Gram Sabha Salina vs Nahar Singh and others

K.S. Tiwana, J.—Gram Sabha of village Salina, the appellant before us, filed an application under section 7 of the Punjab Village Common Lands (Regulation) Act, 1961, (hereinafter referred to as the Act) for the ejectment of Nahar Singh, Boota Singh and Tara Singh, before the Assistant Collector 1st Grade, Moga, from the land in dispute. The case of the appellant is that the land in dispute measuring 836 Kanals and 4 Marlas was left for the common purposes of the village and being Banjar Qadim was being used as a charand. The land is entered in the revenue records in the possession of the rightholders of the Patti and no one had the right to reclaim or cultivate it, as it is to be used as charand only. The respondents, according to the appellant, have illegally occupied the land in question and were not permitting the rightholders to graze their cattle on it.

The respondents contested the application and denied if the land was shamilat as defined in section 2 of the Act. They took the plea that the land was owned by specific rightholders in welldefined shares. The jurisdiction of the Assistant Collector to decide the case was also questioned.

The learned Assistant Collector, Moga, after recording evidence led by the parties, accepted the application and ordered the ejectment of the respondents. The appeal filed before the Collector, Faridkot, against the order of ejectment was also dismissed. Nahar Singh respondent then took the matter in appeal before the Commissioner, Ferozepur Division. The Commissioner, in his order Annexure P.10, dated 23rd of September, 1975, observed :

"The record of the lower Courts reveals that there has been no mention that the land in dispute to the extent of twentyfive per centum of the total area of the village exists or not in the said village. The record is also silent whether the whole village is using the land in dispute as a grazing ground or some individuals. This finding is necessary as required by the proviso under section 2(g)(5) mentioned above. It was necessary for the respondent to prove his case on the above two points. In its absence, it cannot be definitely said that the land in dispute falls under section 2(g)(5) of the Act ibid; especially, when the respondent has failed to place on record any evidence in this respect."

On the basis of these observations, it was held by the Commissioner that the land in dispute was not proved to he shamilat as defined in section 2(g)(5) of the Act. It was also held that the Assistant Collector 1st Grade had no jurisdiction to decide the question of title and that there was no proper authority in favour of the said Sarpanch to file the ejectment application. On these basis the appeal of Nahar Singh respondent was accepted by the Commissioner and the application for ejectment was dismissed.

Against the order Annexure P.10 of the Commissioner, the appellant filed C.W.P. No. 782 of 1976, out of which this present Letters Patent Appeal has arisen. The challenge against the impugned order is that the learned Commissioner, Ferozepur Division, misdirected himself to hold that the land is not shamilat and also on the ground of jurisdiction and the authority in favour of the Sarpanch to file the ejectment proceedings.

Respondent No. 1 contested the petition and controverted the case of the appellant as contained in the petition. The order of the Commissioner was defended. It was averred that Smt. Suraj Kaur owned onethird share in the land in dispute, which was gifted by her through a registered gift deed dated 4th of February, 1971, in favour of respondent No. 1 for being used for the welfare of the villagers. Respondent No. 1 has created a trust for establishing certain institutions. Respondent No. 1 has raised buildings on the land for the welfare of the people and has also constructed structures, like, stadium and runway. The existence of these buildings was to the knowledge of the appellant and the other village community.

In the replication the appellant pleaded further facts. The mutation in favour of respondent No. 1 entered in the revenue records, on the basis of gift deed dated 4th of February, 1971, by Smt. Suraj Kaur was rejected by the Revenue Officer. The appeal against the rejection of the mutation was dismissed by the Collector. The Commissioner, Ferozepur Division, however, on revision made a recommendation to the Financial Commissioner, Revenue, Punjab, for vacating the orders of the Assistant Collector and the Collector and for the sanction of the mutation. The Financial Commissioner, vide orders dated 11th of November, 1976, rejected the reference. Respondent No. 1 challenged the order of the Financial Commissioner, Revenue, Punjab, in this Court through C.W.P. No. 822 of 1977. Respondent No. 1 did not proceed with that writ petition and on his request, it was dismissed as withdrawn on 22nd of February, 1977.

Before the learned Single Judge, on behalf of the appellant, four points were raised, that is : (i) in the appeal filed before the Commissioner by respondent No. 1, Boota Singh and Tara Singh were not made parties; (ii) the order of the Commissioner on the question of shamilat was bad; (iii) the objection of the lack of proper authority in favour of the Sarpanch to institute the proceedings against respondents No. 1 to 3 was not raised in the grounds of appeal and that (iv) the proviso to section 2(g)(5) of the Act was deleted by Amending Act No. 19 of 1976. It was argued that this change in law should be noticed.

The learned Single Judge found all these points against the appellant and this is how the appeal under Clause X of the Letters Patent has been filed against that judgment.

As argument has been advanced at the outset by the Shri G.R. Majithia, Learned counsel for the appellant, that the Financial Commissioner while declining the reference held that the land was shamilat and that order having merged in the order of this Court dismissing C.W.P. No. 822 of 1977 as withdrawn, has become final. On this basis, according to Shri G.R. Majithia, learned counsel for the appellant, the question whether the land in question is shamilat or not cannot be gone into by this Court now, as that order has attained finality. The raising of this argument by Shri Majithia evoked a protest from Shri R.S. Bindra, Senior Advocate, appearing on behalf of respondent No. 1, that since this argument was not raised before the learned Single Judge at the time of arguments and also was not taken in the grounds of appeal, this should not be permitted to be raised at the late stage of the arguments in the Letters Patent Appeal. After considering the rival contentions in favour and against the raising of this argument, we decided to hear the parties, since it emanates from established facts pleaded, though at a late stage of the writ petition, by way of replication, which is a part of the pleadings filed with the permission of the Court. It cannot be disputed that the replication is a part of the proceedings.

The learned counsel for the appellant wants to stonewall the grant of relief in favour of respondent No. 1 on the basis of refusal of the revenue officers to sanction the mutation by pleading merger, because of the order of dismissal of C.W.P. No. 822 of 1977 by this Court. By rejecting the reference made by the Commissioner, the Financial commissioner only upheld the sanction of mutation. At the most it can be said that the Financial Commissioner affirmed the refusal of the sanction of the mutation by the Assistant Collector 1st Grade in favour of respondent No. 1. The law is wellsettled that a mutation does not confer title. Any order, whether it sanctions the mutation or rejects it, therefore, does not amount to the decision of the title of the persons seeking the sanction of the mutation or even of the person opposing it. Even if, for argument sake, it is taken that the order of mutation by the Financial Commissioner, Revenue, Punjab, had merged in the order of this Court, the result remains the same, that is, it decides only the mutation and does not interfere in the question of title. This argument, therefore, does not detain us from deciding the main question involved in the petition regarding the application of section 2(g)(5) of the Act to the case.

Before coming to grips with the main problem in the case, Shri G.R. Majithia urged on behalf of the appellant that the appeal by respondent No. 1 before the Commissioner was incompetent because of his failure to implead Boota Singh and Tara Singh as respondents, as the appellant had sought relief against them before the Revenue Officer, and in their absence from the array of respondents, the appeal became bad because of Order 41, Rule 4 of the Code of Civil Procedure. This ground was not taken in the petition, but the learned Single Judge permitted it to be raised. Every provision of the Code of Civil Procedure does not apply to the Revenue Officers while deciding matters under the Punjab Village Common Lands (Regulation) Act. The Act or the Rules do not provide for such an application to govern the trial of the matters covered by the Act or the appeal arising under these Acts. Even otherwise, as held by the learned Single Judge, the interest of respondent No. 1 was not joint with Boota Singh and Tara Singh and he could effectively defend the allegation, so far as it concerned him, and he was not required to implead others against whom he does not claim any relief. As the Code of Civil Procedure does not apply to the proceedings before the Revenue Offices, this objection taken at a belated stage at the time of the arguments, in the Civil Writ Petition, does not have any force.

The last question, which is the main one, urged by the appellant is that the order of the Commissioner holding that the land in dispute does not fall within the definition of `shamilat'' as contained in section 2(g)(5) of the Act does not derive support either from law or facts. At this stage a reference to the unamended section 2(g) of the Act is necessary. This provision, as it stood before the amendment, at the relevant time was as under :

Section 2. "In this Act, unless the context otherwise requires :

(a) to (f) ... ... ... ... ... ...

(g) `Shamilat deh'' or `Charand'' includes :

(1) lands described in the revenue records as `shamilat deh'' excluding abadi deh;

(2) shamilat tikkas;

(3) land described in the revenue records as shamilat tarafs, pattis, pannas and tholas and used according to revenue records for the benefit of the village community or a part thereof or for common purposes of the village;

(4) land used or reserved for the benefit of village community including streets, lanes, play grounds, schools, drinking wells or ponds within abadi deh or gora deh and

(5) land in any village described as banjar qadim and used for common purposes of the village according to revenue records:

Provided that `shamilat deh'' at least to the extent of twentyfive per centum of the total area of the village does not exist in the village; but does not include land which ... ... ...".

A bare perusal of the proviso to section 2(g)(5) of the Act makes it clear that no land can be described as shamilat deh under section 2(g)(5), unless three conditions are fulfilled :

(i) that the land in question is described as banjar qadim in the revenue records;

(ii) that in the revenue records the land in question is entered as used for common purposes of the village; and

(iii) that the shamilat deh at least to the extent of twentyfive per centum of the total area of the village does not exist in that village.

It is the third condition, which is preeminently attracted in this case. Unless it is satisfied, the land, which is sought to be brought within the ambit of `shamilat'' would not be included in that category. The question whether the shamilat deh to the extent of at least twentyfive per centum does not exist in the village, is a question of fact, verifiable from the revenue records. The Commissioner, on examining the evidence on the record, found that this fact has not been proved by the appellant. While leading evidence in support of the application under section 7 of the Act, the appellant, on whom the onus to prove that the land is shamilat deh lay, examined the patwari. He failed to bring the case within the ambit of the proviso. He neither produced the record nor elicited any material from the patwari to prove this fact.Each case is to be decided on the basis of the material brought on the file before the Courts, Tribunals, Officers, or the authority called upon to decide it.The Commissioner, respondent No. 4, has the appellate jurisdiction to appraise facts and record findings on it. He found a complete lack of evidence in this sphere of the case covered by the proviso to section 2(g)(5) of the Act. Noticing these, he returned a firm finding on facts extracted in para 3 above. This finding of fact cannot be disturbed by this Court exercising jurisdiction under Articles 226 and 227 of the Constitution of India. As there was no evidence in support of the claim of the appellant, its petition was rightly dismissed by the learned Single Judge.

It was then urged on behalf of the appellant that by Act No. 19 of 1976, the proviso to section 2(g) (5) of the Act had been deleted. It was also urged that this Court should take notice of this change in law to quash the order of the Commissioner. The Amending Act No. 19 of 1976, received the assent of the President of India on 15th of April, 1976, and was published in the Government Gazette on 27th of April, 1976. It was to come into force with immediate effect from the date of publication. The Amending Act No. 19 of 1976 came into operation after the decision of the case by the Commissioner. The proceedings were initiated on the basis of application under section 7 of the Act and were finally decided up to the highest level of the forum empowered to decide those, that is, the Commissioner, before the Amending Act came into force. The writ petition, however, was pending on the day when the Amending Act came into force. The counsel for the parties are agreed that Act No. 19 of 1976 was not retrospective in operation. The High Court could take notice of the change in law only if the proceedings were in continuity of the proceedings decided by the Revenue Officers. Section 7 of the Act provides only two appeals; one to the Collector and the second to the Commissioner. It does not provide any further appeal or revision. The order of the Commissioner under Section 7 of the Act is final. The proceedings, therefore, under the Act came to an end and attained finality on 23rd of April, 1976, when the Commissioner accepted the appeal of respondent No. 1. In the hierarchy of the Appellate Authorities under the Act, the High Court does not figure. The proceedings before it under Articles 226 and 227 of the Constitution of India are not in continuity of the proceedings under the Act. It is only under Article 226 of the Constitution of India that the High Court, under its extraordinary civil jurisdiction, is moved to examine whether the decision or a proceeding before a Court or Tribunal or any Authority should be allowed to stand; or for want of jurisdiction or on account of error apparent on the face of the record, should be set aside. Under this jurisdiction, the High Court does not hear any appeal or revision against the order of the authorities whose orders or proceedings it examines. It is thus no continuance of the original proceedings. For this reason, the High Court cannot take the impact of the repeal of the proviso to section 2(g)(5) of the Act into consideration to quash the decision of the Commissioner.

The argument about the forum to decide the question of title after the substitution of section 11 by section 7 of Act No. 19 of 1976, as raised before us, is not necessary to be gone into in view of the decision on the merits of the appeal by the Commissioner.

For the foregoing reasons, we do not find any merit in this appeal and dismiss it with costs.

S.S. Sandhawalia, C.J. I agree.