Redistributed Shamlat Land Cannot Be Automatically Presumed To Be Vested In Gram Panchayats/ Municipalities: Punjab & Haryana High Court

The Punjab and Haryana High Court recently held that the partitioned or redistributed Shamlat Deh lands which were proposed or shown to be reserved for common purposes under the Consolidation Scheme of East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 and were held to have never come under the management and control of the Gram Panchayats/ Municipalities, do not automatically vest in the Gram Panchayats/Municipalities.

The division bench of Justice Sureshwar Thakur and Justice Kuldeep Tiwari observed:

“It may be seen that the lands which were reserved for ‘common purposes’ under Section 18 of the 1948 Act were handed over to the Gram Panchayat for the purposes of ‘management’ and ‘control’ only through Section 23-A of the 1948 Act in the year 1963. There is no quarrel that Section 23-A never vested ownership or title of such lands in the Gram Panchayat.”

The observations were made while hearing a bunch of writ petitions challenging executive instructions issued by the States of Haryana and Punjab through which ownership rights of the redistributed Shamlat lands were sought to be transferred in favour of the Gram Panchayat/Municipalities and seeking implementation of the judgement of the Supreme Court in Jai Singh’s case in its true letter and spirit.

The State of Haryana issued an administrative instruction dated June 21, 2022 to enter mutations in respect of the lands which were recorded as Shamlat Deh Hasab Rasad Zare Khewat or Shamlat Deh Hasab Rasad Paimana Malkiyat in the Records of Rights, i.e., latest Jamabandi but after the Revenue Settlement or Consolidation as per Section 2(g)(i) of the Punjab Village Common Lands (Regulation) Act, 1961 (the 1961 Act).

These mutations were directed to be sanctioned in respect of the lands recorded as Jumla Malkan or Jumla Malkan Wa Digar Haqdaran Arazi Hassab Rasad which were created by the proprietors of a village through making a pro-rata cut of land for common purposes but during consolidation of holdings under the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (the Act of 1948).

Further, all pending cases of partition of Shamlat Deh or similar lands were directed to be consigned and the Departments of Development and Panchayats as well as Urban Local Bodies were directed to take necessary action for reclaiming the property in the light of Judgment of the Supreme Court in Jai Singh’s case.

The State of Haryana again issued revised instructions dated August 18, 2022 by which it directed the Panchayat Department and Urban Local Bodies Department to initiate “proceedings in accordance with Law to get back/restore such lands” which were already already partitioned or alienated or third party rights had been created.

The similar kind of instructions were issued by the State of Punjab dated October 11, 2022.

The impugned instructions by the issued by both the states were challenged in the bunch of writ petitions before the High Court.

The court noted that the Supreme Court vide its judgement in Jai Singh dated April 7, 2022 upheld the Constitutional validity of Haryana Act 9 of 1992 and the lands which were sought to be included in the definition of Shamlat Deh by virtue of that amendment, have been held to have vested in the Gram Panchayats or the Municipalities.

The court observed:

“It is on a conjoint understanding of the Scheme of Statutes of 1948 and 1961, we are of the considered view that the Haryana Act 9 of 1992 has to be understood and given prospective effect, but it is also retroactive in case of those lands which have already been reserved for common purposes and were never distributed/repartitioned amongst the proprietors”.

“It is, thus, held that where the lands which were at one point of time proposed to be meant for ‘common purposes’ but at the time of consolidation or thereafter before 11.02.1992, rather were returned to the proprietors and were never reserved or ear-marked for common purposes, then such lands did not come under the management and control of the Gram Panchayats and ownership and title of such lands remained unaffected by Haryana Act 9 of 1992,” the court said.

The court further observed that the revenue courts have already partitioned the lands which were accepted by the Gram Panchayats and therefore, the Executive fiat cannot be pressed into aid by the State to annul such judicial or quasi-judicial orders and to transfer ownership of lands with a stroke of pen after decades.

The court held:

“it appears to us that the impugned instruction(s)/letters have been issued in a most slip shod and perfunctory manner, and without any application of mind, either to the Judgment of Hon'ble Apex Court in Jai Singh's case (supra) or to any of the other statutes or legal principles which are carried in the respective statutory provisions.”

It was further opined by the court that the determination of title of land as to whether or not it is Shamlat Deh shall be through proceedings before a court of competent jurisdiction and in accordance with the principles of natural justice is a sine-qua-non for invoking the powers under Section 5-B of the 1961 Act.

In conclusion the court held:

“Impugned Executive Instructions issued by the States of Haryana and Punjab whereby ownership rights of the lands in question are sought to be transferred in favour of the Gram Panchayat/Municipalities, through Executive fiat, are held to be contrary to the very scheme of the Statute and are hereby quashed, particularly in view of the fact that these executive instructions cannot result into arbitrary cancellation of valid title over the properties.”

The court further directed the states of Haryana and Punjab to give effect to the Judgment of the Supreme Court in Jai Singh's case in the following manner:

1. Where the lands continue to be shown as reserved for ‘common purposes’, whether utilized or unutilized, the ownership of such land shall vest in the Gram Panchayat or the, as the case may be.
2. However, if the lands which were proposed or shown to be reserved for common purposes have been partitioned, amongst the proprietors or redistributed amongst them, under the Consolidation Scheme, such lands are held to have never come under the management and control of the Gram Panchayats and, thus, ownership in relation thereto does not vest automatically in the Gram Panchayats by virtue of the provisions, like Haryana Act 9 of 1992.
3. Where lands falling under ‘common purposes’, have been sold/re-sold to bonafide purchasers after due diligence and for valuable consideration, the title or possessory rights of such bona-fide purchasers shall remain unaffected, save and except, when the sale deeds in their favour are set aside by the courts of competent jurisdiction.

Hence, the court set aside the impugned instructions for being in violation with Article 31A (Saving of laws providing for acquisition of estates, etc.) and Article 300A (Persons not to be deprived of property save by authority of law) of the Constitution of India.

Case Title: Subegh Singh v. State of Punjab & Ors.

Coram: Justice Sureshwar Thakur and Justice Kuldeep Tiwari

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