SHISH RAM AND ORS. versus THE STATE OF HARYANA AND ORS.

c SHISH RAM AND ORS. v. THE STATE OF HARYANAAND ORS. MAYS, 2000 [S. SAGHIR AHMAD AND R.P. SETHI, JJ.] Punjab Village Common Lands (Regulations) Act, 1961. Sections 2(g} & 5-Shamilat-deh and charand-Leasing of charand land by Gram Panchayat Challenged-Held, land could be leased for culti- vation-limitation-Vesting of land challenged after 34 years-Held, delay unexplained-Estoppel-Appellants having taken benefit of lease-hold rights, challenging the same-Held, action not bonafide-Punjab Village Common Lands (Regulations) Rules, 1964-Rule 3(2)(vi) & (XXV).

Words & Phrases-"Shamilat deh" & "Charand"-Meaning of Appellants filed writ petition for prohibiting Gram Panchayat from leasing out charand land and to reserve said land for grazing catties. High Court dismissed writ petition holding that "charand" land is included within the definition of"Shamilat-deh". Hence this appeal. The appellants contended that reservation of charand land for in- come of Gram Panchayat violated Article 31A of the C~nstitution and breached Section 5 of the Punjab Village Common Lands (Regulations) Act, 1961; that the said leasing out/use by Gram Panchayat. contravened Rule3(2) of the Punjab Village Common Lands (Regulations) Rules, 1964; that there is distinction between charand and shamilat-deh and charand land could not vest with Gram Panchayat.

The respondents contended that clause (XXV) of Rule 3(2) of the 1964 Rules authorised Gram Panchayat to lease land for cultivation. Dismissing the appeal, the Court HELD :

1. The land vesting in the Gram Panchayat can be used for any one or more of the purposes specified in Sub-Rule (2) of Rule 3 of the Punjab Village Common Lands (Regulations) Rules, leasing out for culti· vation being one of the purposes. [1125-C]

)l …. SHISH RAM v. STATE Saligram & Ors. v. Maksudan Singh & Ors., (1965.). Current Law Journal 711; Klzushi Puri v. State of Ha1yana, (1978) Punjab Law Journal 78 and Bishambar Dayal v. State of Haryana & Ors., (1986) Punjab Law Journal 208, approved.

2. The definition of Shamilat deb under the Punjab Village Common Lands (Regulations) Act, 1961 provides that it shall include "lands de- scribed in the revenue record as shamilat deb or (charand-in Haryana) excluding abadi deb". Therefore, there does not exist any distinction be- tween the charand and shamilat deb and the charand could vest with the Gram Panchayat under the Act. (1126-H]

Khushi Puri v. State of Hmyana, (1978) Punjab Law Journal 78, approved.

3. Despite this Court's insistence, the appellants could not refer to any averments in the writ petition filed in the High Court regarding the alleged violation of Article 31-A of the Constitution. (1127-B] Bhagat Ram & Ors. v. State of Punjab & Ors., (1967] 2 SCR 165, distinguished.

4. The present petition though filed in a representative capacity, yet was not a bonafide action inasmuch as the appellants and their relations ha"ing accepted the position of law and earliel' at times taking the benefit of lease-hold rights could not have recourse to the legal proceedings after having failed to get lease in favour or in favour of their relations. (1127-C]

5. After the vesting of the land in the Gram Panchayat, none of the inhabitants of the village raised any objections regarding its vesting for a period of about 34 years. The delay in approaching the court also re- mained unexplained. (1124-G; 1127-D]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1941of1997. From the Judgment and Order dated 7.10.96 of the Punjab & Haryana High Court in W.P.(C) No. i7681 of 1995. B.S. Malik and Shiv Sagar Tiwari for the Appellants.

c Neeraj K. Jain, Ms. Sonal Jain, Aditya K. Choudhary, U.S. Prasad and Mahabir Singh for the Respondents. The Judgment of the Court delivered by : SETHI, ,J. Holding that the land described as "charand" is included within the definition of."Sharnilat-deh" as defined under Section 2(g) of the Punjab Village Common Lands (Regulations) Act, 1961 (hereinafter refened to as "the Act") and relying upon its earlier Division Bench judgment in the C(lSe of Khushi Puri v. State of Hatyana, (1978) Punjab Law Journal 78, the High Court dismissed the writ petition filed by the appellants praying for issuance of directions prohibiting the Gram Panchayat from leasing. out the c

charand land and to keep land measuring 541 kanal and 2 marlas reserved as charand for grazing up catties. The High Comt also did not consider it proper to grant the prayer of the appellants seeking declaration that the land reserved for charand during consolidation could not be used for the income of the Gram Panchayat as it stood allegedly deducted from the lands of the proprietors. Not satisfied with the judgment of the Division Bench of the High Court, the appellants have filed the present appeal with the submission that the reservation of charand land for the income of Gram Panchayat violated Article 3 lA of the Constitution of India as was the ratio of this Court in Bhagat Ram & Ors. v. State of Punjab & Ors., [1967] 2 SCR 165. It is further submitted that without paying any compensation at the market value to the proprietors of the village, the land could not vest in the Gram Panchayat. The reservation of Charand land for the income of Gram Panchayat allegedly in breach of Section 5 of the Act is stated to be illegal. The leasing out has been alleged to be in contravention of the grazing rights of the proprietors and non- proprietors of the village.

There is no dcubt that the appellants are the inhabitants of village Khajuri, Tehsil Jagadari, District Yamuna Nagar, Haryana. It is also not disputed that the land; the subject matter of the litigation being shamilat-deh is vested in the Gram Panchayat. It has also to be noticed that after the vesting of the land in the Gram Panchayat, none of the inhabitants of the village raised any objections regarding its vesting for a period of about 34 years. It is also on record that some land out of sharnilat deh land was being leased out to the proprietors of the village since the year 1976 and none of the inhabitants raised any objection. From the counter affidavit filed on behalf of the respondents it appears that many of the family members of the appellants, particularly, the brother of the appellant No.1 had themselves been taking the land in dispute on lease without raising any objection. SHISH RAM v. STATE [SETHI, J.)

Leamed counsel appearing for the appellants relying upon a Full Bench judgment of the Punjab & Haryana High Court in Bishamber Dayal v. State of Haryana & Ors., (1986) Punjab Law Joumal 208, submitted that the Gram Panchayat was not entitled to lease the land or use it in the manner it like without following the·procedure and subject to the restrictions placed on its use by the Punjab Village Common Lands (Regulations) Rules, 1964 (here- inafter refelTed to as "the Rules"). Refe1ring to Rule 3(2), the .learned counsel submitted that the Gram Panchayat could use the land in shamilat-deh vested in it under the Act either itself or through another for anyone or more of the purposes specified therein. One of the purposes refelTed to in clause (vi) is 'grazing of animals'. Learned counsel appearing for the respondents drew our attention to clause (xxv) of Sub-mle (2) of Rule 3 which auth01ised the Gram Panchayat to use the land for the purposes of leasing out for cultivation. He also drew our attention to the Division Bench judgment of the High Court in Khushi Puri's case (supra) wherein it was held:

· "It is provided by mle 3(2) of the Punjab Village Common Lands (Regulation) Rules, 1964, that the panchayat could make use of the land in shamilat deb vested in it either itself or through another for the purposes related to forestry. It cannot, therefore, be gainsaid that the plantation of trees was such a purpose for which the land could not be utilised by the panchayat. Whatever rights the panchayat had for the iilanagement of the land devolved upon the Administrator and there is, therefore, no basis for this contention made by the learned counsel fot the petitioners that the Administrator acted beyond his powers."

In Salig Ram & Ors. v. Maksudan Singh & Ors., (1965) Current Law Journal 711, the High Court had earlier held: " … that the panchayat has a tight to use the shamilat deh vested in it under the 1954 Act either itself or through another person in any of · the manners set out in that rule. Similar mies are stated to have been framed under the Act. This shows that except to the extent to which the statutory rules indicate, there is no fetter on the power of the panchayat to use the sharnilat deb which vests in it under the Act for any of the specified purposes it likes and it is not necessmy that what was grazing land out of the shamilat deh previous to such vesting, must continue to be such."

c c [2000) 3 S.C.R. In Bislzamber Dayal's case (supra) the Full Bench of tl1e Court had considered and approved tl1e view taken by the Division Bench in Khushi Puri's case. In that regard the Court had held:

"The Act and tl1e Rules empower tl1e Gram Panchayat to convert a portion of tlie street for any one or more of tlie purposes given in Rule 3(2). A- Division Bench of tliis Court had an occasion to constme tlie provisions of Sections 2(g)(4), 4 and 5 of tlie Act and Rule 3(2) of tlie Rules made tliereunder in Khushi Puri's case (supra). It was held that tlie Gram Panchayat could make use of tlie shamilat deh land vested in it either itself or through another for tlie purposes mentioned in Rule 3(2). In that case a part of Charand land which was used for grazing cattle had been entmsted to the Forest Department to plant trees, which were to be tlie property of tlie Gram Panchayat. This action of the Gram Panchayat had been upheld by theDivision Bench. Shri Bansal, learned counsel for the petitioner has raised no conten- tion before us that Khuslzi Puri's case (supra) does not lay down t11e colTect law or tl1at tlie ratio thereof needs reconsideration by a larger Bench. We are in respectful agreement witl1 tl1e ratio of Khushi Puri's case (supra)."

We do not agree witli tlie submission of the leamed counsel for the appellants that in Bishamber Dayal's case the Full Bench of tl1e High Comt had taken a different view tlian tlie one which was taken in Khushi Puri's c~se. The High Court appears to have consistently held that the land vesting in tlie Gram Panchayat can be used for any one or more of the purposes specified in Sub-Rule (2) of Rule 3, leasing out for cultivation being one of tlie purposes. We find no reason to disagree with tlie High Court and in fact approve the position of law settled by it in Khushi Puri's case which was upheld by the Full Bench in Bishamber Dayal's case.

Learned counsel for fue appellants fuen tried to make a distinction between the charand land and the shamilat deh. In support of his contentions he referred to Annexures I and II wherein tl1e land, tlie subject matter of the dispute has been defined to be chara~d land. The defmition of shamilat deh proivdes that it shall include "lands described in tl1e revenue record as sharnilat deh or (charand-in Haryana) excluding abadi deh". Relying upon the Khushi Puri's case the High Comt in the impugned judgment was, therefore, right in holding that tliere did not exist any distinction between tlie charand '.'I..

SIDSH RAM v. STATE [SETHI, J.] and shamilat deb and the contention of the appellants that the charand could not vest with the Gram Panchayat under the Act was based upon wrong assumptions.

Reliance placed by the learned counsel for the appellants upon the judgment in Bhagat Ram's case is misplaced besides being without any basis. Despite our insistence, the learned counsel for the appellants could not refer to any averments in the writ petition filed in the High Court regarding the alleged violation of Article 3 lA of the Constitution.

We are also of the opinion that the present petition though filed in a representative capacity, yet was not a bonafide action inasmuch as the appellants and their relations having accepted the position of law and earlier at times taking the benefit of lease-hold rights could not have recourse to the legal proceedings after having failed to get the lease in their favour or in favour of their relations. The delay in approaching the court also remained unexplained.

There is no merit in this appeal which is accordingly dismissed but without any order as to costs. A.K.T. Appeal dismissed. c