A single judge bench of Justice Rajive Bhalla also chalked out certain guidelines which a Gram Panchayat in Haryana shall fulfil before changing the user of such land. The direction assumes significance as in the recent past there have been instances where a Gram Panchayat has been accused of entering into an agreement with a private party for changing the user of common land contrary to the laws laid down.
The petitioners had challenged the proposal of their Gram Panchayats to auction land reserved as pasture/grazing grounds for the purpose of cultivation. The petitioners contended that as per a scheme prepared under the East Punjab Holdings Act, 1948, land reserved as grazing grounds/pastures cannot be auctioned for the purpose of cultivation.
Holding that a Gram Panchayat is a legal entity, capable of holding and dealing with its property, the court ruled that “land that has vested in a Gram Panchayat as shamlat deh shall be utilised by the Gram Panchayats without any restrain or fetter on its power to alter its user”.
The court said that that the Consolidation Act does not place any impediment on the right of the Gram Panchayat to change the common purpose or user of its land.
However, the court made it clear that this order shall not affect any common purpose land that has already been altered or land that has already been sold, exchanged or leased out and shall apply prospectively.
___________________________________________________________________________________
Baljinder Singh And Others vs The State Of Haryana And Others on 7 July, 2011
CWP No.13652 of 2009 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
CWP No.13652 of 2009
Date of Decision: 07.07, 2011
Baljinder Singh and others ..Petitioners
Versus
The State of Haryana and others ..Respondents
CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA
Present : Mr.Vikram Singh, Advocate for the petitioners.
Mr. Ashok Jindal, Additional Advocate General, Haryana
for respondents no.1 and 2.
Mr. Ashok Khubbar, Advocate for respondent No.3.
RAJIVE BHALLA, J
This order shall dispose of CWP Nos. 3068 of 2008, 7193, 9118
13652, 19726 of 2009, 640, 987, 1055, 1759, 2026, 3003, 3232,
3582,3823, 3824, 4197,4469, 4545, 4642, 4722, 4983, 5031, 5442, 5457,
5589, 6516, 6562, 6599, 6621, 8480, 8932, 10020, 13590 and 16928 of
2010 as they involve adjudication of similar questions of law. Factsnecessary for adjudication of these writ petitions are being taken from CWP No.13652 of 2009.
The petitioners who are inhabitants of different villages impugn the proposal of their Gram Panchayats to auction land reserved as pastures/grazing grounds for the purpose of cultivation. The petitioners, in essence, contend that as this land was reserved as a pasture pursuant to a scheme prepared under the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter referred to as "the Consolidation Act") and as neither the Consolidation Act nor the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as "the 1961 Act") empower a Gram Panchayat to change its user, land reserved as grazing grounds/pastures cannot be auctioned for the purpose of cultivation.
Counsel for the petitioners submits that the State of Haryana is an agrarian State. A significant segment of its rural population depends upon farm animals like cows, buffaloes and goats, for their livelihood. Large tracts of land, recorded in the revenue record as "Charand", are reserved in each revenue estate, for grazing of farm animals. An inhabitant of a village irrespective of his status, is entitled to graze his cattle in these pastures. In the absence of any statutory power, a Gram Panchayat can not be allowed to alter the user of land reserved as pastures for other purposes, including cultivation.
Counsel for the petitioners further submits that 160 Acres of land was reserved, for the purpose of Gau Charand (Pasture) during consolidation. Though, ownership of this land vests in the Gram Panchayat, but the right so vested is subject to the right of inhabitants, of the village, to graze, their cattle. The Gram Panchayat's attempt to auction this land for cultivation would deprive the inhabitants of the village of their right to graze cattle and extinguish these rights.
Counsel for the petitioners submits that the expression "common purposes" is defined under Section 2(bb) of the Consolidation Act to include land reserved for grazing grounds. During consolidation, a scheme is prepared, which has the force of law. Sections 18 and 23-A of the the Consolidation Act require a consolidation officer to reserve land for "common purposes". Section 23-A(b) of the Consolidation Act provides that land so reserved, except where the land vests in the State Government, shall vest in the Panchayat of that village, subject to the rights of common user assigned during consolidation. The "common purpose" assigned to "common land" under the Consolidation Act, pursuant to a scheme, cannot be altered as neither the Consolidation Act nor the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as `the 1961 Act'), contains any statutory provision empowering a Gram Panchayat to do so. The Gram Panchayat, therefore, cannot be allowed to auction land reserved as a grazing ground for the purpose of cultivation.
It is further submitted that though Section 5 of the 1961 Act, provides for regulation of use and occupation of lands vested or deemed to have vested in a Gram Panchayat it does not empower a Gram Panchayat to alter the user of common land. The procedure for utilisation and disposal of land is "prescribed" by Rules 3 and 8 of the Punjab Village Common Lands (Regulation) Rules, 1964 (hereinafter referred to as `1964 Rules'). Rule 3 (1) of the 1964 Rules provides that a Panchayat shall prepare a land utilisation plan for the land in Shamilat Deh and subject to its approval by the Panchayat Samiti and the Government, a Gram Panchayat may make use of the land for common purposes set out in Rule 3(2) of the 1964 Rules. The common purposes set out in Rule 3(2) have to be read with Section 2(bb), Section 18 and Section 23-A of the Consolidation Act, Rule 3 (2)(i) and Rule 8 of the 1964. The latter rules require a Gram Panchayat to reserve land for grazing grounds. A parcel of land already reserved for a grazing ground cannot be diverted to another use by resort to the provisions of Sections 5, 5-A of the 1961 Act and Rules 3 and 8 of the 1964 Rules. In support of these arguments,counsel for the petitioners rely upon Rule 8 of the 1964 Rules to urge that as Rule 8 requires a Gram Panchayat to reserve land for pastures for grazing of cattle the land already reserved as a pasture cannot be diverted to cultivation by resort to Sections 5, 5-A of the 1961 Act or Rule 3 of the 1964 Rules. It is further submitted that though the third proviso to Section 5 of the 1961 Act empowers a Gram Panchayat to reserve Shamilat Deh for settlement of landless tenants and other tenants ejected or to be ejected of that village, it does not empower a Gram Panchayat to alter the nature or the user of land reserved for Charand. Similarly Section 5-A of the 1961 Act empowers the Gram Panchayat to dispose of lands vested or deemed to have vested in a Panchayat but does not empower the Gram Panchayat to change the nature or the user of the land. It is further submitted that even if it is accepted that the Gram Panchayat has the power to alter the user of its land, by resort to Rule 3 of the 1964 Rules, such a change can only be effected after the Gram Panchayat prepares a land utilisation plan in accordance with Rule 3(1) of the 1964 Rules and then also if such change is for the benefit of the village community. It is further argued that as the Gram Panchayat has not prepared a land utilisation plan, it cannot be allowed to divert pastures/grazing grounds for cultivation.
Counsel for the Gram Panchayat and counsel for the State of Haryana submit that there is no impediment, whether in the Consolidation Act, the 1961 Act or the Rules framed thereunder prohibiting a Gram Panchayat from altering the "common purpose" of land in Shamilat Deh land, whether reserved for Charand or for any other purpose. It is argued that human needs and the needs of the village community have changed with the passage of time. The land in dispute was reserved during consolidation as Charand and has come to vest in the Gram Panchayat, under Section 2(g)(1) of the 1961 Act. Section 23-A(b) of the Consolidation Act provides that upon vesting of land reserved for common purposes, in the Gram Panchayat, the rights of proprietors shall stand extinguished. The Gram Panchayat is, admittedly, owner of the land and, therefore, cannot be restrained from using its land in such manner, as it may deem appropriate. In the absence of any statutory prohibition, on the right of the Gram Panchayat to utilise the land in accordance with "common purposes" prescribed by the 1961 Act and the 1964 Rules, the Gram Panchayat may alter the user of land for the purposes set out in Section 5 and 5-A of the 1961 Act and Rule 3(1) and (2) of the 1964 Rules. The Consolidation Act or the scheme framed thereunder does not place any fetter upon the power of the Gram Panchayat to use its land for benefit of residents of the village. It is further argued that the mere assigning of a particular common purpose, during consolidation or otherwise would not prohibit a Gram Panchayat from altering its user in accordance with common purposes set out in Rule 3(2) of the 1964 Rules particularly when cultivation is a common purpose set out in Rule 3 (2)(i) of the 1964 Rules. It is further submitted that the issues raised in the present petition are no longer res integra as they have already been answered in the following judgments:- Salig Ram and others Vs. Maksudan Singh and others, 1965 Current Law Journal 711, Khushi Puri and others Vs. State of Haryana and others (DB), 1978 PLJ 78, Bishamber Dayal Vs. State of Haryana and others, 1986 PLJ 200, Shish Ram Vs. State of Haryana, 2000(2) PLJ 72, Jagdish Singh Vs. State of Haryana and others, 2005 (4) RCR (Civil) 322 (DB) by holding that the Gram Panchayat is entitled to alter the user of land in Shamilat land. It is further argued by reference to these judgments that as the right of the Gram Panchayat to alter the user of its land has been upheld, the writ petitions should be dismissed.
I have heard counsel for the parties, perused the statutory provisions of the Consolidation Act, the Rules framed thereunder and the provisions of the 1961 Act and the 1964 Rules.
A Gram Panchayat is a legal entity, capable of holding and dealing with its property in the manner prescribed by the 1961 Act and the 1964 Rules. A Gram Panchayat holds property in the shape of land that includes roads, paths, drains, village wells, ponds, water tanks, water courses, bus stands,waiting places, grazing grounds, manure pits and cultivable land, to name only a few. The question that arises for adjudication is, whether a Gram Panchayat can alter the user of "grazing grounds" to other uses particularly for cultivation.
Before proceeding to answer this question, it would be appropriate to deal with the nature of common land prior to and after the enactment of the Consolidation Act, the provisions of the 1961 Act, the Rules framed under these enactments, the mode and manner of creation of common land, the vesting of such land in a Gram Panchayat and the power of the Gram Panchayat to deal with this land.
Prior to the enactment of the Consolidation Act, "common lands", known as "Shamilat Deh", were held in common by the proprietary body. of a revenue estate. Though ownership in Shamilat Deh land vested in the proprietors but its user was not necessarily confined to proprietors. The right to use such land depended upon its nature and the entry in the "Sharat Wajib Ul-Aarz" ( the laws of a village). With the enactment of the Consolidation Act, in the year 1948. "common lands" and "common purposes" received statutory recognition under section 2(bb) of the Consolidation Act.
Section 2(bb) of the Consolidation Act, which defines "common purposes" reads as follows :-
Section 2(bb) of the Consolidation Act reads as follows :- Section 2. Interpretation -
(a) XXX XXX XXX
(b) XXX XXX XXX
(bb) "common purpose" means any purpose in
relation to any common need, convenience or benefit of the Village and includes the following purposes :-
(i) extension of the village abadi.
(ii)Providing income for the Panchayat of the village concerned for the benefit of the village community.
(iii)Village roads and paths; village drains, village well, ponds or tanks, village water courses or water channels, village bus stands and waiting places, manure pits, hada rori, public latrines, cremation and burial grounds, Panchayat Ghar, Janj Ghar, grazing grounds, tanning places, mela grounds, public places of religious or charitable nature; and
(iv)schools and play grounds, dispensaries, hospitals and institutions of like nature; water works or tube wells may be managed and controlled by the State Government or not." The expression "common purposes" denotes any purpose relating to the common need, convenience and benefit of the village community and includes amongst others land to be reserved for grazing grounds.
Sections 18 and 23-A of the Consolidation Act which provide for reservation management and control of common lands read as follows :
Section 18. "Lands reserved for common purposes - Notwithstanding anything contained in any law for the time being in force, it shall be lawful for the consolidation Officer to direct -
(a) that any land specifically assigned for any common purpose shall cease to be so assigned and to assign any other land in its place;
(b) that any land under the bed of a stream or torrent flowing through or from the Shiwalik mountain range within the State shall be assigned for any common purpose;
(c ) that if any area under consolidation no land is reserved for any common purpose including extension of the village abadi, or if the the land so reserved is inadequate, to assign other land for such purpose."
Section 23-A. "Management and control of lands for common purposes to vest in Panchayats or State Government - As soon as a scheme comes into force the management and control of all lands assigned or reserved for common purposes of the village under Section 18 -
(a) in the case of common purposes specified in sub-clause (iv) of clause (bb) of Section 2 in respect of which the management and control are to be exercised by the State Government, shall vest in the State Government and
(b) in the case of any other common purpose, shall vest in the Panchayat of that village and the State Government or the Panchayat, as the case may be shall be entitled to appropriate the income accruing therefrom for the benefit of the village community, and the rights and interests of the owners of such land shall stand modified and extinguished accordingly; Provided that in the case of land assigned or reserved for the extension of village abadi or manure pits for the proprietors and non-proprietors of the village, such land shall vest in the proprietors and non proprietors to whom it is given under the scheme of consolidation."
Section 18 of the Consolidation Act requires that consolidation authorities shall, during consolidation, reserve land for common purposes of a village. Section 23-A(b) of the Consolidation Act, provides that in case of common purposes other than those reserved for the State Government, the land shall vest in the Gram Panchayat and all rights and interest of owners of such land shall stand modified and extinguished accordingly. Common land that is used or reserved as a grazing ground is called "Charand" or "Charagah" and is more often than not used by the entire village community. Admittedly, the land in dispute was reserved as a grazing ground, under a scheme prepared during consolidation and entitled the inhabitants of the village to use the land for grazing their cattle etc. Apart from the vesting of common land provided by Section 23-
A(b) of the Consolidation Act, land reserved and used as a grazing ground (Charand) vests in a Gram Panchayat, as Shamilat Deh, by virtue of Section 2(g)(1) of the 1961 Act. It would, therefore, be appropriate, to reproduce a relevant extract from Section 2(g)(1) of the 1961 Act.
Section 2(g)(1) of the 1961 Act reads as follows :-
Section 2(g) "Shamilat deh" includes -
(1) lands described in the revenue records as Shamilat deh or Charand excluding abadi deh ;
Other than land that came to vest in a Gram Panchayat, under the Consolidation Act and under the 1961 Act, there is another variety of common land, created under Rule 16 (ii) of the Consolidation Rules, where ownership of the land so reserved continues to vest in the proprietors but its management and Control vests in a Gram Panchayat. Rule 16(ii) provides that where Shamilat Deh, in a village is inadequate, land shall be reserved ".......for the Gram Panchayat and for other common purposes of the village....." by applying a pro-rata cut on the holding of proprietors. The land so reserved is known as Jumla Mushtarka Malkan Wa Digar Haqdaran Arazi Hasab Rasad Raqba (in short Jumla Mushtarka Malkan). The ownership in Jumla Mushtarka Malkan vests in the proprietors whereas its management and control rests with the Gram Panchayat.
Rule 16(ii) of the Consolidation Rules reads as follows :-
"Rule 16 (i) XXX XXX XXX
(ii) In an estate or estate where during consolidation proceedings there is no shamilat deh land or such land is considered inadequate, land shall be reserved for the village Panchayat and for other common purposes, under Section 18(c) of the Act, out of the common pool of the village at the scale given in the schedule to these rules. Proprietary rights in respect of land so reserved (except the area reserved for the extension of abadi of proprietors and non-proprietors) shall vest in the proprietary body of the estate or estates concerned and it shall be entered in the column of ownership of record of rights as (Jumla Malkan Wa Digar Haqdaran Arazi Hassab Rasad Raqba). The management of such land shall be done by the Panchayat of the estate or estates concerned on behalf of the village proprietary body and the Panchayat shall have the right to utilise the income derived from the land so reserved for the common needs and the benefits of the estates concerned."
The 1961 Act, as originally enacted did not include "Jumla Mushtarka Malkan" land in the definition of Shamilat Deh but a subsequent amendment enacted by Haryana Act No.9 of 1992 (reproduced in the earlier part of the judgment) provides that land reserved under Sections 18 and 23-A of the Consolidation Act, by applying a pro rata cut on the holdings of the proprietors, shall be Shamilat Deh.
Section 2(g)(6), introduced by Act No. 9 of 1992 reads as follows:-
Section 2(g) "Shamilat deh" includes -
(6) lands reserved for the common purposes of a village under Section 18 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (East Punjab Act 50 of 1948), the management and control whereof vests in the Gram Panchayat under Section 23-A of the aforesaid Act.
The vires of Section 2(g)(6) came up for consideration before Full Bench of this Court in Jai Singh and others Vs. State of Haryana 2003(2)PLR 658 and were upheld by holding that Section 2(g)(6) is a mere elucidation of the already existing provisions of the Consolidation Act and Rules.
In addition to land reserved and created during consolidation, there were other common lands, in existence prior to the Consolidation Act and the 1961 Act, called Shamilat Deh, Shamilat Patti, Shamilat Panna, Shamilat Thola, Shamilat Tikkas, ponds, river beds open land within Abadi, land described as banjar qadim but used as per the revenue record for common purposes of the village etc. which have come to vest in a Gram Panchayat in accordance with and to the extent provided by the Punjab Village Common Lands (Regulation) Act, 1954, and the 1961 Act.
A conjoint appraisal of Section 2(bb), Sections 18 and 23-A of the Consolidation Act, Rule 16(ii) of the Consolidation Rules, Sections 2(g)(1) and 2(g)(6) of the 1961 Act, makes it abundantly clear that land used for common purposes before consolidation, land reserved during consolidation for common purposes and land declared as Shamilat Deh under the 1961 Act, vests in a Gram Panchayat or the State Government, depending upon its nature and to the extent of vesting provided by these enactments.
After having set out the nature of common land, it would be appropriate to ascertain whether the Consolidation Act or the Rules, the 1961 Act or the 1964 Rules empower a Gram Panchayat to alter the nature of its common land and conversely whether they prohibit a Gram Panchayat from altering its nature.
A natural incident of ownership is the right to deal with one's property without any fetter, let or hindrance, except to the extent prohibited by law. The right to deal with one's property inhers a right to alter its user, subject however, to any impediment placed by any statutory prohibition. Admittedly, the Gram Panchayat is the owner of the land reserved/used as a grazing ground (Charand) and therefore is entitled to use its land in such manner as it deems appropriate subject, however, to any statutory impediment or statutory provision that prescribes the mode and manner of its use. Regulation of the use of common land is governed by Sections 5 and 5-A of the 1961 Act, read alongwith Rules 3 and 8 of the 1964 Rules.
Section 5 of the 1961 Act, titled as "Regulation of use and occupation etc. of lands vested or deemed to have been vested in Panchayts" reads as follows :-
Section 5. Regulation of use and occupation etc. of lands vested or deemed to have been vested in Panchayats - (1) All lands vested or deemed to have been vested in a Panchayat under this Act, shall be utilised or,disposed of by the Panchayat under this Act, shall be utilised or, disposed of by the Panchayat for the benefit of the inhabitants of the village concerned in the manner prescribed;
Provided that where two or more villages have a common Panchayat, shamilat deh of each village shall be utilised and disposed of by the Panchayat for the benefit of the inhabitants of that village;
Provided further that where there are two or more shamilat tikkas in a village,the shamilat tikka shall be utilised and disposed of, by the Panchayat for the benefit of the inhabitants of that tikka;
Provided further that where the area of land in shamilat deh of any village, so vested or deemed to have been vested in a Panchayat is in excess of twenty five per cent of the total of that village (excluding abadi deh), then twenty five percent of such total area shall be left to the Panchayat and out of the remaining area of shamilat deh, an area upto the extent of twenty five percent of such total area shall be utilised for the settlement of landless tenants and other tenants ejected or to be ejected of that village and the remaining area of shamilat deh, if any, shall be utilised for distribution to small land owners of that village subject to the provisions relating to permissible area under the Haryana Ceiling on Land Holdings Act, 1972, by the Assistant Collector of the first grade in consultation with the Panchayat in such manner and on payment of such amount as may be prescribed.
2. The area of shamilat deh to be utilized for the purposes of the third proviso to sub-section (1) shall be demarcated by such officer in consultation with the Panchayat and in such manner as may be prescribed.
3. The State Government or any officer authorised by it in this behalf may, from time to time, with a view to ensuring compliance with the provision of the second proviso to sub-section (1) or sub-section (2) issue to any Panchayat such directions as may be deemed necessary.
4. Nothing contained in the third proviso to sub- section (1) and in sub-section (2) and sub-section (3) shall apply to the "hilly area".
5. Notwithstanding anything contained in this section, if in the opinion of the State Government, it is necessary to take over, to secure proper management for better utilisation for the benefit of the inhabitants of the village concerned any shamilat deh, the Government may by notification take over the management of such shamilat deh for a period not exceeding twenty years;
6. The income from the shamilat deh, the management of which is taken over under sub-section (5), after meeting all charges relating or incidental to the management and utilization, shall be credited to the Gram Fund and utilised for the benefit of the inhabitants of the village concerned."
Section 5-A of the 1961 Act, titled as "Disposal of lands vested or deemed to have been vested in Panchayat" reads as follows :-
5-A. Disposal of lands vested or deemed to have been vested in Panchayat - (1) A Panchayat may, on such terms and conditions as may be prescribed, gift,sale, exchange or lease the land in shamilat deh vested in it under this Act to the members of the Scheduled Castes and Backward Classes of the village in which such land is situated and to the persons of any other category. (2) The gift,sale, exchange or lease of land in shamilat deh already made shall be deemed to have been made under sub-section (1)."
Section 5 of the 1961 Act, empowers a Gram Panchayat to regulate the use, occupation and disposal of lands vested or deemed to have vested in a Panchayat and provides that land so vested shall be utilised or disposed of by the Panchayat "for the benefit of inhabitants of the village concerned" and in the manner "prescribed". The third proviso to Section 5 empowers a Gram Panchayat to utilise the land in Shamilat Deh for settlement of landless tenants and other tenants, ejected or to be ejected of that village. Section 5-A of the 1961 Act, empowers a Gram Panchayat to gift, sell, exchange or lease the land in Shamilat Deh vested in it under the 1961 Act, to members of the Scheduled Castes or Backward Classes and to persons of any other category.
Sections 5 and 5-A of the 1961 Act confer an absolute power upon a Gram Panchayat to regulate the use, occupation and disposal of its land by allotting its land to landless tenants, tenants to be ejected, to Scheduled castes and to others by sale, gift, exchange or lease without placing any fetter on the exercise of this power, except to the extent that this power shall be exercised for the benefit of the residents of the village and in the manner "prescribed". The right to use and dispose of the land for the purposes set out in Sections 5, and 5-A would necessarily inher a right to change its user without reference to the nature of the land or its user. Sections 5 and 5-A of 1961 Act do not enact whether specifically or by inference any statutory provision prohibiting a Gram Panchayat from altering the user of common land. Sections 5 and 5-A refer to regulation, use, occupation and disposal of ".....lands vested or deemed to have been vested in Panchayats." but do not draw a distinction between various types of land vested or deemed to have been vested and permit a Gram Panchayat to use, occupy and dispose of "lands vested or deemed to have been vested." . The Act, therefore, does not contain any provision that prohibit a Gram Panchayat from changing the user of its common land.
The manner in which and the purposes for which a Gram Panchayat may use its land and as a consequence change its user are set out in Rules 3 and 8 of the 1964 Rules. A Gram Panchayat may legitimately utilise its land but only for the benefit of the inhabitants of a village and then also in accordance with the procedure prescribed by Rules 3 and 8 of the 1964 Rules, which read as follows :-
Rule 3 of the 1964 Rules
3. The manner in which and the purposes for which shamlat deh may be used (Sections 5 and 15(2)(a) of the Act) - (1) The Panchayat shall prepare a land utilisation plan of the land in Shamlat deh vested in it under the Act. [It shall be the duty of Block Development and Panchayat Officer to assist the Gram Panchayat concerned in the preparation of the said plan]. Such plan shall be subject to approval of
(a) The Panchayat Samiti Where the area exceeds 100 acres but does not exceed [1000 acres].
(b) ......
(c ) the Government Where the area exceeds
1000 acres
(2) Subject to the approval of competent authority prescribed under the Act or these rules, the Panchayat may make use of the land in shamilat deh vested in it under the Act, either itself or through another for any one or more of the following purposes :-
(i) Grazing of animals;
(ii) Tree plantation or any other purpose related to
forestry;
(iii) Dyeing and tanning of skins and hides;
(iv) Storage of fuel, fodder and/or grain;
(v) Cremation or burial ground;
(vi) Manure pits;
(vii) Public latrines, and/or urinal;
(viii) Drains or water channels;
(ix) Playgrounds;
(x) Government School building and its library;
(xi) Government Hospitals or Dispensary,
Maternity or First aid Centers, Veterinary Hospital or Dispensary;
(xii) Vehicle parking related to agriculture and incidental purposes;
(xiii) Panchayat ghar or Janjghar or village Chaupal;
(xiv) Ponds and Fisheries;
(xv) Wells, Hand pumps, Water works or any other
Water Lifting device;
(xvi) Crop thrashing ground;
(xvii) Kohloo;
(xviii) Cultivation;
(xix) Model Farm, Seed Farm, Dairy Farm, Nursery,
Garden or any other Horticultural purposes; (xx) Production of food, fiber or fodder crops; (xxi) Stone Crusher, Brick kilns, Pottery, extraction of shora, sand, stone, kankar, bajri or other minerals defined in the Punjab Minor Mineral (Concession) Rules, 1964;
(xxii) Special Economic Zone Projects and Industrial development;
(xxiii) Roads, Pathways, Streets, Lanes and Bye- lanes;
(xxiv) Recreation Parks, Children's Park and Sports Stadium;
(xxv) Residential;
(xxvi) Educational and knowledge centres including
libraries to be set up by non-governmental institutions or individual;
(xxvii) Hospital or Dispensary, Maternity or First aid Centers, Veterinary Hospital or Dispensary to be set up by non-governmental institution or individual; (xxviii)Any other kindred common purpose.
Provided that the use of land for the purposes mentioned under clauses (xix) to (xviii) shall be with the prior approval of State Government.
(3) Subject to the approval of Panchayat Samiti, a Panchayat may unite with any other body or bodies being a Gram Panchayat, local authority or an institution or branch of an institution, established for the development of Panchayats and recognised by Government in taking up any of the purposes specified in sub-rule(2)."
The procedure prescribed by Rule 3(1) of the 1964 Rules, is mandatory and requires that a Gram Panchayat shall, before proceeding to utilize its land for the purposes set out in clauses (i) to (xxvi) of sub- rule 2 of Rule 3 of the 1964 Rules, prepare a land utilisation plan. The right to use the land in accordance with these clauses subject to preparing a land utilisation plan would necessarily inher a right to alter its user, whatsoever be the original user assigned to the land. In fact Rule 3(2) (xviii) of the 1964 Rules empowers the Gram Panchayat to use its land for cultivation. Furthermore, as neither sections 5, 5-A of the 1961 Act nor Rule 3 place any fetter on the power of a Gram Panchayat to use its land for the purposes enumerated thereunder, the right to use the land in accordance with Sections 5 and 5(A) of the 1961 Act and Rule 3(2) of the 1964 Rules would necessarily include the right to use this land for cultivation or for any other purpose prescribed by law.
A prohibition or a fetter, if not specifically enacted or prescribed shall not be read into a statutory provision by implication or by inference. Prohibitions are by there very nature enacted to curtail rights and if not specifically enacted cannot be read into a statute or a rule. Rule 3 of the 1964 Rules, and Sections 5 and 5-A of the Act do not place any fetter on the power of the Gram Panchayat to change the user of its land. Sections 5, 5-A of the 1961 Act and Rule 3(1) of the 1964 Rules specifically empower the Gram Panchayat to lease, sell etc. its land in accordance with the procedure prescribed. In the absence of any statutory prohibition or fetter on the power of the Gram Panchayat to alter the common use assigned during consolidation, the argument by counsel for the petitioners that the Gram Panchayat is prohibited from altering the common purpose assigned to Gram Panchayat land, must necessarily fail.
The question that remains is whether a "common purpose" assigned during consolidation can be altered. The Consolidation Act, is a statute, enacted for consolidation of land holdings. A scheme prepared, under the Consolidation Act, can not be read to prohibit the right of a Gram Panchayat to alter the user of its land. The common land reserved under a Consolidation Scheme vests in a Gram Panchayat. Its user and disposal is governed by the 1961 Act and the 1964 Rules and not by the Consolidation Act. The provisions of the Consolidation Act can not be read in support of the view that the common purpose assigned during consolidation binds a Gram Panchayat for all times to come. In order to fortify the conclusions recorded in the preceding paragraphs, it would be appropriate to refer to certain precedents where the right of a Gram Panchayat to change the user of common land was upheld.
In Salig Ram Vs. Maksudan Singh (supra), while considering a similar controversy, a Single Bench of this court held as follows :-
"There is no dispute about the fact that whatever land falls within the meaning of shamilat deh as defined in the Act vests in the village panchayat under section 4 of the Act. It is pointed out by Mr.Sachar that a Full Bench of this court in Kangra Valley St Company Limited V. Kidar Nath and others has held that section 3(a) of the Punjab Village Common Lands (Regulation) Act, 1 of 1954, extends to rights, title and interests in shamilat deh even when the same have been acquired from the proprietors as such prior to the coming into force of the Act in relation to the particular village because section 3(a) applied in regard to the land irrespective of the persons having rights, title or interests in it so long as it is shamilat land judgment of Shamsher Bahadur J in Ram Sukh and others Vs. State of Punjab and others has also been relied upon by Mr.Sachar in this respect. Reference to rule 2 of the Punjab Village Common Lands (Regulation) Rules, 1955 shows 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 manner 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."
The matter was reconsidered by a Division Bench In Khusi Puri and others Vs. State of Haryana and others (supra) and where it has been held as follows :-
6. The main grievance of the petitioners, however, is that by plantation of trees the land for grazing purposes has been materially reduced. In this connection, the only point for determination is whether the petitioners had retained any such grazing rights in the land on account of which the gram panchayat could not put the land to any other use. The shamilat deh has been defined in the Punjab Village Common Lands (Regulation) Act, 1961, in such a manner as to include lands described in the revenue record as shamilat deh or charand excluding abadi deh. It means that in case shamilat deh has vested in the panchayat the charand would also be considered to have been so vested. By virtue of section 3, clause (a) of the Punjab Village Common Lands (Regulation) Act (1 of 1954), notwithstanding anything to the contrary contained in any other law for the time being in force and notwithstanding any agreement, instrument, custom or usage or decree or order of any Court or other authority, all rights, title and interest whatever in the land which is included in the shamilat deh of any village shall on the appointed date vested in a panchayat having jurisdiction over the village. Thereafter it was provided in Section 4 of Act No.1 of 1954 that all land vested in the panchayat shall be utilised or disposed of by the panchayat for the benefit of the inhabitants of the village concerned. Whatever land had previously vested in the Gram Panchayat was re- vested under the provisions of the Punjab Village Common Lands (Regulation) Act, 1961. In view of these provisions, the grazing rights in the shamlat deh were not at all saved for any of the residents of Bodha.
7. 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 mentioned therein. There is a mention of tree plantation or other 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 developed 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 Bishamber Dayal Vs. State of Haryana (supra), a Full Bench of this court considered the entire controversy and held as under :
8. It is manifest from a perusal of record that the Gram Panchayat was shown to be the owner of the land in dispute. In jamabandi Exhibit P 2/A annexed to the petition, it is described as `Gair Mumkin Rasta' within Phirni Gram panchayat is mentioned to be its owner. Being a rasta within the abadi deh, it falls within the ambit of expression shamilat deh as defined in Section 2
(g)(4) of the Act. The title thereof vested in the Gram Panchayat by virtue of provisions of section 4. The Gram Panchayat was, therefore, entitled to use it in the manner it liked. However, restrictions have been placed on the use of shamilat land by Rule 3 of the Rules made under the Act. It has been provided therein that the shamilat deh land vested in the Gram Panchayat can be used only in the manner and for the purposes given under Rule 3 and one of these purposes is the construction of village Chaupal. Since the streets and lanes are shamilat deh and they vest in the Gram Panchayat, the land under them can be put to any one or more of the uses enumerated in sub-rule(2) of Rule 3. In exercise of this power the Gram Panchayat, on the directions of the Deputy Commissioner, reserved a portion of the village street comprised of Khasra No.166 for the construction of Harijan Chaupal. While so doing the Gram Panchayat was not actuated by any extraneous or collateral considerations, it was motivated by a laudable idea of construction a Harijan Chaupal, which was to be used by all the residents of the village. 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 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 the Division 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 Puri's case (supra).
9. XXX XXX XXX
10. We are of the considered view that the Gram Panchayat is competent to transfer a portion of the land in a street or a lane within the abadi deh or gorah deh vested in it and can also change its user. The question posed at the threshold is answered in the affirmative. We, however, make it clear that we have only upheld the power of Gram Panchayat to change the user of shamilat deh vested in it and transfer thereof for purposes mentioned in Rule 3(2). This, however, does not mean that orders of the Gram Panchayat cannot be challenged even in a suitable case on the ground that it is passed mala fide or is based on extraneous considerations or it is otherwise against law."
The dispute eventually came up for consideration before the Hon'ble Supreme Court. In Shish Ram and others Vs. State of Haryana and others (supra), the Hon'ble Supreme Court after considering the aforementioned judgments held as under :-
"6. We do not agree with the submission of the learned counsel of the appellants that in Bishamber Dayal's case the Full Bench of the High Court had taken a different view than 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 Khushi Puri's case (supra), which was upheld by the Full Bench in Bishamber Dayal's case.
7. Learned counsel for the appellants then tried to make a distinction between the charand land and the shamilat deh. In support of his contention he referred to Annexures 1 and II wherein the land, the subject matter of the dispute has been defined to be charand land. The definition of shamilat deh provides that it shall include "lands described in the revenue record as shamilat deh or (Charand - in Haryana) excluding abadi deh". Relying upon Khusi 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 and the charand could not vest within the Gram Panchayat under the Act was based upon wrong assumptions."
A Division Bench of this court, has after considering the judgments in Shish Ram's case (supra) held in Jagdish Singh Vs. State of Haryana and others (supra), as under :-
"4. We have heard learned counsel for the parties and find no merit in the present writ petition in view of the judgment of the Supreme Court in Shish Ram 's case (supra) wherein it has been held that the Gram Panchayat is competent to change the user of the land as fixed at the time of consideration. In Para No.2 of the writ petition, the petitioner has pleaded that land measuring 622 kanals 15 marlas is in the possession of the Gram Panchayat whereas in para No.3 of the writ petition it is pleaded that approximately 99 acres of land was kept reserved for the Gram Panchayat. There is nothing on the record to show that the subject land was reserved for any particular purpose in consolidation proceedings. The Gram Panchayat as owner is competent to use the same in the best possible manner. Therefore, the petitioner cannot insist that the land must be leased for cultivation purpose and cannot be given to the Forest Department for plantation of trees."
A perusal of the statutory provisions of the Consolidation Act, the Rules, the 1961 Act and the 1964 Rules render beyond debate that a Gram Panchayat may, use its land for the purposes and in accordance with the procedure set out in Sections 5, 5-A of the 1961 Act and Rules 3 and 8 of the 1964 Rules. In order to achieve these purposes, a Gram Panchayat may where necessary change the user of common land. A scheme of Consolidation can not be read to prohibit a Gram Panchayat from, altering the user of its land. Any interpretation to the contrary would render these provisions unworkable and meaningless.
However, there are certain significant aspects of this case, flowing from Rules 3 and 8 of the 1964 Rules, that require a greater degree of attention. Rule 3(1) of the 1964 Rules requires that before proceeding to utilise its land, a Gram Panchayat shall prepare a land utilisation plan. Rule 3(2) provides that subject to approval of the competent authority prescribed under the Act or Rules, the Panchayat may make use of its land either itself or through another for any one or more of the purposes set out in sub-clause (i) to (xxvi) of Rule 3(2) of the 1964 Rules. A Gram Panchayat is free to alter the common purpose assigned during consolidation, and use it for the purposes set out in Sections 5, 5-A, Rules 3 and 8, but only after following the procedure prescribed by Rule 3 of the 1964 Rules, namely, after preparing a land utilisation plan duly approved by the Panchayat Samiti or the Government, as the case may be. This caveat on the exercise of power by a Gram Panchayat is enacted so as to prevent an arbitrary or illegal use of Gram Panchayat. A Gram, Panchayat holds public property as a "trustee" and is required to ensure that its land is used for the benefit of the inhabitants of a village with due regard to their rights of common user. A land utilisation plan enables a Gram Panchayat to effect optimum utilisation of its land in accordance with its needs and the needs of inhabitants of a village. Before proceeding to utilise its land and as a consequence altering its user, a Gram Panchayat is statutorily required to prepare a land utilisation plan. In the absence of a land utilisation plan, a Gram Panchayat can not alter the user of its land. It would also be appropriate, at this stage, to make a reference to Rule 8(1) of the 1964 Rules, which reads as follows:-
Rule 8. Use of shamlat deh by residents (Sections 5 and 15(2)(g) of the 1961 Act - (1) The land in shamilat deh declared by the Panchayat by a resolution in writing, as pasturable may be utilised by the residents of the village for -
(a) grazing purposes; or
(b) collecting dry firewood from the jungle on
terms laid down by the Panchayat.
(2) Open spaces near the abadi deh may, with the
previous permission of the Panchayat and in the manner laid down by it be utilized by the inhabitants of the village for thrashing the harvests.
(3) ........
(4) The Panchayat may, if necessary,earmark
suitable land for use as manure pits by the inhabitants of the village on such nominal charges as may be fixed by it.
Provided that the Panchayat may exempt a member of Scheduled Caste or Backward Class or any landless labourer or tenant, on the grounds of poverty from the payment of such charges."
Rule 8(1) of the 1964 Rules provides that a Gram Panchayat may by a resolution in writing declare land in Shamilat Deh as pasture for use by residents of the village, for grazing purposes or for collecting dry fuel wood. Rule 8 assigns a degree of significance to pastures, manure pits etc. thus, clearly requiring a Gram Panchayat to reserve land for grazing purposes. Rule 8 (1), in my considered opinion, has to be read with Rule 3 (1) and Rule 3 (2). A Gram Panchayat shall while preparing a land utilisation plan, in accordance with the purposes set out in Rule 3(2) and Rule 8(1) be required to reserve land as grazing ground/pastures. The significance of pastures to an agrarian society cannot but be emphasised. A large part of the rural population depend for their livelihood upon farm animals. One has to travel to any village in the State of Haryana to understand the extent to which rural life depends upon farm animals. It is for this reason that though "grazing grounds" is referred to in Rule 3(2) of the 1964 Rules, it is once again referred to as a separate common purpose in Rule 8.
The statutory provisions dealt with and the precedents referred to above unambiguously establish that there is no impediment whether in the Consolidation Act, the scheme prepared under the Consolidation Act, the Rules framed thereunder or in the 1961 Act or the Rules framed thereunder placing any fetter upon the power of the Gram Panchayat to change the common purpose assigned under the scheme of consolidation. The power to use its land for any common purpose is enumerated in Sections 5, 5-A of the 1961 Act read with Rules 3(1) and (2) and 8 of the 1964 Rules. The power so conferred though absolute can only be exercised for the benefit of the village community and then also after the Gram Panchayat prepares a land utilisation plan, as envisaged by Rule 3 (1) of the 1964 Rules. The plan so prepared shall take into consideration the common purposes set out in Rules 3(2) and 8 of the 1964 Rules and the benefit of the village community. The sine qua non of a valid exercise of power under Sections 5, 5-A and Rule 3 (1) and 3(2) and 8 of the 1964 shall be the benefit it affords to the inhabitants of the village. A Gram Panchayat is required to respect the mandate of Rules 3 (1),(2)(i) to (xxvi) and Rule 8 of the 1964 Rules. Land that has vested in a Gram Panchayat as Shamilat Deh shall be utilised by the Gram Panchayat, without any restraint or fetter on its power to alter its user but for the benefit of the village community and in accordance with the procedure prescribed by Rules 3 and 8 of the 1964 Rules. It would necessarily follow that where Gram Panchayats have not framed land utilisation plan for making use of land in Shamilat Deh in accordance with the statutory mandate of Rule 3 (1) and Rule 3(2) and Rule 8 of the 1964 Rules read alongwith Sections 5 and 5-A of the 1961 Act, they are required to do so and shall not henceforth change the user of such land, without first having resort to the procedure prescribed by Rules 3 and 8 of the 1964 Rules.
In order to avoid any ambiguity, it would be necessary to set out the conclusions as follows :-
(a) the Consolidation Act, the scheme of consolidation, the Rules framed thereunder, the 1961 Act or the 1964 Rules do not place any impediment or fetter on the right of the Gram Panchayat to change the common purposes or user of its land;
(b) the power so conferred is to be exercised in accordance with the provisions of Sections 5, 5-A of the 1961 Act, read alongwith Rules 3 and 8 of the 1964 Rules; (c ) a Gram Panchayat shall before making use of its land, for purposes assigned in Sections 5 and 5-A of the 1961 Act and Rules 3 and 8 of the 1964 Rules prepare a land utilisation plan and may while doing so, change the user of land assigned during consolidation;
(d) while preparing such a plan, a Gram Panchayat shall ensure that land is used for the benefit of the village community and wherever necessary land is reserved for grazing grounds etc. as set out in Rule 8 of the 1964 Rules.
(e) all Gram Panchayats in the State of Haryana shall prepare a land utilisation plan before proceeding to make use of their land in accordance with the provisions of the Act and Rules framed thereunder;
(f) the user of any land vested in the Gram Panchayat as Shamilat Deh or otherwise, shall not be altered for the purposes of sale, lease or any such alienation, except after following the procedure prescribed by Rules 3 and 8 of the 1964 Rules;
(g) any auction of charand land proposed to be conducted without following the procedure prescribed by Rules 3 and 8 of the 1964 Rules shall be deemed to have been set aside, leaving it to the Gram Panchayat to proceed afresh, in accordance with law.
(h) this order shall not affect any common purpose land that has already been altered or land that has already been sold, exchanged or leased out and shall apply prospectively;
The writ petitions are disposed of, in the above mentioned terms, with no order as to costs.
A Copy of this order be forwarded to the Secretary, Department of Panchayats, Haryana, Civil Secretariat, Chandigarh for executing its implementation.
07.7.2011
( RAJIVE BHALLA )
GS/VK JUDGE
