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CASE NO.: Appeal (civil) 1941  of  1997

PETITIONER: SHISH RAM & ORS.

       Vs.

RESPONDENT: THE STATE OF HARYANA & ORS.

DATE OF JUDGMENT:       05/05/2000

BENCH: S. Saghir Ahmad & R.P. Sethi.

JUDGMENT:

SETHI,J. L...I...T.......T.......T.......T.......T.......T.......T..J

   Holding that the land described as "charand" is included within  the  definition of "Shamilat-deh" as  defined  under Section   2(g)   of   the   Punjab  Village   Common   Lands (Regulations)  Act,  1961 (hereinafter referred to  as  "the Act")  and relying upon its earlier Division Bench  judgment in the case of Khushi Puri v.  State of Haryana [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 charand land  and  to  keep land measuring 541 kanal  and  2  marlas reserved  as charand for grazing up cattles.  The High Court 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 31A of the Constitution of India as  was the ratio of the 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 doubt 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 shamilat

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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.   Learned 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  Journal 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 (hereinafter referred to as "the  Rules").  Referring 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 referred to in clause (vi) is ’grazing  of  animals’.  Learned counsel appearing  for  the respondents  drew our attention to clause (xxv) of  Sub-rule (2) of Rule 3 which authorised 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 rule 3(2) of the Punjab  Village Common  Lands  (Regulation) Rules, 1964, that the  panchayat could  make  use  of the land in shamilat deh 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 management of the land devolved  upon the Administrator and there is, therefore, no basis for this contention  made by the learned counsel for 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 right 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  rules 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 shamilat deh which vests in it  under the Act for any of the specified purposes it likes and it is not necessary that what was grazing land out of the shamilat deh previous to such vesting, must continue to be such."

   In  Bishamber Dayal’s case (supra) the Full Bench of the Court  had  considered  and approved the view taken  by  the Division  Bench  in Khusi Puri’s case.  In that  regard  the Court had held:

   "The  Act  and the Rules empower the Gram  Panchayat  to convert  a portion of the street for any one or more of  the purposes given in Rule 3(2).  A Division Bench of this Court had  an  occasion  to construe the  provisions  of  Sections 2(g)(4),  4 and 5 of the Act and Rule 3(2) of the Rules made thereunder  in Khushi Puri’s case (supra).  It was held that the  Gram Panchayat could make use of the shamilat deh  land

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vested  in  it  either  itself or through  another  for  the purposes  mentioned  in Rule 3(2).  In that case a  part  of Charand  land  which  was used for grazing cattle  had  been entrusted  to  the Forest Department to plant  trees,  which were  to be the property of the Gram Panchayat.  This action of  the Gram Panchayat had been upheld by theDivision Bench. Shri  Bansal, learned counsel for the petitioner has  raised no  contention before us that Khushi Puri’s case(supra) does not lay down the correct law or that the ratio thereof needs reconsideration  by  a larger Bench.  We are  in  respectful agreement with the ratio of Khushi Ram’s case (supra)."

   We  do  not  agree with the submission  of  the  learned counsel of the appellants that in Bishamber Dayal’s case the@@                JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ Full Bench of the High Court had taken a different view than@@ JJJJJJJJJJJJJJJJJJJJJJ the  one  which was taken in Khushi Puri’s case.   The  High Court  appears  to  have  consistently held  that  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, leasing  out for cultivation being one of the purposes.   We find  no reason to disagree with the High Court and in  fact approve  the  position of law settled by it in Khusi  Puri’s case which was upheld by the Full Bench in Bishamber Dayal’s case.  Learned counsel for the appellants then 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 the land, the subject matter of the dispute  has been defined to be charand land.  The definition of shamilat deh  proivdes that it shall include "lands described in  the revenue  record  as  shamilat deh  or  (charand-in  Haryana) excluding  abadi deh".  Relying upon the Khushi Puri’s  case the  High  Court  in the impugned judgment  was,  therefore, right  in  holding that there did not exist any  distinction between  the charand and shamilat deh 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@@           JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ being  without  any  basis.   Despite  our  insistence,  the@@ JJJJJJJJJJJJJJJJJJJ 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  31A  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.@@                       JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ