Punjab Village Common Lands (Regulation) Act, 1953, that land described as Shamilat Deh shall vest in the Gram Panchayat -- Statutory declaration was to be reflected in the revenue record by way of a mutation as there is no other method whereby a statutory declaration of title can be reflected in the revenue record. Mehar Singh and others v. Gram Panchayat Sehjo Majra and others, 2012(2) L.A.R. 513 (P&H DB).

Name in two electoral roll

Punjab State Election Commission Act, 1994 -- Election of Panch – No person is eligible to contest the election if his/her name is registered in the electoral roll for more than one constituency – Plea that an application for cancellation of voter card has been moved to the concerned authority before the Election – Document is required to be proved as per the provisions of CPC, which has not been done – Matter remitted back to Election Tribunal for deciding afresh by affording reasonable opportunity to both the sides to submit their claim. Smt. Varinder Kaur alias Barinder Kaur v. Smt. Gurcharan Kaur and another, 2012(2) L.A.R. 45 (P&H).

Natural justice

Land Acquisition Act, 1894 -- Acquisition of land -- Object of Objections u/s 5-A – Before any person is deprived of his land by way of compulsory acquisition, he must get an opportunity to oppose the decision of the State Government and/or its agencies/instrumentalities to acquire the particular parcel of land -- Objector can make an effort to convince the Land Acquisition Collector to make recommendation against the acquisition of his land -- He can also point out that land proposed to be acquired is not suitable for the purpose specified in the notification issued u/s 4(1) -- Not only this, he can produce evidence to show that another piece of land is available and the same can be utilized for execution of the particular project or scheme -- Collector should give a fair opportunity of hearing to the objector and objectively consider his plea against the acquisition of land -- Only thereafter, he should make recommendations supported by brief reasons as to why the particular piece of land should or should not be acquired and whether or not the plea put forward by the objector merits acceptance -- Recommendations made by the Collector must reflect objective application of mind to the objections filed by the landowners and other interested persons. Raghbir Singh Sehrawat v. State of Haryana and others, 2012(2) L.A.R. 130 (SC).

Punjab Village Common Lands (Regulation) Act, 1961 – Exchange of land – Setting aside of – Speaking order – Requirement of -- Collector sanctioned exchange of land, without there being any jurisdiction vested in him but said order of Collector has been cancelled on a complaint, in which a preliminary inquiry and regular inquiry has been held -- Order passed is without issuing any show cause notice or providing inquiry report to the petitioners or granting an opportunity to contest the correctness of the reports – Impugned order does not disclose any reasons for cancellation of order – Held, not only judicial or quasi judicial order is to be passed following the principles of natural justice, but also the administrative orders, which affect the civil rights, have to adhere the principle of natural justice -- Impugned order set aside. Milkha Singh and another v. State of Punjab and others, 2012(2) L.A.R. 86 (P&H DB).

New outlet

DCO and SCOs specifically recorded the findings that they have perused the command statement of the proposed outlet and have examined the things at spot -- It was examined by the two SCOs (both circles) and they have come to a conclusion that the irrigation by the proposed outlet will be more than the existing outlet -- Canal authorities have passed the orders in the interest of better irrigation and more production and the SCOs have rightly upheld the orders of the DCOs – No ground to interference in the orders passed by the SCOs, who are the technical experts in their field and know the feasibility of sanctioning of outlets. Hargobind Singh and others v. Superintending Canal Officer Ferozepur, Canal Circle, Ferozepur, and others, 2012(2) L.A.R. 644 (P&H).

No-confidence motion against S.C. woman President

Legality of -- Haryana Municipal Election Rules, 1978 -- Contention that Seat of President for the Municipal Committee once reserved for the S.C. woman category, cannot be changed to the S.C. male category – Held , Rule 70, proviso 2 is clear that if no S.C. woman councilor is available then the seat of President can be given to the S.C. male category -- Since petitioner has been removed from the post of President by way of valid “No Confidence Motion”, therefore, seat was rightly given to the S.C. male category as there was no other woman councilor under the S.C. woman category. Om Pati v. State of Haryana and others, 2012(2) L.A.R. 664 (P&H).

Legality of -- Haryana Municipal Election Rules, 1978 -- Contention that the President from the S.C. woman category can easily be removed by passing “No Confidence Motion” by other councilors belonging to higher caste, therefore, “No Confidence Motion” should not be allowed to be held against the President belonging to S.C  woman councilor -- Further contends that passing resolution against the S.C. category woman President and thereafter, giving the post of President to the S.C. male category, is permitted to be continued then it would be fraud on the constitutional provisions as well as the provisions of Rule 70, whereby 1/3rd posts are to be given to the S.C. woman category – Held, contention has no legal substance, if argument is accepted then there would be no “No Confidence Motion” to remove the President of the Municipality irrespective of her loosing confidence amongst the councilors. Om Pati v. State of Haryana and others, 2012(2) L.A.R. 664 (P&H). 

Nominee

Haryana Co-operative Societies Act, 1984 -- Death of member – Legal heirs – Right of – Nominee does not get any right to inherit the right of the deceased member -- Nominee has a limited right -- Section 23, is not meant to have overreaching effect over the general law of inheritance and would not confer any right over the property of the deceased member merely on the ground of being a nominee -- Nominee may be entitled to ask for transfer of share on his name but this would not make others to loose their right of inheritance -- Transferring of share, if done, would be only an interim arrangement -- Inheritance has to be governed by the law of inheritance. Inder Singh v. The Assistant Registrar, Cooperative Societies, Jind and others, 2012(2) L.A.R. 627 (P&H).

Non-discloser of Pendency of civil suit

Effect of -- Writ is liable to be dismissed for failure to disclose the inter parties litigation, before Civil Courts, where the petitioner's plea that the wall, which is the cause for the dispute, is located in his land, has been rejected. Dharampal v. The Director Consolidation Department, Haryana, Panchkula, and others, 2012(2) L.A.R. 662 (P&H DB). 

Non-providing of Path

East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 -- Consolidation authorities are duty bound to provide a path to each parcel of the land and if not, so provided, a party may validly file a petition u/s 42 of the Consolidation Act, but after furnishing an explanation for delay. Ram Kumar v. The Commissioner, Gurgaon Division, Gurgaon and another, 2012(2) L.A.R. 547 (P&H DB).

East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 -- Delay – Explanation for delay offered by private respondent that he was using a private path with consent of the petitioner and only when the petitioner blocked the passage, he was compelled to approach Consolidation authorities, has been accepted by the Commissioner – No reason to differ with the impugned findings or any error of jurisdiction or of law in the order, providing a path. Ram Kumar v. The Commissioner, Gurgaon Division, Gurgaon and another, 2012(2) L.A.R. 547 (P&H DB).

Non-serving of Notice

Land Acquisition Act, 1894 -- Acquisition of land – Notices were delivered to some of the landowners, who acknowledged the receipt thereof, however, the notices issued to the appellant and his wife were not served upon them -- Land Acquisition Collector proceeded to decide the objections by assuming that the notice has been delivered to all the objectors – Appellant had not been given opportunity of hearing as per the mandate of Section 5A(2) -- Acquisition of his land is declared illegal and quashed. Raghbir Singh Sehrawat v. State of Haryana and others, 2012(2) L.A.R. 130 (SC).

Non-tender of Provisional assessment of rent

Rent Act -- Arrears of rent – First date of hearing – Tenant did not comply with the order by which rent was provisionally assessed and he was asked to tender the same on the first date of hearing – Tenant deserves to be evicted. Anil Kumar v. Ghanshyam Dass, 2012(2) L.A.R. 624 (P&H).

Northern India Canal & Drainage Act, 1873, (VIII of 1873)

Section 20 – New outlet -- DCO and SCOs specifically recorded the findings that they have perused the command statement of the proposed outlet and have examined the things at spot -- It was examined by the two SCOs (both circles) and they have come to a conclusion that the irrigation by the proposed outlet will be more than the existing outlet -- Canal authorities have passed the orders in the interest of better irrigation and more production and the SCOs have rightly upheld the orders of the DCOs – No ground to interference in the orders passed by the SCOs, who are the technical experts in their field and know the feasibility of sanctioning of outlets. Hargobind Singh and others v. Superintending Canal Officer Ferozepur, Canal Circle, Ferozepur, and others, 2012(2) L.A.R. 644 (P&H).

Notice

Punjab Security of Land Tenures Act, 1953 -- Transfer of land by sale – Surplus area – Declaration of -- Date of 30.07.1958 which would be relevant for exclusion if the sale had taken place before the said date -- For any transaction subsequent to the same, issuance of notice would still be relevant – Transferees had not obtained mutation and the authorities could not be faulted for proceeding to determine the surplus even without notice to alleged transfers -- No scope for intervention in the impugned proceedings and the challenge to the same is rejected. Karam Chand and another v. The State of Punjab, through Secretary (Revenue), Punjab Government, Chandigarh, and others, 2012(2) L.A.R. 112 (P&H).  

Notification for 20 years

Forest land – Expiry of 20 years -- Whether a particular piece of land falls or is excluded from the ambit of “Forest Land” is a question of fact to be decided by Forest Department being the custodian of “Forest Lands” and High Court in exercise of its discretionary jurisdiction under Article 226 of the Constitution need not travel beyond the legal issues -- Principal Chief Conservator of Forest, Haryana is directed to constitute a Committee comprising three senior officers of the Forest Department and to be headed by an Officer not below the rank of Additional PCCF or Chief Conservator of Forests, who shall consider each claim in consonance with principles of natural justice and dispose of them with reference to the question whether or not the land(s) in dispute form part of “Forest Land(s). Rakam Singh and others v. State of Haryana and others, 2012(2) L.A.R. 477 (P&H DB).

NRI landlord

East Punjab Urban Rent Restriction Act, 1949 -- Bonafide need – Argument that respondent was residing in an accommodation nearby which was sufficient for his use and occupation and thus, there was no bona fide need for the demised premises is without any merit, as on fulfilling all the ingredients of Section 13-B, an NRI landlord is entitled to get one tenanted premises vacated as per his choice and the fact that he was residing in an another accommodation is of no significance, as it is well settled that a landlord is the best judge of his requirements and the tenant cannot dictate his terms with regard to the suitability of the accommodation in his possession. Braham Kumar v. Sukhdev Singh, 2012(2) L.A.R. 319 (P&H).

East Punjab Urban Rent Restriction Act, 1949 -- Bonafide need – Presumption of -- There was relationship of landlord and tenant between the parties and respondent is an NRI and owner of the demised premises for the last more than five years prior to the filing the petition -- Thus, the respondent fulfilled all the necessary ingredients for seeking relief under Section 13-B -- Once the aforesaid ingredients have been fulfilled, a presumption with regard to bona fide requirement of the landlord for use and occupation of the demised premises is drawn in his favour and such a presumption can be rebutted only by making out a very strong case by the tenant. Braham Kumar v. Sukhdev Singh, 2012(2) L.A.R. 319 (P&H).

East Punjab Urban Rent Restriction Act, 1949 -- Leave to defend – Moment application for leave to defend is dismissed, the order of eviction would follow in terms of provision of Section 13 B of the Act. Smt. Asha Gupta v. Sudershan Kumar Rai, 2012(2) L.A.R. 239 (P&H).

Object of assessment of Arrears of rent

Haryana Urban (Control of Rent and Eviction) Act, 1973 -- Object of the legislature behind enacting Section 13 (2)(i) proviso is to save the tenant from eviction because of short tender that is why a duty has been cast upon the Rent Controller to assess the arrears of rent, interest and cost which is to be paid by the tenant to the landlord as arrears of rent. M/s Belliss India Limited v. Shri Ram Chand Gupta (dead) through his LRs and  others, 2012(2) L.A.R. 582 (P&H).

Object of Objections u/s 5-A of Land Acquisition Act, 1894

Natural justice -- Before any person is deprived of his land by way of compulsory acquisition, he must get an opportunity to oppose the decision of the State Government and/or its agencies/instrumentalities to acquire the particular parcel of land -- Objector can make an effort to convince the Land Acquisition Collector to make recommendation against the acquisition of his land -- He can also point out that land proposed to be acquired is not suitable for the purpose specified in the notification issued u/s 4(1) -- Not only this, he can produce evidence to show that another piece of land is available and the same can be utilized for execution of the particular project or scheme -- Collector should give a fair opportunity of hearing to the objector and objectively consider his plea against the acquisition of land -- Only thereafter, he should make recommendations supported by brief reasons as to why the particular piece of land should or should not be acquired and whether or not the plea put forward by the objector merits acceptance -- Recommendations made by the Collector must reflect objective application of mind to the objections filed by the landowners and other interested persons. Raghbir Singh Sehrawat v. State of Haryana and others, 2012(2) L.A.R. 130 (SC).

Object of the Act of Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952

The Act was enacted by the State Legislature in order to ameliorate the economic condition of the tenants and for conferment of proprietary rights in the land on the actual tiller of the soil. Jeeta and others v. Gram Panchayat Kherlijita and others, 2012(2) L.A.R. 592 (P&H).

Objections

Land Acquisition Act, 1894 -- Acquisition of land – Non-filing of objections –Explanation that petitioner had no knowledge of acquisition proceedings, cannot be accepted – Petitioner company is not managed by illiterate, rustic persons -- By its own showing the company promotes and builds colonies and townships and, therefore, must have been aware of acquisition proceedings -- It appears that the petitioner did not choose to file objections, confident that it would be able to seek release of its land under various policies, framed by the Government – Failure to the objections, u/s 5-A of the Land Acquisition Act, 1894, dilutes the petitioner's challenge to acquisition proceedings. Vaishnavi Promoters and Builders, New Delhi v. State of Haryana and others, 2012(2) L.A.R. 487 (P&H DB).

Occupancy rights

Bhondedars – Dohlidars – Section 4 only provides that the existing rights, title or interests of persons, recorded in the revenue record as occupancy tenants Dholidars, Bhondedars etc. shall not be affected by sub-section (1) or sub-section (2) of Section 4 of the Punjab Village Common Lands (Regulation) Act, 1961 -- That means such land will not vest in the Panchayat -- This provision does not lay down that the Dholidars or Bhondedars should be considered as occupancy tenants or equivalent to them. Jeeta and others v. Gram Panchayat Kherlijita and others, 2012(2) L.A.R. 592 (P&H).

Punjab Tenancy Act, 1887 -- Bhondedars – Dohlidars – For acquiring the occupancy rights in the land, one has to fulfill necessary conditions as mentioned in Section 5 -- He must fall within the definition of tenant; must be in occupation of the land and paying marginal rent not beyond the land revenue; and there must be implied or express agreement of never to eject between him and the landlord -- Petitioners do not fall in any of the categories of tenant prescribed u/s 5 -- Petitioners, who were Bhondedars and not the tenants cannot deem to have acquired the occupancy rights in the land in dispute. Jeeta and others v. Gram Panchayat Kherlijita and others, 2012(2) L.A.R. 592 (P&H).

Punjab Tenancy Act, 1887 -- Bhondedars – Dohlidars – Only a tenant, who is in occupation of the land for a certain period and is paying no rent thereof beyond the amount of the land revenue, has a right of occupancy in the said land -- Petitioners, who were Bhondedars and were continuously in cultivating possession as Bhondedars, cannot be said to be tenants in the land in dispute -- Their occupation was as Bhondedars for rendering service to the villagers -- The status of Bhondedars is equal to Dohlidars and not of a tenant. Jeeta and others v. Gram Panchayat Kherlijita and others, 2012(2) L.A.R. 592 (P&H).

Onus of proof

Punjab Village Common Lands (Regulation) Act, 1961 -- Shamilat deh – Exclusion from – Section 2(g)(viii), excludes land from “Shamilat Deh”, if it was in individual cultivating possession of proprietors, in accordance with their share holdings prior to 26.01.1950 -- Petitioners have not produced any evidence on record to establish their individual cultivating possession, as cosharers, in accordance with their share holdings as required by Section 2(g)(viii) of the 1961 Act -- Jamabandi for the year 1946-47, records the cultivation of "Shadi and other persons of a very small tract of land, i.e., 3 kanals and 11 marlas “Chahi” and 26 kanals and 6 Marlas “Chahi” -- Khasra numbers recorded in the jamabandi are different from khasra numbers of the land in dispute -- Onus to tally these numbers lay upon the petitioners -- Petitioners having admitted their tenancy in an other writ petition were even otherwise estopped from challenging the ownership of the Gram Panchayat. Ram Singh and others v. State of Haryana and others, 2012(2) L.A.R. 501 (P&H DB).

Panch filing appeal

Punjab Village Common Lands (Regulation) Act, 1961 – Locus Standi to file appeal -- Title dispute – Collector allowed the application u/s 11 by recording a finding that, though, the land belongs to the Gram Panchayat but as it was donated to the petitioners' father, who has constructed a house, the land no longer vests in the Gram Panchayat -- Gram Panchayat did not file any appeal -- A Panch, of the Gram Panchayat, filed an appeal, which was allowed by the appellate authority and the order passed by the Collector was set aside – Contention that as the Gram Panchayat did not file any appeal, the appellate authority could not entertain the appeal, at the behest of a private person, merits summary rejection -- Plea of locus-standi, particularly, when raised in a case of illegal appropriation of public property, cannot be a ground to reject a bonafide appeal. Nasib Kaur and others v. State of Punjab and others, 2012(2) L.A.R. 93 (P&H DB).

Panchayat Secretaries

Civil Posts --- Fact that the Government has been authorized to create posts or to make recruitment makes the Panchayat Secretaries, is a method of recruitment -- Panchayat Samities get salary from the Samiti funds -- It is the status of the employer, which is relevant to determine the corresponding status of the employees -- Employees of statutory Boards and Corporations or for that matter an instrumentality of the State may be entitled to the protection of the fundamental rights being State within the meaning of Article 12 of the Constitution of India, but that does not make the employees of such statutory Boards and corporations and other instrumentalities of the State, holder of a civil post entitled to protection of Part XIV of the Constitution of India. Rajwinder Singh and others v. State of Punjab and another, 2012(2) L.A.R. 322 (P&H DB).

Status of Civil post/Government servant -- Petitioners challenged the legality of Section 16 (4) of the Punjab Gram Panchayat Act, 1952, by declaring the same as ultra vires to Articles 14 and 16 of the Constitution of India – Held, the Act has been framed within its legislative competence and in terms of Article 309, the state legislature can regulate the recruitment and conditions of service -- The impugned enactment is in terms of article 309 of the constitution and cannot be said to violative of Article 14 or 16 as the petitioner have no vested right to be civil servant -- Power to regulate the recruitment to civil post also includes power not to treat a service as a civil service -- Therefore, the claim of the petitioners that they should be treated as a Government servant is a mere wish and not a right. Rajwinder Singh and others v. State of Punjab and another, 2012(2) L.A.R. 322 (P&H DB).

Partition by void order

Jumla Mushtarka Malkan Khewat – Bonafide purchaser – Right of -- Claim that as the petitioner purchased the land, in dispute, from a proprietor after an order of partition was passed by the Director Consolidation, they are bonafide purchasers and should, therefore, be protected -- Order passed by the Director Consolidation was without jurisdiction and 'void-ab-initio' -- Foundation of the sale deed, is a void order, passed on an illegal assumption of jurisdiction and, therefore, does not divest the Gram Panchayat of its rights, or confer rights upon the petitioners as bonafide purchasers. Ishar Singh and another v. Director, Rural Development & Panchayat, Punjab and others, 2012(2) L.A.R. 654 (P&H DB).

Partition of agricultural land

Sanad Takseem -- Agricultural land, is partitioned, in accordance with procedure prescribed by the Punjab Land Revenue Act, 1887, and involves preparation of a mode of partition, drawing up of various “Naqshas” (Maps), known as Map `A' and Map `B' etc. and eventually the drawing up of a final document of partition, called as “Sanad Taqsim”. Gram Panchayat Village Mulepur v. Sucha Singh (deceased through his LRs.) and others, 2012(2) L.A.R. 682 (P&H DB).

Partition of Jumla Mushtarka Malkan Wa Digar Haqdaran Hasab Rasad Arazi Khewat land

Permissibility of -- Land, so reserved, falls to the possessory title of the Gram Panchayat whereas proprietary title continues to vest in proprietors -- Gram Panchayat is empowered to enter possession of such land and use it for the common purpose assigned during consolidation or such other common purposes as may be permissible -- Order passed by the Director Consolidation holding that the land does not vest in the Gram Panchayat and directing partition of this land, is without jurisdiction. Ishar Singh and another v. Director, Rural Development & Panchayat, Punjab and others, 2012(2) L.A.R. 654 (P&H DB).

Partition of land

Mode of partition -- Quality of land and possession – Mode of partition, provides that the partition be made keeping in view the quality of land and the possession at the spot -- Land abutting the road, which was in possession of the appellants, has been equally divided among the co-sharers -- Merely because the appellants were in possession of the said land, they cannot be given the entire land on the road, because as per the mode of partition, the partition was to be effected while taking into account the quality of the land also. Hardeva and Another v. State of Haryana and others, 2012(2) L.A.R. 243 (P&H DB).

Punjab Village Common Lands (Regulation) Act, 1961 -- A large number of proprietors/co-sharers were co-sharers, before it came to vest in the Gram Panchayat -- If the land had been partitioned, individual names of proprietors would have been recorded in the column of ownership, whereas, the ownership column records, the words “Shamilat Deh” and the column of possession records the possession of “co-sharers” -- Admission is the best evidence of a fact but, as revenue record is to the contrary, failure to cross-examine a witness, should not have been relied upon to raise a inference of partition -- Collector and the Commissioner committed an error of jurisdiction in holding that failure to ask a question, in cross-examination, of one of the respondents on the issue of partition, is conclusive evidence of partition, prior to 26.1.1950 -- Even private partition should have been proved by a document of private partition or by a mutation recording such a partition – Private respondents have not produced any document, much less the “Sanad Taqsim”, to raise an inference of partition -- Plea of partition before 26.1.1950 is rejected. Gram Panchayat Village Mulepur v. Sucha Singh (deceased through his LRs.) and others, 2012(2) L.A.R. 682 (P&H DB).

Path

Non-providing of Path -- East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 -- Consolidation authorities are duty bound to provide a path to each parcel of the land and if not, so provided, a party may validly file a petition u/s 42 of the Consolidation Act, but after furnishing an explanation for delay. Ram Kumar v. The Commissioner, Gurgaon Division, Gurgaon and another, 2012(2) L.A.R. 547 (P&H DB).

Non-providing of Path – East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 -- Delay – Explanation for delay offered by private respondent that he was using a private path with consent of the petitioner and only when the petitioner blocked the passage, he was compelled to approach Consolidation authorities, has been accepted by the Commissioner – No reason to differ with the impugned findings or any error of jurisdiction or of law in the order, providing a path. Ram Kumar v. The Commissioner, Gurgaon Division, Gurgaon and another, 2012(2) L.A.R. 547 (P&H DB).

Pendency of civil suit

Non-discloser of -- Writ is liable to be dismissed for failure to disclose the inter parties litigation, before Civil Courts, where the petitioner's plea that the wall, which is the cause for the dispute, is located in his land, has been rejected. Dharampal v. The Director Consolidation Department, Haryana, Panchkula, and others, 2012(2) L.A.R. 662 (P&H DB). 

Pepsu Tenancy and Agricultural Lands Act, 1955 (13 of 1955)

Section 7, 7(A) -- Tenant of land – Ejectment of – Additional ground -- Additional ground, availability of the tenant being in excess of extent of 5 standards acres would be available only if a tenancy subsists at the commencement of the Pepsu Tenancy and Agricultural Lands Act, 1956 -- Although, the tenant had contended that he and his predecessor had been in possession of property since 1941, the landlord has denied it and the evaluation is that the tenant or his predecessor was not a tenant in 1956 -- If status as tenant can not subsist by the intervention of the Displaced Persons Compensation and Rehabilitation Act of 1954, applicability of Section 7A also can not available to the landlord. Roshan Khan (deceased) through L.Rs. v. Financial Commissioner Punjab & others, 2012(2) L.A.R. 281 (P&H).

Section 7, 7(A) -- Tenant of land – Ejectment of – After the ejectment order, the tenant has filed a writ petition, which was admitted and the case came up for hearing after two decades -- Landlord sold the property and in the property now there is Sugar Mill constructed – Nothing is brought on record whether the tenant has been paying rent subsequent to the proceedings after the writ petition was admitted and whether he had continued in possession -- Referring the matter back for enquiry before the authority under the peculiar circumstances become unnecessary although the impugned order suffers from uncertain defects – No factual situation obtaining in favour of the tenant to be conducive for fresh adjudication – Writ petition dismissed. Roshan Khan (deceased) through L.Rs. v. Financial Commissioner Punjab & others, 2012(2) L.A.R. 281 (P&H).

Performing animal

Prevention of Cruelty to Animals Act, 1960 -- Performing animal means an animal which is being used at or for the purpose of any entertainment including a film or an equine event to which the public are admitted -- Section 21 says that “exhibit” would mean exhibit at any entertainment to which the public are admitted through sale of tickets and “train” would mean train for the purpose of any such exhibition --  Restriction imposed u/s 22 of the Act would apply in respect of performing animal who has been exhibited or trained for a public view through sale of tickets and not otherwise. Gauraksha Dal v. Union of India and others, 2012(2) L.A.R. 558 (P&H DB).

Performing Animals (Registration) Rules, 2001

Rule 2(h) – Prevention of Cruelty to Animals Act, 1960 (59 of 1960), Section 21, 22 -- Performing animal – Performing animal means an animal which is being used at or for the purpose of any entertainment including a film or an equine event to which the public are admitted -- Section 21 says that “exhibit” would mean exhibit at any entertainment to which the public are admitted through sale of tickets and “train” would mean train for the purpose of any such exhibition --  Restriction imposed u/s 22 of the Act would apply in respect of performing animal who has been exhibited or trained for a public view through sale of tickets and not otherwise. Gauraksha Dal v. Union of India and others, 2012(2) L.A.R. 558 (P&H DB).

Periphery policy declared by the State of Punjab on 20th January, 2006

Punjab New Capital (Periphery) Control Act, 1952 (1 of 1953), Section 4, 5, 6 -- Punjab Regional and Town Planning and Development Act, 1995 (11 of 1995), Section 70, 75,76, 78, 79 – Chandigarh Periphery -- Controlled area – Planning area -- Two statues instead of confronting each other actually complement each other in their respective applications -- Periphery Control Act does not contemplate a complete embargo on the raising of construction in the periphery -- Periphery Control Act and the policy framed thereunder has to abide by some norms of planning which are contemplated by the provisions of the 1995 Act -- Therefore, no reason why the provisions of the said enactment i.e. the 1995 Act should be held to be inapplicable to the areas covered by the Periphery Control Act -- Object behind enactment of the two statues would be best served if both the enactments are allowed to prevail in the peripheral areas and even beyond such areas. Aalok Jagga v. Union of India and others, 2012(2) L.A.R. 146 (P&H DB).

Punjab New Capital (Periphery) Control Act, 1952 (1 of 1953), Section 4, 5, 6 -- Punjab Regional and Town Planning and Development Act, 1995 (11 of 1995), Section 70, 75,76, 78, 79 – Chandigarh Periphery -- Controlled area – Planning area -- Periphery of Chandigarh which initially comprised of villages may have essentially lost its rural character and these villages have become a source of cheap and affordable housing to those who cannot afford to bear the expenses of the city -- Periphery Policy, therefore, rightly takes into consideration the changing ground realities which are never static like shifting stands -- Provisions of the 1995 Act, the Periphery Control Act and the Periphery Policy converge on the need for a planned integrated development of the city, its periphery and its adjoining areas -- Periphery Control Act as well as the 1995 Act should be given strict effect to ensure regulated development in the peripheral area as well as in the immediate vicinity of such area. Aalok Jagga v. Union of India and others, 2012(2) L.A.R. 146 (P&H DB).

Punjab New Capital (Periphery) Control Act, 1952 (1 of 1953), Section 4, 5, 6 -- Punjab Regional and Town Planning and Development Act, 1995 (11 of 1995), Section 70, 75,76, 78, 79 – Chandigarh Periphery -- Controlled area – Planning area -- Housing project – Approval of -- Ecological concerns – Duty of officials -- Insofar as the provisions of the Environment (Protection) Act and the Wild Life (Protection) Act are concerned, it need not be emphasized that every project attracting the provisions of the Periphery Control Act and/or the provisions of the 1995 Act must satisfy the ecological concerns of the area in the light of the provisions of the two statues in question -- Authorities by provisions of the said Acts which cast on such authorities a duty to interdict any project or activity which even remotely seems to create an imbalance in the pristine ecology and environment of the area on which the city of Chandigarh is situated or for that matter in the immediate vicinity thereof. Aalok Jagga v. Union of India and others, 2012(2) L.A.R. 146 (P&H DB).

Petition though Lawyer

Punjab State Election Commission Act, 1994 -- Maintainability of petition -- Election of Sarpanch – Challenge to – Contention/objection that petition is through advocate and verification of petition was not as per provisions of Civil Procedure Code – Held, arguments are self-contradictory -- On the one hand we are expecting elected Panches to remain away from counsel while presentation of a petition and on the other hand we are trying to stick to technicalities by saying that the petition should be properly verified as to which of the paras are true to the best of knowledge and belief of the petitioners and which have been verified as per advice of the lawyer -- Election petition allowed. Beant Singh and others v. Dilbagh Singh and others, 2012(2) L.A.R. 372 (P&H).

Planning area

Punjab New Capital (Periphery) Control Act, 1952 -- Punjab Regional and Town Planning and Development Act, 1995 -- Periphery policy declared by the State of Punjab on 20th January 2006 – Chandigarh Periphery -- Controlled area – Periphery of Chandigarh which initially comprised of villages may have essentially lost its rural character and these villages have become a source of cheap and affordable housing to those who cannot afford to bear the expenses of the city -- Periphery Policy, therefore, rightly takes into consideration the changing ground realities which are never static like shifting stands -- Provisions of the 1995 Act, the Periphery Control Act and the Periphery Policy converge on the need for a planned integrated development of the city, its periphery and its adjoining areas -- Periphery Control Act as well as the 1995 Act should be given strict effect to ensure regulated development in the peripheral area as well as in the immediate vicinity of such area. Aalok Jagga v. Union of India and others, 2012(2) L.A.R. 146 (P&H DB).

Pleadings

Rent Act -- Unfit and unsafe for human inhabitation – Whether it is necessary for the landlord to give all the details about the damage and condition of the demised premises if the petition is filed for seeking eviction of the tenant on the ground that the demised premises has become unfit and unsafe for human habitation – Landlords had categorically averred that the building is 100 years old and is falling down and is crumbling at many places -- Held, the landlords have sufficiently pleaded about the ground of building having become unfit and unsafe for human habitation as it was averred that portion of it is falling down and it is crumbling at many places, which could be proved only by leading evidence. Manohar Lal (now deceased) through his LRs v. Dalip Singh, 2012(2) L.A.R. 402 (P&H).

Police protection

Punjab Municipal Corporation Act, 1976 – Election of Municipal Corporation/Councils/Panchayats – Fairness in election – Videography – (i) The Chief Secretary, Punjab, Director General of Police, Punjab, State Election Commissioner, Punjab and the Chief Election Commissioner, Punjab are directed to ensure that election is conducted in a free and fair manner, without intimidation of the voters etc.; (ii) The incidences of booth capturing if occur anywhere the same shall be immediately reported to officers of the State Election Commission, Punjab and Chief Election Commissioner, Punjab; (iii) It is further directed that adequate police force be deputed at all the polling booths, particularly the sensitive polling stations for maintaining law and order with the sole objective of holding free and fair elections; (iv) If any person(s) asks for personal security then the concerned Superintendent of Police will assess the threat perception and if it is found necessary, the concerned Superintendent of Police will provide security to such person(s) during the period of election; and (v) The petitioners or any other person are at liberty to arrange videography outside the polling station at their own costs and if they express such a desire, they be not prevented from doing so. It is, however, made clear that videography shall not be conducted inside the polling booths to maintain secrecy of the polling. Krishan Kumar Sharma and others v. State of Punjab and others, 2012(2) L.A.R. 117 (P&H DB).  

Possession of land

Rojnamcha Vakyati -- Acquisition of land – Entries in Girdawari/Record of cultivation shows appellant in possession – Genuineness and correctness of the entries contained in the Girdawaris is not questioned – Therefore, no reason to disbelieve or discard the same -- Rojnamcha Vakyati prepared by Sadar Kanungo and three Patwaris showing delivery of possession to Senior Manager (IA), HSIIDC, which is a self serving document, cannot be made basis for recording a finding that possession of the acquired land had been taken by the concerned revenue authorities -- Crops were standing on several parcels of land, possession thereof could not have been taken without giving notice to the landowners -- It was humanly impossible to give notice to large number of persons on the same day and take actual possession of land total measuring 214 Acres 5 Kanals and 2 Marlas – Held, record prepared by the revenue authorities showing delivery of possession of the acquired land to HSIIDC has no legal sanctity -- High Court committed serious error by dismissing the writ petition on the specious ground that possession of the acquired land had been taken and the same vested in the State Government in terms of Section 16. Raghbir Singh Sehrawat v. State of Haryana and others, 2012(2) L.A.R. 130 (SC).

Possessory title of Gram Panchayat

Determination of -- Jumla Mushtarka Malkan Khewat – Partition of – Power of Director Consolidation -- After conclusion of consolidation proceedings, authorities under the Consolidation Act are functus officio and have no jurisdiction to determine whether the land vests or does not vest in a Gram Panchayat -- An order directing partition of the “Jumla Mushtarka Malkan Khewat” would require the Director Consolidation to record a finding that the land does not fall to the possessory title of the Gram Panchayat -- Right to decide such a dispute vests in the Collector, exercising powers under Section 11 of the Punjab Village Common Lands (Regulation) Act, 1961 -- Order passed by the Director Consolidation holding that the land does not vest in the Gram Panchayat and directing partition of this land, is without jurisdiction, null and void and were rightly ignored by the Collector and the Appellate Authority, while deciding question of title. Ishar Singh and another v. Director, Rural Development & Panchayat, Punjab and others, 2012(2) L.A.R. 654 (P&H DB).

Potato chips manufacturer

Licence – Requirement of -- Punjab Agricultural Produce Markets Act, 1961 -- For the purpose of manufacturing potato chips, the petitioner is storing potatoes in his factory premises, which is situated in the market area within the State of Punjab -- Not only this, by processing of the potatoes, petitioner was converting the potatoes into potato chips, therefore, petitioner is covered under Section 6(3) of the Act and has rightly obtained licence. Pepsico India Holdings Private Limited v. State of Punjab and others, 2012(2) L.A.R. 274 (P&H DB).

Licence – Requirement of -- Sine quo non to attract Rule 18(1)(a) is that a person should be supplier or dealer (Purveyor) of perched, fried or cooked food -- Manufacturer of potato chips cannot be regarded as supplier or dealer of the food, therefore, not exempted from taking licence u/s 6 in view of provision of Rule 18(1)(a) of Punjab Agricultural Produce Markets (General) Rules, 1962, therefore, is duty bound and has rightly applied and granted licence under Section 6(3) of the Punjab Agricultural Produce Markets Act, 1961. Pepsico India Holdings Private Limited v. State of Punjab and others, 2012(2) L.A.R. 274 (P&H DB).

Power of Commissioner

Punjab Village Common Lands (Regulation) Act, 1961 -- Eviction petition – Title dispute – Commissioner had no jurisdiction, while deciding an appeal arising from, proceedings u/d 7 of the 1961 Act to decide a question of title -- If the Commissioner was, prima-facie satisfied that a credible question of title has arisen for consideration, he was required to call upon parties to file a petition u/s 11 of the Act and direct that during pendency of proceedings, the petition u/s 7 of the 1961 Act shall be kept in abeyance. Gram Panchayat Dholwaha v. Joint Development Commissioner (IRD), Punjab and others, 2012(2) L.A.R. 13 (P&H DB).

Power of Consolidation Officer

Jumla Mustarka Malkan – Shamilat deh – Shortage during consolidation – Land created as Jumla Mustarka Malkan, during consolidation, vests in the proprietary body of the village but its management and control remains with the Panchayat in terms of Rule 16(ii) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949 – In case there is any shortage/'Kami Peshi’ in the holding of a private person, during consolidation, it cannot be made good from the land of Jumla Mustarka Malkan or from Shamilat deh, rather it is the duty of the Consolidation Officer to have a careful re-look at the entire record to find out the person(s) to whom excess land has been allotted during consolidation, and the said land has to be retrieved in order to provide it to the person, claiming shortage in his holding. Gram Panchayat, Village Khup Kalan v. The Deputy Director, Consolidation of Holdings, Punjab and others, 2012(2) L.A.R. 604 (P&H DB).

Power of Director Consolidation

Authority exercising power u/s 42 of the 1948 Act cannot examine any order, which has not been passed by any officer under the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948. Jagir Singh and another v. State of Punjab and others, 2012(2) L.A.R. 573 (P&H DB).

Exchange of land – Existence of an error or an illegality is a sine qua non, for exercise of power u/s 42 of the Consolidation Act – Impugned orders do not record any error or illegality in consolidation proceedings -- Orders were passed on the basis of resolutions passed by the Gram Panchayat, accepting that land should be transferred to private parties and in exchange, their land should be allotted to the Gram Panchayat -- Consolidation Act does not confer any power upon Consolidation Authorities to affect an exchange of Gram Panchayat land. Gram Panchayat Village Sahni and another v. State of Punjab and others, 2012(2) L.A.R. 566 (P&H DB).

Exchange of shamilat land -- Director Consolidation does not possess power under the Punjab Village Common Lands (Regulation) Act, 1961 to effect an exchange of shamlat land with the land of the proprietary body of the village as the jurisdiction to exchange its land vests with the Gram Panchayat, who would first form an opinion that the exchange of shamlat deh is necessary for the benefit of inhabitants of the village and then forward it to the State Government for its approval -- Exchange would come into being only after formal approval is given by the Government, which has to be as per the parameters laid down in Rule 5 of the Punjab Village Common Lands (Regulation) Rules, 1964. Jagir Singh and another v. State of Punjab and others, 2012(2) L.A.R. 573 (P&H DB).

Functus officio -- Upon conclusion of consolidation proceedings, Consolidation Authorities are functus officio and may only pass orders with respect to pending appeals/revisions or in accordance with powers conferred by Section 42 of the Consolidation Act. Gram Panchayat Village Sahni and another v. State of Punjab and others, 2012(2) L.A.R. 566 (P&H DB).

Jumla Mushtarka Malkan Khewat – Partition of – Possessory title of Gram Panchayat – Determination of -- After conclusion of consolidation proceedings, authorities under the Consolidation Act are functus officio and have no jurisdiction to determine whether the land vests or does not vest in a Gram Panchayat -- An order directing partition of the “Jumla Mushtarka Malkan Khewat” would require the Director Consolidation to record a finding that the land does not fall to the possessory title of the Gram Panchayat -- Right to decide such a dispute vests in the Collector, exercising powers under Section 11 of the Punjab Village Common Lands (Regulation) Act, 1961 -- Order passed by the Director Consolidation holding that the land does not vest in the Gram Panchayat and directing partition of this land, is without jurisdiction, null and void and were rightly ignored by the Collector and the Appellate Authority, while deciding question of title. Ishar Singh and another v. Director, Rural Development & Panchayat, Punjab and others, 2012(2) L.A.R. 654 (P&H DB).

Power of President of Tribunal

Punjab Town Improvement Act, 1922 -- Quorum – Award – Tribunal is to consist of a President and two assessors -- Evidence recorded by the President of Tribunal -- The arguments have been heard by the President and the award has been announced by him alone -- Only reference made in one para is to the discussion made with the assessors – Held, President alone who has announced the award was not competent to do so – Award is quashed, matters referred back to the Tribunal. Avtar Singh and others v. The District Judge, Rupnagar and others, 2012(2) L.A.R. 647 (P&H DB).

Power of Reference Court

Land Acquisition Act, 1894 -- Question of title -- Reference Court itself lacked jurisdiction to adjudicate on issue of title -- Reference was made only u/s 18 and the Court had no jurisdiction to allow parties to join issues on title -- Reference Court u/s 18 had no power to decide on whoever was entitle to compensation, the only relevant subject could be the quantum of compensation -- Where in a case where there is a dispute regarding an apportionment, if the Collector does not make a reference under Section 30, the Collector could be compelled to make a reference through a direction of a Court – This court cannot accede to the general contention that Section 18 could be converted as 30 reference. Ch. Vidya Bhushan (died) through his LRs and others v. Haryana State though the Collector, Karnal, and others, 2012(2) L.A.R. 380 (P&H).

Presence of beneficiary

Will – Execution of -- Fact that the appellant/beneficiary was present at the time of execution of Will and that the testator did not give anything to others from his share in the joint family property are not decisive of the issue relating to genuineness or validity of the Will. Mahesh Kumar (Dead) By L.Rs. v. Vinod Kumar and others, 2012(2) L.A.R. 221 (SC).

Presumption of Bonafide need

NRI landlord – There was relationship of landlord and tenant between the parties and respondent is an NRI and owner of the demised premises for the last more than five years prior to the filing the petition -- Thus, the respondent fulfilled all the necessary ingredients for seeking relief under Section 13-B of the East Punjab Urban Rent Restriction Act, 1949  -- Once the aforesaid ingredients have been fulfilled, a presumption with regard to bona fide requirement of the landlord for use and occupation of the demised premises is drawn in his favour and such a presumption can be rebutted only by making out a very strong case by the tenant. Braham Kumar v. Sukhdev Singh, 2012(2) L.A.R. 319 (P&H).

Prevention of Cruelty to Animals Act, 1960 (59 of 1960)

Section 11, 21, 22 – Bulls – Kila Raipur festival -- No illegality in the notification dated 11.07.2011 by which restriction has been imposed by the Central Government through notification on exhibition or training of Bull as a performing animal, which means any performance where public is admitted, through on sale of tickets -- Kila Raipur Sports Festival, where various events are being held, is for public entertainment without any sale of ticket -- Notification dated 11.07.2011 is not applicable. Gauraksha Dal v. Union of India and others, 2012(2) L.A.R. 558 (P&H DB).

Section 21, 22 -- Performing Animals (Registration) Rules, 2001, Rule 2(h) – Performing animal – Performing animal means an animal which is being used at or for the purpose of any entertainment including a film or an equine event to which the public are admitted -- Section 21 says that “exhibit” would mean exhibit at any entertainment to which the public are admitted through sale of tickets and “train” would mean train for the purpose of any such exhibition --  Restriction imposed u/s 22 of the Act would apply in respect of performing animal who has been exhibited or trained for a public view through sale of tickets and not otherwise. Gauraksha Dal v. Union of India and others, 2012(2) L.A.R. 558 (P&H DB).

Principle of Estoppels

Doctrine of estoppels has evolved from the principles of equity and good conscience -- Doctrine postulates that where an offer is made and the party receiving the offer, believes the bonafides of the offer and so alters its position, as to render it inequitable and contrary to good conscious to allow the first party to retract from its offer, the first party would be estopped from retracting its offer -- Section 115 of the Indian Evidence Act incorporates the doctrine of estoppels and enables a party to invoke the doctrine against the party retracting its offer. Kesar Singh and another v. State of Punjab through its Director, Rural Development and Panchayats, Punjab and another, 2012(2) L.A.R. 606 (P&H Full Bench).

Doctrine of estoppels shall not be invoked to defeat a statutory provision or to enable a party to allege that though the offer is contrary to statute, the party making the offer should be held to its offer -- Doctrine of estoppels cannot be invoked to legitimise an illegality and enforce an obligation that is contrary to law. Kesar Singh and another v. State of Punjab through its Director, Rural Development and Panchayats, Punjab and another, 2012(2) L.A.R. 606 (P&H Full Bench).

Punjab Village Common Lands (Regulation) Act, 1961 -- Punjab Village Common Lands (Regulation) Rules, 1964 -- Transfer of public property against the Statute – A Gram Panchayat holds property, in trust, for and on behalf of inhabitants of a village and shall deal with its property only in accordance with statutory provisions set out in the 1961 Act and the Rules, 1964 -- Any deviation from the Act, 1961 or the 1964 Rules would render transfer of land whether of ownership or possession, null and void -- A sale made by a Gram Panchayat without previous approval of the Government shall be null and void and no amount of acquiescence, negligence or error on the part of a Gram Panchayat shall have the affect of conferring legitimacy upon such a transaction – Doctrine of estoppels would not be attracted. Judgment in Smt. Malkhani's case, 2001(4) R.C.R.(Civil), 25 is over-ruled. Kesar Singh and another v. State of Punjab through its Director, Rural Development and Panchayats, Punjab and another, 2012(2) L.A.R. 606 (P&H Full Bench).

Punjab Village Common Lands (Regulation) Rules, 1964 -- Transfer of public property against the Statute -- Mutation – Effect of -- An authority dealing with public property, cannot deviate from the statute, rules or instructions that govern transfer of its property -- Even where a Gram Panchayat has by resolution, transferred property, delivered possession and mutation of ownership has been sanctioned, such a transfer, if made in violation of Rule 12, would be null and void -- Doctrine of estoppels, cannot be invoked -- Gram Panchayat shall not be estopped from alleging the illegality of such a transfer or the unauthorised possession of such a vendee. Judgment in Smt. Malkhani's case, 2001(4) R.C.R.(Civil), 25 is over-ruled. Kesar Singh and another v. State of Punjab through its Director, Rural Development and Panchayats, Punjab and another, 2012(2) L.A.R. 606 (P&H Full Bench).

Writ petition -- Petitioner claiming three Marla of plot – One marla plot was allotted – Writ petition filed claiming allotment of plots within the vicinity of the acquired land and the writ petition was disposed of – Though the said writ petition was filed after the claim of 3 marlas of plot was declined and in fact, after the possession of 1 marla of plot was taken by the petitioner without any objection, but the petitioner has not made any grievance in the said writ petition that she is entitled to a plot measuring 3 marlas – Held, the present writ petition is barred on the principles of Order 2 Rule 2 of the Code of Civil Procedure and by an act of estoppels. Shyama Bansal v. Shri Mata Mansa Devi Shrine Board, Panchkula, 2012(2) L.A.R. 259 (P&H DB).

Private partition

Parties may effect a private partition but in the absence of any tangible evidence, whether oral or documentary, plea of partition rejected. Amarjit Singh v. State of Punjab and others, 2012(2) L.A.R. 432 (P&H DB).

Procedure of Exchange of land

Punjab Village Common Lands (Regulation) Act, 1961 -- Before a Gram Panchayat forwards a proposal for exchange of its land, the Gram Panchayat is required to form an opinion that the exchange is necessary for benefit of inhabitants of the village -- An exchange of Gram Panchayat land presupposes the existence of two elements (a) necessary to do so, and (b) for benefit of inhabitants of the village. Hukam Chand and others v. State of Haryana and others, 2012(2) L.A.R. 506 (P&H DB).

Proof of publication of notification

Land Acquisition Act, 1894 -- High Court upheld the acquisition of land by assuming that notification issued u/s 4(1) must have been published in the Official Gazette because the declaration issued under Section 6 was published in the Official Gazette -- Approach of the High Court was clearly erroneous -- Question whether the notification issued u/s 4(1) was published in the Official Gazette is a question of fact and such question cannot be decided on assumptions and conjectures or inferences. Lalrinvenga (Dead) Through L.Rs. and another v. State of Mizoram and others, 2012(2) L.A.R. 188 (SC).

Land Acquisition Act, 1894 -- Whenever the acquisition of land is challenged on the ground that the notification has not been published as per the mandate of the statute, the authority defending the acquisition is under an obligation to produce evidence in the form of documents to prove that the requirement of publication has been complied. Lalrinvenga (Dead) Through L.Rs. and another v. State of Mizoram and others, 2012(2) L.A.R. 188 (SC).

Proof of tenancy

Gair marusi tenant – Entries in jamabandi – Jamabandi entries as Gair Marusi tenants -- In the absence of any resolution or lease deed executed by the Gram Panchayat, in accordance with Rule 6 of the 1964 Rules, entries in the Jamabandis do not confer the status of a tenant so as to enable the petitioners to allege that they are the tenants, protected by the Punjab Land Revenue Act or by the judgment in Sarwan and Rati Ram’s case 1985 PLJ, 262 -- Petitioners are held to be unauthorised occupants of panchayat property and have, therefore, been rightly ordered to be evicted. Bikar Singh and others v. Joint Development Commissioner (IRD) and others, 2012(2) L.A.R. 16 (P&H DB).

Proprietary possession

Punjab Village Common Lands (Regulation) Act, 1961 -- Shamilat deh – Exclusion from -- Cultivation possession – Jamabandi for the year 1945-46 records the possession of “Makbuja malkan,” i.e. possession of the entire proprietary body, in common, with no particular co-sharer in possession of any particular portion of the land, much less in cultivating possession -- It is “cultivating possession” and not mere “proprietary possession” that excludes land from Shamilat Deh, under section 2(g)(iii) and (viii) -- Land in dispute is described as a gair mumkin nadi, or banjar kadim (uncultivated old fallow) and only three Khasras No. i.e. 56 (3-14), 57 min (1-10), 58 (28-7) are recorded as bag barani i.e. an orchard but without recording the possession of any individual proprietor, much less any of the petitioners -- It is, therefore, apparent that the revenue record, produced by the petitioners, does not prove that the petitioners were in “cultivating possession” prior to 26.01.1950 so as to exclude, the land in dispute, from Shamilat Deh, but, in fact, establishes the contrary, i.e., the vesting of this land in the Gram Panchayat. Bundi Ram (deceased) through his LRs v. Commissioner, Ambala Division Ambala and others, 2012(2) L.A.R. 456 (P&H DB).

Provision for Toilet

Tavern site -- As per condition of the Excise Policy, tavern must have toilets -- Admittedly, there is no sewer line connecting to these liquor vends and tavern – Held, in the absence of toilet in the tavern, same cannot be allowed to run and permission should have been refused on the ground of public morality, public health and public order. Amit Jain and others v. State of U.T., Chandigarh and others, 2012(2) L.A.R. 64 (P&H DB).

Provisional assessment of rent

Rent Act -- Non-tender of – Arrears of rent – First date of hearing – Tenant did not comply with the order by which rent was provisionally assessed and he was asked to tender the same on the first date of hearing – Tenant deserves to be evicted. Rajan alias. Anil Kumar v. Ghanshyam Dass, 2012(2) L.A.R. 624 (P&H).

Rent Act -- Unregistered agreement – Relevancy of -- Contention of tenant that clause of incremental increase of rent in un-registered rent deed is not valid cannot be accepted at this stage because the tenant himself accepted the clause of incremental increase by admittedly paying rent at increased rate. Kanwaljit Singh v. Avtar Singh, 2012(2) L.A.R. 400 (P&H).

Requirement of -- Rent Act -- Refusal by tenant to pay rent -- Tenant has categorically refused to tender the rent -- Hence, there was no obligation on the part of the Rent Controller to assess the provisional rent even if the tenant had made a prayer, after three years of the said statement because that would be after the expiry of statutory period of 15 days. M/s Belliss India Limited v. Shri Ram Chand Gupta (dead) through his LRs and  others, 2012(2) L.A.R. 582 (P&H).

Public interest litigation

Want of affidavit -- Non-compliance of -- Public Interest Litigation, require the petitioners to file a specific affidavit showing their credentials and also stating that petitioners are public spirited persons and they have no personal interest in the matter – In the writ petition specific stand is that present petition is being filed in the public interest and petitioners are the public spirited persons -- Moreover, Court has taken cognizance of the matter keeping in view the larger public interest involved – Held, since this Court has taken cognizance of the matter, same cannot be thrown out on the hypertechnical ground. Amit Jain and others v. State of U.T., Chandigarh and others, 2012(2) L.A.R. 64 (P&H DB).

Public premises

Constructed houses -- Eviction from -- Shamilat deh – Collector was required to prima facie consider and decide, whether these houses were excluded from “Shamilat Deh” in terms of Section 2(g)(4a) or Section 2(g)(vi) and/or Section 4(1)(b) of the Punjab Village Common Lands (Regulation) Act, 1961 – A pre-condition to the Collector, exercising jurisdiction, under the Public Premises Act, is a prima facie finding, that the land is public premises, i.e., was “Shamilat Deh”, under the 1961 Act, as defined under section 2(g)(1) of the 1961 Act – Collector and the Commissioner have not recorded any finding, in their orders, whether the land was “Shamilat Deh” -- Matter is remitted to the Collector to decide whether land, in dispute, was “Shamilat Deh” as provided by section 2(g)(1) or is excluded from “Shamilat Deh”, by virtue of sections 2(g), (4a) and 4 (1)(b) of the 1961 Act. Bahadur Singh and others v. The State of Haryana and others, 2012(2) L.A.R. 440 (P&H DB).

Contention that property is “Jumla Mushtarka Malkan” and the petitioners are proprietors of the village, as such have share in the land in question, this land has neither been reserved for common purposes nor is being used for common purposes and the petitioners are in the cultivating possession, as such, have becomes owners to the extent of their shares – Held, no evidence that what was the share of the petitioners and they were in exclusive possession of any part of the land after having a valid partition of the “Jumla Mushtarka Malkan” land – Land as per Jamabandi for the year 1958-59 is Gram Panchayat -- So, all the rights vest in the Gram Panchayat for management and control – Eviction order upheld. Rajdev Singh and another v. Joint Development Commissioner, Punjab and others, 2012(2) L.A.R. 107 (P&H DB). 

Dilapidated condition of building – Lease not extended – Building, in which the post office is running, is an old building and in dilapidated condition – Running of a public office, like the post office, in such a building is neither safe nor in public interest. It may result into any mis-happening at any time – Contention that due to the financial crunch, the Union of India is not in a position to construct the new building for housing the post office, cannot be accepted -- Denial of relationship of landlord and tenant by the Union of India is totally unwarranted – Writ was rightly dismissed with costs of Rs. 50,000/-. Union of India and others v. Municipal Council, Muktsar and others, 2012(2) L.A.R. 89 (P&H DB).

Since, the management and control vest in the Gram Panchayat, such land is public premises and ejectment of unauthorized occupant therefrom can be made under both the Acts i.e. Section 5 of the Eviction Act and Section 7 of the Common Lands Act – Whichever remedy, Panchayat deem it appropriate speedy, summary and effective, it can avail. Rajdev Singh and another v. Joint Development Commissioner, Punjab and others, 2012(2) L.A.R. 107 (P&H DB). 

Public property

Delay in filing the writ petition – Where fraud or collusion is the foundation of a case particularly if it involves public property, a Court, exercising power under Article 226 of the Constitution, may, in the exercise of its discretion and depending upon the facts and circumstances of a case, entertain a petition, so as to protect public property from unscrupulous elements. Gram Panchayat Village Sahni and another v. State of Punjab and others, 2012(2) L.A.R. 566 (P&H DB).

Public purpose

Acquisition of land – Some people set up small industrial unit after seeking permission from the competent authority -- Before acquiring private land the State and/or its agencies/instrumentalities should, as far as possible, use land belonging to the State for the specified public purposes -- If the acquisition of private land becomes absolutely necessary, then too, the concerned authorities must strictly comply with the relevant statutory provisions and the rules of natural justice. Raghbir Singh Sehrawat v. State of Haryana and others, 2012(2) L.A.R. 130 (SC).

Land Acquisition Act, 1894 -- Public purpose for which the land is acquired can always be changed to another public purpose by the State Government for optimum utilization of the land -- Requirements of the community keep on varying -- Schemes can be varied to meet the changing needs of the public. Jagtar Singh etc. v. State of Punjab etc., 2012(2) L.A.R. 170 (P&H DB).

Publication of notification

Land Acquisition Act, 1894 -- Requirement of publication of notification in the Official Gazette and two local newspapers is mandatory -- Not only this, the Collector is under an obligation to ensure that public notice of the substance of such notification is given at convenient places in the locality. Lalrinvenga (Dead) Through L.Rs. and another v. State of Mizoram and others, 2012(2) L.A.R. 188 (SC).

PUDA plot

Employees’ scheme -- Petitioner’s basic eligibility was determined in the initial scheme and at no stage, during the process of amendment of schemes, any clause was introduced that original applications of employees, who have, subsequently retired would be rejected -- So called new scheme, admittedly, protects the rights of applicants, who had already applied under the original scheme – Petitioner is entitled to allotment of a plot as he had applied for the same when he was in service. Rup Lal v. State of Punjab and others, 2012(2) L.A.R. 543 (P&H DB).

Punjab Agricultural Produce Markets Act, 1961 (23 of 1961)

Section 6(1) – Allotment Policy 1998, Clause 3 -- Mandi Township – Creation of – Allotment of plot -- Existing Mandi not going to be de-notified after creation of New Mandi Township -- Arhatias/Licensee of existing Mandi not to be displaced or uprooted, are not entitled to allotment of plots in New Mandi Township at reserve price. Brij Lal and others v. State of Punjab and others, 2012(2) L.A.R. 378 (P&H DB).

Section 6(3) – Punjab Agricultural Produce Markets (General) Rules, 1962, Rule 18 -- Agricultural produce – Sale, Purchase, Storage and Processing of – Requirement of -- No person, unless exempted by Rules made under this Act, shall set up, establish or continue or allowed to be continued any place for the purchase, sale, storage and processing of the agricultural produce so notified or purchase, sell, store or process such agricultural produce except under a licence granted in accordance with the provisions of this Act. Pepsico India Holdings Private Limited v. State of Punjab and others, 2012(2) L.A.R. 274 (P&H DB).

Section 6, 23 -- Potato chips manufacturer – Licence – Requirement of -- For the purpose of manufacturing potato chips, the petitioner is storing potatoes in his factory premises, which is situated in the market area within the State of Punjab -- Not only this, by processing of the potatoes, petitioner was converting the potatoes into potato chips, therefore, petitioner is covered under Section 6(3) of the Act and has rightly obtained licence. Pepsico India Holdings Private Limited v. State of Punjab and others, 2012(2) L.A.R. 274 (P&H DB).

Section 6, 23 -- Punjab Agricultural Produce Markets (General) Rules, 1962, Rule 18 – Potato chips manufacturer – Licence – Requirement of -- Sine quo non to attract Rule 18(1)(a) is that a person should be supplier or dealer (Purveyor) of perched, fried or cooked food -- Manufacturer of potato chips cannot be regarded as supplier or dealer of the food, therefore, not exempted from taking licence u/s 6 in view of provision of Rule 18(1)(a) of the Rules, therefore, is duty bound and has rightly applied and granted licence under Section 6(3) of the Act. Pepsico India Holdings Private Limited v. State of Punjab and others, 2012(2) L.A.R. 274 (P&H DB).

Section 10 -- Licensing of Auction Platform Rules 1981, Rule 4 – Auction site – Right of Licensee – “Any person” u/s 10 for grant of licence ought not to be seen without reference to the above rule insofar as a claim for an auction platform is made -- A licensee cannot have a right to auction platform if he did not have a right to a shop in some capacity either as an owner or as a tenant. M/s Sood Brothers v. Union Territory, Chandigarh, 2012(2) L.A.R. 79 (P&H).

Section 10 -- Licensing of Auction Platform Rules 1981, Rule 4, 21 -- Renewal of Licence – Auction platform – Right of -- Requirements in the rules state no more than the necessity of having a shop in the premises -- What space it shall be in the auction platform is not set out through any of the provisions of the Act or the rules -- This assumes significance because there is admittedly a shortage of space in the auction platforms and, therefore, there has to be a workable policy to accommodate persons, who are the licensees -- So long as there are no rules or provisions in the Act any such attempt, which will prejudice the existing licence holders, it cannot be tolerated -- A licence granted under the Act and Rules entitles the licensee to run his business anywhere within the area of the Market Committee -- It may be that a new licensee could use his own shop as an auction platform in a situation where no auction platform is available. M/s Sood Brothers v. Union Territory, Chandigarh, 2012(2) L.A.R. 79 (P&H).

Section 10, 13 – Licensing of Auction Platform Rules 1981, Rules 4, 21 – General Clauses Act, 1897 (10 of 1897), Section 26 -- Licensee changed the shop – Renewal of Licence – Auction platform – Right of -- Licencee cannot be denied the right of renewal of licence only because in the form of application, a licensee has changed the place of business within the notified area -- No justification to deny to an existing licensee who applies for renewal should lose his auction platform, if he already held one. M/s Sood Brothers v. Union Territory, Chandigarh, 2012(2) L.A.R. 79 (P&H).

Section 23 – Market fees -- No document produced to say that agreements of sale or purchase of the potatoes were entered in other States and deliveries of potatoes were taken in those States and thereafter the potatoes were transported to the State of Punjab – No evidence placed on record viz. entries on the barriers or builties to prove that potatoes were transported within the State of Punjab by the petitioner himself -- In the absence of any material evidence adverse inference has to be drawn against the petitioner to say that potatoes were delivered in the factory of Punjab and no duty was paid in the other States, therefore, petitioner is duty bound to pay market fee on such purchases in view of Section 23 of the Act. Pepsico India Holdings Private Limited v. State of Punjab and others, 2012(2) L.A.R. 274 (P&H DB).

Punjab Agricultural Produce Markets (General) Rules, 1962

Rule 18 -- Punjab Agricultural Produce Markets Act, 1961 (23 of 1961), Section 6(3) – Agricultural produce – Sale, Purchase, Storage and Processing of – Requirement of -- No person, unless exempted by Rules made under this Act, shall set up, establish or continue or allowed to be continued any place for the purchase, sale, storage and processing of the agricultural produce so notified or purchase, sell, store or process such agricultural produce except under a licence granted in accordance with the provisions of this Act. Pepsico India Holdings Private Limited v. State of Punjab and others, 2012(2) L.A.R. 274 (P&H DB).

Rule 18 – Punjab Agricultural Produce Markets Act, 1961 (23 of 1961), Section 6, 23 -- Potato chips manufacturer – Licence – Requirement of -- Sine quo non to attract Rule 18(1)(a) is that a person should be supplier or dealer (Purveyor) of perched, fried or cooked food -- Manufacturer of potato chips cannot be regarded as supplier or dealer of the food, therefore, not exempted from taking licence u/s 6 in view of provision of Rule 18(1)(a) of the Rules, therefore, is duty bound and has rightly applied and granted licence under Section 6(3) of the Act. Pepsico India Holdings Private Limited v. State of Punjab and others, 2012(2) L.A.R. 274 (P&H DB).

Punjab General Clauses Act, 1898 (1 of 1898)

Section 15, 17 –  Punjab Panchayati Raj Act, 1994 (9 of 1994), Section 10, 16, 20(5), 87 – Suspension/ Removal/Death of Sarpanch – Substitution of functionaries -- Authorised Panch – Power of -- Suspension of Sarpanch does not mean that entire development works of the village shall not be allowed to proceed with -- Authorised Panch can spend money for the development work in the village as per valid resolution and prevailing law during the period Sarpanch remains suspended or post of Sarpanch remains unfilled due to suspension, removal or death of elected Sarpanch. Jeet Singh Panch v. State of Punjab and others, 2012(2) L.A.R. 252 (P&H). 

Section 15, 17 – Punjab Panchayati Raj Act, 1994 (9 of 1994), Section 10, 16, 20(5), 87 – Suspension/ Removal/Death of Sarpanch – Substitution of functionaries -- Authorised Panch – Power of -- All the duties and functions to be performed by the office of the Sarpanch shall also be performed by the authorised Panch having charge of the office of the Sarpanch -- Every authorised Panch to officiate the office of Sarpanch shall have same powers for the period he remains in the office, which usually can be exercised by the Sarpanch. Jeet Singh Panch v. State of Punjab and others, 2012(2) L.A.R. 252 (P&H).

Punjab Gram Panchayat Act, 1952

Section 16 – Panchayat Secretaries – Civil Posts --- Fact that the Government has been authorized to create posts or to make recruitment makes the Panchayat Secretaries, is a method of recruitment -- Panchayat Samities get salary from the Samiti funds -- It is the status of the employer, which is relevant to determine the corresponding status of the employees -- Employees of statutory Boards and Corporations or for that matter an instrumentality of the State may be entitled to the protection of the fundamental rights being State within the meaning of Article 12 of the Constitution of India, but that does not make the employees of such statutory Boards and corporations and other instrumentalities of the State, holder of a civil post entitled to protection of Part XIV of the Constitution of India. Rajwinder Singh and others v. State of Punjab and another, 2012(2) L.A.R. 322 (P&H DB).

Section 16(4) – Constitution of India, Article 14,16, 309 --  Panchayat Secretaries – Status of Civil post/Government servant -- Petitioners challenged the legality of Section 16 (4) of the Punjab Gram Panchayat Act, 1952, by declaring the same as ultra vires to Articles 14 and 16 of the Constitution of India – Held, the Act has been framed within its legislative competence and in terms of Article 309, the state legislature can regulate the recruitment and conditions of service -- The impugned enactment is in terms of article 309 of the constitution and cannot be said to violative of Article 14 or 16 as the petitioner have no vested right to be civil servant -- Power to regulate the recruitment to civil post also includes power not to treat a service as a civil service -- Therefore, the claim of the petitioners that they should be treated as a Government servant is a mere wish and not a right. Rajwinder Singh and others v. State of Punjab and another, 2012(2) L.A.R. 322 (P&H DB).

Punjab Land Preservation Act, 1900 (II of 1900)

Section 3, 4,5 – Forest land – Notification for 20 years – Expiry of 20 years -- Whether a particular piece of land falls or is excluded from the ambit of “Forest Land” is a question of fact to be decided by Forest Department being the custodian of “Forest Lands” and High Court in exercise of its discretionary jurisdiction under Article 226 of the Constitution need not travel beyond the legal issues -- Principal Chief Conservator of Forest, Haryana is directed to constitute a Committee comprising three senior officers of the Forest Department and to be headed by an Officer not below the rank of Additional PCCF or Chief Conservator of Forests, who shall consider each claim in consonance with principles of natural justice and dispose of them with reference to the question whether or not the land(s) in dispute form part of “Forest Land(s). Rakam Singh and others v. State of Haryana and others, 2012(2) L.A.R. 477 (P&H DB).

Punjab Land Records Manual

Chapter 6.1, 6.5 --  Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g)(i),11 – Punjab Land Revenue Act, 1887 (XVII of 1887), Section 59(D) – Shamilat deh – Exclusion from – Gair mumkin nadi -- Writ for quashing of impugned orders, holding that the land in dispute vests in Gram Panchayat -- Petitioners have not produced any revenue entry or document prepared, in terms of Chapter 6.5 to prove that the land, in dispute, was created by river action or was reserved as “Shamilat Deh” in a village subject to river action – Petitioners, therefore, cannot be allowed to take any benefit merely because a major portion of the land, in dispute, is recorded as a “Gair Mumkin Nadi” -- Jamabandies, the pleadings and the impugned orders, do not disclose any material/ evidence that would prove that the land became “Shamilat Deh” due to river action or was reserved as “Shamilat Deh” in a village, subject to river action, as required by Section 2(g)(i) of the 1961 Act – Petition dismissed. Krishan Dev and others v. Director Rural Development and Panchayat, Punjab, SAS Nagar and others, 2012(2) L.A.R. 554 (P&H DB).

Punjab Land Revenue Act, 1887 (XVII of 1887)

Section 13 -- Appointment of Lambardar – Appeal -- Comparative merits -- Appellate Authority’s power -- Commissioner came to the conclusion that private respondent was younger in age, economically sound, better educated and was having better social status, but these facts were not properly appreciated by the Collector -- Order of the Collector was set aside and respondent No.4 was appointed as Lambardar of the village -- Order of the Commissioner was upheld by the Financial Commissioner and further by the Ld. Single Judge – Held, private respondent is a better candidate, therefore, the learned Single Judge, rightly declined to interfere in the orders of the revenue authorities, appointing private respondent as Lambardar of the village. Talwinder Singh v. Financial Commissioner (Co-operation), Punjab, Chandigarh and others, 2012(2) L.A.R. 3 (P&H DB).

Section 13, 15 – Punjab Land Revenue Rules, Rule 15 -- Appointment of Lambardar – Choice of Collector – FIR against candidate -- Collector not only found private respondent as a better candidate, but it was also found that the appellant had got prepared a false voter identity card in the name of his wife, though he was not married at all – In criminal case, private respondent, had already been acquitted before initiation of the proceedings for appointment of Lambardar -- District Collector had rightly appointed private respondent being an Ex-Serviceman, as Lambardar --  Choice of the Collector in the matter of appointment of Lambardar should not be interfered on superficial grounds, until and unless the order of the Collector in this regard suffers from patent illegality. Kushal Pal v. State of Haryana and others, 2012(2) L.A.R. 19 (P&H DB).

Section 13,15 -- Punjab Land Revenue Rules, Rule 15,16 – Appointment of Lambardar – Interim order of stay – Challenge to -- L.P.A. against the interim order passed by the learned Single Judge, whereby while admitting the writ petition, the operation of the order passed by the Financial Commissioner, has been stayed – Grouse of the appellant is that due to stay at present nobody is functioning as Lambardar in village – Held, Ld. Single Judge totally ignored the fact that even before his appointment as Lambardar, the appellant was working as Sarbrah Lambardar of the village -- After his appointment as Lambardar by the Collector, not only the sanad of Lambardari was issued, but he had also started functioning on the said post -- In such circumstances, the order of the Financial Commissioner should not have been stayed – Due to stay there will be no Lambardar in the village due to which day to day functions to be performed by the Lambardar will be affected and the villagers will not be able to get their work done – Stay vacated. Harbans Singh v. State of Punjab and others, 2012(2) L.A.R. 392 (P&H DB).

Section 13,15 – Punjab Land Revenue Rules, Rule 15,16 -- Appointment of Lambardar – Speaking order -- Facts that whether the petitioner had intentionally furnished the certificate of Majhbi Sikh to the Army authorities for selection of his son in the army or it was inadvertently recorded as Majhbi Sikh instead of Jat Sikh, further fact that respondent is in illegal possession of Gurdwara land and he is not paying any rent are not taken into consideration – Further contended that respondent is also defaulter of the lai/mai loan for ten years and as such he could not be considered suitable for appointment to the post of Lambardar – Held, in view of the above facts, case is remanded to the Financial Commissioner, Haryana to re-consider the evidence on record and pass speaking order by recording specific findings. Manmohan Singh v. Financial Commissioner, Haryana and others, 2012(2) L.A.R. 417 (P&H).

Section 32 – Revenue Records -- Section 32 of the 1887 Act empowers the Commissioner to direct, by way of notification, for preparation of record-of-rights or its revision, as the case may be, if it appears to him that the record-of-rights of an estate does not exist or the existing record-of-rights requires special revision -- Impugned notification has been issued, in terms of the orders of High Court, after being satisfied that the jamabandi for the year 2006-07 of village Manglora Kadim, prepared on the basis of jamabandi for the year 1986-87, is not credible and the jamabandi for the year 2005-06 of village Manglora Jadid, prepared on the basis of jamabandi for the year 1965-66, is also not credible and that an area of 223 acres, received by transfer from Uttar Pradesh, is yet to be included in village Manglora Jadid, therefore, the record-of-rights of these villages needs revision as the record-of-rights pertaining to the owners of the above mentioned land, transferred from Uttar Pradesh to Haryana, is not available – There is hardly any reason to issue a writ of certiorari or mandamus -- However, the petitioners, may represent to the concerned authorities with the relevant record at the time of preparation/revision of record-of-rights. Shamsher Singh and others v. The State of Haryana and others, 2012(2) L.A.R. 412 (P&H DB).

Section 34 -- Punjab Village Common Lands (Regulation) Act, 1953 (1 of 1954), Section 2(g) – Mutation -- Shamilat deh – Vesting of -- Contention that mutation does not confer title, the mere recording of a mutation by revenue authorities does not divest the petitioners of their title, cannot be accepted -- Land, in dispute, was Shamilat Deh and came to vest in the Gram Panchayat under a statutory declaration contained in the 1953 Act, that land described as Shamilat Deh shall vest in the Gram Panchayat -- Statutory declaration was to be reflected in the revenue record by way of a mutation as there is no other method whereby a statutory declaration of title can be reflected in the revenue record. Mehar Singh and others v. Gram Panchayat Sehjo Majra and others, 2012(2) L.A.R. 513 (P&H DB).

Section 34 – Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961) 1, 4, 7, 11 -- Punjab Village Common Lands (Regulation) Rules, 1964, Rule 12 -- Indian Evidence Act, 1872 (1 of 1872), Section 115 -- Doctrine of estoppels -- Transfer of public property against the Statute -- Mutation – Effect of -- An authority dealing with public property, cannot deviate from the statute, rules or instructions that govern transfer of its property -- Even where a Gram Panchayat has by resolution, transferred property, delivered possession and mutation of ownership has been sanctioned, such a transfer, if made in violation of Rule 12 of the Rules, would be null and void -- Doctrine of estoppels, cannot be invoked -- Gram Panchayat shall not be estopped from alleging the illegality of such a transfer or the unauthorised possession of such a vendee. Judgment in Smt. Malkhani's case, 2001(4) R.C.R.(Civil), 25 is over-ruled. Kesar Singh and another v. State of Punjab through its Director, Rural Development and Panchayats, Punjab and another, 2012(2) L.A.R. 606 (P&H Full Bench).

Section 59(D) -- Haryana Land Records Manual, Chapter 6.1, 6.5 --  Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g)(i) – Shamilat deh – Exclusion from – Gair mumkin nadi -- Wajib-ul-arj -- In order to claim the benefit of section 2(g)(i) of the 1961 Act, the petitioners are required to prove that land becomes or has become Shamilat Deh due to river action or that land in Shamilat Deh was reserved in a village subject to river action -- The best evidence to prove the ingredients of section 2(g)(i) is the record maintained by revenue authorities, under Section 59(1)(D) of the Punjab Land Revenue Act, 1887, read with Chapters 6.1 and 6.5 of the Haryana Land Records Manual recording land affected by diluvion and land created by alluvion and the list of villages where land is subject to river action -- Petitioners have not produced the above record and must, therefore, suffer the consequences of an adverse inference -- Mere fact that a seasonal rivulet passes through the revenue estate or that the land is recorded as a gair mumkin nadi, does not raise an inference that the land has become or becomes Shamilat Deh due to river action or was reserved in a village subject to river action -- Words “gair mumkin nadi” refer to a river and not to land created by river action -- Mere fact that the Wajib-ul-arj records that ownership and possession would remain unchanged despite alluvion and diluvion, or that land lost to river action would be made good from Shamilat Deh, does not raise an inference that the land in dispute is excluded from Shamilat Deh -- In the absence of any revenue record to establish that the land becomes or has become Shamilat Deh due to river action, or that it was Shamilat Deh reserved to make good loss in land due to river action, the land in dispute cannot be excluded from Shamilat Deh and, vests in the Gram Panchayat under Section 2(g)(1) read with Sections 3 and 4 of the Act. Bundi Ram (deceased) through his LRs v. Commissioner, Ambala Division Ambala and others, 2012(2) L.A.R. 456 (P&H DB).

Section 59(D) – Punjab Land Records Manual, Chapter 6.1, 6.5 --  Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g)(i),11 – Shamilat deh – Exclusion from – Gair mumkin nadi -- Writ for quashing of impugned orders, holding that the land in dispute vests in Gram Panchayat -- Petitioners have not produced any revenue entry or document prepared, in terms of Chapter 6.5 to prove that the land, in dispute, was created by river action or was reserved as “Shamilat Deh” in a village subject to river action – Petitioners, therefore, cannot be allowed to take any benefit merely because a major portion of the land, in dispute, is recorded as a “Gair Mumkin Nadi” -- Jamabandies, the pleadings and the impugned orders, do not disclose any material/ evidence that would prove that the land became “Shamilat Deh” due to river action or was reserved as “Shamilat Deh” in a village, subject to river action, as required by Section 2(g)(i) of the 1961 Act – Petition dismissed. Krishan Dev and others v. Director Rural Development and Panchayat, Punjab, SAS Nagar and others, 2012(2) L.A.R. 554 (P&H DB).

Section 111, 116, 121 – Partition of land – Mode of partition -- Quality of land and possession – Mode of partition, provides that the partition be made keeping in view the quality of land and the possession at the spot -- Land abutting the road, which was in possession of the appellants, has been equally divided among the co-sharers -- Merely because the appellants were in possession of the said land, they cannot be given the entire land on the road, because as per the mode of partition, the partition was to be effected while taking into account the quality of the land also. Hardeva and Another v. State of Haryana and others, 2012(2) L.A.R. 243 (P&H DB).

Section 121 – Sanad Takseem -- Partition of agricultural land -- Agricultural land, is partitioned, in accordance with procedure prescribed by the Punjab Land Revenue Act, 1887, and involves preparation of a mode of partition, drawing up of various “Naqshas” (Maps), known as Map `A' and Map `B' etc. and eventually the drawing up of a final document of partition, called as “Sanad Taqsim”. Gram Panchayat Village Mulepur v. Sucha Singh (deceased through his LRs.) and others, 2012(2) L.A.R. 682 (P&H DB).

Section 123 – Family partition -- Partition of agricultural land required to be reported to the revenue authorities for severing the status of jointness. Suresh Kumar (died) through L.Rs and another v. Shiv Kumar (died) through L.Rs., 2012(2) L.A.R. 285 (P&H).

Punjab Land Revenue Rules

Rule 15 – Appointment of Lambardar -- Appellant had encroached upon street adjoining his house, though the encroachment stood removed yet it did not behove a person who was seeking appointment as Lambardar -- Even he allowed his tenant to resort to theft of canal water – Private respondent out scored the appellant on account of gaining experience regarding working of the Lambardar from his uncle on account of whose death the post had fallen vacant – Order of Collector appointing private respondent as Lambardar upheld. Dilbag Singh v. State of Haryana and others, 2012(2) L.A.R. 247 (P&H DB).

Rule 15 – Appointment of Lambardar – Comparative merits – Age – Education -- Age of the private respondent was 23 years, whereas the appellant was about 42 years -- Though the appellant have passed higher secondary and private respondent was only 10th class pass yet the candidature of private respondent had been supported by more persons from the village and Sub Divisional Magistrate-cum-Assistant Collector 1st Grade, the Tehsildar-cum-Assistant Collector Grade II, and Naib Tehsildar-cum-Assistant Collector Grade II, had recommended the candidature of respondent No.4 -- Appointment of private respondent as a Lambardar upheld. Harinder Singh v. Divisional Commissioner, Patiala and others, 2012(2) L.A.R. 250 (P&H DB).

Rule 15 -- Appointment of Lambardar – Criminal case – Moral Turpitude -- Criminal case registered u/ss 323, 324, 325, 452, 148, 149 IPC, and appointed candidate was acquitted much prior to the date of inviting applications – Held, registration of the said criminal case could not have been taken into consideration, particularly when the offences in that case did not relate to moral turpitude. Talwinder Singh v. Financial Commissioner (Co-operation), Punjab, Chandigarh and others, 2012(2) L.A.R. 3 (P&H DB).

Rule 15 – Appointment of Lambardar – Election Kanungo – Candidature of – Contention that private respondent at the time of initial appointment was working as Election Kanungo – Held, merely taking employment is no bar for appointment on post of Lambardar – No merit in the contention. Sukhminder Singh’s case 1992 (3) SCT 28 & Gurmail Singh Lambardar’s case 2011(1) RCR(Civil) 308 relied. Sukhdev Singh v. The State of Punjab and others, 2012(2) L.A.R. 92 (P&H DB).

Rule 15 – Appointment of Lambardar -- Mere fact that the fore-fathers of the appellant had remained Lambardar of the village is no ground to consider the candidature of the appellant in preference to private respondent. Harinder Singh v. Divisional Commissioner, Patiala and others, 2012(2) L.A.R. 250 (P&H DB).

Rule 15 -- Punjab Land Revenue Act, 1887 (XVII of 1887), Section 13, 15 – Appointment of Lambardar – Choice of Collector – FIR against candidate -- Collector not only found private respondent as a better candidate, but it was also found that the appellant had got prepared a false voter identity card in the name of his wife, though he was not married at all – In criminal case, private respondent, had already been acquitted before initiation of the proceedings for appointment of Lambardar -- District Collector had rightly appointed private respondent being an Ex-Serviceman, as Lambardar --  Choice of the Collector in the matter of appointment of Lambardar should not be interfered on superficial grounds, until and unless the order of the Collector in this regard suffers from patent illegality. Kushal Pal v. State of Haryana and others, 2012(2) L.A.R. 19 (P&H DB).

Rule 15,16 -- Punjab Land Revenue Act, 1887 (XVII of 1887), Section 13,15 – Appointment of Lambardar – Speaking order -- Facts that whether the petitioner had intentionally furnished the certificate of Majhbi Sikh to the Army authorities for selection of his son in the army or it was inadvertently recorded as Majhbi Sikh instead of Jat Sikh, further fact that respondent is in illegal possession of Gurdwara land and he is not paying any rent are not taken into consideration – Further contended that respondent is also defaulter of the lai/mai loan for ten years and as such he could not be considered suitable for appointment to the post of Lambardar – Held, in view of the above facts, case is remanded to the Financial Commissioner, Haryana to re-consider the evidence on record and pass speaking order by recording specific findings. Manmohan Singh v. Financial Commissioner, Haryana and others, 2012(2) L.A.R. 417 (P&H).

Rule 15,16 – Punjab Land Revenue Act, 1887 (XVII of 1887), Section 13,15 -- Appointment of Lambardar – Interim order of stay – Challenge to -- L.P.A. against the interim order passed by the learned Single Judge, whereby while admitting the writ petition, the operation of the order passed by the Financial Commissioner, has been stayed – Grouse of the appellant is that due to stay at present nobody is functioning as Lambardar in village – Held, Ld. Single Judge totally ignored the fact that even before his appointment as Lambardar, the appellant was working as Sarbrah Lambardar of the village -- After his appointment as Lambardar by the Collector, not only the sanad of Lambardari was issued, but he had also started functioning on the said post -- In such circumstances, the order of the Financial Commissioner should not have been stayed – Due to stay there will be no Lambardar in the village due to which day to day functions to be performed by the Lambardar will be affected and the villagers will not be able to get their work done – Stay vacated. Harbans Singh v. State of Punjab and others, 2012(2) L.A.R. 392 (P&H DB).

Rule 15,16,20 – Appointment of Lambardar – Criminal Case – Pendency of – Relevancy of -- Respondent is involved in a criminal case -- Charges have been framed by a court of law and the said respondent would be required to stand trial -- In such circumstances, although the respondent is eligible to compete for the post of Lambardar, however, would not be suitable -- This is particularly so because the merit of the petitioner and the private respondent is nearly comparable. Jagdish v. State of Haryana and others, 2012(2) L.A.R. 536 (P&H).

Punjab Motor Vehicles Rules, 1989

Rule 85 --  Motor Vehicles Act, 1988 (59 of 1988), Section 80, 82, 83, 89 – Appeal – Limitation – Communication of order -- It is obligatory for the authorities making the order to communicate it to the concerned party and the period of limitation for any appeal against the order is reckonable from the date of such communication of written order itself – Prescribed period of limitation would only commence from the date on which the order was received by the party concerned, unless and until there is a strong and positive evidence of acquisition of knowledge of the impugned order. Jain Motors Regd. Patiala v. The State Transport Appellate Tribunal & Ors., 2012(2) L.A.R. 394 (P&H).

Punjab Municipal Act, 1911 (3 of 1911)

Section 61 – Water tax – Imposition of – Legality of -- Municipal Committee cannot derive any authority and jurisdiction to impose tax in the nature of water tax which the legislature in its wisdom had specifically deleted from the statutory provisions of the Act. Municipal Committee, Abohar v. Surinder Mohan Ahuja, 2012(2) L.A.R. 219 (P&H).

Section 61, 86 – Water tax – Imposition of – Legality of -- Jurisdiction of civil Court -- When the very legality and jurisdiction of the authority to impose and recover tax is under question -- Jurisdiction of the Civil Court would not be barred. Municipal Committee, Abohar v. Surinder Mohan Ahuja, 2012(2) L.A.R. 219 (P&H).

Punjab Municipal Corporation Act, 1976 (42 of 1976)

Section 3 – Constitution of India, Article 226,227 -- Declaration of Urban area – Legislative function -- Challenge to -- Once it has been held that the process of declaration of an urban area into a Municipal Corporation is essentially a legislative function, the only ground on which it can be challenged is the ground of unconstitutionality or ultra vires. Ajay Kumar and others v. State of Punjab and others, 2012(2) L.A.R. 290 (P&H).

Section 3 – Declaration of Urban area – Consideration of -- Statutory provisions viz. Section 3 deals with many parameters and not population alone. Ajay Kumar and others v. State of Punjab and others, 2012(2) L.A.R. 290 (P&H).

Section 3 – Declaration of Urban area – Matters to be considered – Role of guidelines -- Note relating to  Municipal Council reveals that the parameters like population, tourist potential, geographical importance and other non agricultural activities have been noticed -- Question which arises is whether the guideline which talks of population would be mandatory and would supersede the statute itself – Held, this could not be so, guidelines, had no statutory force and were merely in the nature of executive instructions -- By issuance of guidelines a situation cannot be created where population would become the supervening factor for declaration of an urban area into a municipal corporation and that the other statutory parameters would pale into insignificance. Ajay Kumar and others v. State of Punjab and others, 2012(2) L.A.R. 290 (P&H).

Section 7-A, 10 – Election of Municipal Corporation/Councils/Panchayats – Fairness in election – Videography – Police protection -- (i) The Chief Secretary, Punjab, Director General of Police, Punjab, State Election Commissioner, Punjab and the Chief Election Commissioner, Punjab are directed to ensure that election is conducted in a free and fair manner, without intimidation of the voters etc.; (ii) The incidences of booth capturing if occur anywhere the same shall be immediately reported to officers of the State Election Commission, Punjab and Chief Election Commissioner, Punjab; (iii) It is further directed that adequate police force be deputed at all the polling booths, particularly the sensitive polling stations for maintaining law and order with the sole objective of holding free and fair elections; (iv) If any person(s) asks for personal security then the concerned Superintendent of Police will assess the threat perception and if it is found necessary, the concerned Superintendent of Police will provide security to such person(s) during the period of election; and (v) The petitioners or any other person are at liberty to arrange videography outside the polling station at their own costs and if they express such a desire, they be not prevented from doing so. It is, however, made clear that videography shall not be conducted inside the polling booths to maintain secrecy of the polling. Krishan Kumar Sharma and others v. State of Punjab and others, 2012(2) L.A.R. 117 (P&H DB).  

Punjab New Capital (Periphery) Control Act, 1952 (1 of 1953)

Section 1 – Chandigarh Periphery -- Term 10 miles – Interpretation of --Term “adjacent to” would necessarily imply an area within 10 miles of the boundary and also beyond it -- Any other interpretation can result in horrendous situation where there is planned growth within an area of 10 miles but immediately beyond the said limit there is unplanned development. Aalok Jagga v. Union of India and others, 2012(2) L.A.R. 146 (P&H DB).

Section 4, 5, 6 -- Punjab Regional and Town Planning and Development Act, 1995 (11 of 1995), Section 70, 75,76, 78, 79 – Periphery policy declared by the State of Punjab on 20th January 2006 – Chandigarh Periphery -- Controlled area – Planning area -- Two statues instead of confronting each other actually complement each other in their respective applications -- Periphery Control Act does not contemplate a complete embargo on the raising of construction in the periphery -- Periphery Control Act and the policy framed thereunder has to abide by some norms of planning which are contemplated by the provisions of the 1995 Act -- Therefore, no reason why the provisions of the said enactment i.e. the 1995 Act should be held to be inapplicable to the areas covered by the Periphery Control Act -- Object behind enactment of the two statues would be best served if both the enactments are allowed to prevail in the peripheral areas and even beyond such areas. Aalok Jagga v. Union of India and others, 2012(2) L.A.R. 146 (P&H DB).

Section 4, 5, 6 -- Punjab Regional and Town Planning and Development Act, 1995 (11 of 1995), Section 70, 75,76, 78, 79 – Periphery policy declared by the State of Punjab on 20th January 2006 – Chandigarh Periphery -- Controlled area – Planning area -- Periphery of Chandigarh which initially comprised of villages may have essentially lost its rural character and these villages have become a source of cheap and affordable housing to those who cannot afford to bear the expenses of the city -- Periphery Policy, therefore, rightly takes into consideration the changing ground realities which are never static like shifting stands -- Provisions of the 1995 Act, the Periphery Control Act and the Periphery Policy converge on the need for a planned integrated development of the city, its periphery and its adjoining areas -- Periphery Control Act as well as the 1995 Act should be given strict effect to ensure regulated development in the peripheral area as well as in the immediate vicinity of such area. Aalok Jagga v. Union of India and others, 2012(2) L.A.R. 146 (P&H DB).

Section 4, 5, 6 -- Punjab Regional and Town Planning and Development Act, 1995 (11 of 1995), Section 70, 75,76, 78, 79 – Periphery policy declared by the State of Punjab on 20th January 2006 – Chandigarh Periphery -- Controlled area – Planning area -- Housing project – Approval of -- Ecological concerns – Duty of officials -- Insofar as the provisions of the Environment (Protection) Act and the Wild Life (Protection) Act are concerned, it need not be emphasized that every project attracting the provisions of the Periphery Control Act and/or the provisions of the 1995 Act must satisfy the ecological concerns of the area in the light of the provisions of the two statues in question -- Authorities by provisions of the said Acts which cast on such authorities a duty to interdict any project or activity which even remotely seems to create an imbalance in the pristine ecology and environment of the area on which the city of Chandigarh is situated or for that matter in the immediate vicinity thereof. Aalok Jagga v. Union of India and others, 2012(2) L.A.R. 146 (P&H DB).

Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952 (8 of 1953)

Section 3 – Object of the Act -- The Act was enacted by the State Legislature in order to ameliorate the economic condition of the tenants and for conferment of proprietary rights in the land on the actual tiller of the soil. Jeeta and others v. Gram Panchayat Kherlijita and others, 2012(2) L.A.R. 592 (P&H).

Section 3 -- Punjab Tenancy Act, 1887 (XVI of 1887), Section 5 – Bhondedars – Dohlidars – Occupancy rights -- Only a tenant, who is in occupation of the land for a certain period and is paying no rent thereof beyond the amount of the land revenue, has a right of occupancy in the said land -- Petitioners, who were Bhondedars and were continuously in cultivating possession as Bhondedars, cannot be said to be tenants in the land in dispute -- Their occupation was as Bhondedars for rendering service to the villagers -- The status of Bhondedars is equal to Dohlidars and not of a tenant. Jeeta and others v. Gram Panchayat Kherlijita and others, 2012(2) L.A.R. 592 (P&H).

Section 3 -- Punjab Tenancy Act, 1887 (XVI of 1887), Section 5 – Bhondedars – Dohlidars – Occupancy rights -- For acquiring the occupancy rights in the land, one has to fulfill necessary conditions as mentioned in Section 5 of the Punjab Tenancy Act, 1887 -- He must fall within the definition of tenant; must be in occupation of the land and paying marginal rent not beyond the land revenue; and there must be implied or express agreement of never to eject between him and the landlord -- Petitioners do not fall in any of the categories of tenant prescribed u/s 5 of the Punjab Tenancy Act, 1887 -- Petitioners, who were Bhondedars and not the tenants cannot deem to have acquired the occupancy rights in the land in dispute. Jeeta and others v. Gram Panchayat Kherlijita and others, 2012(2) L.A.R. 592 (P&H).

Section 3 -- Punjab Tenancy Act, 1887 (XVI of 1887), Section 5 – Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 4 -- Bhondedars – Dohlidars – Occupancy rights -- Section 4 only provides that the existing rights, title or interests of persons, recorded in the revenue record as occupancy tenants Dholidars, Bhondedars etc. shall not be affected by sub-section (1) or sub-section (2) of Section 4 of the 1961 Act -- That means such land will not vest in the Panchayat -- This provision does not lay down that the Dholidars or Bhondedars should be considered as occupancy tenants or equivalent to them. Jeeta and others v. Gram Panchayat Kherlijita and others, 2012(2) L.A.R. 592 (P&H).

Punjab Panchayat Election Rules, 1994

Rule 45(2) – Punjab Panchayati Raj Act, 1994 (9 of 1994), Section 13-A, 105,168 -- Election of Chairman -- Quorum – Submission of appellant that the quorum/two-third of the 11 member Panches comes out to 7.33, therefore, two-third cannot be 7 number of Panches and only 8 Panches could have completed the quorum -- In view of the provisions and amendment in the Rules, the arguments seems to be convincing. Beant Singh and others v. Dilbagh Singh and others, 2012(2) L.A.R. 372 (P&H).

Rule 51 – Punjab State Election Commission Act, 1994 (19 of 1994), Section 74,76 -- Nomination for election – Rejection of – It is the specific case of the appellant that no reason for rejection of nomination papers was assigned by the Returning Officer and election conducted by him was illegal, unfair, null and void and thus was liable to be set aside -- Documents Ex.P2 to Ex.P6 proved on record by the appellant also establishes that he approached the authorities including District Electoral Officer, State Election Commissioner and Hon’ble High Court regarding the conduct of Returning Officer -- There is not even oblique reference to these documents in the impugned order – Even no reference of allegation contained in the Election Petition preferred by the appellant were controverted by respondent-Returning Officer in the written statement filed by him – Held, Learned Tribunal has failed to consider all the aforesaid material facts which require to be appreciated -- Case is remanded back to the learned Tribunal for deciding the matter afresh. Bachan Masih v. Election Tribunal Gurdaspur and others, 2012(2) L.A.R. 444 (P&H).

Punjab Panchayati Raj Act, 1994 (9 of 1994)

Section 10, 16, 20(5), 87 – Punjab General Clauses Act, 1898 (1 of 1898), Section 15, 17 – Suspension/ Removal/Death of Sarpanch – Substitution of functionaries -- Authorised Panch – Power of -- All the duties and functions to be performed by the office of the Sarpanch shall also be performed by the authorised Panch having charge of the office of the Sarpanch -- Every authorised Panch to officiate the office of Sarpanch shall have same powers for the period he remains in the office, which usually can be exercised by the Sarpanch. Jeet Singh Panch v. State of Punjab and others, 2012(2) L.A.R. 252 (P&H).

Section 10, 16, 20(5), 87 – Punjab General Clauses Act, 1898 (1 of 1898), Section 15, 17 –  Suspension/ Removal/Death of Sarpanch – Substitution of functionaries -- Authorised Panch – Power of -- Suspension of Sarpanch does not mean that entire development works of the village shall not be allowed to proceed with -- Authorised Panch can spend money for the development work in the village as per valid resolution and prevailing law during the period Sarpanch remains suspended or post of Sarpanch remains unfilled due to suspension, removal or death of elected Sarpanch. Jeet Singh Panch v. State of Punjab and others, 2012(2) L.A.R. 252 (P&H). 

Section 13-A -- Punjab State Election Commission Act, 1994 (19 of 1994), Section 74 -- Election of Panch – Setting aside of – Effect on Sarpanch -- Prayer was for declaration of election of Panch as void with a further prayer that she be declared elected as a Panch in SC (Woman) category – No prayer for setting aside the election of Sarpanch -- Merely because one of the members, who had participated in the election of the Gram Panchayat in the first meeting held u/s 13-A, and if subsequently the election of the said member is set aside, the proceedings of the said meeting or the election of the Sarpanch could not be set aside. Sukhdev Singh v. State of Punjab and others, 2012(2) L.A.R. 6 (P&H DB).

Section 13-A, 14, 15 -- Election of Sarpanch – Term of office of Sarpanch – Removal of -- Term of office of Gram Panchayat shall be for five years unless dissolved earlier under the Act -- Panch, who has been elected as Sarpanch in the first meeting held u/s 13-A of the Panchayati Raj Act, will hold the office for a term of five years until and unless he resigns as contemplated u/s 17 or removed by passing No-Confidence Motion as contemplated u/s 19 or suspended and removed as contemplated u/s 20 of the Panchayati Raj Act. Sukhdev Singh v. State of Punjab and others, 2012(2) L.A.R. 6 (P&H DB).

Section 13-A, 20 – Constitution of India, Article 226,227 -- De-notification of Sarpanch – Illegal order -- Writ jurisdiction -- Totally illegal order contrary to provisions of the statute and State Government denotifying the name of private respondent as Sarpanch by notification – Held, the same was rightly challenged by filing the writ petition and the Court was fully justified in allowing the said petition. Sukhdev Singh v. State of Punjab and others, 2012(2) L.A.R. 6 (P&H DB).

Section 13-A, 105,168 -- Punjab Panchayat Election Rules, 1994, Rule 45(2) – Election of Chairman -- Quorum – Submission of appellant that the quorum/two-third of the 11 member Panches comes out to 7.33, therefore, two-third cannot be 7 number of Panches and only 8 Panches could have completed the quorum -- In view of the provisions and amendment in the Rules, the arguments seems to be convincing. Beant Singh and others v. Dilbagh Singh and others, 2012(2) L.A.R. 372 (P&H).

Section 20(1)(a), 20(3), 208(1)(c) – Suspension of Sarpanch – Removal of Sarpanch -- If a Sarpanch/Panch is found guilty and has been convicted for any offence involving moral turpitude or for such offence i.e., forgery in the Panchayat's record, embezzlement of Panchayat funds etc. when it would not be desirable in the interest of Panchayat to permit such Panch or Sarpanch to perform the duties of Panch or Sarpanch, then it would be disqualification u/s 208(1)(c) and is liable to be removed u/s 20(1)(a) of the 1994 Act, however, if no conviction order is passed then disqualification as provided under Section 208(1)(c) of the 1994 Act, shall not be attracted – Therefore, the removal order passed against the petitioner is not only without jurisdiction but also beyond the scope of Section 20(1)(a) of the 1994 Act. Paramjit Kaur, Panch v. The Financial Commissioner and others, 2012(2) L.A.R. 55 (P&H).

Section 20(1)(a), 20(3), 208(1)(c) – Suspension of Sarpanch – Removal of Sarpanch -- Having possession of any narcotic substance is a serious offence and amounts to moral turpitude -- Elected Sarpanch/Panch represents the society and they are the elected representatives and role-model of the habitants of the village, therefore, they are supposed not to indulge in any criminal activities, more so, in offence punishable under the NDPS Act – Removal order is liable to be quashed, however, the petitioner shall remain under suspension during the pendency of the investigation/trial, as the case may be. Paramjit Kaur, Panch v. The Financial Commissioner and others, 2012(2) L.A.R. 55 (P&H).

Section 85 – Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g) -- Turf massandan -- Shamilat deh – Vest in Panchayat -- Land is a turf massandan used as a resting or meeting place, may be by patti massandan, but the said land certainly falls within the definition of Section 2 (g) of the Punjab Village Common Lands (Regulation) Act, 1961 and the same vests in the Gram Panchayat in view of Section 85 of the Punjab Panchayati Raj Act, 1994. Jagtar Singh v. Shingara Singh and another, 2012(2) L.A.R. 633 (P&H).

Section 85 – Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(l) -- Common land – Right to sale -- Though the land may have been reserved or used by the proprietors of the patti for the purpose of resting, convening meetings, but the same having been not for the purpose of exclusive use of any individual and it having been reserved for the common purpose of the community, is the common land vesting in the gram panchayat, therefore, vendors of the defendant could not transfer the site in dispute to the defendant treating the same to be their own -- Had it been outside the red line, then the status could be treated as different but the land falling within the red line of the village and used for the common purpose could not be said to be the ownership of the proprietors of the patti. Jagtar Singh v. Shingara Singh and another, 2012(2) L.A.R. 633 (P&H).

Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1973 (31 of 1973)

Section 3,4 – Jumla Mushtarka Malkan land – Eviction from -- Contention that property is “Jumla Mushtarka Malkan” and the petitioners are proprietors of the village, as such have share in the land in question, this land has neither been reserved for common purposes nor is being used for common purposes and the petitioners are in the cultivating possession, as such, have becomes owners to the extent of their shares – Held, no evidence that what was the share of the petitioners and they were in exclusive possession of any part of the land after having a valid partition of the “Jumla Mushtarka Malkan” land – Land as per Jamabandi for the year 1958-59 is Gram Panchayat -- So, all the rights vest in the Gram Panchayat for management and control – Eviction order upheld. Rajdev Singh and another v. Joint Development Commissioner, Punjab and others, 2012(2) L.A.R. 107 (P&H DB). 

Section 3,4 – Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 7 -- Jumla Mushtarka Malkan land – Eviction from -- Since, the management and control vest in the Gram Panchayat, such land is public premises and ejectment of unauthorized occupant therefrom can be made under both the Acts i.e. Section 5 of the Eviction Act and Section 7 of the Common Lands Act – Whichever remedy, Panchayat deem it appropriate speedy, summary and effective, it can avail. Rajdev Singh and another v. Joint Development Commissioner, Punjab and others, 2012(2) L.A.R. 107 (P&H DB). 

Section 3, 4, 5 – Dilapidated condition of building – Lease not extended – Unauthorized occupants -- Building, in which the post office is running, is an old building and in dilapidated condition – Running of a public office, like the post office, in such a building is neither safe nor in public interest. It may result into any mis-happening at any time – Contention that due to the financial crunch, the Union of India is not in a position to construct the new building for housing the post office, cannot be accepted -- Denial of relationship of landlord and tenant by the Union of India is totally unwarranted – Writ was rightly dismissed with costs of Rs. 50,000/-. Union of India and others v. Municipal Council, Muktsar and others, 2012(2) L.A.R. 89 (P&H DB).

Punjab Regional and Town Planning and Development Act, 1995 (11 of 1995)

Section 70, 75,76, 78, 79 – Punjab New Capital (Periphery) Control Act, 1952 (1 of 1953), Section 4, 5, 6 -- Periphery policy declared by the State of Punjab on 20th January 2006 – Chandigarh Periphery -- Controlled area – Planning area -- Two statues instead of confronting each other actually complement each other in their respective applications -- Periphery Control Act does not contemplate a complete embargo on the raising of construction in the periphery -- Periphery Control Act and the policy framed thereunder has to abide by some norms of planning which are contemplated by the provisions of the 1995 Act -- Therefore, no reason why the provisions of the said enactment i.e. the 1995 Act should be held to be inapplicable to the areas covered by the Periphery Control Act -- Object behind enactment of the two statues would be best served if both the enactments are allowed to prevail in the peripheral areas and even beyond such areas. Aalok Jagga v. Union of India and others, 2012(2) L.A.R. 146 (P&H DB).

Section 70, 75,76, 78, 79 – Punjab New Capital (Periphery) Control Act, 1952 (1 of 1953), Section 4, 5, 6 -- Periphery policy declared by the State of Punjab on 20th January 2006 – Chandigarh Periphery -- Controlled area – Planning area -- Periphery of Chandigarh which initially comprised of villages may have essentially lost its rural character and these villages have become a source of cheap and affordable housing to those who cannot afford to bear the expenses of the city -- Periphery Policy, therefore, rightly takes into consideration the changing ground realities which are never static like shifting stands -- Provisions of the 1995 Act, the Periphery Control Act and the Periphery Policy converge on the need for a planned integrated development of the city, its periphery and its adjoining areas -- Periphery Control Act as well as the 1995 Act should be given strict effect to ensure regulated development in the peripheral area as well as in the immediate vicinity of such area. Aalok Jagga v. Union of India and others, 2012(2) L.A.R. 146 (P&H DB).

Section 70, 75,76, 78, 79 – Punjab New Capital (Periphery) Control Act, 1952 (1 of 1953), Section 4, 5, 6 -- Periphery policy declared by the State of Punjab on 20th January 2006 – Chandigarh Periphery -- Controlled area – Planning area -- Housing project – Approval of -- Ecological concerns – Duty of officials -- Insofar as the provisions of the Environment (Protection) Act and the Wild Life (Protection) Act are concerned, it need not be emphasized that every project attracting the provisions of the Periphery Control Act and/or the provisions of the 1995 Act must satisfy the ecological concerns of the area in the light of the provisions of the two statues in question -- Authorities by provisions of the said Acts which cast on such authorities a duty to interdict any project or activity which even remotely seems to create an imbalance in the pristine ecology and environment of the area on which the city of Chandigarh is situated or for that matter in the immediate vicinity thereof. Aalok Jagga v. Union of India and others, 2012(2) L.A.R. 146 (P&H DB).

Punjab Security of Land Tenures Act, 1953 (10 of 1953)

Section 2(3), 2(5-a) – Transfer of land by sale – Surplus area – Declaration of -- Notice – Date of 30.07.1958 which would be relevant for exclusion if the sale had taken place before the said date -- For any transaction subsequent to the same, issuance of notice would still be relevant – Transferees had not obtained mutation and the authorities could not be faulted for proceeding to determine the surplus even without notice to alleged transfers -- No scope for intervention in the impugned proceedings and the challenge to the same is rejected. Karam Chand and another v. The State of Punjab, through Secretary (Revenue), Punjab Government, Chandigarh, and others, 2012(2) L.A.R. 112 (P&H).  

Section 2(5a) -- Haryana Ceiling on Land Holdings Act, 1972 (26 of 1972), Section 12(3) – Surplus land under Punjab Law – Unutilized land – Status of -- Vesting of -- In Haryana, the provision of Section 12 (3) of the Act of 1972 makes it absolutely clear that the land declared surplus by the Collector (Agrarian) under the provisions of the Punjab Security of Land Tenures Act, 1953, shall vest absolutely in the State on the appointed day free from all encumbrances, irrespective of the fact whether the land was utilised or not by extinguishing all rights and interest of the land owner -- Question of restoring such land to the big land owner or giving notice to him does not arise. Ujagar Singh and others v. The State of Haryana and others, 2012(2) L.A.R. 550 (P&H DB).

Section 14-A -- Punjab Tenancy Act, 1887 (XVI of 1887), Section 69,70,71 – Ejectment of tenant – Compensation to tenant – Entitlement of -- Contention that no order of eviction could have been passed without compensating the tenant u/s 70 or 71 of the Punjab Tenancy Act -- Question of payment of compensation arises only if there is a statement of claim by a tenant seeking for compensation for improvement on the land or for disturbance and the ground providing for compensation -- Disturbance contemplated u/s 70 is to be read in the context of Section 69 which provides for a tenant to claim compensation for the efforts taken by the tenant to clear waste land for bringing into cultivation -- No such application made – Order of ejectment passed by the Authorities affirmed. Molar and others v. The State of Haryana and others, 2012(2) L.A.R. 407 (P&H).

Punjab State Agricultural Marketing Board (Sale and Transfer of Plots), Rules 1990

Rule 3 – Sale of plot – Premises – Meaning of -- Contention that “premises” would not strictly mean a shop but would also include a Phar/Platform cannot be accepted as a Phar/Platform cannot be equated with a shop -- Rule 3(v) requires that the licensee should be in possession of an independent premises either as an owner or a tenant in the old market -- Carrying on business from a Phar/platform cannot be equated with `premises'. M/s Jaswant Rai and Sons v. State of Punjab and others, 2012(2) L.A.R. 427 (P&H DB).

Punjab State Election Commission Act, 1994 (19 of 1994)

Section 26,27,28, 81 – Election of Panch – Name in two electoral roll – Effect of --No person is eligible to contest the election if his/her name is registered in the electoral roll for more than one constituency – Plea that an application for cancellation of voter card has been moved to the concerned authority before the Election – Document is required to be proved as per the provisions of CPC, which has not been done – Matter remitted back to Election Tribunal for deciding afresh by affording reasonable opportunity to both the sides to submit their claim. Smt. Varinder Kaur alias Barinder Kaur v. Smt. Gurcharan Kaur and another, 2012(2) L.A.R. 45 (P&H).

Section 74 -- Punjab Panchayati Raj Act, 1994 (9 of 1994), Section 13-A -- Election of Panch – Setting aside of – Effect on Sarpanch -- Prayer was for declaration of election of Panch as void with a further prayer that she be declared elected as a Panch in SC (Woman) category – No prayer for setting aside the election of Sarpanch -- Merely because one of the members, who had participated in the election of the Gram Panchayat in the first meeting held u/s 13-A, and if subsequently the election of the said member is set aside, the proceedings of the said meeting or the election of the Sarpanch could not be set aside. Sukhdev Singh v. State of Punjab and others, 2012(2) L.A.R. 6 (P&H DB).

Section 74,76 -- Punjab Panchayat Election Rules, 1994, Rule 51 – Nomination for election – Rejection of – It is the specific case of the appellant that no reason for rejection of nomination papers was assigned by the Returning Officer and election conducted by him was illegal, unfair, null and void and thus was liable to be set aside -- Documents Ex.P2 to Ex.P6 proved on record by the appellant also establishes that he approached the authorities including District Electoral Officer, State Election Commissioner and Hon’ble High Court regarding the conduct of Returning Officer -- There is not even oblique reference to these documents in the impugned order – Even no reference of allegation contained in the Election Petition preferred by the appellant were controverted by respondent-Returning Officer in the written statement filed by him – Held, Learned Tribunal has failed to consider all the aforesaid material facts which require to be appreciated -- Case is remanded back to the learned Tribunal for deciding the matter afresh. Bachan Masih v. Election Tribunal Gurdaspur and others, 2012(2) L.A.R. 444 (P&H).

Section 76, 80 -- Election of Sarpanch – Challenge to – Presentation of petition though Lawyer and not by the appellants themselves – Maintainability of -- No pleading in written statement -- No issue in this regard has been framed by the Election Tribunal – No evidence to prove the fact that Advocate alone had gone to present the petition or that the appellants were not present at the time of presentation – Held, presentation of petition is not merely a law point, it is a mixed question of law and fact and can only be ascertained after appreciating evidence in this regard -- When the point is neither pleaded nor discussed at any stage before filing of the appeal in High Court, the arguments in this regard cannot be given due weightage. Beant Singh and others v. Dilbagh Singh and others, 2012(2) L.A.R. 372 (P&H).

Section 78, 80 -- Election of Sarpanch – Challenge to – Presentation of petition though Lawyer – Maintainability of -- Contention/objection that petition is through advocate and verification of petition was not as per provisions of Civil Procedure Code – Held, arguments are self-contradictory -- On the one hand we are expecting elected Panches to remain away from counsel while presentation of a petition and on the other hand we are trying to stick to technicalities by saying that the petition should be properly verified as to which of the paras are true to the best of knowledge and belief of the petitioners and which have been verified as per advice of the lawyer -- Election petition allowed. Beant Singh and others v. Dilbagh Singh and others, 2012(2) L.A.R. 372 (P&H).

Punjab Tenancy Act, 1887 (XVI of 1887)

Section 4(i) – Land – Standing trees – Ownership of -- It is a well-known maxim that whatever is affixed to the soil/land, becomes in contemplation of law a part of it and is subjected to the same rights of property as the soil/land itself – Even if a person plants the trees on the land belonging to another, the trees come to vest in the landowner and cannot be removed by a person, by whom they were planted -- Landowner must be held entitled to be compensated in this relevant connection and is the legal owner of the trees standing in his land. State of Punjab and another v. Tara Singh and another, 2012(2) L.A.R. 419 (P&H).

Section 5 – Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952 (8 of 1953), Section 3 -- Bhondedars – Dohlidars – Occupancy rights -- Only a tenant, who is in occupation of the land for a certain period and is paying no rent thereof beyond the amount of the land revenue, has a right of occupancy in the said land -- Petitioners, who were Bhondedars and were continuously in cultivating possession as Bhondedars, cannot be said to be tenants in the land in dispute -- Their occupation was as Bhondedars for rendering service to the villagers -- The status of Bhondedars is equal to Dohlidars and not of a tenant. Jeeta and others v. Gram Panchayat Kherlijita and others, 2012(2) L.A.R. 592 (P&H).

Section 5 – Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952 (8 of 1953), Section 3 -- Bhondedars – Dohlidars – Occupancy rights -- For acquiring the occupancy rights in the land, one has to fulfill necessary conditions as mentioned in Section 5 of the Punjab Tenancy Act, 1887 -- He must fall within the definition of tenant; must be in occupation of the land and paying marginal rent not beyond the land revenue; and there must be implied or express agreement of never to eject between him and the landlord -- Petitioners do not fall in any of the categories of tenant prescribed u/s 5 of the Punjab Tenancy Act, 1887 -- Petitioners, who were Bhondedars and not the tenants cannot deem to have acquired the occupancy rights in the land in dispute. Jeeta and others v. Gram Panchayat Kherlijita and others, 2012(2) L.A.R. 592 (P&H).

Section 5 – Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952 (8 of 1953), Section 3 -- Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 4 -- Bhondedars – Dohlidars – Occupancy rights -- Section 4 only provides that the existing rights, title or interests of persons, recorded in the revenue record as occupancy tenants Dholidars, Bhondedars etc. shall not be affected by sub-section (1) or sub-section (2) of Section 4 of the 1961 Act -- That means such land will not vest in the Panchayat -- This provision does not lay down that the Dholidars or Bhondedars should be considered as occupancy tenants or equivalent to them. Jeeta and others v. Gram Panchayat Kherlijita and others, 2012(2) L.A.R. 592 (P&H).

Section 69,70,71 – Punjab Security of Land Tenures Act, 1953 (10 of 1953), Section 14-A -- Ejectment of tenant – Compensation to tenant – Entitlement of -- Contention that no order of eviction could have been passed without compensating the tenant u/s 70 or 71 of the Punjab Tenancy Act -- Question of payment of compensation arises only if there is a statement of claim by a tenant seeking for compensation for improvement on the land or for disturbance and the ground providing for compensation -- Disturbance contemplated u/s 70 is to be read in the context of Section 69 which provides for a tenant to claim compensation for the efforts taken by the tenant to clear waste land for bringing into cultivation -- No such application made – Order of ejectment passed by the Authorities affirmed. Molar and others v. The State of Haryana and others, 2012(2) L.A.R. 407 (P&H).

Punjab Town Improvement Act, 1922 (4 of 1922)

Section 60, 65 –Power of President of Tribunal – Quorum – Award – Tribunal is to consist of a President and two assessors -- Evidence recorded by the President of Tribunal -- The arguments have been heard by the President and the award has been announced by him alone -- Only reference made in one para is to the discussion made with the assessors – Held, President alone who has announced the award was not competent to do so – Award is quashed, matters referred back to the Tribunal. Karnal Improvement Trust, Karnal’s case (1995) 5 SCC 159 relied. Avtar Singh and others v. The District Judge, Rupnagar and others, 2012(2) L.A.R. 647 (P&H DB).

Punjab Village Common Lands (Regulation) Act, 1953 (1 of 1954)

Section 1, 2, 3 – Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 11 -- Wakf Act, 1954 (29 of 1954), Section 5(2) – Shamilat deh – Vesting of – Jurisdiction of -- Act of 1953 will prevail over the Wakf Act and nature of shamilat deh vesting in the Gram Panchayat could not be questioned before the Wakf Tribunal, merely on the basis of a notification issued under Section 5 (2) of the Wakf Act, raising the argument that such property is a wakf property. Punjab Wakf Board v. Gram Panchayat, Dakha and others, 2012(2) L.A.R. 262 (P&H DB).

Section 2(g) – East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (50 of 1948), Section 42 – Bachat land – Shamilat deh -- Shamlat Deh Hasab Hissas Paimana Malkiat -- Contention that land is recorded as “Shamlat Deh Hasab Hissas Paimana Malkiat” and not Shamilat Deh, it continues to vest in proprietors, is legally flawed -- After enactment of the 1953 Act, land described as Shamilat Deh came to vest in the Gram Panchayat -- Ownership of proprietors stood extinguished and expression like “Hasab Hissas Paimana Malkiat” that followed the words “Shamilat Deh”, relevant before the 1953 Act as it denoted the manner of calculating shareholding of proprietors, were rendered irrelevant as Shamilat Deh vested in a Gram Panchayat. Mehar Singh and others v. Gram Panchayat Sehjo Majra and others, 2012(2) L.A.R. 513 (P&H DB).

Section 2(g) – Punjab Land Revenue Act, 1887 (XVII of 1887), Section 34 -- Mutation -- Shamilat deh – Vesting of -- Contention that mutation does not confer title, the mere recording of a mutation by revenue authorities does not divest the petitioners of their title, cannot be accepted -- Land, in dispute, was Shamilat Deh and came to vest in the Gram Panchayat under a statutory declaration contained in the 1953 Act, that land described as Shamilat Deh shall vest in the Gram Panchayat -- Statutory declaration was to be reflected in the revenue record by way of a mutation as there is no other method whereby a statutory declaration of title can be reflected in the revenue record. Mehar Singh and others v. Gram Panchayat Sehjo Majra and others, 2012(2) L.A.R. 513 (P&H DB).

Section 2(g) – Shamilat patti -- Shamilat deh – Possession of -- Vesting of -- In the Jamabandis for the years 1950-51 and 1954-55 the land is described in column No.4 as Shamlat Patti Nungren and in the column of cultivation as Charand, and in column No.8 as Banjar Kadim -- According to Section 2(g) (3) of the Act, such lands fall under the definition of Shamilat Deh -- Even in the consolidation proceedings the nature of the land in dispute was described as a Charand – Merely in the Jamabandi for the year 1958-59, the names of R and B came in the column of cultivation, does not mean that the land was never used for common purposes of the village – Held, when the Shamlat law came into force i.e. 9.1.1954 the land in question was described as land of Shamlat Patti and is being used as a Charand -- Such land, in view of Section 2(g)(3) of the Act, vests in the Gram Panchayat. G.P.Sadharaur’s case 1977 PLJ 276 (P& H Full Bench) relied. Gram Panchayat of village Bishangarh v. State of Punjab and others, 2012(2) L.A.R. 531 (P&H DB).

Section 2(g), 3 – Shamilat deh – Gair Mumkin Kabristhan/Maqbooza Ahley Islam -- Vesting of -- At time of coming into force of the Act of 1953, the land in dispute was recorded as shamilat deh, nature of which was recorded as Gair Mumkin Kabristhan/Maqbooza Ahley Islam -- Since in the revenue record, the land in dispute was described as shamilat deh and it was being used for Kabristhan, which was a common purpose of the village, by virtue of Section 3 of the Act of 1953, such land vests in the Gram Panchayat. Punjab Wakf Board v. Gram Panchayat, Dakha and others, 2012(2) L.A.R. 262 (P&H DB).

Section 2(g), 3 – Shamilat deh – Gair Mumkin Kabristhan/Maqbooza Ahley Islam -- Vesting of -- At the time of coming into force of the Act of 1953, the land in dispute was shamilat deh and was being used by the proprietors of the village as Kabristhan – After partition of the country, the Muslims of the village migrated to Pakistan, but merely because majority of the proprietors were Muslims and the disputed land was being used as Kabristhan, it will not make the disputed land as wakf property -- Such shamilat deh, which is used for common purpose by the proprietors of the village, shall vest in the Gram Panchayat, by virtue of Section 3 of the Act of 1953. Punjab Wakf Board v. Gram Panchayat, Dakha and others, 2012(2) L.A.R. 262 (P&H DB).

Section 3 -- Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 16 – `Shamilat Deh Hasab Rasad Kabja Zamin' – Vesting of -- Repeal and savings -- On 9.1.1954, when the Act of 1953 came into force, land described in the revenue record as `Shamilat Deh Hasab Rasad Kabja Zamin' -- According to Section 3 of the Act of 1953, all lands recorded in the revenue record as Shamilat Deh vest in the Gram Panchayat -- In view of the above said provision, on dated 31.3.1955, the aforesaid Shamilat Deh was mutated in favour of the Gram Panchayat, thereafter, in the jamabandi for the year 1960-61, this land was recorded in the name of the Gram Panchayat – Sanctioning mutation protected under the Act of 1961, unless and until superseded by anything done or any action taken under the Act of 1961 – In view of Section 4 (2) of the Act of 1961, the land in question, which vested in the Panchayat, on coming into force of the Act of 1953 and mutation of which was sanctioned in favour of the Panchayat on 31.3.1955, shall be deemed to have been vested in the Panchayat under the Act of 1961. Orion Infrastructure Ltd. v. The Commissioner, Gurgaon Division, Gurgaon and others, 2012(2) L.A.R. 337 (P&H DB).

Section 3 – Wakf Act, 1954 (29 of 1954), Section 5(2) -- Shamilat deh – Gair Mumkin Kabristhan/Maqbooza Ahley Islam -- Wakf Property – Notification of – Effect of -- Much before the notification dated 19.9.1970, issued by the Central Government declaring the disputed property as wakf property, the land in dispute already stood mutated in favour of the Gram Panchayat and in the jamabandi for the year 1965-66, name of the Gram Panchayat is recorded as owner of the land in dispute -- It is not the case of the Board that before issuing the notification, any notice was issued to the Gram Panchayat and it was heard -- Merely by issuing a notification u/s 5 (2) of the Wakf Act declaring the disputed land as wakf property, would not divest the Gram Panchayat of its ownership, which stood already vested in it by virtue of the Act of 1953 -- Notification with regard to a wakf property is not conclusive qua third party and the same is not binding on it -- Notification was neither conclusive of ownership nor binding on the Gram Panchayat. Punjab Wakf Board v. Gram Panchayat, Dakha and others, 2012(2) L.A.R. 262 (P&H DB).

Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961)

Section 1, 4 -- Punjab Village Common Lands (Regulation) Rules, 1964, Rule 12 – Transfer of public property against the Statute – Doctrine of estoppels – Applicability of -- A Gram Panchayat holds property, in trust, for and on behalf of inhabitants of a village and shall deal with its property only in accordance with statutory provisions set out in the 1961 Act and the 1964 Rules -- Any deviation from the 1961 Act or the 1964 Rules would render transfer of land whether of ownership or possession, null and void -- A sale made by a Gram Panchayat without previous approval of the Government shall be null and void and no amount of acquiescence, negligence or error on the part of a Gram Panchayat shall have the affect of conferring legitimacy upon such a transaction – Doctrine of estoppels would not be attracted. Judgment in Smt. Malkhani's case, 2001(4) R.C.R.(Civil), 25 is over-ruled. Kesar Singh and another v. State of Punjab through its Director, Rural Development and Panchayats, Punjab and another, 2012(2) L.A.R. 606 (P&H Full Bench).

Section 1, 4, 7, 11 -- Punjab Village Common Lands (Regulation) Rules, 1964, Rule 12 -- Indian Evidence Act, 1872 (1 of 1872), Section 115 -- Punjab Land Revenue Act, 1887 (XVII of 1887), Section 34 – Doctrine of estoppels -- Transfer of public property against the Statute -- Mutation – Effect of -- An authority dealing with public property, cannot deviate from the statute, rules or instructions that govern transfer of its property -- Even where a Gram Panchayat has by resolution, transferred property, delivered possession and mutation of ownership has been sanctioned, such a transfer, if made in violation of Rule 12 of the Rules, would be null and void -- Doctrine of estoppels, cannot be invoked -- Gram Panchayat shall not be estopped from alleging the illegality of such a transfer or the unauthorised possession of such a vendee. Judgment in Smt. Malkhani's case, 2001(4) R.C.R.(Civil), 25 is over-ruled. Kesar Singh and another v. State of Punjab through its Director, Rural Development and Panchayats, Punjab and another, 2012(2) L.A.R. 606 (P&H Full Bench).

Section 2(g) -- East Punjab Holdings (Consolidation and Fragmentation) Act, 1948 (50 of 1948), Section 20, 23A – Consolidation Scheme -- Common purposes -- Shamilat deh -- Suit land was utilized, reserved or assigned for a ‘common purpose’, its ownership stands vested in the Gram Panchayat as a part of the shamlat deh. Amar Singh v. Financial Commissioner, Haryana & Ors., 2012(2) L.A.R. 314 (P&H).

Section 2(g) -- East Punjab Holdings (Consolidation and Fragmentation) Act, 1948 (50 of 1948), Section 20, 23A – Consolidation Scheme -- Common purposes -- Bachat land – Petitioner has nowhere disputed that the land in dispute was not ‘reserved’ or ‘assigned’ for ‘common purposes’ under the Consolidation Scheme -- Being an admitted fact, the phrase ‘bachat land’ which is otherwise alien to the scheme of the Act, cannot be applied to the suit land for the reason that ‘common purposes’ cannot be in a static form and is rather a continuous process. Amar Singh v. Financial Commissioner, Haryana & Ors., 2012(2) L.A.R. 314 (P&H).

Section 2(g) -- East Punjab Holdings (Consolidation and Fragmentation) Act, 1948 (50 of 1948), Section 20, 23A – Consolidation Scheme -- Common purposes -- Bachat land – The 73rd Amendment of the Constitution has portrayed the Gram Panchayats as the democratic form of governance at the grass-root level -- Eleventh Schedule (Article 243G) of the Constitution obligates Gram Panchayats to implement several social welfare schemes in the village for which the land and funds both are needed -- If the misdirected notion of distribution of ‘bachat’ lands amongst the proprietors is accepted and the public assets are captived to fulfill individual’s greed, the Gram Panchayats will be left with no means to stand as the institutions of ‘self governance’ -- It cannot be overlooked that the village community is not comprising the ‘proprietors’ only -- There are several landless communities who also live in that very village and are equally entitled to the amenities like school, hospital, water supply and above all a small house for shelter. Amar Singh v. Financial Commissioner, Haryana & Ors., 2012(2) L.A.R. 314 (P&H).

Section 2(g) -- Punjab Panchayati Raj Act, 1994 (9 of 1994), Section 85 –Turf massandan -- Shamilat deh – Vest in Panchayat -- Land is a turf massandan used as a resting or meeting place, may be by patti massandan, but the said land certainly falls within the definition of Section 2 (g) of the Punjab Village Common Lands (Regulation) Act, 1961 and the same vests in the Gram Panchayat in view of Section 85 of the Punjab Panchayati Raj Act, 1994. Jagtar Singh v. Shingara Singh and another, 2012(2) L.A.R. 633 (P&H).

Section 2(g) -- Shamilat deh – Banjar Quadim -- Gair Mumkin Makbooja Charand -- Land, in dispute was “Banjar Qadim”, i.e., the land, which has remained fallow for eight harvests, on the date of coming into force of the 1961 Act -- Jamabandi for the year 1960-61, records the user of land as “Gair Mumkin Makbooja Charand”, i.e., land used as a `pasture' -- As land, is “Banjar Qadim” and used for a common purpose, i.e., a grazing ground, is “Shamilat Deh”. Hakam Singh v. Director, Rural Development and Panchayats, Punjab and others, 2012(2) L.A.R. 641 (P&H DB).

Section 2(g) – Shamilat deh -- Jamabandi for the year 1941-42, records the possession of “Makbuja Malkan” – Private respondent was required to produce revenue record to show that the land in dispute was in “cultivating possession” of his forefathers prior to 26.1.1950 whether pursuant to a partition amongst proprietors or pursuant to an arrangement amongst co-sharers – Appellate authority has committed an error in holding that as the expression “Makbuja Malkan” denotes cultivating possession, it is sufficient to exclude land from Shamilat Deh. Gram Panchayat Balbera v. Director Village Development and Panchayat Punjab and another, 2012(2) L.A.R. 244 (P&H DB).

Section 2(g) – Shamilat deh – Makbuja Malkan -- Expression “Makbuja Malkan” denotes the possession of the proprietary body in common with no particular co-sharer being in possession of any part of the land, much less in “cultivating possession” -- Sections 2(g)(iii) and 2(g)(viii) of the 1961 Act exclude land from Shamilat Deh, if it is proved that it is in “cultivating possession”, pursuant to a partition or in “cultivating possession” as a co-sharer -- Appellate authority has committed an error in holding that as the expression “Makbuja Malkan” denotes cultivating possession, it is sufficient to exclude land from Shamilat Deh. Gram Panchayat Balbera v. Director Village Development and Panchayat Punjab and another, 2012(2) L.A.R. 244 (P&H DB).

Section 2(g) – Shamilat deh – Section 2 (g) of the Act of 1961 provides some of the eventualities, under which the land can be treated as shamilat deh -- These eventualities are contained in clauses (1) to (5) -- All these clauses are independent of each other -- If the case falls under one of the clauses, that would be sufficient to bring it within the definition of shamilat deh. Orion Infrastructure Ltd. v. The Commissioner, Gurgaon Division, Gurgaon and others, 2012(2) L.A.R. 337 (P&H DB).

Section 2(g) – Shamilat deh – The Assistant Collector Ist Grade, while taking into consideration clause (5) of Section 2 (g) of the Act of 1961, has determined the nature of the shamilat deh on the presumption that the land, which is recorded as banjar qadim is uncultivable, and in order to assess as to whether the land falls under the definition of shamilat deh, only clause (5) should be looked into – Held, the approach is totally incorrect -- Land in question, which was described in the revenue record as `Shamilat Deh Hasab Rasad Kabja Zamin', clearly falls under clause (1) of Section 2 (g) and in order to bring the same within the definition of shamilat deh, no further reference to any other clause is necessary; nor it is to be seen whether the said shamilat deh is being used for the common purpose of the village or not -- If the land falls under any of the clauses i.e. clauses (1) to (5) of Section 2 (g), then such land can be held not falling under the definition of `shamilat deh', if it does not fall under any of the exceptions provided in clauses (i) to (ix) of Section 2 (g) (5). Orion Infrastructure Ltd. v. The Commissioner, Gurgaon Division, Gurgaon and others, 2012(2) L.A.R. 337 (P&H DB).

Section 2(g) – Shamilat Deh Hasab Hisas Paimana Haqiat -- Shamilat deh – Jamabandies disclose that the land is Shamilat Deh Hasab Hisas Paimana Haqiat -- Use of the expression “Shamilat Deh” leaves no ambiguity as to the nature of the land namely that it is Shamilat Deh -- Expression “Hasab Hisas Paimana Haqiat” refers to the nature of ownership prior to the enactment of Shamilat Law, the 1961 Act and the vesting of Shamilat Deh in a Gram Panchayat. Amarjit Singh v. State of Punjab and others, 2012(2) L.A.R. 432 (P&H DB).

Section 2(g) -- Shamilat Deh Hasab Rasad Zare Khewat – Vesting of -- Contention that as land is described as “Shamilat Deh Hasab Rasad Zare Khewat”, it is not “Shamilat Deh”, must be rejected as lands described as “Shamilat Deh”, came to vest in a Gram Panchayat, under the Punjab Lands (Regulation) Act, 1953 or the Pepsu Village Common Lands (Regulation) Act, 1954. Hakam Singh v. Director, Rural Development and Panchayats, Punjab and others, 2012(2) L.A.R. 641 (P&H DB).

Section 2(g)(i) – Punjab Land Revenue Act, 1887 (XVII of 1887), Section 59(D) -- Haryana Land Records Manual, Chapter 6.1, 6.5 --  Shamilat deh – Exclusion from – Gair mumkin nadi -- Wajib-ul-arj -- In order to claim the benefit of section 2(g)(i) of the 1961 Act, the petitioners are required to prove that land becomes or has become Shamilat Deh due to river action or that land in Shamilat Deh was reserved in a village subject to river action -- The best evidence to prove the ingredients of section 2(g)(i) is the record maintained by revenue authorities, under Section 59(1)(D) of the Punjab Land Revenue Act, 1887, read with Chapters 6.1 and 6.5 of the Haryana Land Records Manual recording land affected by diluvion and land created by alluvion and the list of villages where land is subject to river action -- Petitioners have not produced the above record and must, therefore, suffer the consequences of an adverse inference -- Mere fact that a seasonal rivulet passes through the revenue estate or that the land is recorded as a gair mumkin nadi, does not raise an inference that the land has become or becomes Shamilat Deh due to river action or was reserved in a village subject to river action -- Words “gair mumkin nadi” refer to a river and not to land created by river action -- Mere fact that the Wajib-ul-arj records that ownership and possession would remain unchanged despite alluvion and diluvion, or that land lost to river action would be made good from Shamilat Deh, does not raise an inference that the land in dispute is excluded from Shamilat Deh -- In the absence of any revenue record to establish that the land becomes or has become Shamilat Deh due to river action, or that it was Shamilat Deh reserved to make good loss in land due to river action, the land in dispute cannot be excluded from Shamilat Deh and, vests in the Gram Panchayat under Section 2(g)(1) read with Sections 3 and 4 of the Act. Bundi Ram (deceased) through his LRs v. Commissioner, Ambala Division Ambala and others, 2012(2) L.A.R. 456 (P&H DB).

Section 2(g)(i),11 – Punjab Land Revenue Act, 1887 (XVII of 1887), Section 59(D) – Punjab Land Records Manual, Chapter 6.1, 6.5 --  Shamilat deh – Exclusion from – Gair mumkin nadi -- Writ for quashing of impugned orders, holding that the land in dispute vests in Gram Panchayat -- Petitioners have not produced any revenue entry or document prepared, in terms of Chapter 6.5 to prove that the land, in dispute, was created by river action or was reserved as “Shamilat Deh” in a village subject to river action – Petitioners, therefore, cannot be allowed to take any benefit merely because a major portion of the land, in dispute, is recorded as a “Gair Mumkin Nadi” -- Jamabandies, the pleadings and the impugned orders, do not disclose any material/ evidence that would prove that the land became “Shamilat Deh” due to river action or was reserved as “Shamilat Deh” in a village, subject to river action, as required by Section 2(g)(i) of the 1961 Act – Petition dismissed. Krishan Dev and others v. Director Rural Development and Panchayat, Punjab, SAS Nagar and others, 2012(2) L.A.R. 554 (P&H DB).

Section 2(g) (iii), 2g(viii) – Shamilat deh – Banjar Quadim -- Whether land, which is recorded in revenue record as “Shamilat Deh Hasab Rasad Araji Khewat” before 26.1.1950 and is shown to be in possession of proprietors, deserves to be excluded from the definition of Shamilat deh, in terms of Sections 2(g)(iii) and 2(g)(viii) of the 1961 Act, even if the nature of the land is Banjar Qadim – Held, it is “cultivating possession” before 26.1.1950, which is recognized by legislature, sufficient to exclude land from the definition of ‘Shamilat deh’ and not mere possession -- Revenue authorities have committed a patent error in this regard by holding that as the petitioners, through their predecessor-in-interest, were in possession before 26.1.1950, the land in dispute is excluded from the definition of Shamilat deh. Gram Panchayat Village Chaura v. State of Punjab and others, 2012(2) L.A.R. 587 (P&H DB).

Section 2(g)(iii) – Partition of land -- A large number of proprietors/co-sharers were co-sharers, before it came to vest in the Gram Panchayat -- If the land had been partitioned, individual names of proprietors would have been recorded in the column of ownership, whereas, the ownership column records, the words “Shamilat Deh” and the column of possession records the possession of “co-sharers” -- Admission is the best evidence of a fact but, as revenue record is to the contrary, failure to cross-examine a witness, should not have been relied upon to raise a inference of partition -- Collector and the Commissioner committed an error of jurisdiction in holding that failure to ask a question, in cross-examination, of one of the respondents on the issue of partition, is conclusive evidence of partition, prior to 26.1.1950 -- Even private partition should have been proved by a document of private partition or by a mutation recording such a partition – Private respondents have not produced any document, much less the “Sanad Taqsim”, to raise an inference of partition -- Plea of partition before 26.1.1950 is rejected. Gram Panchayat Village Mulepur v. Sucha Singh (deceased through his LRs.) and others, 2012(2) L.A.R. 682 (P&H DB).

Section 2(g)(iii) – Shamilat deh – Exclusion from -- Absence of any proof of partition of the “Shamilat Khewat” in 1948, negates the claim of private respondents for exclusion of land, in dispute, from “Shamilat Deh” in terms of section 2(g)(iii) of the 1961 Act. Gram Panchayat Village Mulepur v. Sucha Singh (deceased through his LRs.) and others, 2012(2) L.A.R. 682 (P&H DB).

Section 2(g)(iii) 2(g)(viii) -- Shamilat deh – Exclusion from -- Cultivation possession – Proprietary possession -- Jamabandi for the year 1945-46 records the possession of “Makbuja malkan,” i.e. possession of the entire proprietary body, in common, with no particular co-sharer in possession of any particular portion of the land, much less in cultivating possession -- It is “cultivating possession” and not mere “proprietary possession” that excludes land from Shamilat Deh, under section 2(g)(iii) and (viii) -- Land in dispute is described as a gair mumkin nadi, or banjar kadim (uncultivated old fallow) and only three Khasras No. i.e. 56 (3-14), 57 min (1-10), 58 (28-7) are recorded as bag barani i.e. an orchard but without recording the possession of any individual proprietor, much less any of the petitioners -- It is, therefore, apparent that the revenue record, produced by the petitioners, does not prove that the petitioners were in “cultivating possession” prior to 26.01.1950 so as to exclude, the land in dispute, from Shamilat Deh, but, in fact, establishes the contrary, i.e., the vesting of this land in the Gram Panchayat. Bundi Ram (deceased) through his LRs v. Commissioner, Ambala Division Ambala and others, 2012(2) L.A.R. 456 (P&H DB).

Section 2(g)(iii), 2(g)(viii) – Shamilat deh – Cultivation possession -- Meaning of -- Banjar Quadim – Banjar Jadid – Chahi, Barani or nahri -- In order to claim exclusion under Section 2(g)(iii) of the 1961 Act, a person is required to prove that Shamilat Deh was partitioned and brought under “cultivation” by individual land owners before 26.01.1950 or as per Section 2(g)(viii) of the 1961 Act that Shamilat Deh, was assessed to land revenue and was in the “individual cultivating possession of cosharers” not being in excess of their respective shares in such Shamilat Deh on or before 26.01.1950 -- It is “cultivating possession” and not mere possession that excludes land from Shamilat Deh -- If the land is Chahi, Barani or nehri, etc., an inference would arise that proprietors were in cultivating possession -- Where the land is Banjar Qadim and Banjar Jadid etc., a presumption arises that the land was not being cultivated and was, therefore, not in cultivating possession of proprietors so as to exclude it from Shamilat Deh -- Land, in dispute is Shamilat Deh, the column of possession records the possession of the petitioner's predecessors but the nature of the land, is Banjar Qadim, i.e., land, which has not been cultivated for eight or more harvests -- It is, therefore, beyond debate that the land was neither partitioned nor was it in cultivating possession of the petitioner's predecessors before 26.01.1950 -- Land vests in the Gram Panchayat as Shamilat Deh. Amarjit Singh v. State of Punjab and others, 2012(2) L.A.R. 432 (P&H DB).

Section 2(g)(viii) – Shamilat deh – Exclusion from -- Cultivation possession -- It requires the petitioners to prove that the land was Shamilat Deh, was assessed to land revenue and has been in the individual cultivating possession as co-sharers not being in excess of their respective shares on or before 26.01.1950 -- Petitioners have failed to adduce any evidence to prove their individual cultivating possession or the possession of co-sharers/ proprietors not in excess of their respective shares -- Most of this land is gair mumkin nadi or banjar kadim -- A gair mumkin nadi i.e. a river cannot be in cultivating possession of individual proprietors -- During the dry season, the river bed may be used for cultivation but this alone would not exclude the land from Shamilat Deh -- Furthermore, the absence of any entry in the jamabandi or a khasra girdawari to prove such possession, it is held that the petitioners were not in cultivating possession as required by Section 2(g)(viii) of the Act. Bundi Ram (deceased) through his LRs v. Commissioner, Ambala Division Ambala and others, 2012(2) L.A.R. 456 (P&H DB).

Section 2(g)(viii) – Shamilat deh – Exclusion from – Onus of proof -- Section 2(g)(viii) of the 1961 Act, excludes land from “Shamilat Deh”, if it was in individual cultivating possession of proprietors, in accordance with their share holdings prior to 26.01.1950 -- Petitioners have not produced any evidence on record to establish their individual cultivating possession, as cosharers, in accordance with their share holdings as required by Section 2(g)(viii) of the 1961 Act -- Jamabandi for the year 1946-47, records the cultivation of "Shadi and other persons of a very small tract of land, i.e., 3 kanals and 11 marlas “Chahi” and 26 kanals and 6 Marlas “Chahi” -- Khasra numbers recorded in the jamabandi are different from khasra numbers of the land in dispute -- Onus to tally these numbers lay upon the petitioners -- Petitioners having admitted their tenancy in an other writ petition were even otherwise estopped from challenging the ownership of the Gram Panchayat. Ram Singh and others v. State of Haryana and others, 2012(2) L.A.R. 501 (P&H DB).

Section 2(g)(viii) – Shamilat deh -- Land, in dispute, is recorded as "Shamilat Deh Hasab Rasad Zare Khewat" and, therefore, came to vest in a Gram Panchayat under the Punjab Village Common Lands (Regulation) Act, 1953 -- Plea that as their predecessors were in cultivating possession, before 26.01.1950, the land is excluded from "Shamilat Deh" by virtue of Section 2(g)(viii) of the 1961 Act, merits rejection. Ram Singh and others v. State of Haryana and others, 2012(2) L.A.R. 501 (P&H DB).

Section 2(g)(viii) (Haryana) – Shamilat deh – Exclusion from -- Cultivation possession -- Section 2(g) (viii) excludes such land from the purview of Shamlat Deh, which is in individual cultivating possession of co-sharers, not being in excess of their respective share in such a Shamlat Deh on or before 26.1.1950 -- Land described as Taal, which is a pool could not be cultivable -- Other land is described as Bood, i.e., uneven land in the shape of khuds etc., which is also uncultivable – No reference made to any other document to establish that predecessor-in-interest being in cultivating possession of the land in question -- Collector, Commissioner and the Financial Commissioner have consistently held that the petitioners have failed to prove their individual cultivating possession on or before 26.1.1950, do not suffer from any infirmity much less illegality. Naresh and others v. State of Haryana and others, 2012(2) L.A.R. 659 (P&H DB).

Section 2(g)(viii), 11 – Shamilat deh – Banjar Qadim – Cultivation possession -- Land, in dispute was Banjar Kadim as on 09.01.1954 – Land, therefore, could not be in the cultivating possession of the private respondents or their predecessors on or before 26.01.1950 -- Even if the matter is examined from the angle of Section 4(3)(ii) of the 1961 Act, the private respondents could not prove that 12 years immediately before the date of commencement of the Act, the land was in their cultivating possession – Order of Collector declaring Gram Panchayat as owner, upheld. Gram Panchayat, Mavi Sappan v. Director, Rural Development and Panchayat Deptt., Punjab and others, 2012(2) L.A.R. 390 (P&H DB).

Section 2(g)(1) – Shamilat deh – Shamilat Deh Hasab Rasad Khewat – Finding recorded by the Appellate Authority that as the land is “Shamilat Deh Hasab Rasad Khewat” in possession of Makbuja Malkan, it is not “Shamilat Deh”, is legally incorrect – Nature of the land is to be determined by the words “Shamilat Deh”, and not by the expression “Hasab Rasad Khewat” – Expression “Hasab Rasad Khewat” denotes the manner of calculating ownership in “Shamilat Deh” prior to enactment of the PVCL Act, 1953 and the 1961 Act – After enactment of these statutes, land described as “Shamilat Deh Hasab Rasad Khewat” etc., came to vest in a Gram Panchayat. Gram Panchayat, Village Parhi v. Ajmer Singh and others, 2012(2) L.A.R. 638 (P&H DB).

Section 2(g)(3), 2(v) -- Shamilat patti – Vesting of – Land owned by “shamilat patti” vests in a Gram Panchayat, if it is used according to the revenue record for the benefit of the village community or a part thereof or for common purposes of the village. Baru Ram and others v. The State of Haryana and others, 2012(2) L.A.R. 451 (P&H DB).

Section 2(g)(5) – Shamilat deh – Banjar Quadim -- Petitioners have claimed exclusion of land from Shamilat deh on the ground that it does not satisfy the mandate of Section 2(g)(5) of the 1961 Act as there is no evidence that the land in dispute, which is admittedly recorded as Banjar Qadim, was ever used for common purposes as per the revenue record – Held, the material date to prove exclusion is 04.05.1961 -- Petitioners have failed, to prove by leading cogent evidence, that the land in dispute was not being used for common purpose despite the fact that it was recorded as Banjar Qadim on 04.05.1961 – Petition dismissed. Darshan Singh v. Joint Development Commissioner (IRD) and others, 2012(2) L.A.R. 494 (P&H DB).

Section 2(g), 2(l) – Shamilat deh – Banjar Quadim – Common purposes – Relevant date – Land in dispute is Banjar Qadim on 9.1.1954 -- Collector held that Panchayat could not prove that it is used for the common purposes and welfare of the village -- It was also observed that the land in dispute was Banjar Qadim on 9.1.1954 and has remained in possession of the petitioners through their predecessor-in-interest prior to 26.1.1950 -- As per the jamabandi for the year 1960-61, the land is recorded as ‘Chahi’ (Cultivated) -- Authorities under this Act committed an error by treating the relevant year to be 1954 instead of 1961. Gram Panchayat Village Chaura v. State of Punjab and others, 2012(2) L.A.R. 587 (P&H DB).

Section 2(g), 2g(4a), 2g(vi), 4(1)(b) – Haryana Public Premises and Land (Eviction and Rent Recovery) Act, 1972 (24 of 1972), Section 5 -- Constructed houses -- Shamilat deh – Public premises – Eviction from -- Collector was required to prima facie consider and decide, whether these houses were excluded from “Shamilat Deh” in terms of Section 2(g)(4a) or Section 2(g)(vi) and/or Section 4(1)(b) of the 1961 Act – A pre-condition to the Collector, exercising jurisdiction, under the Public Premises Act, is a prima facie finding, that the land is public premises, i.e., was “Shamilat Deh”, under the 1961 Act, as defined under section 2(g)(1) of the 1961 Act – Collector and the Commissioner have not recorded any finding, in their orders, whether the land was “Shamilat Deh” -- Matter is remitted to the Collector to decide whether land, in dispute, was “Shamilat Deh” as provided by section 2(g)(1) or is excluded from “Shamilat Deh”, by virtue of sections 2(g), (4a) and 4 (1)(b) of the 1961 Act. Bahadur Singh and others v. The State of Haryana and others, 2012(2) L.A.R. 440 (P&H DB).

Section 2(g), 4 – Shamilat deh – Vesting of -- Once the shamilat land is deemed to have vested in the Gram Panchayat, the only exception, where the land can be ordered to be de-vested from the Gram Panchayat, has been provided in clause (ii) of Section 4 (3) of the Act -- In such a situation, the competent authority, i.e. the Collector under Section 13-A of the Act of 1961 and the Assistant Collector Ist Grade under the un-amended Section 13-A of the Act of 1961 was not required to take aid of the definition of `shamilat deh' given in Section 2 (g) of the Act of 1961 -- Said definition is to be looked into in case where the land has not vested in the Panchayat under the shamilat law and not deemed to have vested under the Act of 1961 -- Definition is to be seen to determine whether the land in question falls under the definition of shamilat deh and vests in the Panchayat under the Act of 1961. Orion Infrastructure Ltd. v. The Commissioner, Gurgaon Division, Gurgaon and others, 2012(2) L.A.R. 337 (P&H DB).

Section 2(g), 4 – Shamilat deh – Vesting of – Right of Proprietors -- Proprietors have failed to establish their possession on the disputed land, therefore, in view of the said finding, the proprietors have clearly failed to bring their case under clause (ii) of Section 4 (3), where the land can be de-vested from the Panchayat. Orion Infrastructure Ltd. v. The Commissioner, Gurgaon Division, Gurgaon and others, 2012(2) L.A.R. 337 (P&H DB).

Section 2(g), 4 – Shamilat deh – Vesting of -- There are three ingredients of clause (ii) of Section 4 (3) of the Act of 1961, which a person is required to fulfill before the shamilat land is held to have not vested in the Panchayat, i.e. (i) he must be in cultivating possession of the shamilat deh on the date of commencement of the Act of 1953; (ii) his cultivating possession on such land must be for more than 12 years on such commencement; and (iii) such possession must be without payment of rent or by payment of charges not exceeding the land revenue and cesses payable thereon -- Once the shamilat land is deemed to have been vested in the Panchayat, it can be ordered to be de-vested from the Panchayat, only on the title suit filed by a person, if he establishes the aforesaid three ingredients. Orion Infrastructure Ltd. v. The Commissioner, Gurgaon Division, Gurgaon and others, 2012(2) L.A.R. 337 (P&H DB).

Section 2(l) -- Punjab Panchayati Raj Act, 1994 (9 of 1994), Section 85 –Common land – Right to sale -- Though the land may have been reserved or used by the proprietors of the patti for the purpose of resting, convening meetings, but the same having been not for the purpose of exclusive use of any individual and it having been reserved for the common purpose of the community, is the common land vesting in the gram panchayat, therefore, vendors of the defendant could not transfer the site in dispute to the defendant treating the same to be their own -- Had it been outside the red line, then the status could be treated as different but the land falling within the red line of the village and used for the common purpose could not be said to be the ownership of the proprietors of the patti. Jagtar Singh v. Shingara Singh and another, 2012(2) L.A.R. 633 (P&H).

Section 4 -- Non-proprietor of village – Right of -- Section 4 of the Act protects the possession of such non-proprietors as are proved to be in possession for a period of 12 years, before the coming into force of the Act -- Petitioners are recorded in possession, for the first time in the year 1962-63, i.e., after the coming into force of the Act – Plea raised by the petitioners that as they have been in possession of the land in dispute since 1947, their possession is protected by virtue of Section 4(3)(ii) of the Act, must fail. Pritam Dass and others v. The Joint Director, Panchayats, Punjab and others, 2012(2) L.A.R. 1 (P&H DB).

Section 4 -- Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952 (8 of 1953), Section 3 -- Punjab Tenancy Act, 1887 (XVI of 1887), Section 5 – Bhondedars – Dohlidars – Occupancy rights -- Section 4 only provides that the existing rights, title or interests of persons, recorded in the revenue record as occupancy tenants Dholidars, Bhondedars etc. shall not be affected by sub-section (1) or sub-section (2) of Section 4 of the 1961 Act -- That means such land will not vest in the Panchayat -- This provision does not lay down that the Dholidars or Bhondedars should be considered as occupancy tenants or equivalent to them. Jeeta and others v. Gram Panchayat Kherlijita and others, 2012(2) L.A.R. 592 (P&H).

Section 4 – Unauthorised occupants – Non-proprietors of village – Right to purchase -- Plea that the petitioners are non-proprietors and have constructed houses in this land -- Liberty granted to the petitioners to file an application before the Gram Panchayat in accordance with law, for purchase of land which forms the site beneath their houses -- In case such an application is filed, it shall be considered and decided by the Gram Panchayat within three months --  During pendency of such an application, the dispossession of the petitioners shall remain stayed from the houses. Pritam Dass and others v. The Joint Director, Panchayats, Punjab and others, 2012(2) L.A.R. 1 (P&H DB).

Section 5(5) -- Punjab Village Common Lands (Regulation) Rules, 1964 Rule 5 – Exchange of land – Setting aside of – Natural justice – Speaking order – Requirement of -- Collector sanctioned exchange of land, without there being any jurisdiction vested in him but said order of Collector has been cancelled on a complaint, in which a preliminary inquiry and regular inquiry has been held -- Order passed is without issuing any show cause notice or providing inquiry report to the petitioners or granting an opportunity to contest the correctness of the reports – Impugned order does not disclose any reasons for cancellation of order – Held, not only judicial or quasi judicial order is to be passed following the principles of natural justice, but also the administrative orders, which affect the civil rights, have to adhere the principle of natural justice -- Impugned order set aside. Milkha Singh and another v. State of Punjab and others, 2012(2) L.A.R. 86 (P&H DB).

Section 5(5), 15(2)(f) -- Punjab Village Common Lands (Regulation) Rules, 1964, Rule 5 – East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (50 of 1948), Section 42 – Exchange of shamilat land -- Power of Director Consolidation -- Director Consolidation does not possess power under the 1961 Act to effect an exchange of shamlat land with the land of the proprietary body of the village as the jurisdiction to exchange its land vests with the Gram Panchayat, who would first form an opinion that the exchange of shamlat deh is necessary for the benefit of inhabitants of the village and then forward it to the State Government for its approval -- Exchange would come into being only after formal approval is given by the Government, which has to be as per the parameters laid down in Rule 5 of the Rules. Jagir Singh and another v. State of Punjab and others, 2012(2) L.A.R. 573 (P&H DB).

Section 7 – Eviction petition – Res-judicata -- Petition u/s 11 of the Act, claiming ownership of the land in dispute dismissed by the Collector by holding that the Gram Panchayat is owner of the land in dispute -- Question regarding ownership having been decided, inter parties, the petitioners, cannot be heard to urge that they are owners of the land in dispute. Pritam Dass and others v. The Joint Director, Panchayats, Punjab and others, 2012(2) L.A.R. 1 (P&H DB).

Section 7 -- Eviction petition – Res-judicata -- Section 7 of the Act, prescribes a summary procedure for eviction of an unauthorised occupant -- Dismissal of a petition u/s 7 of the Act, does not operate as res-judicata in a subsequent petition. Pritam Dass and others v. The Joint Director, Panchayats, Punjab and others, 2012(2) L.A.R. 1 (P&H DB).

Section 7 -- Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1973 (31 of 1973), Section 3,4 – Jumla Mushtarka Malkan land – Eviction from -- Since, the management and control vest in the Gram Panchayat, such land is public premises and ejectment of unauthorized occupant therefrom can be made under both the Acts i.e. Section 5 of the Eviction Act and Section 7 of the Common Lands Act – Whichever remedy, Panchayat deem it appropriate speedy, summary and effective, it can avail. Rajdev Singh and another v. Joint Development Commissioner, Punjab and others, 2012(2) L.A.R. 107 (P&H DB). 

Section 7, 11 – Eviction petition – Title dispute -- If a question of right, title or interest is raised by any person and a prima-facie case is made out in support thereof, the Collector shall direct the person who has raised such question to submit his claim u/s 11 and till the question is so determined, the application shall remain pending. Gram Panchayat Dholwaha v. Joint Development Commissioner (IRD), Punjab and others, 2012(2) L.A.R. 13 (P&H DB).

Section 7, 11 – Eviction petition – Title dispute – Power of Commissioner -- Commissioner had no jurisdiction, while deciding an appeal arising from, proceedings u/d 7 of the 1961 Act to decide a question of title -- If the Commissioner was, prima-facie satisfied that a credible question of title has arisen for consideration, he was required to call upon parties to file a petition u/s 11 of the Act and direct that during pendency of proceedings, the petition u/s 7 of the 1961 Act shall be kept in abeyance. Gram Panchayat Dholwaha v. Joint Development Commissioner (IRD), Punjab and others, 2012(2) L.A.R. 13 (P&H DB).

Section 7, 11 – Eviction proceedings – Title dispute -- Res-judicata -- Findings recorded u/s 7 of the 1961 Act, do not operate as res judicata in a title suit. Gram Panchayat Village Mulepur v. Sucha Singh (deceased through his LRs.) and others, 2012(2) L.A.R. 682 (P&H DB).

Section 7, 11 – Punjab Village Common Lands (Regulation) Rules, 1964, Rule 6 -- Gair marusi tenant – Entries in jamabandi – Proof of tenancy -- Jamabandi entries as Gair Marusi tenants -- In the absence of any resolution or lease deed executed by the Gram Panchayat, in accordance with Rule 6 of the 1964 Rules, entries in the Jamabandis do not confer the status of a tenant so as to enable the petitioners to allege that they are the tenants, protected by the Punjab Land Revenue Act or by the judgment in Sarwan and Rati Ram’s case 1985 PLJ, 262 -- Petitioners are held to be unauthorised occupants of panchayat property and have, therefore, been rightly ordered to be evicted. Bikar Singh and others v. Joint Development Commissioner (IRD) and others, 2012(2) L.A.R. 16 (P&H DB).

Section 7, 11 – Res-judicata -- Earlier petition filed u/s 7 of the 1961 Act, was dismissed – Subsequent petition u/s 7 and 11 of the 1961 was allowed by Collector and affirmed by Commissioner -- Petition u/s 7 of the Act shall not operate as res judicata in a subsequent petition, filed under Section 11 of the Act – Writ challenging the order on the ground of res-judicata, dismissed. Tehal Singh and others v. The State of Punjab and others, 2012(2) L.A.R. 120 (P&H DB).  

Section 7, 13-A (Haryana) – Unauthorised occupants – Eviction of -- Title suit – Damages – Quasi judicial authorities/Courts – Power of -- No specific provision under the Act for imposing penalty for use and occupation – Petitioner was held liable to pay damages to the Gram Panchayat for unauthorized use and occupation of the land from the date, the petitioner has been declared unauthorized occupant of the land by the Competent Court – Damages assessed for all the crops on the basis of “Jhad Paidawar” crop-wise, value of which shall be paid by the petitioner along with interest @ 9% per annum calculated on bank basis till the date of payment -- This is in the nature of damages/mense profits for unauthorized use and occupation of land of Gram Panchayat by the petitioner, it is not penalty -- Power to restitute by way of damages is inherent in the quasi judicial authorities / Courts -- Unscrupulous litigants cannot drive benefit of technicalities of law by agitating the matter time and again. Pyare Lal v. Financial Commissioner, Haryana and others, 2012(2) L.A.R. 48 (P&H DB).

Section 11 – Common purposes -- Title dispute -- Petitioners have failed to prove that they are proprietors or in possession of the land in question -- Rather, it has come on record that land in dispute is owned by Gram Panchayat, which has been used for the benefit of the village much less for common purposes as Gair Mumkin Gadda Khad, Gair Mumkin Abadi, Gair Mumkin Hadda Rori, Gair Mumkin Cremation Ground (Shamshan Bhumi) and Gair Mumkin Chappar (Pond) – Petitioners not succeeded in proving their title, writ petition dismissed. Bal Kishan and others v. State of Punjab and others, 2012(2) L.A.R. 483 (P&H DB).

Section 11 -- East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (50 of 1948), Section 42 – Title dispute – Vesting in Panchayat or not -- Jurisdiction of Consolidation authorities -- Consolidation authorities, much less the Director, exercising power under Section 42 of the Consolidation Act, had no jurisdiction to decide whether land vests or does not vest in a Gram Panchayat -- Only authority empowered to decide such a question is the Collector, exercising power under the 1961 Act. Mehar Singh and others v. Gram Panchayat Sehjo Majra and others, 2012(2) L.A.R. 513 (P&H DB).

Section 11 -- East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (50 of 1948), Section 42 – Jumla Mushtarka Malkan Khewat – Partition by void order -- Bonafide purchaser – Right of -- Claim that as the petitioner purchased the land, in dispute, from a proprietor after an order of partition was passed by the Director Consolidation, they are bonafide purchasers and should, therefore, be protected -- Order passed by the Director Consolidation was without jurisdiction and 'void-ab-initio' -- Foundation of the sale deed, is a void order, passed on an illegal assumption of jurisdiction and, therefore, does not divest the Gram Panchayat of its rights, or confer rights upon the petitioners as bonafide purchasers. Ishar Singh and another v. Director, Rural Development & Panchayat, Punjab and others, 2012(2) L.A.R. 654 (P&H DB).

Section 11 -- Punjab Village Common Lands (Regulation) Act, 1953 (1 of 1954), Section 1, 2, 3 – Wakf Act, 1954 (29 of 1954), Section 5(2) – Shamilat deh – Vesting of – Jurisdiction of -- Act of 1953 will prevail over the Wakf Act and nature of shamilat deh vesting in the Gram Panchayat could not be questioned before the Wakf Tribunal, merely on the basis of a notification issued under Section 5 (2) of the Wakf Act, raising the argument that such property is a wakf property. Punjab Wakf Board v. Gram Panchayat, Dakha and others, 2012(2) L.A.R. 262 (P&H DB).

Section 11 – Punjab Village Common Lands (Regulation) Rules, 1964, Rule 21-A -- Title dispute – Summary rejection of petition – Sustainability of – Collector, seized of an application u/s 11 of the 1961 Act, is required to follow the procedure prescribed by Section 11(1) of the 1961 Act read alongwith Rule 21-A – Rule 21-A of the Rules requires the Collector to issue notice to the Panchayat alongwith a copy of the application and thereafter afford a reasonable opportunity to parties to substantiate their respective claims, before recording his opinion – Collector, therefore, had no jurisdiction to summarily reject the petition. Dalip Singh v. Gram Panchayat, Arno and others, 2012(2) L.A.R. 492 (P&H DB).

Section 11 – Punjab Village Common Lands (Regulation) Rules, 1964, Rule 21-A -- Title dispute – Framing of issue – Requirement of -- Contention that issues have not been framed in the petition filed u/s 11 of the 1961 Act, which is required to be decided as a Civil Suit – Held, non-framing of issues filed u/s 11 of the 1961 Act, would not prejudice right of the petitioners because they were alive to the issues involved and had led their entire oral as well as documentary evidence. Darshan Singh v. Joint Development Commissioner (IRD) and others, 2012(2) L.A.R. 494 (P&H DB).

Section 11 – Shamilat deh -- Title dispute – Claim set up by the petitioners is based upon illegal orders passed by Consolidation Authorities – Collector and the Commissioner have rightly held that consolidation authorities had no jurisdiction to decide any question of title much less order transfer of land belonging to the Gram Panchayat to the petitioners -- Land is, admittedly, Shamilat Deh and, therefore, vests in the Gram Panchayat. Gram Panchayat Village Sahni and another v. State of Punjab and others, 2012(2) L.A.R. 566 (P&H DB).

Section 11 – Title dispute – Admittedly, the land in dispute is recorded as the ownership of the Gram Panchayat -- Collector has recorded a finding that, though, the land belongs to the Gram Panchayat, it was donated to the petitioners' father and as he has constructed a house, the land, no longer belongs to the Gram Panchayat -- Finding, recorded by the Collector, is not based upon any evidence, much less a resolution passed by the Gram Panchayat gifting the land to the petitioners' father -- Order passed by the Collector was, therefore, rightly set aside by the Appellate Authority -- Petitioners may, however, approach the Gram Panchayat, for purchase of the land, in accordance with law. Nasib Kaur and others v. State of Punjab and others, 2012(2) L.A.R. 93 (P&H DB).

Section 11 – Title dispute – Panch filing appeal -- Locus Standi to file appeal -- Collector allowed the application u/s 11 by recording a finding that, though, the land belongs to the Gram Panchayat but as it was donated to the petitioners' father, who has constructed a house, the land no longer vests in the Gram Panchayat -- Gram Panchayat did not file any appeal -- A Panch, of the Gram Panchayat, filed an appeal, which was allowed by the appellate authority and the order passed by the Collector was set aside – Contention that as the Gram Panchayat did not file any appeal, the appellate authority could not entertain the appeal, at the behest of a private person, merits summary rejection -- Plea of locus-standi, particularly, when raised in a case of illegal appropriation of public property, cannot be a ground to reject a bonafide appeal. Nasib Kaur and others v. State of Punjab and others, 2012(2) L.A.R. 93 (P&H DB).

Section 11 – Wakf Act, 1954 (29 of 1954), Section 5(2) – Shamilat deh – Determination of -- Jurisdiction of -- If the question arises whether such property is shamilat deh or not, the same has to be gone into and determined by the authorities under the Village Common Lands Act and not by the Wakf Tribunal, where the question as to whether a particular property is a wakf property or not can be gone into. Punjab Wakf Board v. Gram Panchayat, Dakha and others, 2012(2) L.A.R. 262 (P&H DB).

Section 11 – Wakf Act, 1954 (29 of 1954), Section 5(2) – Title dispute – Jurisdiction of -- To determine the controversy as to whether the land in dispute vests in the Gram Panchayat or in the petitioner Board, only the authorities under the Village Common Lands Act have the jurisdiction and not the Wakf Tribunal, established under the Wakf Act. Punjab Wakf Board v. Gram Panchayat, Dakha and others, 2012(2) L.A.R. 262 (P&H DB).

Section 11 – Wakf Act, 1954 (29 of 1954), Section 5(2) – Title dispute – Jurisdiction of -- Keeping in view the fact that the land already stands mutated in favour of the Gram Panchayat, the only remedy available to the petitioner Board was to file a title suit under Section 11 of the Village Common Lands Act. Punjab Wakf Board v. Gram Panchayat, Dakha and others, 2012(2) L.A.R. 262 (P&H DB).

Section 11 (Punjab) -- East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (50 of 1948), Section 42 -- East Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949, Rule 16 -- Jumla Mushtarka Malkan -- Bachat Land -- “Jumla Mushtarka Malkan” is neither “Bachat Land” nor are the two expressions, 'synonymous' or 'interchangeable' -- Jumla Mushtarka Malkan land cannot be partitioned or distributed amongst proprietors as it is reserved for common purposes -- Bachat Land, on the other hand, is land left over, after reserving land for the Gram Panchayat and for other common purposes and is generally redistributed amongst proprietors at the time of consolidation – Private respondents may, however, approach the Collector, u/s 11 of the Punjab Village Common Lands (Regulation) Act, 1961, for adjudication of any plea that this land was not reserved for common purposes and is wrongly reserved as “Jumla Mushtarka Malkan”. Gram Panchayat, Channo/Mallaheri v. Director, Consolidation of Holdings, Punjab and others, 2012(2) L.A.R. 241 (P&H DB).

Section 11, 13-B -- East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (50 of 1948), Section 42 – Jumla Mushtarka Malkan Khewat – Partition of – Possessory title of Gram Panchayat – Determination of -- Power of Director Consolidation -- After conclusion of consolidation proceedings, authorities under the Consolidation Act are functus officio and have no jurisdiction to determine whether the land vests or does not vest in a Gram Panchayat -- An order directing partition of the “Jumla Mushtarka Malkan Khewat” would require the Director Consolidation to record a finding that the land does not fall to the possessory title of the Gram Panchayat -- Right to decide such a dispute vests in the Collector, exercising powers under Section 11 of the 1961 Act -- Order passed by the Director Consolidation holding that the land does not vest in the Gram Panchayat and directing partition of this land, is without jurisdiction, null and void and were rightly ignored by the Collector and the Appellate Authority, while deciding question of title. Ishar Singh and another v. Director, Rural Development & Panchayat, Punjab and others, 2012(2) L.A.R. 654 (P&H DB).

Section 11, 13-B – East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (50 of 1948), Section 42 -- Title dispute – Reference sent to a Larger Bench with respect to following questions: 1. Whether a Director Consolidation, exercising power under the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 can decide whether land vests or does not vest in a Gram Panchayat? 2. If answer to the first question is in the negative, then whether an order passed by a Director Consolidation, determining ownership of a Gram Panchayat, affirmed by the High Court and the Supreme Court operates as res-judicata in a subsequent petition, filed under Section 11 of the Act? 3. Whether Section 13-B of the Act empowers the Collector, exercising jurisdiction under Section 11 of the Act, to disregard an order passed by the Director Consolidation, that has been affirmed by the High Court and the Hon’ble Supreme Court? 4. Whether a plea that the order passed by the Director Consolidation was obtained by fraud can be raised after the order has been affirmed by the High Court and the Hon’ble Supreme Court?” In addition to the questions framed, ancillary issues relating to merger of orders passed by Director Consolidation, in orders passed by the High Court and the Hon'ble Supreme Court, the principles of primacy of judicial precedents, the question whether Consolidation authorities in the garb of making good deficiency of allotment to a landowner, can direct that such deficiency be made good from “Shamilat Deh” or “Jumla Mushtarka Malkan”, the difference between “Jumla Mushtarka Malkan” and “Bachat Land”, the nature and the manner of vesting of “Jumla Mushtarka Malkan” in a Gram Panchayat and proprietors and other questions of general importance arise for consideration -- The questions raised in the reference and posed in this paragraph, are of significant public importance as large tracts, of panchayat land, have been partitioned by Consolidation authorities and apportioned amongst proprietors, though, the land was “Shamilat Deh” or “Jumla Mushtarka Malkan” – Matter referred to Chief Justice for constitution of Larger Bench, if deemed appropriate. Parkash Singh and others v. Joint Development Commissioner, Punjab and others, 2012(2) L.A.R. 578 (P&H DB).

Section 11,13, 13-B – Shamilat deh – Title dispute – Jurisdiction of civil Court – Decree of Civil Court – Effect of -- Decree dated 01.12.1980 was passed in Civil Suit No.135/25.04.1980, instituted after the insertion of Section 13 in the Act, which debars a Civil Court from deciding question of any right, title or interest in favour of any party in respect of the land vested or deemed to have been vested in shamilat deh – Held, decree dated 01.12.1980 has to be ignored as being without jurisdiction. Ranjit Singh and others v. State of Punjab and others, 2012(2) L.A.R. 409 (P&H DB).

Section 13-A – Title dispute – Res-judicata – Collusive decree -- No documentary evidence led by private respondent to prove that he is owner of the land in dispute except for the decree dated 18.04.1974, which is based upon collusion of the earlier Sarpanch – Incidental finding on title in an earlier suit will not be binding in a later suit or proceeding where title is directly in question, unless it is established that it was necessary in the earlier suit to decide the question of title for granting or refusing injunction and that the relief for injunction was founded or based on the finding on title – No such finding recorded in the suit for permanent injunction filed by private respondent who had not sought any declaration of his title over the land in dispute -- Matter is remanded back to A.C. 1st Grade, to decide the case on merits. Gram Panchayat of village Naulakha’s case, 2000(2) PLJ 596 relied. Gram Panchayat Gulalta v. State of Haryana and others, 2012(2) L.A.R. 669 (P&H DB).

Section 13-A, 13AA – Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 10-A -- Shamilat deh – Title dispute – Jurisdiction of – Effect of amendment -- Though in the new provision of Section 13A, no provision was made for transfer of the pending cases to the Court of the Collector, having jurisdiction in the area, but under sub-section (2) of Section 13-A of the Act of 1961, a specific provision has been made that the procedure for deciding the suits under sub-section (1) shall be the same as laid down in the Code of Civil Procedure -- Thus, by taking the help of Order 7 Rule 10-A of the Code of Civil Procedure, the Assistant Collector Ist Grade could have transferred the pending title suits to the court of competent jurisdiction, i.e. the Collector, having jurisdiction in the area, instead of deciding the same himself -- But, in the instant case, the Assistant Collector Ist Grade has passed the decree himself on 21.11.2000, when he was having no jurisdiction to decide the title suits. Therefore, in our opinion, the decree dated 21.11.2000 passed by the Assistant Collector Ist Grade was wholly without jurisdiction and a nullity. Orion Infrastructure Ltd. v. The Commissioner, Gurgaon Division, Gurgaon and others, 2012(2) L.A.R. 337 (P&H DB).

Section 13-A, 13AA – Shamilat deh – Title dispute – Jurisdiction of – Effect of amendment -- Held, after the insertion of Section 13-A of the Act of 1961, by Haryana Amendment Act 9 of 1999, the Assistant Collector Ist Grade had ceased to exercise the jurisdiction for adjudicating the question of title raised by a person or the Gram Panchayat and the said jurisdiction has been conferred only on the Collector having jurisdiction in the area -- After the amendment, the Assistant Collector Ist Grade was incompetent to adjudicate the matter and even to continue the title suit filed by the proprietor under the earlier provision of Section 13-A -- Any decree passed by the Assistant Collector Ist Grade, after the amendment, was a nullity, being without jurisdiction -- Assistant Collector Ist Grade should have transferred the suit to the proper court, for its adjudication, instead of deciding the same himself. Orion Infrastructure Ltd. v. The Commissioner, Gurgaon Division, Gurgaon and others, 2012(2) L.A.R. 337 (P&H DB).

Section 13-A, 13AA – Shamilat deh – Title dispute – Revisional Jurisdiction – Suo moto powers -- Effect of amendment -- Contention that the Commissioner in exercise of suo motu power was having no jurisdiction to set aside the order passed by the Assistant Collector Ist Grade, cannot be accepted -- The suo motu power of the Commissioner is much wider than the power of the Financial Commissioner -- Commissioner after coming to the conclusion that the Gram Panchayat in connivance with the proprietors and their predecessors has withdrawn the appeal filed against the order of the Assistant Collector Ist Grade and the Assistant Collector Ist Grade, while totally ignoring the deletion of proviso to clause (5) of Section 2 (g) of the Act of 1961 and while taking totally unreasonable and illegal view by ignoring the various provisions of the Act of 1961 and also further ignoring the amendment made in Section 13-A, has passed a totally illegal order, without any jurisdiction, and declared a big chunk of shamilat deh not to be vesting in the Panchayat, has set aside the order of the Assistant Collector Ist Grade – Held, the Commissioner was fully competent to pass the aforesaid order and in the facts and circumstances of the case, has rightly exercised his suo motu power to set aside the illegal order of the Assistant Collector Ist Grade. Orion Infrastructure Ltd. v. The Commissioner, Gurgaon Division, Gurgaon and others, 2012(2) L.A.R. 337 (P&H DB).

Section 13-A, 13AA – Shamilat deh – Title dispute -- When the Assistant Collector Ist Grade was determining the issue after the remand, he ignored the factum of deletion of the proviso and rather relied upon the same on the pretext that the proviso was in existence on the date of filing of the suit – Held, Commissioner is right while observing that the Assistant Collector Ist Grade has committed grave illegality while deciding the title suit on the basis of the deleted provision to clause (5) of Section 2 (g) of the Act of 1961. Orion Infrastructure Ltd. v. The Commissioner, Gurgaon Division, Gurgaon and others, 2012(2) L.A.R. 337 (P&H DB).

Section 16 – Punjab Village Common Lands (Regulation) Act, 1953 (1 of 1954), Section 3 -- `Shamilat Deh Hasab Rasad Kabja Zamin' – Vesting of -- Repeal and savings -- On 9.1.1954, when the Act of 1953 came into force, land described in the revenue record as `Shamilat Deh Hasab Rasad Kabja Zamin' -- According to Section 3 of the Act of 1953, all lands recorded in the revenue record as Shamilat Deh vest in the Gram Panchayat -- In view of the above said provision, on dated 31.3.1955, the aforesaid Shamilat Deh was mutated in favour of the Gram Panchayat, thereafter, in the jamabandi for the year 1960-61, this land was recorded in the name of the Gram Panchayat – Sanctioning mutation protected under the Act of 1961, unless and until superseded by anything done or any action taken under the Act of 1961 – In view of Section 4 (2) of the Act of 1961, the land in question, which vested in the Panchayat, on coming into force of the Act of 1953 and mutation of which was sanctioned in favour of the Panchayat on 31.3.1955, shall be deemed to have been vested in the Panchayat under the Act of 1961. Orion Infrastructure Ltd. v. The Commissioner, Gurgaon Division, Gurgaon and others, 2012(2) L.A.R. 337 (P&H DB).

Punjab Village Common Lands (Regulation) Rules, 1964

Rule 5 -- East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (50 of 1948), Section 42 – Exchange of land – Power of Director Consolidation – Existence of an error or an illegality is a sine qua non, for exercise of power u/s 42 of the Consolidation Act – Impugned orders do not record any error or illegality in consolidation proceedings -- Orders were passed on the basis of resolutions passed by the Gram Panchayat, accepting that land should be transferred to private parties and in exchange, their land should be allotted to the Gram Panchayat -- Consolidation Act does not confer any power upon Consolidation Authorities to affect an exchange of Gram Panchayat land. Gram Panchayat Village Sahni and another v. State of Punjab and others, 2012(2) L.A.R. 566 (P&H DB).

Rule 5 – Exchange of land – Procedure of -- Before a Gram Panchayat forwards a proposal for exchange of its land, the Gram Panchayat is required to form an opinion that the exchange is necessary for benefit of inhabitants of the village -- An exchange of Gram Panchayat land presupposes the existence of two elements (a) necessary to do so, and (b) for benefit of inhabitants of the village. Hukam Chand and others v. State of Haryana and others, 2012(2) L.A.R. 506 (P&H DB).

Rule 5 – Exchange of land with path – Legality of -- Gram Panchayat passed resolution, agreeing to exchange the land of a path with land belonging to the petitioners but without recording that the exchange is for any benefit of inhabitants of the village – Gram Panchayat did not bother to apply for approval as required by Rule 5 of the 1964 Rules – Petitioners had encroached upon this path before the resolution of exchange was passed thereby raising an inference that the exchange was effected so as to regularize the petitioners' encroachment of Gram Panchayat land and not to benefit inhabitants of the village -- Party may offer a larger piece of land is irrelevant – An equitable relief can only be granted if the equity, so claimed, is legal and falls within the parameters of law -- Equities, arising in favour of the petitioners, are based upon an illegal resolution and do not confer any right upon the petitioners to pray for protection of their houses – It is a case of prima-facie, collusion between the petitioners and the Gram Panchayat – Petition dismissed. Hukam Chand and others v. State of Haryana and others, 2012(2) L.A.R. 506 (P&H DB).

Rule 5 – Nature of Land – Change of – Sanction of Government – Requirement of -- Entry of the revenue record is ‘Gair Mumkin Shamshan Bhumi’ and its nature is sought to be changed as commercial -- Once the nature of the land is to be changed from ‘Gair Mumkin Shamshan Bhumi’ to commercial then it does not remain within the competence of the Gram Panchayat to pass any final resolution -- It would always be subject to the sanction of the Government, which has not been given – Resolution set aside. Hinduwan Shamshan Bhumi, Tosham v. State of Haryana and others, 2012(2) L.A.R. 31 (P&H DB).

Rule 5 – Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 5(5) -- Exchange of land – Setting aside of – Natural justice – Speaking order – Requirement of -- Collector sanctioned exchange of land, without there being any jurisdiction vested in him but said order of Collector has been cancelled on a complaint, in which a preliminary inquiry and regular inquiry has been held -- Order passed is without issuing any show cause notice or providing inquiry report to the petitioners or granting an opportunity to contest the correctness of the reports – Impugned order does not disclose any reasons for cancellation of order – Held, not only judicial or quasi judicial order is to be passed following the principles of natural justice, but also the administrative orders, which affect the civil rights, have to adhere the principle of natural justice -- Impugned order set aside. Milkha Singh and another v. State of Punjab and others, 2012(2) L.A.R. 86 (P&H DB).

Rule 5 – Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 5(5), 15(2)(f) -- East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (50 of 1948), Section 42 – Exchange of shamilat land -- Power of Director Consolidation -- Director Consolidation does not possess power under the 1961 Act to effect an exchange of shamlat land with the land of the proprietary body of the village as the jurisdiction to exchange its land vests with the Gram Panchayat, who would first form an opinion that the exchange of shamlat deh is necessary for the benefit of inhabitants of the village and then forward it to the State Government for its approval -- Exchange would come into being only after formal approval is given by the Government, which has to be as per the parameters laid down in Rule 5 of the Rules. Jagir Singh and another v. State of Punjab and others, 2012(2) L.A.R. 573 (P&H DB).

Rule 6 -- Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 7, 11 – Gair marusi tenant – Entries in jamabandi – Proof of tenancy -- Jamabandi entries as Gair Marusi tenants -- In the absence of any resolution or lease deed executed by the Gram Panchayat, in accordance with Rule 6 of the 1964 Rules, entries in the Jamabandis do not confer the status of a tenant so as to enable the petitioners to allege that they are the tenants, protected by the Punjab Land Revenue Act or by the judgment in Sarwan and Rati Ram’s case 1985 PLJ, 262 -- Petitioners are held to be unauthorised occupants of panchayat property and have, therefore, been rightly ordered to be evicted. Bikar Singh and others v. Joint Development Commissioner (IRD) and others, 2012(2) L.A.R. 16 (P&H DB).

Rule 12 -- Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961) 1, 4, 7, 11 -- Indian Evidence Act, 1872 (1 of 1872), Section 115 -- Punjab Land Revenue Act, 1887 (XVII of 1887), Section 34 – Doctrine of estoppels -- Transfer of public property against the Statute -- Mutation – Effect of -- An authority dealing with public property, cannot deviate from the statute, rules or instructions that govern transfer of its property -- Even where a Gram Panchayat has by resolution, transferred property, delivered possession and mutation of ownership has been sanctioned, such a transfer, if made in violation of Rule 12 of the Rules, would be null and void -- Doctrine of estoppel, cannot be invoked -- Gram Panchayat shall not be estopped from alleging the illegality of such a transfer or the unauthorised possession of such a vendee. Judgment in Smt. Malkhani's case, 2001(4) R.C.R.(Civil), 25 is over-ruled. Kesar Singh and another v. State of Punjab through its Director, Rural Development and Panchayats, Punjab and another, 2012(2) L.A.R. 606 (P&H Full Bench).

Rule 12 – Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961) 1, 4 -- Transfer of public property against the Statute – Doctrine of estoppels – Applicability of -- A Gram Panchayat holds property, in trust, for and on behalf of inhabitants of a village and shall deal with its property only in accordance with statutory provisions set out in the 1961 Act and the 1964 Rules -- Any deviation from the 1961 Act or the 1964 Rules would render transfer of land whether of ownership or possession, null and void -- A sale made by a Gram Panchayat without previous approval of the Government shall be null and void and no amount of acquiescence, negligence or error on the part of a Gram Panchayat shall have the affect of conferring legitimacy upon such a transaction – Doctrine of estoppels would not be attracted. Judgment in Smt. Malkhani's case, 2001(4) R.C.R.(Civil), 25 is over-ruled. Kesar Singh and another v. State of Punjab through its Director, Rural Development and Panchayats, Punjab and another, 2012(2) L.A.R. 606 (P&H Full Bench).

Rule 12, 12-A – Land for Sewerage treatment plant needed by Municipal Council – Transfer of – Resolution by 3/4th majority – Requirement of – Resolution passed, State granting approval for transfer of land to Municipal Council – Contention that said proposal was not supported by 3/4 members of the Panchayat and consequently the entire action was vitiated – Held, rule 12-A of the Rules would be applicable, for certain specified situations, there would be no requirement for a 3/4th majority. Namrita Kanwar and others v. The State of Punjab and others, 2012(2) L.A.R. 678 (P&H).

Rule 21-A -- Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 11 – Title dispute – Summary rejection of petition – Sustainability of – Collector, seized of an application u/s 11 of the 1961 Act, is required to follow the procedure prescribed by Section 11(1) of the 1961 Act read alongwith Rule 21-A – Rule 21-A of the Rules requires the Collector to issue notice to the Panchayat alongwith a copy of the application and thereafter afford a reasonable opportunity to parties to substantiate their respective claims, before recording his opinion – Collector, therefore, had no jurisdiction to summarily reject the petition. Dalip Singh v. Gram Panchayat, Arno and others, 2012(2) L.A.R. 492 (P&H DB).

Rule 21-A -- Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 11 – Title dispute – Framing of issue – Requirement of -- Contention that issues have not been framed in the petition filed u/s 11 of the 1961 Act, which is required to be decided as a Civil Suit – Held, non-framing of issues filed u/s 11 of the 1961 Act, would not prejudice right of the petitioners because they were alive to the issues involved and had led their entire oral as well as documentary evidence. Darshan Singh v. Joint Development Commissioner (IRD) and others, 2012(2) L.A.R. 494 (P&H DB).

Quality of land and possession

Partition of land – Mode of partition -- Mode of partition, provides that the partition be made keeping in view the quality of land and the possession at the spot -- Land abutting the road, which was in possession of the appellants, has been equally divided among the co-sharers -- Merely because the appellants were in possession of the said land, they cannot be given the entire land on the road, because as per the mode of partition, the partition was to be effected while taking into account the quality of the land also. Hardeva and Another v. State of Haryana and others, 2012(2) L.A.R. 243 (P&H DB).

Quasi judicial authorities/Courts

Punjab Village Common Lands (Regulation) Act, 1961 -- Unauthorised occupants – Eviction of -- Title suit – Damages – No specific provision under the Act for imposing penalty for use and occupation – Petitioner was held liable to pay damages to the Gram Panchayat for unauthorized use and occupation of the land from the date, the petitioner has been declared unauthorized occupant of the land by the Competent Court – Damages assessed for all the crops on the basis of “Jhad Paidawar” crop-wise, value of which shall be paid by the petitioner along with interest @ 9% per annum calculated on bank basis till the date of payment -- This is in the nature of damages/mense profits for unauthorized use and occupation of land of Gram Panchayat by the petitioner, it is not penalty -- Power to restitute by way of damages is inherent in the quasi judicial authorities / Courts -- Unscrupulous litigants cannot drive benefit of technicalities of law by agitating the matter time and again. Pyare Lal v. Financial Commissioner, Haryana and others, 2012(2) L.A.R. 48 (P&H DB).

Quasi judicial order

Speaking order -- Collector has referred to the entire evidence, arguments addressed and only thereafter recorded his conclusion that as the land was recorded as Shamilat Deh, it vests in the Gram Panchayat -- Commissioner has upheld this finding after due consideration of the pleadings, the evidence and the arguments -- Contention that impugned orders are sketchy, non-speaking and do not meet the parameters of a quasi-judicial order is not tenable. Mehar Singh and others v. Gram Panchayat Sehjo Majra and others, 2012(2) L.A.R. 513 (P&H DB).

Question of title

Land Acquisition Act, 1894 -- Reference Court – Power of -- Reference Court itself lacked jurisdiction to adjudicate on issue of title -- Reference was made only u/s 18 and the Court had no jurisdiction to allow parties to join issues on title -- Reference Court u/s 18 had no power to decide on whoever was entitle to compensation, the only relevant subject could be the quantum of compensation -- Where in a case where there is a dispute regarding an apportionment, if the Collector does not make a reference under Section 30, the Collector could be compelled to make a reference through a direction of a Court – This court cannot accede to the general contention that Section 18 could be converted as 30 reference. Ch. Vidya Bhushan (died) through his LRs and others v. Haryana State though the Collector, Karnal, and others, 2012(2) L.A.R. 380 (P&H).

Quorum

Punjab Panchayat Election Rules, 1994 -- Punjab Panchayati Raj Act, 1994 -- Election of Chairman -- Submission of appellant that the quorum/two-third of the 11 member Panches comes out to 7.33, therefore, two-third cannot be 7 number of Panches and only 8 Panches could have completed the quorum -- In view of the provisions and amendment in the Rules, the arguments seems to be convincing. Beant Singh and others v. Dilbagh Singh and others, 2012(2) L.A.R. 372 (P&H).

Recital of previous Will

Cancellation of – Requirement of -- Absence of a categorical recital in Will that the earlier Will was cancelled is not relevant because once the execution of the second Will is held as duly proved, the earlier Will automatically becomes redundant because the second Will represents the last wish of the testator. Mahesh Kumar (Dead) By L.Rs. v. Vinod Kumar and others, 2012(2) L.A.R. 221 (SC).

Reference Court

Land Acquisition Act, 1894 -- Civil Court decree -- After a Civil Court decree determines rights of parties, no party can resile from the same unless the decree itself is set aside -- Adjudication of Civil Court proceedings could not have been reopened by a Reference Court. Ch. Vidya Bhushan (died) through his LRs and others v. Haryana State though the Collector, Karnal, and others, 2012(2) L.A.R. 380 (P&H).

Refusal by tenant to pay rent

Rent Act -- Provisional assessment of rent – Requirement of -- Tenant has categorically refused to tender the rent -- Hence, there was no obligation on the part of the Rent Controller to assess the provisional rent even if the tenant had made a prayer, after three years of the said statement because that would be after the expiry of statutory period of 15 days. M/s Belliss India Limited v. Shri Ram Chand Gupta (dead) through his LRs and  others, 2012(2) L.A.R. 582 (P&H).

Registration Act, 1908 (16 of 1908)

Section 17(1A), 49 – Specific Relief Act, 1963 (47 of 1963), Section 10 -- Transfer of Property Act, 1882 (4 of 1882), Section 53-A – Agreement to sell – Registration of – Unregistered document -- There is no bar as per Section 17(1A) to seek the decree of specific performance of contract in respect of an unregistered contract of sale. Didar Singh v. Nasib Kaur and others, 2012(2) L.A.R. 198 (P&H).

Section 17, 18 – Family partition – Registration of – Requirement of – Admissibility in evidence -- Contents of Ex. DW 4/A show that the transaction recorded in the agreement was effected on the date of agreement -- It is not the record of any past transaction which would not require registration -- When the partition has been effected by way of document, the document required registration and in the absence of the same, court has rightly rejected the same as inadmissible in evidence. Suresh Kumar (died) through L.Rs and another v. Shiv Kumar (died) through L.Rs., 2012(2) L.A.R. 285 (P&H).

Registration of Agreement to sell

Registration Act, 1908 -- Unregistered document -- There is no bar as per Section 17(1A) to seek the decree of specific performance of contract in respect of an unregistered contract of sale. Didar Singh v. Nasib Kaur and others, 2012(2) L.A.R. 198 (P&H).

Registration of Family partition

Requirement of – Admissibility in evidence -- Contents of Ex. DW 4/A show that the transaction recorded in the agreement was effected on the date of agreement -- It is not the record of any past transaction which would not require registration -- When the partition has been effected by way of document, the document required registration and in the absence of the same, court has rightly rejected the same as inadmissible in evidence. Suresh Kumar (died) through L.Rs and another v. Shiv Kumar (died) through L.Rs., 2012(2) L.A.R. 285 (P&H).

Rehabilitation policy

Acquisition of land -- Allotment of plot – Purpose of -- Reason for not allotting 3 marlas of plot is, as in terms of rehabilitation policy, the petitioner is entitled to only 1 marla of plot -- Purchase of three marlas before the acquisition does not entitle her to claim three plots -- Policy is to rehabilitate and not to provide plots to the persons, affected by acquisition -- Process of rehabilitation is to accommodate the persons displaced by acquisition and not to give them equivalent land – Held, neither in law nor in equity, the petitioner has any justified claim for claiming a plot measuring 3 marlas. Shyama Bansal v. Shri Mata Mansa Devi Shrine Board, Panchkula, 2012(2) L.A.R. 259 (P&H DB).

Land Acquisition Act, 1894 -- Acquisition of land -- Annuity – Jurisdiction of Reference Court –Policy regarding rehabilitation and/or re-settlement of the oustees land owners cannot be subject-matter of adjudication before the reference court u/s 18 of the Act – Reference court did not have the jurisdiction to deal with the issue regarding grant of annuity or any other benefit in terms of the policy framed by the government while dealing with the reference under the Act. Prem Singh and others v. State of Haryana and others, 2012(2) L.A.R. 616 (P&H).

Rejection of Nomination for election

Punjab State Election Commission Act, 1994 -- It is the specific case of the appellant that no reason for rejection of nomination papers was assigned by the Returning Officer and election conducted by him was illegal, unfair, null and void and thus was liable to be set aside -- Documents Ex.P2 to Ex.P6 proved on record by the appellant also establishes that he approached the authorities including District Electoral Officer, State Election Commissioner and Hon’ble High Court regarding the conduct of Returning Officer -- There is not even oblique reference to these documents in the impugned order – Even no reference of allegation contained in the Election Petition preferred by the appellant were controverted by respondent-Returning Officer in the written statement filed by him – Held, Learned Tribunal has failed to consider all the aforesaid material facts which require to be appreciated -- Case is remanded back to the learned Tribunal for deciding the matter afresh. Bachan Masih v. Election Tribunal Gurdaspur and others, 2012(2) L.A.R. 444 (P&H).

Relevant date

Punjab Village Common Lands (Regulation) Act, 1961 -- Shamilat deh – Banjar Quadim – Common purposes – Land in dispute is Banjar Qadim on 9.1.1954 -- Collector held that Panchayat could not prove that it is used for the common purposes and welfare of the village -- It was also observed that the land in dispute was Banjar Qadim on 9.1.1954 and has remained in possession of the petitioners through their predecessor-in-interest prior to 26.1.1950 -- As per the jamabandi for the year 1960-61, the land is recorded as ‘Chahi’ (Cultivated) -- Authorities under this Act committed an error by treating the relevant year to be 1954 instead of 1961. Gram Panchayat Village Chaura v. State of Punjab and others, 2012(2) L.A.R. 587 (P&H DB).

Removal of Sarpanch

Punjab Panchayati Raj Act, 1994 -- Suspension of Sarpanch – Having possession of any narcotic substance is a serious offence and amounts to moral turpitude -- Elected Sarpanch/Panch represents the society and they are the elected representatives and role-model of the habitants of the village, therefore, they are supposed not to indulge in any criminal activities, more so, in offence punishable under the NDPS Act – Removal order is liable to be quashed, however, the petitioner shall remain under suspension during the pendency of the investigation/trial, as the case may be. Paramjit Kaur, Panch v. The Financial Commissioner and others, 2012(2) L.A.R. 55 (P&H).

Punjab Panchayati Raj Act, 1994 -- Suspension of Sarpanch – If a Sarpanch/Panch is found guilty and has been convicted for any offence involving moral turpitude or for such offence i.e., forgery in the Panchayat's record, embezzlement of Panchayat funds etc. when it would not be desirable in the interest of Panchayat to permit such Panch or Sarpanch to perform the duties of Panch or Sarpanch, then it would be disqualification u/s 208(1)(c) and is liable to be removed u/s 20(1)(a) of the 1994 Act, however, if no conviction order is passed then disqualification as provided under Section 208(1)(c) of the 1994 Act, shall not be attracted – Therefore, the removal order passed against the petitioner is not only without jurisdiction but also beyond the scope of Section 20(1)(a) of the 1994 Act. Paramjit Kaur, Panch v. The Financial Commissioner and others, 2012(2) L.A.R. 55 (P&H).

Substitution of functionaries -- Authorised Panch – Power of -- All the duties and functions to be performed by the office of the Sarpanch shall also be performed by the authorised Panch having charge of the office of the Sarpanch -- Every authorised Panch to officiate the office of Sarpanch shall have same powers for the period he remains in the office, which usually can be exercised by the Sarpanch. Jeet Singh Panch v. State of Punjab and others, 2012(2) L.A.R. 252 (P&H).

Substitution of functionaries -- Authorised Panch – Power of -- Suspension of Sarpanch does not mean that entire development works of the village shall not be allowed to proceed with -- Authorised Panch can spend money for the development work in the village as per valid resolution and prevailing law during the period Sarpanch remains suspended or post of Sarpanch remains unfilled due to suspension, removal or death of elected Sarpanch. Jeet Singh Panch v. State of Punjab and others, 2012(2) L.A.R. 252 (P&H). 

Re-opening of matter after two decades

Displaced Persons (Compensation and Rehabilitation) Act, 1954 -- Expression “Any time”  –  Scope of -- Allotment of land – An expression “any time” contained u/s 24 must be a reasonable time and the intervention by the authority for cancellation could not be after such a long period, especially when the allottee himself had not been guilty of any fraud -- Notification from the Public Works Department treating the property as having perennial source of water supply had been made in the year 1962 and it could not have been a mere secret act -- If the State had allowed for the allotment to stay with the allottee for 2 decades, it would not be justified for the State to reopen the issue after such a long time. Suba Ram (deceased) through his LRs and others v. The State of Haryana and others, 2012(2) L.A.R. 424 (P&H).

Repeal and savings

Shamilat Deh Hasab Rasad Kabja Zamin – Vesting of -- On 9.1.1954, when Punjab Village Common Lands (Regulation) Act, 1953 came into force, land described in the revenue record as `Shamilat Deh Hasab Rasad Kabja Zamin' -- According to Section 3 of the Act of 1953, all lands recorded in the revenue record as Shamilat Deh vest in the Gram Panchayat -- In view of the above said provision, on dated 31.3.1955, the aforesaid Shamilat Deh was mutated in favour of the Gram Panchayat, thereafter, in the jamabandi for the year 1960-61, this land was recorded in the name of the Gram Panchayat – Sanctioning mutation protected under the Punjab Village Common Lands (Regulation) Act, 1961, unless and until superseded by anything done or any action taken under the Act of 1961 – In view of Section 4 (2) of the Act of 1961, the land in question, which vested in the Panchayat, on coming into force of the Act of 1953 and mutation of which was sanctioned in favour of the Panchayat on 31.3.1955, shall be deemed to have been vested in the Panchayat under the Act of 1961. Orion Infrastructure Ltd. v. The Commissioner, Gurgaon Division, Gurgaon and others, 2012(2) L.A.R. 337 (P&H DB).

Res-judicata

Punjab Village Common Lands (Regulation) Act, 1961 -- Earlier petition filed u/s 7 of the 1961 Act, was dismissed – Subsequent petition u/s 7 and 11 of the 1961 was allowed by Collector and affirmed by Commissioner -- Petition u/s 7 of the Act shall not operate as res judicata in a subsequent petition, filed under Section 11 of the Act – Writ challenging the order on the ground of res-judicata, dismissed. Tehal Singh and others v. The State of Punjab and others, 2012(2) L.A.R. 120 (P&H DB).  

Punjab Village Common Lands (Regulation) Act, 1961 -- Eviction petition – Section 7 of the Act, prescribes a summary procedure for eviction of an unauthorised occupant -- Dismissal of a petition u/s 7 of the Act, does not operate as res-judicata in a subsequent petition. Pritam Dass and others v. The Joint Director, Panchayats, Punjab and others, 2012(2) L.A.R. 1 (P&H DB).

Punjab Village Common Lands (Regulation) Act, 1961 -- Eviction proceedings – Title dispute -- Findings recorded u/s 7 do not operate as res judicata in a title suit. Gram Panchayat Village Mulepur v. Sucha Singh (deceased through his LRs.) and others, 2012(2) L.A.R. 682 (P&H DB).

Title dispute – Collusive decree -- No documentary evidence led by private respondent to prove that he is owner of the land in dispute except for the decree dated 18.04.1974, which is based upon collusion of the earlier Sarpanch – Incidental finding on title in an earlier suit will not be binding in a later suit or proceeding where title is directly in question, unless it is established that it was necessary in the earlier suit to decide the question of title for granting or refusing injunction and that the relief for injunction was founded or based on the finding on title – No such finding recorded in the suit for permanent injunction filed by private respondent who had not sought any declaration of his title over the land in dispute -- Matter is remanded back to A.C. 1st Grade, to decide the case on merits. Gram Panchayat Gulalta v. State of Haryana and others, 2012(2) L.A.R. 669 (P&H DB).

Resolution by 3/4th majority

Punjab Village Common Lands (Regulation) Rules, 1964 -- Land for Sewerage treatment plant needed by Municipal Council – Transfer of – Resolution passed, State granting approval for transfer of land to Municipal Council – Contention that said proposal was not supported by 3/4 members of the Panchayat and consequently the entire action was vitiated – Held, rule 12-A would be applicable, for certain specified situations, there would be no requirement for a 3/4th majority. Namrita Kanwar and others v. The State of Punjab and others, 2012(2) L.A.R. 678 (P&H).

Restitution of possession

Article 227 of the Constitution of India confers vast powers on this Court to prevent the abuse of process of law by the inferior Courts and to see that the stream of administration of justice remains clean and pure -- For securing the ends of justice, High Court can interfere with an order which causes miscarriage of justice or is palpably illegal or is unjustified -- Since the petitioner has been dispossessed from the demised premises in a wholly unjustified and palpably wrong manner -- Status of the JD-petitioner is to be restored back. Madan Lal v. Nirmal Kumari and others, 2012(2) L.A.R. 205 (P&H).

Jurisdiction to make restitution is inherent in every Court and will be exercised whenever the justice of the case demands -- It will be exercised under inherent powers where the case strictly falls within the ambit of Section 144 of the Civil Procedure Code. Madan Lal v. Nirmal Kumari and others, 2012(2) L.A.R. 205 (P&H).

Revenue entry

Bag barani – Meaning of -- An orchard. Bundi Ram (deceased) through his LRs v. Commissioner, Ambala Division Ambala and others, 2012(2) L.A.R. 456 (P&H DB).

Banjar Qadim – Is the land, which has remained fallow for eight harvests -- Thereby ruling out any possibility of anyone being in cultivating possession. Hakam Singh v. Director, Rural Development and Panchayats, Punjab and others, 2012(2) L.A.R. 641 (P&H DB).

Bood -- Land is described as Bood, i.e., uneven land in the shape of khuds etc., which is uncultivable. Naresh and others v. State of Haryana and others, 2012(2) L.A.R. 659 (P&H DB).  

Gair Mumkin Kallar -- Is land that cannot be cultivated. Hakam Singh v. Director, Rural Development and Panchayats, Punjab and others, 2012(2) L.A.R. 641 (P&H DB).

Gair Mumkin Makbooja Charand – Is land used as a `pasture' Hakam Singh v. Director, Rural Development and Panchayats, Punjab and others, 2012(2) L.A.R. 641 (P&H DB).

Gair mumkin nadi -- Words “gair mumkin nadi” refer to a river and not to land created by river action. Bundi Ram (deceased) through his LRs v. Commissioner, Ambala Division Ambala and others, 2012(2) L.A.R. 456 (P&H DB).

Jumla Mushtarka Malkan Wa Digar Haqdaran Hasab Rasad Arazi Khewat – Land described, in the revenue record, as “Jumla Mushtarka Malkan Wa Digar Haqdaran Hasab Rasad Arazi Khewat” is land reserved during consolidation, in accordance with Section 18 and 23(A) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 and Rule 16(ii) of East Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949 for common purposes of the village panchayat and other common purposes. Ishar Singh and another v. Director, Rural Development & Panchayat, Punjab and others, 2012(2) L.A.R. 654 (P&H DB).

Makbuja malkan means possession of the entire proprietary body, in common, with no particular co-sharer in possession of any particular portion of the land, much less in cultivating possession. Bundi Ram (deceased) through his LRs v. Commissioner, Ambala Division Ambala and others, 2012(2) L.A.R. 456 (P&H DB).

Taal -- Land is described as Taal, which is a pool and, therefore, the same could not be cultivable. Naresh and others v. State of Haryana and others, 2012(2) L.A.R. 659 (P&H DB).

Revenue Records

Section 32 of the Punjab Land Revenue Act, 1887 empowers the Commissioner to direct, by way of notification, for preparation of record-of-rights or its revision, as the case may be, if it appears to him that the record-of-rights of an estate does not exist or the existing record-of-rights requires special revision -- Impugned notification has been issued, in terms of the orders of High Court, after being satisfied that the jamabandi for the year 2006-07 of village Manglora Kadim, prepared on the basis of jamabandi for the year 1986-87, is not credible and the jamabandi for the year 2005-06 of village Manglora Jadid, prepared on the basis of jamabandi for the year 1965-66, is also not credible and that an area of 223 acres, received by transfer from Uttar Pradesh, is yet to be included in village Manglora Jadid, therefore, the record-of-rights of these villages needs revision as the record-of-rights pertaining to the owners of the above mentioned land, transferred from Uttar Pradesh to Haryana, is not available – There is hardly any reason to issue a writ of certiorari or mandamus -- However, the petitioners, may represent to the concerned authorities with the relevant record at the time of preparation/revision of record-of-rights. Shamsher Singh and others v. The State of Haryana and others, 2012(2) L.A.R. 412 (P&H DB).

Revisional Jurisdiction

Punjab Village Common Lands (Regulation) Act, 1961 -- Shamilat deh – Title dispute – Suo moto powers -- Effect of amendment -- Contention that the Commissioner in exercise of suo motu power was having no jurisdiction to set aside the order passed by the Assistant Collector Ist Grade, cannot be accepted -- The suo motu power of the Commissioner is much wider than the power of the Financial Commissioner -- Commissioner after coming to the conclusion that the Gram Panchayat in connivance with the proprietors and their predecessors has withdrawn the appeal filed against the order of the Assistant Collector Ist Grade and the Assistant Collector Ist Grade, while totally ignoring the deletion of proviso to clause (5) of Section 2 (g) of the Act of 1961 and while taking totally unreasonable and illegal view by ignoring the various provisions of the Act of 1961 and also further ignoring the amendment made in Section 13-A, has passed a totally illegal order, without any jurisdiction, and declared a big chunk of shamilat deh not to be vesting in the Panchayat, has set aside the order of the Assistant Collector Ist Grade – Held, the Commissioner was fully competent to pass the aforesaid order and in the facts and circumstances of the case, has rightly exercised his suo motu power to set aside the illegal order of the Assistant Collector Ist Grade. Orion Infrastructure Ltd. v. The Commissioner, Gurgaon Division, Gurgaon and others, 2012(2) L.A.R. 337 (P&H DB).

Right of Proprietors

Punjab Village Common Lands (Regulation) Act, 1961 -- Shamilat deh – Vesting of – Proprietors have failed to establish their possession on the disputed land, therefore, in view of the said finding, the proprietors have clearly failed to bring their case under clause (ii) of Section 4 (3), where the land can be de-vested from the Panchayat. Orion Infrastructure Ltd. v. The Commissioner, Gurgaon Division, Gurgaon and others, 2012(2) L.A.R. 337 (P&H DB).

Right to purchase

Punjab Village Common Lands (Regulation) Act, 1961 -- Unauthorised occupants – Plea that the petitioners are non-proprietors and have constructed houses in this land -- Liberty granted to the petitioners to file an application before the Gram Panchayat in accordance with law, for purchase of land which forms the site beneath their houses -- In case such an application is filed, it shall be considered and decided by the Gram Panchayat within three months --  During pendency of such an application, the dispossession of the petitioners shall remain stayed from the houses. Pritam Dass and others v. The Joint Director, Panchayats, Punjab and others, 2012(2) L.A.R. 1 (P&H DB).

Right to sale

Common land – Though the land may have been reserved or used by the proprietors of the patti for the purpose of resting, convening meetings, but the same having been not for the purpose of exclusive use of any individual and it having been reserved for the common purpose of the community, is the common land vesting in the gram panchayat, therefore, vendors of the defendant could not transfer the site in dispute to the defendant treating the same to be their own -- Had it been outside the red line, then the status could be treated as different but the land falling within the red line of the village and used for the common purpose could not be said to be the ownership of the proprietors of the patti. Jagtar Singh v. Shingara Singh and another, 2012(2) L.A.R. 633 (P&H).

Rojnamcha Vakyati

Acquisition of land – Possession of land -- Entries in Girdawari/Record of cultivation shows appellant in possession – Genuineness and correctness of the entries contained in the Girdawaris is not questioned – Therefore, no reason to disbelieve or discard the same -- Rojnamcha Vakyati prepared by Sadar Kanungo and three Patwaris showing delivery of possession to Senior Manager (IA), HSIIDC, which is a self serving document, cannot be made basis for recording a finding that possession of the acquired land had been taken by the concerned revenue authorities -- Crops were standing on several parcels of land, possession thereof could not have been taken without giving notice to the landowners -- It was humanly impossible to give notice to large number of persons on the same day and take actual possession of land total measuring 214 Acres 5 Kanals and 2 Marlas – Held, record prepared by the revenue authorities showing delivery of possession of the acquired land to HSIIDC has no legal sanctity -- High Court committed serious error by dismissing the writ petition on the specious ground that possession of the acquired land had been taken and the same vested in the State Government in terms of Section 16. Raghbir Singh Sehrawat v. State of Haryana and others, 2012(2) L.A.R. 130 (SC).

Sale deed

Challenge to -- Advalorem court fees -- Plaintiff, who is executant of the deed has sought declaration that the transfer deed in favour of the defendant is null and void -- Since the plaintiff himself is executant of the deed and he seeks cancellation of the deed, he is no doubt required to pay advalorem court fee for the consideration paid on the sale deed but in the present case no sale consideration has been paid by the defendants -- Even the possession has also not been claimed by the plaintiff -- Order passed by the trial Court, requiring the plaintiff to pay the ad-velorum court fee in terms of Section 7 (4) (c) of the Court Fees Act set aside by holding that the plaintiff is not required to affix the advalorem court fee at the market value of the property. Surjit Singh v. Karamjit Kaur, 2012(2) L.A.R. 437 (P&H).

Court-fees Act, 1870 -- Cancellation of sale deed – Declaratory suit – Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed -- But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non-est, or illegal or that it is not binding on him – Section 7(iv)(c) provides that in suits for a declaratory decree with consequential relief, the court fee shall be computed according to the amount at which the relief sought is valued in the plaint -- The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of Section 7. Suhrid Singh @ Sardool Singh v. Randhir Singh & Ors., 2012(2) L.A.R. 333 (SC).

Court-fees Act, 1870 – Cancellation of sale deed – Declaratory suit – Difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to ‘A’ and ‘B’/Two brothers -- ‘A’ executes a sale deed in favour of ‘C’ -- Subsequently ‘A’ wants to avoid the sale -- ‘A’ has to sue for cancellation of the deed -- On the other hand, if ‘B’, who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by ‘A’ is invalid/void and nonest/ illegal and he is not bound by it -- In essence both may be suing to have the deed set aside or declared as non-binding -- But the form is different and court fee is also different -- If ‘A’, the executant of the deed, seeks cancellation of the deed, he has to pay ad-valorem court fee on the consideration stated in the sale deed -- If ‘B’, who is a non-executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs. 19.50 under Article 17(iii) of Second Schedule of the Act -- But if ‘B’, a nonexecutant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad-valorem court fee as provided under Section 7(iv)(c) of the Act. Suhrid Singh @ Sardool Singh v. Randhir Singh & Ors., 2012(2) L.A.R. 333 (SC).

Court-fees Act, 1870 – Cancellation of sale deed – Declaratory suit – Prayer is for a declaration that the deeds do not bind the “co-parcenery” and for joint possession -- Plaintiff in the suit was not the executant of the sale deeds -- Therefore, the court fee was computable under section 7(iv)(c) of the Act -- Trial court and the High Court were therefore not justified in holding that the effect of the prayer was to seek cancellation of the sale deeds or that therefore court fee had to be paid on the sale consideration mentioned in the sale deeds -- Trial court is directed to calculate the court fee in accordance with Section 7(iv)(c) read with Section 7(v) of the Act, as indicated above, with reference to the plaint averments. Suhrid Singh @ Sardool Singh v. Randhir Singh & Ors., 2012(2) L.A.R. 333 (SC).

Relevancy of – Land Acquisition Act, 1894 -- Market value – No site plan on record produced by the land owners showing the exact location of the land pertaining to any of the sale deed – Not safe to consider the same for valuation of the acquired land. Prem Singh and others v. State of Haryana and others, 2012(2) L.A.R. 616 (P&H).

Transfer of Property Act, 1882 -- Use of land – Condition of -- University purchased land from landowners -- Mere change of purpose does not entitle the land owners to dispute the sale deeds -- In terms of Section 10 of the Transfer of Property Act, 1882, any condition in respect of use of land is void – University transfer the land to PUDA for carving out the plots – Landowners, who have parted with their land and accepted compensation more than a decade earlier cannot be permitted to dispute the transfer of land. Jagtar Singh etc. v. State of Punjab etc., 2012(2) L.A.R. 170 (P&H DB).

Sale deed after notification u/s 4 of the Land Acquisition Act, 1894

Reliance upon – Market value – Sale deeds are not relevant as the same were registered after the issuance of notification u/s 4 of the Land Acquisition Act, 1894. Prem Singh and others v. State of Haryana and others, 2012(2) L.A.R. 616 (P&H).

Sale deed of small area, 2-1/2 year old

Land Acquisition Act, 1894 – Market Value – Sale deed was two and a half years prior in time of notification u/s 4(1) – No reason to eschew the above sale transaction – Annual increase @ 12% per annum allowed and area of land under sale deed is a smaller one, deduction @ 20% allowed. Mehrawal Khewaji Trust (Regd.), Faridkot & others v. State of Punjab & others, 2012(2) L.A.R. 123 (SC).

Sale, Purchase, Storage and Processing of Agricultural produce

Punjab Agricultural Produce Markets Act, 1961 -- No person, unless exempted by Rules made under this Act, shall set up, establish or continue or allowed to be continued any place for the purchase, sale, storage and processing of the agricultural produce so notified or purchase, sell, store or process such agricultural produce except under a licence granted in accordance with the provisions of this Act. Pepsico India Holdings Private Limited v. State of Punjab and others, 2012(2) L.A.R. 274 (P&H DB).

Sanad Takseem

Agricultural land is partitioned in accordance with procedure prescribed by the Punjab Land Revenue Act, 1887 and culminates into a final document of partition called the 'Sanad Takseem'. Amarjit Singh v. State of Punjab and others, 2012(2) L.A.R. 432 (P&H DB).

Partition of agricultural land -- Agricultural land, is partitioned, in accordance with procedure prescribed by the Punjab Land Revenue Act, 1887, and involves preparation of a mode of partition, drawing up of various “Naqshas” (Maps), known as Map `A' and Map `B' etc. and eventually the drawing up of a final document of partition, called as “Sanad Taqsim”. Gram Panchayat Village Mulepur v. Sucha Singh (deceased through his LRs.) and others, 2012(2) L.A.R. 682 (P&H DB).

Sanction of Government

Requirement of -- Change in Nature of Land – Punjab Village Common Lands (Regulation) Rules, 1964 –Entry of the revenue record is ‘Gair Mumkin Shamshan Bhumi’ and its nature is sought to be changed as commercial -- Once the nature of the land is to be changed from ‘Gair Mumkin Shamshan Bhumi’ to commercial then it does not remain within the competence of the Gram Panchayat to pass any final resolution -- It would always be subject to the sanction of the Government, which has not been given – Resolution set aside. Hinduwan Shamshan Bhumi, Tosham v. State of Haryana and others, 2012(2) L.A.R. 31 (P&H DB).

Second Will

Recital of previous Will – Cancellation of – Requirement of -- Absence of a categorical recital in Will that the earlier Will was cancelled is not relevant because once the execution of the second Will is held as duly proved, the earlier Will automatically becomes redundant because the second Will represents the last wish of the testator. Mahesh Kumar (Dead) By L.Rs. v. Vinod Kumar and others, 2012(2) L.A.R. 221 (SC).

Set off

Rent Act – Assessment of provisional rent – Tenant claimed Set off for installation of tubewell, construction of service road connecting the factory to the main road and for repair and paint of the demised premises which is a pure question of fact and cannot be gone into at this stage of summary assessment of the provisional rent -- Tenant cannot claim ‘set off’ at the stage of assessment of provisional rent as it requires detailed enquiry and cannot be decided in the summary assessment of provisional rent. M/s Belliss India Limited v. Shri Ram Chand Gupta (dead) through his LRs and  others, 2012(2) L.A.R. 582 (P&H).

Setting aside of Election of Panch

Effect on Sarpanch -- Prayer was for declaration of election of Panch as void with a further prayer that she be declared elected as a Panch in SC (Woman) category – No prayer for setting aside the election of Sarpanch -- Merely because one of the members, who had participated in the election of the Gram Panchayat in the first meeting held u/s 13-A, and if subsequently the election of the said member is set aside, the proceedings of the said meeting or the election of the Sarpanch could not be set aside. Sukhdev Singh v. State of Punjab and others, 2012(2) L.A.R. 6 (P&H DB).

Shamilat deh

Bachat land – Land that is created after applying a pro-rata cut is recorded as Jumla Mushtarka Malkan whereas the land, in dispute, is admittedly Shamilat Deh, which negates the plea raised by the petitioners that the land, in dispute, was created after applying a pro-rata cut on the holdings of proprietors or is Bachat Land. Mehar Singh and others v. Gram Panchayat Sehjo Majra and others, 2012(2) L.A.R. 513 (P&H DB).

Bachat land – Shamlat Deh Hasab Hissas Paimana Malkiat -- Contention that land is recorded as “Shamlat Deh Hasab Hissas Paimana Malkiat” and not Shamilat Deh, it continues to vest in proprietors, is legally flawed -- After enactment of the Punjab Village Common Lands (Regulation) Act, 1953, land described as Shamilat Deh came to vest in the Gram Panchayat -- Ownership of proprietors stood extinguished and expression like “Hasab Hissas Paimana Malkiat” that followed the words “Shamilat Deh”, relevant before the 1953 Act as it denoted the manner of calculating shareholding of proprietors, were rendered irrelevant as Shamilat Deh vested in a Gram Panchayat. Mehar Singh and others v. Gram Panchayat Sehjo Majra and others, 2012(2) L.A.R. 513 (P&H DB).

Banjar Qadim – Cultivation possession -- Land, in dispute was Banjar Kadim as on 09.01.1954 – Land, therefore, could not be in the cultivating possession of the private respondents or their predecessors on or before 26.01.1950 -- Even if the matter is examined from the angle of Section 4(3)(ii) of the Punjab Village Common Lands (Regulation) Act, 1961, the private respondents could not prove that 12 years immediately before the date of commencement of the Act, the land was in their cultivating possession – Order of Collector declaring Gram Panchayat as owner, upheld. Gram Panchayat, Mavi Sappan v. Director, Rural Development and Panchayat Deptt., Punjab and others, 2012(2) L.A.R. 390 (P&H DB).

Banjar Quadim -- Gair Mumkin Makbooja Charand -- Land, in dispute was “Banjar Qadim”, i.e., the land, which has remained fallow for eight harvests, on the date of coming into force of the 1961 Act -- Jamabandi for the year 1960-61, records the user of land as “Gair Mumkin Makbooja Charand”, i.e., land used as a `pasture' -- As land, is “Banjar Qadim” and used for a common purpose, i.e., a grazing ground, is “Shamilat Deh”. Hakam Singh v. Director, Rural Development and Panchayats, Punjab and others, 2012(2) L.A.R. 641 (P&H DB).

Banjar Quadim -- Petitioners have claimed exclusion of land from Shamilat deh on the ground that it does not satisfy the mandate of Section 2(g)(5) of the Punjab Village Common Lands (Regulation) Act, 1961 as there is no evidence that the land in dispute, which is admittedly recorded as Banjar Qadim, was ever used for common purposes as per the revenue record – Held, the material date to prove exclusion is 04.05.1961 -- Petitioners have failed, to prove by leading cogent evidence, that the land in dispute was not being used for common purpose despite the fact that it was recorded as Banjar Qadim on 04.05.1961 – Petition dismissed. Darshan Singh v. Joint Development Commissioner (IRD) and others, 2012(2) L.A.R. 494 (P&H DB).

Banjar Quadim -- Whether land, which is recorded in revenue record as “Shamilat Deh Hasab Rasad Araji Khewat” before 26.1.1950 and is shown to be in possession of proprietors, deserves to be excluded from the definition of Shamilat deh, in terms of Sections 2(g)(iii) and 2(g)(viii) of the Punjab Village Common Lands (Regulation) Act, 1961, even if the nature of the land is Banjar Qadim – Held, it is “cultivating possession” before 26.1.1950, which is recognized by legislature, sufficient to exclude land from the definition of ‘Shamilat deh’ and not mere possession -- Revenue authorities have committed a patent error in this regard by holding that as the petitioners, through their predecessor-in-interest, were in possession before 26.1.1950, the land in dispute is excluded from the definition of Shamilat deh. Gram Panchayat Village Chaura v. State of Punjab and others, 2012(2) L.A.R. 587 (P&H DB).

Consolidation Scheme -- Common purposes -- Suit land was utilized, reserved or assigned for a ‘common purpose’, its ownership stands vested in the Gram Panchayat as a part of the shamlat deh. Amar Singh v. Financial Commissioner, Haryana & Ors., 2012(2) L.A.R. 314 (P&H).

Constructed houses -- Public premises – Eviction from -- Collector was required to prima facie consider and decide, whether these houses were excluded from “Shamilat Deh” in terms of Section 2(g)(4a) or Section 2(g)(vi) and/or Section 4(1)(b) of the Punjab Village Common Lands (Regulation) Act, 1961 – A pre-condition to the Collector, exercising jurisdiction, under the Public Premises Act, is a prima facie finding, that the land is public premises, i.e., was “Shamilat Deh”, under the 1961 Act, as defined under section 2(g)(1) of the 1961 Act – Collector and the Commissioner have not recorded any finding, in their orders, whether the land was “Shamilat Deh” -- Matter is remitted to the Collector to decide whether land, in dispute, was “Shamilat Deh” as provided by section 2(g)(1) or is excluded from “Shamilat Deh”, by virtue of sections 2(g), (4a) and 4 (1)(b) of the 1961 Act. Bahadur Singh and others v. The State of Haryana and others, 2012(2) L.A.R. 440 (P&H DB).

Cultivation possession -- Meaning of -- Banjar Quadim – Banjar Jadid – Chahi, Barani or nahri -- In order to claim exclusion under Section 2(g)(iii) of the Punjab Village Common Lands (Regulation) Act, 1961, a person is required to prove that Shamilat Deh was partitioned and brought under “cultivation” by individual land owners before 26.01.1950 or as per Section 2(g)(viii) of the 1961 Act that Shamilat Deh, was assessed to land revenue and was in the “individual cultivating possession of cosharers” not being in excess of their respective shares in such Shamilat Deh on or before 26.01.1950 -- It is “cultivating possession” and not mere possession that excludes land from Shamilat Deh -- If the land is Chahi, Barani or nehri, etc., an inference would arise that proprietors were in cultivating possession -- Where the land is Banjar Qadim and Banjar Jadid etc., a presumption arises that the land was not being cultivated and was, therefore, not in cultivating possession of proprietors so as to exclude it from Shamilat Deh -- Land, in dispute is Shamilat Deh, the column of possession records the possession of the petitioner's predecessors but the nature of the land, is Banjar Qadim, i.e., land, which has not been cultivated for eight or more harvests -- It is, therefore, beyond debate that the land was neither partitioned nor was it in cultivating possession of the petitioner's predecessors before 26.01.1950 -- Land vests in the Gram Panchayat as Shamilat Deh. Amarjit Singh v. State of Punjab and others, 2012(2) L.A.R. 432 (P&H DB).

Determination of -- Jurisdiction of -- If the question arises whether such property is shamilat deh or not, the same has to be gone into and determined by the authorities under the Village Common Lands Act and not by the Wakf Tribunal, where the question as to whether a particular property is a wakf property or not can be gone into. Punjab Wakf Board v. Gram Panchayat, Dakha and others, 2012(2) L.A.R. 262 (P&H DB).

Exclusion from -- Absence of any proof of partition of the “Shamilat Khewat” in 1948, negates the claim of private respondents for exclusion of land, in dispute, from “Shamilat Deh” in terms of section 2(g)(iii) of the Punjab Village Common Lands (Regulation) Act, 1961. Gram Panchayat Village Mulepur v. Sucha Singh (deceased through his LRs.) and others, 2012(2) L.A.R. 682 (P&H DB).

Exclusion from -- Cultivation possession -- It requires the petitioners to prove that the land was Shamilat Deh, was assessed to land revenue and has been in the individual cultivating possession as co-sharers not being in excess of their respective shares on or before 26.01.1950 -- Petitioners have failed to adduce any evidence to prove their individual cultivating possession or the possession of co-sharers/ proprietors not in excess of their respective shares -- Most of this land is gair mumkin nadi or banjar kadim -- A gair mumkin nadi i.e. a river cannot be in cultivating possession of individual proprietors -- During the dry season, the river bed may be used for cultivation but this alone would not exclude the land from Shamilat Deh -- Furthermore, the absence of any entry in the jamabandi or a khasra girdawari to prove such possession, it is held that the petitioners were not in cultivating possession as required by Section 2(g)(viii) of the Punjab Village Common Lands (Regulation) Act, 1961. Bundi Ram (deceased) through his LRs v. Commissioner, Ambala Division Ambala and others, 2012(2) L.A.R. 456 (P&H DB).

Exclusion from – Gair mumkin nadi -- Wajib-ul-arj -- In order to claim the benefit of section 2(g)(i) of the Punjab Village Common Lands (Regulation) Act, 1961, the petitioners are required to prove that land becomes or has become Shamilat Deh due to river action or that land in Shamilat Deh was reserved in a village subject to river action -- The best evidence to prove the ingredients of section 2(g)(i) is the record maintained by revenue authorities, under Section 59(1)(D) of the Punjab Land Revenue Act, 1887, read with Chapters 6.1 and 6.5 of the Haryana Land Records Manual recording land affected by diluvion and land created by alluvion and the list of villages where land is subject to river action -- Petitioners have not produced the above record and must, therefore, suffer the consequences of an adverse inference -- Mere fact that a seasonal rivulet passes through the revenue estate or that the land is recorded as a gair mumkin nadi, does not raise an inference that the land has become or becomes Shamilat Deh due to river action or was reserved in a village subject to river action -- Words “gair mumkin nadi” refer to a river and not to land created by river action -- Mere fact that the Wajib-ul-arj records that ownership and possession would remain unchanged despite alluvion and diluvion, or that land lost to river action would be made good from Shamilat Deh, does not raise an inference that the land in dispute is excluded from Shamilat Deh -- In the absence of any revenue record to establish that the land becomes or has become Shamilat Deh due to river action, or that it was Shamilat Deh reserved to make good loss in land due to river action, the land in dispute cannot be excluded from Shamilat Deh and, vests in the Gram Panchayat under Section 2(g)(1) read with Sections 3 and 4 of the Act. Bundi Ram (deceased) through his LRs v. Commissioner, Ambala Division Ambala and others, 2012(2) L.A.R. 456 (P&H DB).

Exclusion from – Gair mumkin nadi -- Writ for quashing of impugned orders, holding that the land in dispute vests in Gram Panchayat -- Petitioners have not produced any revenue entry or document prepared, in terms of Chapter 6.5 to prove that the land, in dispute, was created by river action or was reserved as “Shamilat Deh” in a village subject to river action – Petitioners, therefore, cannot be allowed to take any benefit merely because a major portion of the land, in dispute, is recorded as a “Gair Mumkin Nadi” -- Jamabandies, the pleadings and the impugned orders, do not disclose any material/ evidence that would prove that the land became “Shamilat Deh” due to river action or was reserved as “Shamilat Deh” in a village, subject to river action, as required by Section 2(g)(i) of the Punjab Village Common Lands (Regulation) Act, 1961 – Petition dismissed. Krishan Dev and others v. Director Rural Development and Panchayat, Punjab, SAS Nagar and others, 2012(2) L.A.R. 554 (P&H DB).

Exclusion from – Onus of proof -- Section 2(g)(viii) of the Punjab Village Common Lands (Regulation) Act, 1961, excludes land from “Shamilat Deh”, if it was in individual cultivating possession of proprietors, in accordance with their share holdings prior to 26.01.1950 -- Petitioners have not produced any evidence on record to establish their individual cultivating possession, as cosharers, in accordance with their share holdings as required by Section 2(g)(viii) of the 1961 Act -- Jamabandi for the year 1946-47, records the cultivation of "Shadi and other persons of a very small tract of land, i.e., 3 kanals and 11 marlas “Chahi” and 26 kanals and 6 Marlas “Chahi” -- Khasra numbers recorded in the jamabandi are different from khasra numbers of the land in dispute -- Onus to tally these numbers lay upon the petitioners -- Petitioners having admitted their tenancy in an other writ petition were even otherwise estopped from challenging the ownership of the Gram Panchayat. Ram Singh and others v. State of Haryana and others, 2012(2) L.A.R. 501 (P&H DB).

Exclusion from -- Punjab Village Common Lands (Regulation) Act, 1961 -- Cultivation possession -- Section 2(g) (viii) excludes such land from the purview of Shamlat Deh, which is in individual cultivating possession of co-sharers, not being in excess of their respective share in such a Shamlat Deh on or before 26.1.1950 -- Land described as Taal, which is a pool could not be cultivable -- Other land is described as Bood, i.e., uneven land in the shape of khuds etc., which is also uncultivable – No reference made to any other document to establish that predecessor-in-interest being in cultivating possession of the land in question -- Collector, Commissioner and the Financial Commissioner have consistently held that the petitioners have failed to prove their individual cultivating possession on or before 26.1.1950, do not suffer from any infirmity much less illegality. Naresh and others v. State of Haryana and others, 2012(2) L.A.R. 659 (P&H DB).

Gair Mumkin Kabristhan/Maqbooza Ahley Islam -- Vesting of -- At the time of coming into force of the Punjab Village Common Lands (Regulation) Act, 1953, the land in dispute was shamilat deh and was being used by the proprietors of the village as Kabristhan – After partition of the country, the Muslims of the village migrated to Pakistan, but merely because majority of the proprietors were Muslims and the disputed land was being used as Kabristhan, it will not make the disputed land as wakf property -- Such shamilat deh, which is used for common purpose by the proprietors of the village, shall vest in the Gram Panchayat, by virtue of Section 3 of the Act of 1953. Punjab Wakf Board v. Gram Panchayat, Dakha and others, 2012(2) L.A.R. 262 (P&H DB).

Gair Mumkin Kabristhan/Maqbooza Ahley Islam -- Wakf Property – Notification of – Effect of -- Much before the notification dated 19.9.1970, issued by the Central Government declaring the disputed property as wakf property, the land in dispute already stood mutated in favour of the Gram Panchayat and in the jamabandi for the year 1965-66, name of the Gram Panchayat is recorded as owner of the land in dispute -- It is not the case of the Board that before issuing the notification, any notice was issued to the Gram Panchayat and it was heard -- Merely by issuing a notification u/s 5 (2) of the Wakf Act declaring the disputed land as wakf property, would not divest the Gram Panchayat of its ownership, which stood already vested in it by virtue of the Punjab Village Common Lands (Regulation) Act, 1953 -- Notification with regard to a wakf property is not conclusive qua third party and the same is not binding on it -- Notification was neither conclusive of ownership nor binding on the Gram Panchayat. Punjab Wakf Board v. Gram Panchayat, Dakha and others, 2012(2) L.A.R. 262 (P&H DB).

Jumla Mustarka Malkan – Shortage during consolidation – Power of Consolidation Officer -- Land created as Jumla Mustarka Malkan, during consolidation, vests in the proprietary body of the village but its management and control remains with the Panchayat in terms of Rule 16(ii) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949 – In case there is any shortage/'Kami Peshi’ in the holding of a private person, during consolidation, it cannot be made good from the land of Jumla Mustarka Malkan or from Shamilat deh, rather it is the duty of the Consolidation Officer to have a careful re-look at the entire record to find out the person(s) to whom excess land has been allotted during consolidation, and the said land has to be retrieved in order to provide it to the person, claiming shortage in his holding. Gram Panchayat, Village Khup Kalan v. The Deputy Director, Consolidation of Holdings, Punjab and others, 2012(2) L.A.R. 604 (P&H DB).

Land, in dispute, is recorded as "Shamilat Deh Hasab Rasad Zare Khewat" and, therefore, came to vest in a Gram Panchayat under the Punjab Village Common Lands (Regulation) Act, 1953 -- Plea that as their predecessors were in cultivating possession, before 26.01.1950, the land is excluded from "Shamilat Deh" by virtue of Section 2(g)(viii) of the Punjab Village Common Lands (Regulation) Act, 1961, merits rejection. Ram Singh and others v. State of Haryana and others, 2012(2) L.A.R. 501 (P&H DB).

Punjab Village Common Lands (Regulation) Act, 1953 -- Gair Mumkin Kabristhan/Maqbooza Ahley Islam -- Vesting of -- At time of coming into force of the Act of 1953, the land in dispute was recorded as shamilat deh, nature of which was recorded as Gair Mumkin Kabristhan/Maqbooza Ahley Islam -- Since in the revenue record, the land in dispute was described as shamilat deh and it was being used for Kabristhan, which was a common purpose of the village, by virtue of Section 3 of the Act of 1953, such land vests in the Gram Panchayat. Punjab Wakf Board v. Gram Panchayat, Dakha and others, 2012(2) L.A.R. 262 (P&H DB).

Punjab Village Common Lands (Regulation) Act, 1961 -- Banjar Quadim – Common purposes – Relevant date – Land in dispute is Banjar Qadim on 9.1.1954 -- Collector held that Panchayat could not prove that it is used for the common purposes and welfare of the village -- It was also observed that the land in dispute was Banjar Qadim on 9.1.1954 and has remained in possession of the petitioners through their predecessor-in-interest prior to 26.1.1950 -- As per the jamabandi for the year 1960-61, the land is recorded as ‘Chahi’ (Cultivated) -- Authorities under this Act committed an error by treating the relevant year to be 1954 instead of 1961. Gram Panchayat Village Chaura v. State of Punjab and others, 2012(2) L.A.R. 587 (P&H DB).

Punjab Village Common Lands (Regulation) Act, 1961 -- Exclusion from -- Cultivation possession – Proprietary possession -- Jamabandi for the year 1945-46 records the possession of “Makbuja malkan,” i.e. possession of the entire proprietary body, in common, with no particular co-sharer in possession of any particular portion of the land, much less in cultivating possession -- It is “cultivating possession” and not mere “proprietary possession” that excludes land from Shamilat Deh, under section 2(g)(iii) and (viii) -- Land in dispute is described as a gair mumkin nadi, or banjar kadim (uncultivated old fallow) and only three Khasras No. i.e. 56 (3-14), 57 min (1-10), 58 (28-7) are recorded as bag barani i.e. an orchard but without recording the possession of any individual proprietor, much less any of the petitioners -- It is, therefore, apparent that the revenue record, produced by the petitioners, does not prove that the petitioners were in “cultivating possession” prior to 26.01.1950 so as to exclude, the land in dispute, from Shamilat Deh, but, in fact, establishes the contrary, i.e., the vesting of this land in the Gram Panchayat. Bundi Ram (deceased) through his LRs v. Commissioner, Ambala Division Ambala and others, 2012(2) L.A.R. 456 (P&H DB).

Punjab Village Common Lands (Regulation) Act, 1961 -- Jamabandi for the year 1941-42, records the possession of “Makbuja Malkan” – Private respondent was required to produce revenue record to show that the land in dispute was in “cultivating possession” of his forefathers prior to 26.1.1950 whether pursuant to a partition amongst proprietors or pursuant to an arrangement amongst co-sharers – Appellate authority has committed an error in holding that as the expression “Makbuja Malkan” denotes cultivating possession, it is sufficient to exclude land from Shamilat Deh. Gram Panchayat Balbera v. Director Village Development and Panchayat Punjab and another, 2012(2) L.A.R. 244 (P&H DB).

Punjab Village Common Lands (Regulation) Act, 1961 -- Makbuja Malkan -- Expression “Makbuja Malkan” denotes the possession of the proprietary body in common with no particular co-sharer being in possession of any part of the land, much less in “cultivating possession” -- Sections 2(g)(iii) and 2(g)(viii) of the 1961 Act exclude land from Shamilat Deh, if it is proved that it is in “cultivating possession”, pursuant to a partition or in “cultivating possession” as a co-sharer -- Appellate authority has committed an error in holding that as the expression “Makbuja Malkan” denotes cultivating possession, it is sufficient to exclude land from Shamilat Deh. Gram Panchayat Balbera v. Director Village Development and Panchayat Punjab and another, 2012(2) L.A.R. 244 (P&H DB).

Section 2 (g) of the Act of Punjab Village Common Lands (Regulation) Act, 1961 provides some of the eventualities, under which the land can be treated as shamilat deh -- These eventualities are contained in clauses (1) to (5) -- All these clauses are independent of each other -- If the case falls under one of the clauses, that would be sufficient to bring it within the definition of shamilat deh. Orion Infrastructure Ltd. v. The Commissioner, Gurgaon Division, Gurgaon and others, 2012(2) L.A.R. 337 (P&H DB).

Shamilat Deh Hasab Hisas Paimana Haqiat -- Jamabandies disclose that the land is Shamilat Deh Hasab Hisas Paimana Haqiat -- Use of the expression “Shamilat Deh” leaves no ambiguity as to the nature of the land namely that it is Shamilat Deh -- Expression “Hasab Hisas Paimana Haqiat” refers to the nature of ownership prior to the enactment of Shamilat Law, the Punjab Village Common Lands (Regulation) Act, 1961 and the vesting of Shamilat Deh in a Gram Panchayat. Amarjit Singh v. State of Punjab and others, 2012(2) L.A.R. 432 (P&H DB).

Shamilat Deh Hasab Rasad Khewat – Finding recorded by the Appellate Authority that as the land is “Shamilat Deh Hasab Rasad Khewat” in possession of Makbuja Malkan, it is not “Shamilat Deh”, is legally incorrect – Nature of the land is to be determined by the words “Shamilat Deh”, and not by the expression “Hasab Rasad Khewat” – Expression “Hasab Rasad Khewat” denotes the manner of calculating ownership in “Shamilat Deh” prior to enactment of the PVCL Act, 1953 and the PVCL 1961 Act – After enactment of these statutes, land described as “Shamilat Deh Hasab Rasad Khewat” etc., came to vest in a Gram Panchayat. Gram Panchayat, Village Parhi v. Ajmer Singh and others, 2012(2) L.A.R. 638 (P&H DB).

Shamilat patti -- Possession of -- Vesting of -- In the Jamabandis for the years 1950-51 and 1954-55 the land is described in column No.4 as Shamlat Patti Nungren and in the column of cultivation as Charand, and in column No.8 as Banjar Kadim -- According to Section 2(g) (3) of the Punjab Village Common Lands (Regulation) Act, 1953, such lands fall under the definition of Shamilat Deh -- Even in the consolidation proceedings the nature of the land in dispute was described as a Charand – Merely in the Jamabandi for the year 1958-59, the names of R and B came in the column of cultivation, does not mean that the land was never used for common purposes of the village – Held, when the Shamlat law came into force i.e. 9.1.1954 the land in question was described as land of Shamlat Patti and is being used as a Charand -- Such land, in view of Section 2(g)(3) of the Act, vests in the Gram Panchayat. Gram Panchayat of village Bishangarh v. State of Punjab and others, 2012(2) L.A.R. 531 (P&H DB).

The Assistant Collector Ist Grade, while taking into consideration clause (5) of Section 2 (g) of the Act of Punjab Village Common Lands (Regulation) Act, 1961, has determined the nature of the shamilat deh on the presumption that the land, which is recorded as banjar qadim is uncultivable, and in order to assess as to whether the land falls under the definition of shamilat deh, only clause (5) should be looked into – Held, the approach is totally incorrect -- Land in question, which was described in the revenue record as `Shamilat Deh Hasab Rasad Kabja Zamin', clearly falls under clause (1) of Section 2 (g) and in order to bring the same within the definition of shamilat deh, no further reference to any other clause is necessary; nor it is to be seen whether the said shamilat deh is being used for the common purpose of the village or not -- If the land falls under any of the clauses i.e. clauses (1) to (5) of Section 2 (g), then such land can be held not falling under the definition of `shamilat deh', if it does not fall under any of the exceptions provided in clauses (i) to (ix) of Section 2 (g) (5). Orion Infrastructure Ltd. v. The Commissioner, Gurgaon Division, Gurgaon and others, 2012(2) L.A.R. 337 (P&H DB).

Title dispute – Claim set up by the petitioners is based upon illegal orders passed by Consolidation Authorities – Collector and the Commissioner have rightly held that consolidation authorities had no jurisdiction to decide any question of title much less order transfer of land belonging to the Gram Panchayat to the petitioners -- Land is, admittedly, Shamilat Deh and, therefore, vests in the Gram Panchayat. Gram Panchayat Village Sahni and another v. State of Punjab and others, 2012(2) L.A.R. 566 (P&H DB).

Title dispute – Jurisdiction of – Effect of amendment -- Held, after the insertion of Section 13-A of the Act of Punjab Village Common Lands (Regulation) Act, 1961, by Haryana Amendment Act 9 of 1999, the Assistant Collector Ist Grade had ceased to exercise the jurisdiction for adjudicating the question of title raised by a person or the Gram Panchayat and the said jurisdiction has been conferred only on the Collector having jurisdiction in the area -- After the amendment, the Assistant Collector Ist Grade was incompetent to adjudicate the matter and even to continue the title suit filed by the proprietor under the earlier provision of Section 13-A -- Any decree passed by the Assistant Collector Ist Grade, after the amendment, was a nullity, being without jurisdiction -- Assistant Collector Ist Grade should have transferred the suit to the proper court, for its adjudication, instead of deciding the same himself. Orion Infrastructure Ltd. v. The Commissioner, Gurgaon Division, Gurgaon and others, 2012(2) L.A.R. 337 (P&H DB).

Title dispute – Jurisdiction of – Effect of amendment -- Though in the new provision of Section 13A, no provision was made for transfer of the pending cases to the Court of the Collector, having jurisdiction in the area, but under sub-section (2) of Section 13-A of the Act of Punjab Village Common Lands (Regulation) Act, 1961, a specific provision has been made that the procedure for deciding the suits under sub-section (1) shall be the same as laid down in the Code of Civil Procedure -- Thus, by taking the help of Order 7 Rule 10-A of the Code of Civil Procedure, the Assistant Collector Ist Grade could have transferred the pending title suits to the court of competent jurisdiction, i.e. the Collector, having jurisdiction in the area, instead of deciding the same himself -- But, in the instant case, the Assistant Collector Ist Grade has passed the decree himself on 21.11.2000, when he was having no jurisdiction to decide the title suits. Therefore, in our opinion, the decree dated 21.11.2000 passed by the Assistant Collector Ist Grade was wholly without jurisdiction and a nullity. Orion Infrastructure Ltd. v. The Commissioner, Gurgaon Division, Gurgaon and others, 2012(2) L.A.R. 337 (P&H DB).

Title dispute – Jurisdiction of civil Court – Decree of Civil Court – Effect of -- Decree dated 01.12.1980 was passed in Civil Suit No.135/25.04.1980, instituted after the insertion of Section 13 in the Punjab Village Common Lands (Regulation) Act, 1961, which debars a Civil Court from deciding question of any right, title or interest in favour of any party in respect of the land vested or deemed to have been vested in shamilat deh – Held, decree dated 01.12.1980 has to be ignored as being without jurisdiction. Ranjit Singh and others v. State of Punjab and others, 2012(2) L.A.R. 409 (P&H DB).

Title dispute – Revisional Jurisdiction – Suo moto powers -- Effect of amendment -- Contention that the Commissioner in exercise of suo motu power was having no jurisdiction to set aside the order passed by the Assistant Collector Ist Grade, cannot be accepted -- The suo motu power of the Commissioner is much wider than the power of the Financial Commissioner -- Commissioner after coming to the conclusion that the Gram Panchayat in connivance with the proprietors and their predecessors has withdrawn the appeal filed against the order of the Assistant Collector Ist Grade and the Assistant Collector Ist Grade, while totally ignoring the deletion of proviso to clause (5) of Section 2 (g) of the Act of Punjab Village Common Lands (Regulation) Act, 1961 and while taking totally unreasonable and illegal view by ignoring the various provisions of the Act of 1961 and also further ignoring the amendment made in Section 13-A, has passed a totally illegal order, without any jurisdiction, and declared a big chunk of shamilat deh not to be vesting in the Panchayat, has set aside the order of the Assistant Collector Ist Grade – Held, the Commissioner was fully competent to pass the aforesaid order and in the facts and circumstances of the case, has rightly exercised his suo motu power to set aside the illegal order of the Assistant Collector Ist Grade. Orion Infrastructure Ltd. v. The Commissioner, Gurgaon Division, Gurgaon and others, 2012(2) L.A.R. 337 (P&H DB).

Title dispute -- When the Assistant Collector Ist Grade was determining the issue after the remand, he ignored the factum of deletion of the proviso and rather relied upon the same on the pretext that the proviso was in existence on the date of filing of the suit – Held, Commissioner is right while observing that the Assistant Collector Ist Grade has committed grave illegality while deciding the title suit on the basis of the deleted provision to clause (5) of Section 2 (g) of the Act of Punjab Village Common Lands (Regulation) Act, 1961. Orion Infrastructure Ltd. v. The Commissioner, Gurgaon Division, Gurgaon and others, 2012(2) L.A.R. 337 (P&H DB).

Turf massandan -- Vest in Panchayat -- Land is a turf massandan used as a resting or meeting place, may be by patti massandan, but the said land certainly falls within the definition of Section 2 (g) of the Punjab Village Common Lands (Regulation) Act, 1961 and the same vests in the Gram Panchayat in view of Section 85 of the Punjab Panchayati Raj Act, 1994. Jagtar Singh v. Shingara Singh and another, 2012(2) L.A.R. 633 (P&H).

Vesting of – Jurisdiction of -- Punjab Village Common Lands (Regulation) Act, 1953 will prevail over the Wakf Act and nature of shamilat deh vesting in the Gram Panchayat could not be questioned before the Wakf Tribunal, merely on the basis of a notification issued under Section 5 (2) of the Wakf Act, raising the argument that such property is a wakf property. Punjab Wakf Board v. Gram Panchayat, Dakha and others, 2012(2) L.A.R. 262 (P&H DB).

Vesting of -- Mutation -- Contention that mutation does not confer title, the mere recording of a mutation by revenue authorities does not divest the petitioners of their title, cannot be accepted -- Land, in dispute, was Shamilat Deh and came to vest in the Gram Panchayat under a statutory declaration contained in the Punjab Village Common Lands (Regulation) Act, 1953, that land described as Shamilat Deh shall vest in the Gram Panchayat -- Statutory declaration was to be reflected in the revenue record by way of a mutation as there is no other method whereby a statutory declaration of title can be reflected in the revenue record. Mehar Singh and others v. Gram Panchayat Sehjo Majra and others, 2012(2) L.A.R. 513 (P&H DB).

Vesting of -- Punjab Village Common Lands (Regulation) Act, 1961 -- There are three ingredients of clause (ii) of Section 4 (3) of the Act of 1961, which a person is required to fulfill before the shamilat land is held to have not vested in the Panchayat, i.e. (i) he must be in cultivating possession of the shamilat deh on the date of commencement of the Act of 1953; (ii) his cultivating possession on such land must be for more than 12 years on such commencement; and (iii) such possession must be without payment of rent or by payment of charges not exceeding the land revenue and cesses payable thereon -- Once the shamilat land is deemed to have been vested in the Panchayat, it can be ordered to be de-vested from the Panchayat, only on the title suit filed by a person, if he establishes the aforesaid three ingredients. Orion Infrastructure Ltd. v. The Commissioner, Gurgaon Division, Gurgaon and others, 2012(2) L.A.R. 337 (P&H DB).

Vesting of -- Punjab Village Common Lands (Regulation) Act, 1961 -- Once the shamilat land is deemed to have vested in the Gram Panchayat, the only exception, where the land can be ordered to be de-vested from the Gram Panchayat, has been provided in clause (ii) of Section 4 (3) of the Act -- In such a situation, the competent authority, i.e. the Collector under Section 13-A of the Act of 1961 and the Assistant Collector Ist Grade under the un-amended Section 13-A of the Act of 1961 was not required to take aid of the definition of `shamilat deh' given in Section 2 (g) of the Act of 1961 -- Said definition is to be looked into in case where the land has not vested in the Panchayat under the shamilat law and not deemed to have vested under the Act of 1961 -- Definition is to be seen to determine whether the land in question falls under the definition of shamilat deh and vests in the Panchayat under the Act of 1961. Orion Infrastructure Ltd. v. The Commissioner, Gurgaon Division, Gurgaon and others, 2012(2) L.A.R. 337 (P&H DB).

Vesting of – Punjab Village Common Lands (Regulation) Act, 1961 -- Right of Proprietors -- Proprietors have failed to establish their possession on the disputed land, therefore, in view of the said finding, the proprietors have clearly failed to bring their case under clause (ii) of Section 4 (3), where the land can be de-vested from the Panchayat. Orion Infrastructure Ltd. v. The Commissioner, Gurgaon Division, Gurgaon and others, 2012(2) L.A.R. 337 (P&H DB).

Shamilat Deh Hasab Hisas Paimana Haqiat

Shamilat deh – Jamabandies disclose that the land is Shamilat Deh Hasab Hisas Paimana Haqiat -- Use of the expression “Shamilat Deh” leaves no ambiguity as to the nature of the land namely that it is Shamilat Deh -- Expression “Hasab Hisas Paimana Haqiat” refers to the nature of ownership prior to the enactment of Shamilat Law, the Punjab Village Common Lands (Regulation) Act, 1961 and the vesting of Shamilat Deh in a Gram Panchayat. Amarjit Singh v. State of Punjab and others, 2012(2) L.A.R. 432 (P&H DB).

Shamilat Deh Hasab Rasad Kabja Zamin

Vesting of -- Repeal and savings -- On 9.1.1954, when the Punjab Village Common Lands (Regulation) Act, 1953 came into force, land described in the revenue record as `Shamilat Deh Hasab Rasad Kabja Zamin' -- According to Section 3 of the Act of 1953, all lands recorded in the revenue record as Shamilat Deh vest in the Gram Panchayat -- In view of the above said provision, on dated 31.3.1955, the aforesaid Shamilat Deh was mutated in favour of the Gram Panchayat, thereafter, in the jamabandi for the year 1960-61, this land was recorded in the name of the Gram Panchayat – Sanctioning mutation protected under the Act of 1961, unless and until superseded by anything done or any action taken under the Punjab Village Common Lands (Regulation) Act, 1961 – In view of Section 4 (2) of the Act of 1961, the land in question, which vested in the Panchayat, on coming into force of the Act of 1953 and mutation of which was sanctioned in favour of the Panchayat on 31.3.1955, shall be deemed to have been vested in the Panchayat under the Act of 1961. Orion Infrastructure Ltd. v. The Commissioner, Gurgaon Division, Gurgaon and others, 2012(2) L.A.R. 337 (P&H DB).

Shamilat Deh Hasab Rasad Khewat

Shamilat deh – Finding recorded by the Appellate Authority that as the land is “Shamilat Deh Hasab Rasad Khewat” in possession of Makbuja Malkan, it is not “Shamilat Deh”, is legally incorrect – Nature of the land is to be determined by the words “Shamilat Deh”, and not by the expression “Hasab Rasad Khewat” – Expression “Hasab Rasad Khewat” denotes the manner of calculating ownership in “Shamilat Deh” prior to enactment of the PVCL Act, 1953 and the PVCL 1961 Act – After enactment of these statutes, land described as “Shamilat Deh Hasab Rasad Khewat” etc., came to vest in a Gram Panchayat. Gram Panchayat, Village Parhi v. Ajmer Singh and others, 2012(2) L.A.R. 638 (P&H DB).

Shamilat Deh Hasab Rasad Zare Khewat

Vesting of -- Contention that as land is described as “Shamilat Deh Hasab Rasad Zare Khewat”, it is not “Shamilat Deh”, must be rejected as lands described as “Shamilat Deh”, came to vest in a Gram Panchayat, under the Punjab Lands (Regulation) Act, 1953 or the Pepsu Village Common Lands (Regulation) Act, 1954. Hakam Singh v. Director, Rural Development and Panchayats, Punjab and others, 2012(2) L.A.R. 641 (P&H DB).

Shamilat patti

Shamilat deh – Possession of -- Vesting of -- In the Jamabandis for the years 1950-51 and 1954-55 the land is described in column No.4 as Shamlat Patti Nungren and in the column of cultivation as Charand, and in column No.8 as Banjar Kadim -- According to Section 2(g) (3) of the Punjab Village Common Lands (Regulation) Act, 1953, such lands fall under the definition of Shamilat Deh -- Even in the consolidation proceedings the nature of the land in dispute was described as a Charand – Merely in the Jamabandi for the year 1958-59, the names of R and B came in the column of cultivation, does not mean that the land was never used for common purposes of the village – Held, when the Shamlat law came into force i.e. 9.1.1954 the land in question was described as land of Shamlat Patti and is being used as a Charand -- Such land, in view of Section 2(g)(3) of the Act, vests in the Gram Panchayat. Gram Panchayat of village Bishangarh v. State of Punjab and others, 2012(2) L.A.R. 531 (P&H DB).

Vesting of – Land owned by “shamilat patti” vests in a Gram Panchayat, if it is used according to the revenue record for the benefit of the village community or a part thereof or for common purposes of the village. Baru Ram and others v. The State of Haryana and others, 2012(2) L.A.R. 451 (P&H DB).

Shamlat Deh Hasab Hissas Paimana Malkiat

Bachat land – Shamilat deh -- Contention that land is recorded as “Shamlat Deh Hasab Hissas Paimana Malkiat” and not Shamilat Deh, it continues to vest in proprietors, is legally flawed -- After enactment of the Punjab Village Common Lands (Regulation) Act, 1953, land described as Shamilat Deh came to vest in the Gram Panchayat -- Ownership of proprietors stood extinguished and expression like “Hasab Hissas Paimana Malkiat” that followed the words “Shamilat Deh”, relevant before the 1953 Act as it denoted the manner of calculating shareholding of proprietors, were rendered irrelevant as Shamilat Deh vested in a Gram Panchayat. Mehar Singh and others v. Gram Panchayat Sehjo Majra and others, 2012(2) L.A.R. 513 (P&H DB).

Share to one son

Will – Validity of  -- One son had separated from the family in 1965 after taking his share and other son also got his share in the 2nd partition which took place in 1985 -- Neither of them bothered to look after the parents in their old age -- Attitude of sons left parents with no choice but to live with the appellant/other son who along with his wife and children took care of the old parents and looked after them during their illness -- Therefore, there was nothing unnatural or unusual in the decision of Father to give his share in the joint family property to the appellant -- Any person of ordinary prudence would have adopted the same course and would not have given anything to the ungrateful children from his / her share in the property. Mahesh Kumar (Dead) By L.Rs. v. Vinod Kumar and others, 2012(2) L.A.R. 221 (SC).

Shortage during consolidation

Jumla Mustarka Malkan – Shamilat deh – Power of Consolidation Officer -- Land created as Jumla Mustarka Malkan, during consolidation, vests in the proprietary body of the village but its management and control remains with the Panchayat in terms of Rule 16(ii) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949 – In case there is any shortage/'Kami Peshi’ in the holding of a private person, during consolidation, it cannot be made good from the land of Jumla Mustarka Malkan or from Shamilat deh, rather it is the duty of the Consolidation Officer to have a careful re-look at the entire record to find out the person(s) to whom excess land has been allotted during consolidation, and the said land has to be retrieved in order to provide it to the person, claiming shortage in his holding. Gram Panchayat, Village Khup Kalan v. The Deputy Director, Consolidation of Holdings, Punjab and others, 2012(2) L.A.R. 604 (P&H DB).

Solatium

Land Acquisition Act, 1894 -- Award – Interest -- Entitlement of – Since the award of the District Judge had been passed on 09.11.1983, that is, the period subsequent to the introduction of the Land Acquisition Bill in the Parliament on 30.04.1982 in terms of Section 23(1A), the claimants are entitled to solatium @ 30% on the respective amounts due for the two properties covered under the two awards -- On the aggregate of the respective amounts, the additional amount shall also draw interest at 12% p.a. from the date of Section 4(1) notification till the Collector’s awards -- As regards the additional amount so determined, the petitioners would be entitled to interest as provided under section 28 of the Land Acquisition Act, from the date of S.4(1) notification, since the possession had been taken even prior to the notification, till the date of payment. Ch. Vidya Bhushan (died) through his LRs and others v. Haryana State though the Collector, Karnal, and others, 2012(2) L.A.R. 380 (P&H).

Speaking order

Appointment of Lambardar – Facts that whether the petitioner had intentionally furnished the certificate of Majhbi Sikh to the Army authorities for selection of his son in the army or it was inadvertently recorded as Majhbi Sikh instead of Jat Sikh, further fact that respondent is in illegal possession of Gurdwara land and he is not paying any rent are not taken into consideration – Further contended that respondent is also defaulter of the lai/mai loan for ten years and as such he could not be considered suitable for appointment to the post of Lambardar – Held, in view of the above facts, case is remanded to the Financial Commissioner, Haryana to re-consider the evidence on record and pass speaking order by recording specific findings. Manmohan Singh v. Financial Commissioner, Haryana and others, 2012(2) L.A.R. 417 (P&H).

Punjab Village Common Lands (Regulation) Act, 1961 –  Exchange of land – Setting aside of – Natural justice – Collector sanctioned exchange of land, without there being any jurisdiction vested in him but said order of Collector has been cancelled on a complaint, in which a preliminary inquiry and regular inquiry has been held -- Order passed is without issuing any show cause notice or providing inquiry report to the petitioners or granting an opportunity to contest the correctness of the reports – Impugned order does not disclose any reasons for cancellation of order – Held, not only judicial or quasi judicial order is to be passed following the principles of natural justice, but also the administrative orders, which affect the civil rights, have to adhere the principle of natural justice -- Impugned order set aside. Milkha Singh and another v. State of Punjab and others, 2012(2) L.A.R. 86 (P&H DB).

Quasi judicial order – Collector has referred to the entire evidence, arguments addressed and only thereafter recorded his conclusion that as the land was recorded as Shamilat Deh, it vests in the Gram Panchayat -- Commissioner has upheld this finding after due consideration of the pleadings, the evidence and the arguments -- Contention that impugned orders are sketchy, non-speaking and do not meet the parameters of a quasi-judicial order is not tenable. Mehar Singh and others v. Gram Panchayat Sehjo Majra and others, 2012(2) L.A.R. 513 (P&H DB).

Specific Relief Act, 1963 (47 of 1963)

Section 10 -- Registration Act, 1908 (16 of 1908), Section 17(1A), 49 – Transfer of Property Act, 1882 (4 of 1882), Section 53-A – Agreement to sell – Registration of – Unregistered document -- There is no bar as per Section 17(1A) to seek the decree of specific performance of contract in respect of an unregistered contract of sale. Didar Singh v. Nasib Kaur and others, 2012(2) L.A.R. 198 (P&H).

Standing trees

Ownership of -- It is a well-known maxim that whatever is affixed to the soil/land, becomes in contemplation of law a part of it and is subjected to the same rights of property as the soil/land itself – Even if a person plants the trees on the land belonging to another, the trees come to vest in the landowner and cannot be removed by a person, by whom they were planted -- Landowner must be held entitled to be compensated in this relevant connection and is the legal owner of the trees standing in his land. State of Punjab and another v. Tara Singh and another, 2012(2) L.A.R. 419 (P&H).

Status of Civil post/Government servant

Panchayat Secretaries – Petitioners challenged the legality of Section 16 (4) of the Punjab Gram Panchayat Act, 1952, by declaring the same as ultra vires to Articles 14 and 16 of the Constitution of India – Held, the Act has been framed within its legislative competence and in terms of Article 309, the state legislature can regulate the recruitment and conditions of service -- The impugned enactment is in terms of article 309 of the constitution and cannot be said to violative of Article 14 or 16 as the petitioner have no vested right to be civil servant -- Power to regulate the recruitment to civil post also includes power not to treat a service as a civil service -- Therefore, the claim of the petitioners that they should be treated as a Government servant is a mere wish and not a right. Rajwinder Singh and others v. State of Punjab and another, 2012(2) L.A.R. 322 (P&H DB).

Substitution of functionaries

Authorised Panch – Power of -- Suspension/ Removal/Death of Sarpanch – All the duties and functions to be performed by the office of the Sarpanch shall also be performed by the authorised Panch having charge of the office of the Sarpanch -- Every authorised Panch to officiate the office of Sarpanch shall have same powers for the period he remains in the office, which usually can be exercised by the Sarpanch. Jeet Singh Panch v. State of Punjab and others, 2012(2) L.A.R. 252 (P&H).

Authorised Panch – Power of -- Suspension/ Removal/Death of Sarpanch – Suspension of Sarpanch does not mean that entire development works of the village shall not be allowed to proceed with -- Authorised Panch can spend money for the development work in the village as per valid resolution and prevailing law during the period Sarpanch remains suspended or post of Sarpanch remains unfilled due to suspension, removal or death of elected Sarpanch. Jeet Singh Panch v. State of Punjab and others, 2012(2) L.A.R. 252 (P&H). 

Summary rejection of petition for Title dispute

Sustainability of – Collector, seized of an application u/s 11 of the Punjab Village Common Lands (Regulation) Act, 1961, is required to follow the procedure prescribed by Section 11(1) of the 1961 Act read alongwith Rule 21-A – Rule 21-A of the Punjab Village Common Lands (Regulation) Rules, 1964 requires the Collector to issue notice to the Panchayat alongwith a copy of the application and thereafter afford a reasonable opportunity to parties to substantiate their respective claims, before recording his opinion – Collector, therefore, had no jurisdiction to summarily reject the petition. Dalip Singh v. Gram Panchayat, Arno and others, 2012(2) L.A.R. 492 (P&H DB).

Suo moto powers

Shamilat deh – Title dispute – Revisional Jurisdiction – Effect of amendment -- Contention that the Commissioner in exercise of suo motu power was having no jurisdiction to set aside the order passed by the Assistant Collector Ist Grade, cannot be accepted -- The suo motu power of the Commissioner is much wider than the power of the Financial Commissioner -- Commissioner after coming to the conclusion that the Gram Panchayat in connivance with the proprietors and their predecessors has withdrawn the appeal filed against the order of the Assistant Collector Ist Grade and the Assistant Collector Ist Grade, while totally ignoring the deletion of proviso to clause (5) of Section 2 (g) of the Act of Punjab Village Common Lands (Regulation) Act, 1961 and while taking totally unreasonable and illegal view by ignoring the various provisions of the Act of 1961 and also further ignoring the amendment made in Section 13-A, has passed a totally illegal order, without any jurisdiction, and declared a big chunk of shamilat deh not to be vesting in the Panchayat, has set aside the order of the Assistant Collector Ist Grade – Held, the Commissioner was fully competent to pass the aforesaid order and in the facts and circumstances of the case, has rightly exercised his suo motu power to set aside the illegal order of the Assistant Collector Ist Grade. Orion Infrastructure Ltd. v. The Commissioner, Gurgaon Division, Gurgaon and others, 2012(2) L.A.R. 337 (P&H DB).

Surplus area/land

Punjab Security of Land Tenures Act, 1953 -- Notice – Transfer of land by sale – Date of 30.07.1958 which would be relevant for exclusion if the sale had taken place before the said date -- For any transaction subsequent to the same, issuance of notice would still be relevant – Transferees had not obtained mutation and the authorities could not be faulted for proceeding to determine the surplus even without notice to alleged transfers -- No scope for intervention in the impugned proceedings and the challenge to the same is rejected. Karam Chand and another v. The State of Punjab, through Secretary (Revenue), Punjab Government, Chandigarh, and others, 2012(2) L.A.R. 112 (P&H).  

Unutilized land – Status of -- Vesting of -- In Haryana, the provision of Section 12 (3) of the Haryana Ceiling on Land Holdings Act, 1972 makes it absolutely clear that the land declared surplus by the Collector (Agrarian) under the provisions of the Punjab Security of Land Tenures Act, 1953, shall vest absolutely in the State on the appointed day free from all encumbrances, irrespective of the fact whether the land was utilised or not by extinguishing all rights and interest of the land owner -- Question of restoring such land to the big land owner or giving notice to him does not arise. Ujagar Singh and others v. The State of Haryana and others, 2012(2) L.A.R. 550 (P&H DB).

Suspension of Sarpanch

Punjab Panchayati Raj Act, 1994 -- Removal of Sarpanch -- Having possession of any narcotic substance is a serious offence and amounts to moral turpitude -- Elected Sarpanch/Panch represents the society and they are the elected representatives and role-model of the habitants of the village, therefore, they are supposed not to indulge in any criminal activities, more so, in offence punishable under the NDPS Act – Removal order is liable to be quashed, however, the petitioner shall remain under suspension during the pendency of the investigation/trial, as the case may be. Paramjit Kaur, Panch v. The Financial Commissioner and others, 2012(2) L.A.R. 55 (P&H).

Punjab Panchayati Raj Act, 1994 -- Removal of Sarpanch -- If a Sarpanch/Panch is found guilty and has been convicted for any offence involving moral turpitude or for such offence i.e., forgery in the Panchayat's record, embezzlement of Panchayat funds etc. when it would not be desirable in the interest of Panchayat to permit such Panch or Sarpanch to perform the duties of Panch or Sarpanch, then it would be disqualification u/s 208(1)(c) and is liable to be removed u/s 20(1)(a) of the 1994 Act, however, if no conviction order is passed then disqualification as provided under Section 208(1)(c) of the 1994 Act, shall not be attracted – Therefore, the removal order passed against the petitioner is not only without jurisdiction but also beyond the scope of Section 20(1)(a) of the 1994 Act. Paramjit Kaur, Panch v. The Financial Commissioner and others, 2012(2) L.A.R. 55 (P&H).

Substitution of functionaries -- Authorised Panch – Power of -- All the duties and functions to be performed by the office of the Sarpanch shall also be performed by the authorised Panch having charge of the office of the Sarpanch -- Every authorised Panch to officiate the office of Sarpanch shall have same powers for the period he remains in the office, which usually can be exercised by the Sarpanch. Jeet Singh Panch v. State of Punjab and others, 2012(2) L.A.R. 252 (P&H).

Substitution of functionaries -- Authorised Panch – Power of -- Suspension of Sarpanch does not mean that entire development works of the village shall not be allowed to proceed with -- Authorised Panch can spend money for the development work in the village as per valid resolution and prevailing law during the period Sarpanch remains suspended or post of Sarpanch remains unfilled due to suspension, removal or death of elected Sarpanch. Jeet Singh Panch v. State of Punjab and others, 2012(2) L.A.R. 252 (P&H). 

Taal

Land is described as Taal, which is a pool and, therefore, the same could not be cultivable. Naresh and others v. State of Haryana and others, 2012(2) L.A.R. 659 (P&H DB).

Tavern site

Provision for Toilet -- As per condition of the Excise Policy, tavern must have toilets -- Admittedly, there is no sewer line connecting to these liquor vends and tavern – Held, in the absence of toilet in the tavern, same cannot be allowed to run and permission should have been refused on the ground of public morality, public health and public order. Amit Jain and others v. State of U.T., Chandigarh and others, 2012(2) L.A.R. 64 (P&H DB).

Term 10 miles

Punjab New Capital (Periphery) Control Act, 1952 -- Chandigarh Periphery -- Interpretation of --Term “adjacent to” would necessarily imply an area within 10 miles of the boundary and also beyond it -- Any other interpretation can result in horrendous situation where there is planned growth within an area of 10 miles but immediately beyond the said limit there is unplanned development. Aalok Jagga v. Union of India and others, 2012(2) L.A.R. 146 (P&H DB).

Term of office of Sarpanch

Punjab Panchayati Raj Act, 1994 -- Removal of Sarpanch -- Term of office of Gram Panchayat shall be for five years unless dissolved earlier under the Act -- Panch, who has been elected as Sarpanch in the first meeting held u/s 13-A of the Panchayati Raj Act, will hold the office for a term of five years until and unless he resigns as contemplated u/s 17 or removed by passing No-Confidence Motion as contemplated u/s 19 or suspended and removed as contemplated u/s 20 of the Panchayati Raj Act. Sukhdev Singh v. State of Punjab and others, 2012(2) L.A.R. 6 (P&H DB).

Title dispute

Jurisdiction of -- To determine the controversy as to whether the land in dispute vests in the Gram Panchayat or in the petitioner Board, only the authorities under the Village Common Lands Act have the jurisdiction and not the Wakf Tribunal, established under the Wakf Act. Punjab Wakf Board v. Gram Panchayat, Dakha and others, 2012(2) L.A.R. 262 (P&H DB).

Jurisdiction of Consolidation authorities -- Consolidation authorities, much less the Director, exercising power under Section 42 of the Consolidation Act, had no jurisdiction to decide whether land vests or does not vest in a Gram Panchayat -- Only authority empowered to decide such a question is the Collector, exercising power under the Punjab Village Common Lands (Regulation) Act, 1961. Mehar Singh and others v. Gram Panchayat Sehjo Majra and others, 2012(2) L.A.R. 513 (P&H DB).

Punjab Village Common Lands (Regulation) Act, 1961 – Admittedly, the land in dispute is recorded as the ownership of the Gram Panchayat -- Collector has recorded a finding that, though, the land belongs to the Gram Panchayat, it was donated to the petitioners' father and as he has constructed a house, the land, no longer belongs to the Gram Panchayat -- Finding, recorded by the Collector, is not based upon any evidence, much less a resolution passed by the Gram Panchayat gifting the land to the petitioners' father -- Order passed by the Collector was, therefore, rightly set aside by the Appellate Authority -- Petitioners may, however, approach the Gram Panchayat, for purchase of the land, in accordance with law. Nasib Kaur and others v. State of Punjab and others, 2012(2) L.A.R. 93 (P&H DB).

Punjab Village Common Lands (Regulation) Act, 1961 -- Common purposes -- Petitioners have failed to prove that they are proprietors or in possession of the land in question -- Rather, it has come on record that land in dispute is owned by Gram Panchayat, which has been used for the benefit of the village much less for common purposes as Gair Mumkin Gadda Khad, Gair Mumkin Abadi, Gair Mumkin Hadda Rori, Gair Mumkin Cremation Ground (Shamshan Bhumi) and Gair Mumkin Chappar (Pond) – Petitioners not succeeded in proving their title, writ petition dismissed. Bal Kishan and others v. State of Punjab and others, 2012(2) L.A.R. 483 (P&H DB).

Punjab Village Common Lands (Regulation) Act, 1961 -- Eviction petition – If a question of right, title or interest is raised by any person and a prima-facie case is made out in support thereof, the Collector shall direct the person who has raised such question to submit his claim u/s 11 and till the question is so determined, the application shall remain pending. Gram Panchayat Dholwaha v. Joint Development Commissioner (IRD), Punjab and others, 2012(2) L.A.R. 13 (P&H DB).

Punjab Village Common Lands (Regulation) Act, 1961 -- Eviction petition – Power of Commissioner -- Commissioner had no jurisdiction, while deciding an appeal arising from, proceedings u/d 7 of the 1961 Act to decide a question of title -- If the Commissioner was, prima-facie satisfied that a credible question of title has arisen for consideration, he was required to call upon parties to file a petition u/s 11 of the Act and direct that during pendency of proceedings, the petition u/s 7 of the 1961 Act shall be kept in abeyance. Gram Panchayat Dholwaha v. Joint Development Commissioner (IRD), Punjab and others, 2012(2) L.A.R. 13 (P&H DB).

Punjab Village Common Lands (Regulation) Act, 1961 -- Eviction proceedings – Res-judicata -- Findings recorded u/s 7, do not operate as res judicata in a title suit. Gram Panchayat Village Mulepur v. Sucha Singh (deceased through his LRs.) and others, 2012(2) L.A.R. 682 (P&H DB).

Punjab Village Common Lands (Regulation) Act, 1961 -- Framing of issue – Requirement of -- Contention that issues have not been framed in the petition filed u/s 11, which is required to be decided as a Civil Suit – Held, non-framing of issues filed u/s 11 of the 1961 Act, would not prejudice right of the petitioners because they were alive to the issues involved and had led their entire oral as well as documentary evidence. Darshan Singh v. Joint Development Commissioner (IRD) and others, 2012(2) L.A.R. 494 (P&H DB).

Punjab Village Common Lands (Regulation) Act, 1961 -- Jurisdiction of -- Keeping in view the fact that the land already stands mutated in favour of the Gram Panchayat, the only remedy available to the petitioner Board was to file a title suit under Section 11. Punjab Wakf Board v. Gram Panchayat, Dakha and others, 2012(2) L.A.R. 262 (P&H DB).

Punjab Village Common Lands (Regulation) Act, 1961 – Panch filing appeal -- Locus Standi to file appeal -- Collector allowed the application u/s 11 by recording a finding that, though, the land belongs to the Gram Panchayat but as it was donated to the petitioners' father, who has constructed a house, the land no longer vests in the Gram Panchayat -- Gram Panchayat did not file any appeal -- A Panch, of the Gram Panchayat, filed an appeal, which was allowed by the appellate authority and the order passed by the Collector was set aside – Contention that as the Gram Panchayat did not file any appeal, the appellate authority could not entertain the appeal, at the behest of a private person, merits summary rejection -- Plea of locus-standi, particularly, when raised in a case of illegal appropriation of public property, cannot be a ground to reject a bonafide appeal. Nasib Kaur and others v. State of Punjab and others, 2012(2) L.A.R. 93 (P&H DB).

Punjab Village Common Lands (Regulation) Act, 1961 -- Shamilat deh -- Claim set up by the petitioners is based upon illegal orders passed by Consolidation Authorities – Collector and the Commissioner have rightly held that consolidation authorities had no jurisdiction to decide any question of title much less order transfer of land belonging to the Gram Panchayat to the petitioners -- Land is, admittedly, Shamilat Deh and, therefore, vests in the Gram Panchayat. Gram Panchayat Village Sahni and another v. State of Punjab and others, 2012(2) L.A.R. 566 (P&H DB).

Punjab Village Common Lands (Regulation) Act, 1961 -- Shamilat deh – Jurisdiction of – Effect of amendment -- Held, after the insertion of Section 13-A, by Haryana Amendment Act 9 of 1999, the Assistant Collector Ist Grade had ceased to exercise the jurisdiction for adjudicating the question of title raised by a person or the Gram Panchayat and the said jurisdiction has been conferred only on the Collector having jurisdiction in the area -- After the amendment, the Assistant Collector Ist Grade was incompetent to adjudicate the matter and even to continue the title suit filed by the proprietor under the earlier provision of Section 13-A -- Any decree passed by the Assistant Collector Ist Grade, after the amendment, was a nullity, being without jurisdiction -- Assistant Collector Ist Grade should have transferred the suit to the proper court, for its adjudication, instead of deciding the same himself. Orion Infrastructure Ltd. v. The Commissioner, Gurgaon Division, Gurgaon and others, 2012(2) L.A.R. 337 (P&H DB).

Punjab Village Common Lands (Regulation) Act, 1961 -- Shamilat deh – Jurisdiction of – Effect of amendment -- Though in the new provision of Section 13A, no provision was made for transfer of the pending cases to the Court of the Collector, having jurisdiction in the area, but under sub-section (2) of Section 13-A of the Act of 1961, a specific provision has been made that the procedure for deciding the suits under sub-section (1) shall be the same as laid down in the Code of Civil Procedure -- Thus, by taking the help of Order 7 Rule 10-A of the Code of Civil Procedure, the Assistant Collector Ist Grade could have transferred the pending title suits to the court of competent jurisdiction, i.e. the Collector, having jurisdiction in the area, instead of deciding the same himself -- But, in the instant case, the Assistant Collector Ist Grade has passed the decree himself on 21.11.2000, when he was having no jurisdiction to decide the title suits. Therefore, in our opinion, the decree dated 21.11.2000 passed by the Assistant Collector Ist Grade was wholly without jurisdiction and a nullity. Orion Infrastructure Ltd. v. The Commissioner, Gurgaon Division, Gurgaon and others, 2012(2) L.A.R. 337 (P&H DB).

Punjab Village Common Lands (Regulation) Act, 1961 -- Shamilat deh – Revisional Jurisdiction – Suo moto powers -- Effect of amendment -- Contention that the Commissioner in exercise of suo motu power was having no jurisdiction to set aside the order passed by the Assistant Collector Ist Grade, cannot be accepted -- The suo motu power of the Commissioner is much wider than the power of the Financial Commissioner -- Commissioner after coming to the conclusion that the Gram Panchayat in connivance with the proprietors and their predecessors has withdrawn the appeal filed against the order of the Assistant Collector Ist Grade and the Assistant Collector Ist Grade, while totally ignoring the deletion of proviso to clause (5) of Section 2 (g) of the Act of 1961 and while taking totally unreasonable and illegal view by ignoring the various provisions of the Act of 1961 and also further ignoring the amendment made in Section 13-A, has passed a totally illegal order, without any jurisdiction, and declared a big chunk of shamilat deh not to be vesting in the Panchayat, has set aside the order of the Assistant Collector Ist Grade – Held, the Commissioner was fully competent to pass the aforesaid order and in the facts and circumstances of the case, has rightly exercised his suo motu power to set aside the illegal order of the Assistant Collector Ist Grade. Orion Infrastructure Ltd. v. The Commissioner, Gurgaon Division, Gurgaon and others, 2012(2) L.A.R. 337 (P&H DB).

Punjab Village Common Lands (Regulation) Act, 1961 -- Shamilat deh – When the Assistant Collector Ist Grade was determining the issue after the remand, he ignored the factum of deletion of the proviso and rather relied upon the same on the pretext that the proviso was in existence on the date of filing of the suit – Held, Commissioner is right while observing that the Assistant Collector Ist Grade has committed grave illegality while deciding the title suit on the basis of the deleted provision to clause (5) of Section 2 (g) of the Act. Orion Infrastructure Ltd. v. The Commissioner, Gurgaon Division, Gurgaon and others, 2012(2) L.A.R. 337 (P&H DB).

Punjab Village Common Lands (Regulation) Act, 1961 -- Summary rejection of petition – Sustainability of – Collector, seized of an application u/s 11, is required to follow the procedure prescribed by Section 11(1) of the 1961 Act read alongwith Rule 21-A – Rule 21-A of the Punjab Village Common Lands (Regulation) Rules, 1964 requires the Collector to issue notice to the Panchayat alongwith a copy of the application and thereafter afford a reasonable opportunity to parties to substantiate their respective claims, before recording his opinion – Collector, therefore, had no jurisdiction to summarily reject the petition. Dalip Singh v. Gram Panchayat, Arno and others, 2012(2) L.A.R. 492 (P&H DB).

Reference sent to a Larger Bench with respect to following questions: 1. Whether a Director Consolidation, exercising power under the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 can decide whether land vests or does not vest in a Gram Panchayat? 2. If answer to the first question is in the negative, then whether an order passed by a Director Consolidation, determining ownership of a Gram Panchayat, affirmed by the High Court and the Supreme Court operates as res-judicata in a subsequent petition, filed under Section 11 of the Act? 3. Whether Section 13-B of the Act empowers the Collector, exercising jurisdiction under Section 11 of the Act, to disregard an order passed by the Director Consolidation, that has been affirmed by the High Court and the Hon’ble Supreme Court? 4. Whether a plea that the order passed by the Director Consolidation was obtained by fraud can be raised after the order has been affirmed by the High Court and the Hon’ble Supreme Court?” In addition to the questions framed, ancillary issues relating to merger of orders passed by Director Consolidation, in orders passed by the High Court and the Hon'ble Supreme Court, the principles of primacy of judicial precedents, the question whether Consolidation authorities in the garb of making good deficiency of allotment to a landowner, can direct that such deficiency be made good from “Shamilat Deh” or “Jumla Mushtarka Malkan”, the difference between “Jumla Mushtarka Malkan” and “Bachat Land”, the nature and the manner of vesting of “Jumla Mushtarka Malkan” in a Gram Panchayat and proprietors and other questions of general importance arise for consideration -- The questions raised in the reference and posed in this paragraph, are of significant public importance as large tracts, of panchayat land, have been partitioned by Consolidation authorities and apportioned amongst proprietors, though, the land was “Shamilat Deh” or “Jumla Mushtarka Malkan” – Matter referred to Chief Justice for constitution of Larger Bench, if deemed appropriate. Parkash Singh and others v. Joint Development Commissioner, Punjab and others, 2012(2) L.A.R. 578 (P&H DB).

Res-judicata – Collusive decree -- No documentary evidence led by private respondent to prove that he is owner of the land in dispute except for the decree dated 18.04.1974, which is based upon collusion of the earlier Sarpanch – Incidental finding on title in an earlier suit will not be binding in a later suit or proceeding where title is directly in question, unless it is established that it was necessary in the earlier suit to decide the question of title for granting or refusing injunction and that the relief for injunction was founded or based on the finding on title – No such finding recorded in the suit for permanent injunction filed by private respondent who had not sought any declaration of his title over the land in dispute -- Matter is remanded back to A.C. 1st Grade, to decide the case on merits. Gram Panchayat Gulalta v. State of Haryana and others, 2012(2) L.A.R. 669 (P&H DB).

Shamilat deh – Jurisdiction of civil Court – Decree of Civil Court – Effect of -- Decree dated 01.12.1980 was passed in Civil Suit No.135/25.04.1980, instituted after the insertion of Section 13 in the Punjab Village Common Lands (Regulation) Act, 1961, which debars a Civil Court from deciding question of any right, title or interest in favour of any party in respect of the land vested or deemed to have been vested in shamilat deh – Held, decree dated 01.12.1980 has to be ignored as being without jurisdiction. Ranjit Singh and others v. State of Punjab and others, 2012(2) L.A.R. 409 (P&H DB).

Transfer of land by sale

Punjab Security of Land Tenures Act, 1953 -- Surplus area – Declaration of -- Notice – Date of 30.07.1958 which would be relevant for exclusion if the sale had taken place before the said date -- For any transaction subsequent to the same, issuance of notice would still be relevant – Transferees had not obtained mutation and the authorities could not be faulted for proceeding to determine the surplus even without notice to alleged transfers -- No scope for intervention in the impugned proceedings and the challenge to the same is rejected. Karam Chand and another v. The State of Punjab, through Secretary (Revenue), Punjab Government, Chandigarh, and others, 2012(2) L.A.R. 112 (P&H).  

Transfer of Land for Sewerage treatment plant needed by Municipal Council

Punjab Village Common Lands (Regulation) Rules, 1964 -- Resolution by 3/4th majority – Requirement of – Resolution passed, State granting approval for transfer of land to Municipal Council – Contention that said proposal was not supported by 3/4 members of the Panchayat and consequently the entire action was vitiated – Held, rule 12-A would be applicable, for certain specified situations, there would be no requirement for a 3/4th majority. Namrita Kanwar and others v. The State of Punjab and others, 2012(2) L.A.R. 678 (P&H).

Transfer of Property Act, 1882 (4 of 1882)

Section 10 – Sale deed – Use of land – Condition of -- University purchased land from landowners -- Mere change of purpose does not entitle the land owners to dispute the sale deeds -- In terms of Section 10 of the Transfer of Property Act, 1882, any condition in respect of use of land is void – University transfer the land to PUDA for carving out the plots – Landowners, who have parted with their land and accepted compensation more than a decade earlier cannot be permitted to dispute the transfer of land. Jagtar Singh etc. v. State of Punjab etc., 2012(2) L.A.R. 170 (P&H DB).

Section 53-A – Registration Act, 1908 (16 of 1908), Section 17(1A), 49 – Specific Relief Act, 1963 (47 of 1963), Section 10 -- Agreement to sell – Registration of – Unregistered document -- There is no bar as per Section 17(1A) to seek the decree of specific performance of contract in respect of an unregistered contract of sale. Didar Singh v. Nasib Kaur and others, 2012(2) L.A.R. 198 (P&H).

Transfer of public property against the Statute

Doctrine of estoppels -- Mutation – Effect of -- An authority dealing with public property, cannot deviate from the statute, rules or instructions that govern transfer of its property -- Even where a Gram Panchayat has by resolution, transferred property, delivered possession and mutation of ownership has been sanctioned, such a transfer, if made in violation of Rule 12 of the Punjab Village Common Lands (Regulation) Rules, 1964, would be null and void -- Doctrine of estoppels, cannot be invoked -- Gram Panchayat shall not be estopped from alleging the illegality of such a transfer or the unauthorised possession of such a vendee. Judgment in Smt. Malkhani's case, 2001(4) R.C.R.(Civil), 25 is over-ruled. Kesar Singh and another v. State of Punjab through its Director, Rural Development and Panchayats, Punjab and another, 2012(2) L.A.R. 606 (P&H Full Bench).

Doctrine of estoppels – Applicability of -- A Gram Panchayat holds property, in trust, for and on behalf of inhabitants of a village and shall deal with its property only in accordance with statutory provisions set out in the 1961 Act and the Punjab Village Common Lands (Regulation) Rules, 1964 -- Any deviation from the Punjab Village Common Lands (Regulation) Act, 1961 or the 1964 Rules would render transfer of land whether of ownership or possession, null and void -- A sale made by a Gram Panchayat without previous approval of the Government shall be null and void and no amount of acquiescence, negligence or error on the part of a Gram Panchayat shall have the affect of conferring legitimacy upon such a transaction – Doctrine of estoppels would not be attracted. Judgment in Smt. Malkhani's case, 2001(4) R.C.R.(Civil), 25 is over-ruled. Kesar Singh and another v. State of Punjab through its Director, Rural Development and Panchayats, Punjab and another, 2012(2) L.A.R. 606 (P&H Full Bench).

Trust created by Muslims

Muslim Wakfs – Difference between -- There is a vast difference between Muslim Wakfs and Trusts created by Muslims – Basic difference is that Wakf properties are dedicated to God and the “Wakif” or dedicator, does not retain any title over the Wakf properties -- As far as Trusts are concerned, the properties are not vested in God -- Some of the objects of such Trusts are for running charitable organisations such as hospitals, shelter homes, orphanages and charitable dispensaries, which acts, though recognized as pious, do not divest the author of the Trust from the title of the properties in the Trust, unless he relinquishes such title in favour of the Trust or the Trustees -- At times, the dividing line between Public Trusts and Wakfs may be thin, but the main factor always is that while Wakf properties vest in God Almighty, the Trust properties do not vest in God and the trustees in terms of Deed of Trust are entitled to deal with the same for the benefit of the Trust and its beneficiaries. Maharashtra State Board of Wakfs v. Shaikh Yusuf Bhai Chawla and others, 2012(2) L.A.R. 469 (SC).

Turf massandan

Shamilat deh – Vest in Panchayat -- Land is a turf massandan used as a resting or meeting place, may be by patti massandan, but the said land certainly falls within the definition of Section 2 (g) of the Punjab Village Common Lands (Regulation) Act, 1961 and the same vests in the Gram Panchayat in view of Section 85 of the Punjab Panchayati Raj Act, 1994. Jagtar Singh v. Shingara Singh and another, 2012(2) L.A.R. 633 (P&H).

Unauthorised occupants

Punjab Public Premises laws -- Dilapidated condition of building – Lease not extended – Building, in which the post office is running, is an old building and in dilapidated condition – Running of a public office, like the post office, in such a building is neither safe nor in public interest. It may result into any mis-happening at any time – Contention that due to the financial crunch, the Union of India is not in a position to construct the new building for housing the post office, cannot be accepted -- Denial of relationship of landlord and tenant by the Union of India is totally unwarranted – Writ was rightly dismissed with costs of Rs. 50,000/-. Union of India and others v. Municipal Council, Muktsar and others, 2012(2) L.A.R. 89 (P&H DB).

Punjab Village Common Lands (Regulation) Act, 1961 -- Damages – Quasi judicial authorities/Courts – Power of -- No specific provision under the Act for imposing penalty for use and occupation – Petitioner was held liable to pay damages to the Gram Panchayat for unauthorized use and occupation of the land from the date, the petitioner has been declared unauthorized occupant of the land by the Competent Court – Damages assessed for all the crops on the basis of “Jhad Paidawar” crop-wise, value of which shall be paid by the petitioner along with interest @ 9% per annum calculated on bank basis till the date of payment -- This is in the nature of damages/mense profits for unauthorized use and occupation of land of Gram Panchayat by the petitioner, it is not penalty -- Power to restitute by way of damages is inherent in the quasi judicial authorities / Courts -- Unscrupulous litigants cannot drive benefit of technicalities of law by agitating the matter time and again. Pyare Lal v. Financial Commissioner, Haryana and others, 2012(2) L.A.R. 48 (P&H DB).

Punjab Village Common Lands (Regulation) Act, 1961 -- Right to purchase -- Plea that the petitioners are non-proprietors and have constructed houses in this land -- Liberty granted to the petitioners to file an application before the Gram Panchayat in accordance with law, for purchase of land which forms the site beneath their houses -- In case such an application is filed, it shall be considered and decided by the Gram Panchayat within three months --  During pendency of such an application, the dispossession of the petitioners shall remain stayed from the houses. Pritam Dass and others v. The Joint Director, Panchayats, Punjab and others, 2012(2) L.A.R. 1 (P&H DB).

Unfit and unsafe for human inhabitation

Rent Act -- Pleadings -- Whether it is necessary for the landlord to give all the details about the damage and condition of the demised premises if the petition is filed for seeking eviction of the tenant on the ground that the demised premises has become unfit and unsafe for human habitation – Landlords had categorically averred that the building is 100 years old and is falling down and is crumbling at many places -- Held, the landlords have sufficiently pleaded about the ground of building having become unfit and unsafe for human habitation as it was averred that portion of it is falling down and it is crumbling at many places, which could be proved only by leading evidence. Manohar Lal (now deceased) through his LRs v. Dalip Singh, 2012(2) L.A.R. 402 (P&H).

Unregistered agreement

Rent Act -- Provisional assessment of rent – Challenge to -- Contention of tenant that clause of incremental increase of rent in un-registered rent deed is not valid cannot be accepted at this stage because the tenant himself accepted the clause of incremental increase by admittedly paying rent at increased rate. Kanwaljit Singh v. Avtar Singh, 2012(2) L.A.R. 400 (P&H).

Unregistered document

Registration Act, 1908 -- Agreement to sell – Registration of – There is no bar as per Section 17(1A) to seek the decree of specific performance of contract in respect of an unregistered contract of sale. Didar Singh v. Nasib Kaur and others, 2012(2) L.A.R. 198 (P&H).

Unutilized land

Haryana Ceiling on Land Holdings Act, 1972  -- Vesting of -- In Haryana, the provision of Section 12 (3) of the Haryana Ceiling on Land Holdings Act, 1972 makes it absolutely clear that the land declared surplus by the Collector (Agrarian) under the provisions of the Punjab Security of Land Tenures Act, 1953, shall vest absolutely in the State on the appointed day free from all encumbrances, irrespective of the fact whether the land was utilised or not by extinguishing all rights and interest of the land owner -- Question of restoring such land to the big land owner or giving notice to him does not arise. Ujagar Singh and others v. The State of Haryana and others, 2012(2) L.A.R. 550 (P&H DB).

Urgency power for acquisition of land for residential Scheme

Land Acquisition Act, 1894 -- Ordinarily, invocation of urgency power by the government for a Residential Scheme that does not fall in exceptional category cannot be held to be legally sustainable. Ram Dhari Jindal Memorial Trust v. Union of India and others, 2012(2) L.A.R. 95 (SC).

Land Acquisition Act, 1894 -- Statement made in notification is to the effect the Lt. Governor, Delhi is satisfied that provisions of section 17(1) are applicable and is further pleased under sub-section (4) to direct that all the provisions of Section 5A shall not apply -- No other material available on record which indicates that there has been application of mind – Power of urgency by the Government u/s 17 for a public purpose like Residential Scheme cannot be invoked as a rule but has to be by way of exception -- Notification u/s 4, 6 quashed, competent authority may now invite objections u/s 5-A of the Act. Ram Dhari Jindal Memorial Trust v. Union of India and others, 2012(2) L.A.R. 95 (SC).

Urgency powers for acquisition of land

Land Acquisition Act, 1894 -- Duty of Government -- Use of power of urgency under Section 17(1) and (4) of the Act ipso facto does not result in elimination of enquiry u/s 5A -- Satisfaction of the government on twin aspects viz; (i) need for immediate possession of the land for carrying out the stated purpose and (ii) urgency is such that necessitates dispensation of enquiry is a must and permits no departure for a valid exercise of power under Section 17(1) and (4). Ram Dhari Jindal Memorial Trust v. Union of India and others, 2012(2) L.A.R. 95 (SC).

Use of land

Transfer of Property Act, 1882 -- Sale deed – University purchased land from landowners -- Mere change of purpose does not entitle the land owners to dispute the sale deeds -- In terms of Section 10 of the Transfer of Property Act, 1882, any condition in respect of use of land is void – University transfer the land to PUDA for carving out the plots – Landowners, who have parted with their land and accepted compensation more than a decade earlier cannot be permitted to dispute the transfer of land. Jagtar Singh etc. v. State of Punjab etc., 2012(2) L.A.R. 170 (P&H DB).

Vest in Panchayat

Turf massandan -- Shamilat deh – Land is a turf massandan used as a resting or meeting place, may be by patti massandan, but the said land certainly falls within the definition of Section 2 (g) of the Punjab Village Common Lands (Regulation) Act, 1961 and the same vests in the Gram Panchayat in view of Section 85 of the Punjab Panchayati Raj Act, 1994. Jagtar Singh v. Shingara Singh and another, 2012(2) L.A.R. 633 (P&H).

Vesting in Panchayat or not

Title dispute – Jurisdiction of Consolidation authorities -- Consolidation authorities, much less the Director, exercising power under Section 42 of the Consolidation Act, had no jurisdiction to decide whether land vests or does not vest in a Gram Panchayat -- Only authority empowered to decide such a question is the Collector, exercising power under the Punjab Village Common Lands (Regulation) Act, 1961. Mehar Singh and others v. Gram Panchayat Sehjo Majra and others, 2012(2) L.A.R. 513 (P&H DB).

Videography

Punjab Municipal Corporation Act, 1976 – Election of Municipal Corporation/Councils/Panchayats – Fairness in election – Police protection -- (i) The Chief Secretary, Punjab, Director General of Police, Punjab, State Election Commissioner, Punjab and the Chief Election Commissioner, Punjab are directed to ensure that election is conducted in a free and fair manner, without intimidation of the voters etc.; (ii) The incidences of booth capturing if occur anywhere the same shall be immediately reported to officers of the State Election Commission, Punjab and Chief Election Commissioner, Punjab; (iii) It is further directed that adequate police force be deputed at all the polling booths, particularly the sensitive polling stations for maintaining law and order with the sole objective of holding free and fair elections; (iv) If any person(s) asks for personal security then the concerned Superintendent of Police will assess the threat perception and if it is found necessary, the concerned Superintendent of Police will provide security to such person(s) during the period of election; and (v) The petitioners or any other person are at liberty to arrange videography outside the polling station at their own costs and if they express such a desire, they be not prevented from doing so. It is, however, made clear that videography shall not be conducted inside the polling booths to maintain secrecy of the polling. Krishan Kumar Sharma and others v. State of Punjab and others, 2012(2) L.A.R. 117 (P&H DB).  

Wajib-ul-arj

A Wajib-ul-urz is neither a document nor an instrument of partition -- Wajib-ul-urz is a document that records the bye laws of a village. Amarjit Singh v. State of Punjab and others, 2012(2) L.A.R. 432 (P&H DB).

Shamilat deh – Exclusion from – Gair mumkin nadi -- In order to claim the benefit of section 2(g)(i) of the Punjab Village Common Lands (Regulation) Act, 1961, the petitioners are required to prove that land becomes or has become Shamilat Deh due to river action or that land in Shamilat Deh was reserved in a village subject to river action -- The best evidence to prove the ingredients of section 2(g)(i) is the record maintained by revenue authorities, under Section 59(1)(D) of the Punjab Land Revenue Act, 1887, read with Chapters 6.1 and 6.5 of the Haryana Land Records Manual recording land affected by diluvion and land created by alluvion and the list of villages where land is subject to river action -- Petitioners have not produced the above record and must, therefore, suffer the consequences of an adverse inference -- Mere fact that a seasonal rivulet passes through the revenue estate or that the land is recorded as a gair mumkin nadi, does not raise an inference that the land has become or becomes Shamilat Deh due to river action or was reserved in a village subject to river action -- Words “gair mumkin nadi” refer to a river and not to land created by river action -- Mere fact that the Wajib-ul-arj records that ownership and possession would remain unchanged despite alluvion and diluvion, or that land lost to river action would be made good from Shamilat Deh, does not raise an inference that the land in dispute is excluded from Shamilat Deh -- In the absence of any revenue record to establish that the land becomes or has become Shamilat Deh due to river action, or that it was Shamilat Deh reserved to make good loss in land due to river action, the land in dispute cannot be excluded from Shamilat Deh and, vests in the Gram Panchayat under Section 2(g)(1) read with Sections 3 and 4 of the Act. Bundi Ram (deceased) through his LRs v. Commissioner, Ambala Division Ambala and others, 2012(2) L.A.R. 456 (P&H DB).

Wakf Act, 1954 (29 of 1954)

Section 5(2) -- Punjab Village Common Lands (Regulation) Act, 1953 (1 of 1954), Section 3 – Shamilat deh – Gair Mumkin Kabristhan/Maqbooza Ahley Islam -- Wakf Property – Notification of – Effect of -- Much before the notification dated 19.9.1970, issued by the Central Government declaring the disputed property as wakf property, the land in dispute already stood mutated in favour of the Gram Panchayat and in the jamabandi for the year 1965-66, name of the Gram Panchayat is recorded as owner of the land in dispute -- It is not the case of the Board that before issuing the notification, any notice was issued to the Gram Panchayat and it was heard -- Merely by issuing a notification u/s 5 (2) of the Wakf Act declaring the disputed land as wakf property, would not divest the Gram Panchayat of its ownership, which stood already vested in it by virtue of the Act of 1953 -- Notification with regard to a wakf property is not conclusive qua third party and the same is not binding on it -- Notification was neither conclusive of ownership nor binding on the Gram Panchayat. Punjab Wakf Board v. Gram Panchayat, Dakha and others, 2012(2) L.A.R. 262 (P&H DB).

Section 5(2) – Punjab Village Common Lands (Regulation) Act, 1953 (1 of 1954), Section 1, 2, 3 – Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 11 -- Shamilat deh – Vesting of – Jurisdiction of -- Act of 1953 will prevail over the Wakf Act and nature of shamilat deh vesting in the Gram Panchayat could not be questioned before the Wakf Tribunal, merely on the basis of a notification issued under Section 5 (2) of the Wakf Act, raising the argument that such property is a wakf property. Punjab Wakf Board v. Gram Panchayat, Dakha and others, 2012(2) L.A.R. 262 (P&H DB).

Section 5(2) – Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 11 – Title dispute – Jurisdiction of -- To determine the controversy as to whether the land in dispute vests in the Gram Panchayat or in the petitioner Board, only the authorities under the Village Common Lands Act have the jurisdiction and not the Wakf Tribunal, established under the Wakf Act. Punjab Wakf Board v. Gram Panchayat, Dakha and others, 2012(2) L.A.R. 262 (P&H DB).

Section 5(2) – Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 11 – Title dispute – Jurisdiction of -- Keeping in view the fact that the land already stands mutated in favour of the Gram Panchayat, the only remedy available to the petitioner Board was to file a title suit under Section 11 of the Village Common Lands Act. Punjab Wakf Board v. Gram Panchayat, Dakha and others, 2012(2) L.A.R. 262 (P&H DB).

Section 5(2) – Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 11 – Shamilat deh – Determination of -- Jurisdiction of -- If the question arises whether such property is shamilat deh or not, the same has to be gone into and determined by the authorities under the Village Common Lands Act and not by the Wakf Tribunal, where the question as to whether a particular property is a wakf property or not can be gone into. Punjab Wakf Board v. Gram Panchayat, Dakha and others, 2012(2) L.A.R. 262 (P&H DB).

Wakf Act, 1995 (43 of 1995)

Section 3(r) -- Muslim Wakfs – Trust created by Muslims – Difference between -- There is a vast difference between Muslim Wakfs and Trusts created by Muslims – Basic difference is that Wakf properties are dedicated to God and the “Wakif” or dedicator, does not retain any title over the Wakf properties -- As far as Trusts are concerned, the properties are not vested in God -- Some of the objects of such Trusts are for running charitable organisations such as hospitals, shelter homes, orphanages and charitable dispensaries, which acts, though recognized as pious, do not divest the author of the Trust from the title of the properties in the Trust, unless he relinquishes such title in favour of the Trust or the Trustees -- At times, the dividing line between Public Trusts and Wakfs may be thin, but the main factor always is that while Wakf properties vest in God Almighty, the Trust properties do not vest in God and the trustees in terms of Deed of Trust are entitled to deal with the same for the benefit of the Trust and its beneficiaries. Maharashtra State Board of Wakfs v. Shaikh Yusuf Bhai Chawla and others, 2012(2) L.A.R. 469 (SC).

Section 7 -- Evacuee property – Jurisdiction of civil court -- Suit was filed on 7.11.1983, and the Wakf Act, 1995 came into force from 1.1.1996 – Held, matter which is pending in any suit before the commencement of the Act or which is the subject matter of an appeal, there would be no bar for the Civil Court to decide such issues. Tehsildar (Sales), Gurgaon and another v. Roshan Lal and others, 2012(2) L.A.R. 38 (P&H).

Section 7(1) -- Evacuee property – Non-declaration of – Jurisdiction of civil court -- Jurisdiction of the Civil Court was not barred for entertaining the suit for permanent injunction, since there was no evidence on the record of the case which the State produced that the property in dispute has been declared evacuee property. Tehsildar (Sales), Gurgaon and another v. Roshan Lal and others, 2012(2) L.A.R. 38 (P&H).

Wakf Property

Shamilat deh – Gair Mumkin Kabristhan/Maqbooza Ahley Islam -- Much before the notification dated 19.9.1970, issued by the Central Government declaring the disputed property as wakf property, the land in dispute already stood mutated in favour of the Gram Panchayat and in the jamabandi for the year 1965-66, name of the Gram Panchayat is recorded as owner of the land in dispute -- It is not the case of the Board that before issuing the notification, any notice was issued to the Gram Panchayat and it was heard -- Merely by issuing a notification u/s 5 (2) of the Wakf Act declaring the disputed land as wakf property, would not divest the Gram Panchayat of its ownership, which stood already vested in it by virtue of the Punjab Village Common Lands (Regulation) Act, 1953 -- Notification with regard to a wakf property is not conclusive qua third party and the same is not binding on it -- Notification was neither conclusive of ownership nor binding on the Gram Panchayat. Punjab Wakf Board v. Gram Panchayat, Dakha and others, 2012(2) L.A.R. 262 (P&H DB).

Water tax

Municipal Committee cannot derive any authority and jurisdiction to impose tax in the nature of water tax which the legislature in its wisdom had specifically deleted from the statutory provisions of the Punjab Municipal Act, 1911. Municipal Committee, Abohar v. Surinder Mohan Ahuja, 2012(2) L.A.R. 219 (P&H).

Punjab Municipal Act, 1911 -- Imposition of water tax -- Legality of -- Jurisdiction of civil Court -- When the very legality and jurisdiction of the authority to impose and recover tax is under question -- Jurisdiction of the Civil Court would not be barred. Municipal Committee, Abohar v. Surinder Mohan Ahuja, 2012(2) L.A.R. 219 (P&H).

Watercourse

Haryana Canal and Drainage Act, 1974 -- Procedure of -- Petitioner is not having any water course, moved an application for carving out a water course to irrigate his fields – On such an application a draft scheme is required to be framed u/s 17, thereafter the same is required to be published u/s 18 of the Act -- Thereafter when the scheme is approved, the same is required to be published u/s 19 of the Act -- In case the parties are not agreeing then notice of acquisition of land is required to be given for implementation of the scheme u/s 21 of the Act. Hawa Singh v. Chief Canal Officer/LCU, Haryana Irrigation Department and others, 2012(2) L.A.R. 237 (P&H).

Haryana Canal and Drainage Act, 1974 -- Procedure of – Petitioner was agreeing only to carving out water-course on the basis of exchange of land adjoining to the land of private respondent equivalent to the area to be used for carving out water course – Neither the authorities had proceeded to issue any notice to the petitioner u/s 21 of the Act nor he has been afforded opportunity to file objections by the DCO u/s 21(2) of the Act -- Authorities have passed the orders for carving out water-course without following procedure established under the Act -- As such, the entire process is vitiated and is not sustainable in the eyes of law. Hawa Singh v. Chief Canal Officer/LCU, Haryana Irrigation Department and others, 2012(2) L.A.R. 237 (P&H).

Way from courtyard

Easement of necessity – Adverse possession -- Where immovable property passes by operation of law, the persons from and to whom it so passes are, for the purpose of this Section, to be deemed, respectively, the transferor and transferee -- Ownership rights have been acquired by plaintiffs in the house in their possession by operation of law, i.e., by way of adverse possession -- House in possession of both the parties are contiguous to each other -- No other way for going through the cattle shed except by passing through the courtyard of plaintiff and defendant has been using as such for the last 40-45 years – Defendant has not acquired easement of prescription, he has acquired easement of necessity. Hari Singh and others v. Jaswant Singh, 2012(2) L.A.R. 212 (P&H).

Will

Execution of -- Presence of beneficiary – Effect of -- Fact that the appellant/beneficiary was present at the time of execution of Will and that the testator did not give anything to others from his share in the joint family property are not decisive of the issue relating to genuineness or validity of the Will. Mahesh Kumar (Dead) By L.Rs. v. Vinod Kumar and others, 2012(2) L.A.R. 221 (SC).

Second Will -- Recital of previous Will – Cancellation of – Requirement of -- Absence of a categorical recital in Will that the earlier Will was cancelled is not relevant because once the execution of the second Will is held as duly proved, the earlier Will automatically becomes redundant because the second Will represents the last wish of the testator. Mahesh Kumar (Dead) By L.Rs. v. Vinod Kumar and others, 2012(2) L.A.R. 221 (SC).

Share to one son – Validity of  -- One son had separated from the family in 1965 after taking his share and other son also got his share in the 2nd partition which took place in 1985 -- Neither of them bothered to look after the parents in their old age -- Attitude of sons left parents with no choice but to live with the appellant/other son who along with his wife and children took care of the old parents and looked after them during their illness -- Therefore, there was nothing unnatural or unusual in the decision of Father to give his share in the joint family property to the appellant -- Any person of ordinary prudence would have adopted the same course and would not have given anything to the ungrateful children from his / her share in the property. Mahesh Kumar (Dead) By L.Rs. v. Vinod Kumar and others, 2012(2) L.A.R. 221 (SC).

Will Attesting Witness

Capacity of -- Mere fact that Attesting witness lives at a distance of about four furlong from the house of father in law of the appellant/beneficiary has no bearing on the issue relating to validity of the Will. Mahesh Kumar (Dead) By L.Rs. v. Vinod Kumar and others, 2012(2) L.A.R. 221 (SC).

Writ jurisdiction

Cancellation of land – Displaced Persons, who played fraud not only with the vendees but with the Government and sold the land without there being any title on the same, should not be permitted to invoke the equitable jurisdiction of the High Court under Article 226 of the Constitution of India. Iqbal Singh and others v. Financial Commissioner (Revenue) and Secretary and others, 2012(2) L.A.R. 193 (P&H DB).

Delay in filing the writ petition – Public property -- Where fraud or collusion is the foundation of a case particularly if it involves public property, a Court, exercising power under Article 226 of the Constitution, may, in the exercise of its discretion and depending upon the facts and circumstances of a case, entertain a petition, so as to protect public property from unscrupulous elements. Gram Panchayat Village Sahni and another v. State of Punjab and others, 2012(2) L.A.R. 566 (P&H DB).

Finding of fact – Commissioner has perused the entire record and has only, thereafter, recorded a finding that relevant khasra numbers have been assigned correct measurement -- Petitioner has not produced any clear or cogent material to establish that during consolidation the path and other khasra numbers were demarcated wrongly -- No reason to interfere with findings of fact. Dharampal v. The Director Consolidation Department, Haryana, Panchkula, and others, 2012(2) L.A.R. 662 (P&H DB). 

Illegal order -- De-notification of Sarpanch – Totally illegal order contrary to provisions of the statute and State Government denotifying the name of private respondent as Sarpanch by notification – Held, the same was rightly challenged by filing the writ petition and the Court was fully justified in allowing the said petition. Sukhdev Singh v. State of Punjab and others, 2012(2) L.A.R. 6 (P&H DB).

Principle of Estoppels -- Petitioner claiming three Marla of plot – One marla plot was allotted – Writ petition filed claiming allotment of plots within the vicinity of the acquired land and the writ petition was disposed of – Though the said writ petition was filed after the claim of 3 marlas of plot was declined and in fact, after the possession of 1 marla of plot was taken by the petitioner without any objection, but the petitioner has not made any grievance in the said writ petition that she is entitled to a plot measuring 3 marlas – Held, the present writ petition is barred on the principles of Order 2 Rule 2 of the Code of Civil Procedure and by an act of estoppels. Shyama Bansal v. Shri Mata Mansa Devi Shrine Board, Panchkula, 2012(2) L.A.R. 259 (P&H DB).