PATRAM versus GRAM PANCHAYAT KATWAR & ORS. on 4 March 2020

1196

SUPREME COURT REPORTS

[2020] 3 S.C.R.

A

PATRAM

v.

GRAM PANCHAYAT KATWAR & ORS.

(Civil Appeal No. 6319 of 2009)

BMARCH 04, 2020

[L. NAGESWARA RAO AND DEEPAK GUPTA, JJ.]

Punjab Village Common Lands (Regulation) Act, 1961 –ss.2(g)(3) and 2(g)(5)(v) – Whether the word ‘shamilat’ has to beread with taraf, patti, pannas, and tholas or only with taraf in sub-Cclause (v) of clause (5) of s.2(g) – Held: The definition of ‘shamilatdeh’ in s.2(g) of the Act includes all lands described as ‘shamilatdeh’ or charand excluding abadi land – In clause (3) of s.2(g),there is a comma after the word ‘shamilat’ whereas such comma ismissing in sub-clause (v) of clause (5) of s.2(g) – There seems to beDan error rather than a deliberate non-use of the comma – This isbecause clause (3) provides that land described as ‘shamilat’,‘tarafs’, ‘patties’ ‘pannas’ and ‘tholas’, are to be treated as ‘shamilatdeh’ land only if they are used for the common purpose of the village– This clearly implies that if the land described as ‘shamilat’, ‘taraf’,‘patti’, ‘panna’ and ‘thola’ were not being used for the commonEpurpose, it would not fall within the meaning of ‘shamilat deh’ –Clause (v) is the negative portion of the definition which providesthat certain lands will not be treated as ‘shamilat deh’ and these arethose land which have been described as ‘shamilat’, ‘taraf’, ‘patti’,‘panna’ and ‘thola’ in the revenue record and not used accordingFto the revenue record for the benefit of the village community or apart thereof or for the common purpose of the village – The absenceof the comma after the word ‘shamilat’ is not of any great significance– In fact, it appears that the comma has been left out by mistakeand in fact a comma should be read after ‘shamilat’ and before‘taraf’ in the latter part of the section also – The word ‘shamilat’Ghas to be read with all four- ‘taraf’, ‘patti’, ‘panna’ and ‘thola’ – Aland can be ‘shamilat deh’ only if it is ‘shamilat taraf’, ‘shamilatpatti’, ‘shamilat panna’, or ‘shamilat thola’ – In case the wordshamilat is missing from any of these four terms, then the land cannotbe said to be belonging to a group of people and could never becomeH‘shamilat deh’ land.1196

Punjab Village Common Lands (Regulation) Act, 1961 –s.2(g) – Whether land in occupation of appellant is ‘shamilat deh’land and vests in the village common body – Held: In the revenuerecords, the land was shown as ‘Shamlat Patti Dhera & Khubi’ –‘Dhera & Khubi’ were the ancestors of the appellant – Thepossession is shown as that of proprietors/self-cultivators and anentry was made in favour of the Panchayat Deh in 1987-1988 –The land was always shown to be ‘Shamlat Patti Dhera & Khubi’and in the cultivation of the appellant or his ancestors – Moreover,the land was never shown to be used for the benefit of the entirevillage community or even for a part of the community – The landcannot be described as ‘Shamilat Deh’ and, therefore, would notvest in the village proprietary body – The name of the appellant beentered in the column of ownership with the entry ‘shamlat patti’.

Punjab Village Common Lands (Regulation) Act, 1961 –‘shamilat deh’ land – Meaning of – Held: The word ‘shamilat’basically means ‘held in joint possession and undivided lands whichare part and parcel of a village’ – When these lands are heldcommonly by a village proprietary body, they are described as‘shamilat deh’ land.

Punjab Village Common Lands (Regulation) Act, 1961 –‘taraf’, ‘patti’, ‘panna’ and ‘thola’ – Meaning of – Held: ‘Taraf’,‘patti’, ‘panna’ and ‘thola’ are different terms but have a commonstrain or similarity running through them – These descriptions areof land of a group of villagers based on clan, caste, sect, area, etc.– In British India, the village was divided into different pattis/sectionsbased upon caste, religion, occupation, etc. of the persons residingin the village – Patti is described as division of land into separateportions or strips in a village – These locations are known as pattis– Patti is basically, therefore, a small division of the village – Theterms ‘taraf’, ‘panna’ and ‘thola’ may be different but are akin topatti and also deal with community of villagers residing separately– Therefore, they have virtually the same meaning – It is alsoapparent that a patti can normally be created out of the shamilatland only when a group of people enjoy some portion of the landout of the bigger common shareholding that is a patti.

AB

C

D

E

F

G

1198SUPREME COURT REPORTS

AAllowing the appeal, the Court

HELD: 1. The word ‘shamilat’ basically means ‘held in jointpossession and undivided lands which are part and parcel of avillage’. When these lands are held commonly by a villageproprietary body, they are described as ‘shamilat deh’ land.B‘Taraf’, ‘patti’, ‘panna’ and ‘thola’ are different terms but have acommon strain or similarity running through them. Thesedescriptions are of land of a group of villagers based on clan,caste, sect, area, etc. In British India, the village was dividedinto different pattis/sections based upon caste, religion,occupation, etc. of the persons residing in the village. Patti isCdescribed as division of land into separate portions or strips in avillage. These locations are known as pattis. Patti is basically,therefore, a small division of the village. The terms ‘taraf’, ‘panna’and ‘thola’ may be different but are akin to patti and also dealwith community of villagers residing separately. Therefore, they Dhave virtually the same meaning. [Paras 8, 9][1203-G-H;1204-A-C]

2. If it is accepted that there is virtually no differencebetween ‘taraf’, ‘patti’, ‘panna’ and ‘thola’ then the task ofinterpretation becomes much easier. It is also apparent that aEpatti can normally be created out of the shamilat land only when agroup of people enjoy some portion of the land out of the biggercommon shareholding that is a patti. The definition of ‘shamilatdeh’ in Section 2(g) of the Act includes all lands described as‘shamilat deh’ or charand excluding abadi land. In clause (3) ofSection 2(g) there is a comma after the word ‘shamilat’ whereasFsuch comma is missing in sub-clause (v) of clause (5) of Section2(g). There seems to be an error rather than a deliberate non-use of the comma. This is because because clause (3) providesthat land described as ‘shamilat’, ‘tarafs’, ‘patties’ ‘pannas’ and‘tholas’, are to be treated as ‘shamilat deh’ land only if they areGused for the common purpose of the village. This clearly impliesthat if the land described as ‘shamilat’, ‘taraf’, ‘patti’, ‘panna’and ‘thola’ were not being used for the common purpose, it wouldnot fall within the meaning of ‘shamilat deh’. [Para 10][1204-C- F]

H

F]

H

3. Clause (v) is the negative portion of the definition whichprovides that certain lands will not be treated as ‘shamilat deh’and these are those land which have described as ‘shamilat’,‘taraf’, ‘patti’, ‘panna’ and ‘thola’ in the revenue record and notused according to the revenue record for the benefit of the villagecommunity or a part thereof or for the common purpose of thevillage. The absence of the comma after the word ‘shamilat’ isnot of any great significance. In fact, it appears that the commahas been left out by mistake. In various publications, there is acomma between the words ‘shamilat’ and ‘taraf’. However, thereis no comma in the official publication in the Gazette notification.It appears that the absence of a comma is a mistake and in fact acomma should be read after ‘shamilat’ and before ‘taraf’ in thelatter part of the section also. The word ‘shamilat’ has to be readwith all four- ‘taraf’, ‘patti’, ‘panna’ and ‘thola’. A land can be‘shamilat deh’ only if it is ‘shamilat taraf’, ‘shamilat patti’, ‘shamilatpanna’, or ‘shamilat thola’. In case the word shamilat is missingfrom any of these four terms, then the land cannot be said to bebelonging to a group of people and could never become ‘shamilatdeh’ land. [Para 11][1204-G-H; 1205-A-B]

4. The purpose of the section which defines ‘shamilat deh’is that the land described as ‘shamilat’, ‘taraf’, ‘patti’, ‘panna’and ‘thola’ not used for the benefit of the village community willnot be treated as ‘shamilat deh’. Clause (3) of Section 2(g) isidentical. The purpose is that the land which is described inrevenue records as ‘shamilat’, ‘taraf’, ‘patti’, ‘panna’ and ‘thola’and used for the benefit of the entire village community or a partthereof only would vest in the village proprietary body. The words‘part thereof’ have been used with a specific purpose in thebackground of the meaning of patti. Even if the land is beingutilised for the common purpose of the inhabitants of that ‘taraf’,‘patti’, ‘panna’ and ‘thola’, it would be ‘shamilat deh’ even if it isnot used for the benefit of the entire village. However, if the landis not used either for the benefit of the entire village or for thepart of the village community which comprises the patti then theland, cannot be said to be ‘shamilat deh’ land within the meaningof Section 2(g). From the revenue records produced, the landhas been shown as ‘Shamlat Patti Dhera & Khubi’. ‘Dhera &Khubi’ are the ancestors of the appellant(s). The possession is ABC

DE

F

G

H

Ashown as that of proprietors/self-cultivators and an entry was madein favour of the Panchayat Deh in 1987-1988. The land was alwaysshown to be ‘Shamlat Patti Dhera & Khubi’ and in the cultivationof the appellant(s) or his ancestors. Moreover, the land was nevershown to be used for the benefit of the entire village communityor even for a part of the community. The land cannot be describedBas ‘Shamilat Deh’ and, therefore, would not vest in the villageproprietary body. The name of the appellant(s) should be enteredin the column of ownership with the entry ‘shamlat patti’.[Paras12-14][1205-C-H; 1206-A]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6319Cof 2009.

From the Judgment and Order dated 03.07.2008 of the High Courtof Punjab and Haryana at Chandigarh in C.W.P. No. 16757 of 2007.

Manoj Swarup, Sr. Adv., Rishi Malhotra, Neel Mani Pant, Utkarsh,DMs. Vidisha Swarup, Prem Malhotra, Advs. for the Appellant.

Anurag Tandon, Ms. Kshitiz Rao, Sanjay Jain, Advs. for theRespondents.

The Judgment of the Court was delivered by DEEPAK GUPTA, J.E

1. The short question involved in this case is whether the land inoccupation of the appellant(s) is ‘shamilat deh’ land within the meaningof the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafterreferred to as ‘the Act’) and vests in the village common body. The landin question is situated in Haryana and, therefore, for the purpose of thisFjudgment we shall be referring to the Act as amended and applicable tothe State of Haryana.

2. The contention of the appellant(s) is that the land in disputethough ‘shamilat’ land, is actually a patti in possession of the appellant(s)and his ancestors for more than a century and is not being used for theGcommon purposes of the village and, therefore, does not fall within thedefinition of ‘shamilat deh’ land.

3. In India, land is said to be the true basis for the unity in a village,supplying the ultimate bond between the residents of the village whocollectively are known as the village community. When settlers went toH

new areas and cleared forests or turned barren lands into cultivablelands, certain portions of the land were left for common use such ascharand land used for grazing, lands used for wells, watercourses, landused for common purposes and also for extension of the village residentialarea normally known as the abadi. These lands which were reservedfor common purposes were jealously guarded and were in essence thecommon property of the original settlers and those who had helped themafter clearing the waste and bringing the land under cultivation. Thefollowing observations from Chapter X, which has the heading ‘TheVillage Common Land Introduction’ of Sir W.H. Rattigan’s ‘A Digeston Civil Law for the Punjab’, which is the one of the finest treaties oncustomary law of Punjab, are relevant:

“….Lands so reserved are jealously guarded as the commonproperty of the original body of settlers who founded the villageor of their descendants, and occasionally also those who assistedthe settlers in clearing the waste and bringing it under cultivationare recognized as having a share in these reserved plots. Even invillages which have adopted separate ownership as to thecultivated areas, some such plots are usually reserved as villagecommon, and in pattidari village. It is not unusual to find certainportions of the waste reserved for the common use of theproprietors of each patti, and other portions for common villagepurposes, the former is designated shamilat-patti and the lattershamilat-deh.”

4. Over period of time, the cultivable areas were separatedamongst the different owners and in view of the caste system whichwas then extensively prevalent, separate areas in the village or in differenthamlets were provided for different communities based not only on casteor religion but sometimes on professions also. To give an example, theweavers would be put in one area, the potters in another area etc. Eachsuch division was called a patti.

5. This brings us to the definition of‘shamilat deh’ in Section 2(g)of the Act. The relevant portion reads as under:

“2. Definitions. – in this Act, unless the context otherwiserequires,-xxxxxxxxx(g) “shamilatdeh” includes- A

B

C

D

E

F

G

H

A(1)land described in the revenue records as Shamilat dehor Charand excluding abadi deh;

(2) shamilat tikkas;

(3) land described in the revenue records as shamilat,tarafs, patties, pannas and tholas and used accordingBto revenue records for the benefit of the villagecommunity or a part thereof or for common purposesof the village;

(4) xxxx

C(4a) xxxx

(5) xxxx

but does not include land which-

(i) becomes or has become shamilat deh due to riveraction or has been reserved as shamilat in villagesDsubject to river action except shamilat deh entered aspasture, pond or playground in the revenue records; xxxxxxxxx

(v) is described in the revenue records as shamilat taraf,Epattis, pannas and thola and not used accordingtorevenue records for the benefit of the villagecommunity or a part thereof or for common purposesof the village;

xxxxxxxxxF6. The case of the appellant(s) is that for more than a century heand his ancestors held a patti which has never been used for the commonpurpose of the village and has been cultivated by them. This land hasnever been used for common village purpose and in terms of Section2(g) of the Act cannot be included in the definition of ‘shamilat deh’.GThe land continues to be shown in the possession of the appellant(s) orhis ancestors in the Jamabandis from the year 1915-1916 till date. Theearlier entries in the column of ownership which read as ‘Shamlat PattiDhera & Khubi’ were replaced by the entry ‘Panchayat Deh’.Aggrieved, the appellant(s) approached the Collector, Bhiwani challengingthe change of entry in the column of ownership. The appellant(s) lostHbefore the Collector, Bhiwani as well as the Commissioner, Hisar Division.

He then filed a writ petition in the High Court of Punjab and Haryana,which was rejected with the following reasoning:

“While examining the first contention raised by the counsel forthe petitioner, as has been noticed in the forgoing paragraph, it isnecessary to refer to clause (3) of Section 2(g) of the Act extractedhereinabove, which expressly treats “shamlat”, “tarafs”, “pattis”,“pannas” and “tholas” as separate and distinct, while describingthe nature of the land. Whereas, the exception under clause (v)of the proviso under section 2(g) of the Act notices, “shamlattaraf”, “pattis”, “pannas” and “thola” as falling with the exception.As per the revenue record of the year 1907-08, the land underreference has been described as “shamlat patti”. It does not,therefore, fall within the term “shamlat taraf”, “pattis”, “pannas”and “thola” as has been incorporated in the exception because“shamlat patti” is not excluded under the clause relied upon bythe learned counsel. It is, therefore, not possible for us to acceptthat the land under reference falls within Clause (v) of the provisounder section 2(g) of the Act.”

7. The aforesaid judgment was delivered on the basis that whereasin clause (3) of Section 2(g), there is a comma after the word ‘shamilat’,there is no such comma in sub-clause (v) of clause (5) of Section 2(g).We had requested the parties to provide us the original Gazette notificationand the definition as quoted by us above is in accord with the Gazettenotification.

8. The issue for consideration is whether the word ‘shamilat’ hasto be read with taraf, patti, pannas, and tholas or only with taraf insub-clause (v) of clause (5) of Section 2(g). We must understand whatis meant by the terms ‘taraf’, ‘patti’, ‘panna’ and ‘thola’. To understandthis distinction, one must also understand what is ‘shamilat deh’ land.The word ‘shamilat’ basically means ‘held in joint possession andundivided lands which are part and parcel of a village’. When theselands are held commonly by a village proprietary body, they are describedas ‘shamilat deh’ land.

9. ‘Taraf’, ‘patti’, ‘panna’ and ‘thola’ are different terms buthave a common strain or similarity running through them. Thesedescriptions are of land of a group of villagers based on clan, caste, sect,area, etc. In British India, the village was divided into different pattis/sections based upon caste, religion, occupation, etc. of the persons residing A

B

C

D

E

F

G

H

Ain the village. Patti is described as division of land into separate portionsor strips in a village. These locations are known as pattis. Afterindependence since the caste system has been constitutionally abolished,these classifications refer to different hamlets/clusters where villagersreside in groups irrespective of their caste. This may be true in law butnot in fact, because unfortunately even today, in mostvillages, ghettoizationBcontinues and the people of different communities, castes and religionslive in their earmarked areas or pattis. Patti is basically, therefore, asmall division of the village.The terms ‘taraf’, ‘panna’ and ‘thola’ maybe different but are akin to patti and also deal with community of villagersresiding separately. Therefore, they have virtually the same meaning.C

10. If we accept that there is virtually no difference between‘taraf’, ‘patti’, ‘panna’ and ‘thola’ then the task of interpretationbecomes much easier. It is also apparent that a patti can normally becreated out of the shamilat land only when a group of people enjoysome portion of the land out of the bigger common shareholding that is aDpatti. The definition of ‘shamilat deh’ in Section 2(g) of the Actincludesall lands descried as ‘shamilat deh’ or charand excluding abadi land.In clause (3) of Section 2(g) there is a comma after the word ‘shamilat’whereas such comma is missing in sub-clause (v) of clause (5) of Section2(g). We are of the view that there seems to be an error rather than adeliberate non-use of the comma. We are of this view because clauseE(3) provides that land described as ‘shamilat’, ‘tarafs’, ‘patties’‘pannas’ and ‘tholas’, are to be treated as ‘shamilat deh’ land only ifthey are used for the common purpose of the village. This clearly impliesthat if the land described as ‘shamilat’, ‘taraf’, ‘patti’, ‘panna’ and‘thola’ were not being used for the common purpose, it would not fallFwithin the meaning of ‘shamilatdeh’.

11. Clause (v) is the negative portion of the definition whichprovides that certain lands will not be treated as ‘shamilatdeh’ and theseare those land which have described as ‘shamilat’, ‘taraf’, ‘patti’,‘panna’ and ‘thola’ in the revenue record and not used according to theGrevenue record for the benefit of the village community or a part thereofor for the common purpose of the village. In our view, the absence ofthe comma after the word ‘shamilat’ is not of any great significance. Infact, it appears that the comma has been left out by mistake. We mayalso note that we find that in various publications, there is a commabetween the words ‘shamilat’ and ‘taraf’. However, there is no commaH

in the official publication in the Gazette notification. Keeping in view,what we have held above, it appears to us that the absence of a commais a mistake and in fact according to us, a comma should be read after‘shamilat’ and before ‘taraf’ in the latter part of the section also.Theword ‘shamilat’ has to be read with all four- ‘taraf’, ‘patti’, ‘panna’and ‘thola’. A land can be ‘shamilat deh’ only if it is ‘shamilat taraf’,‘shamilat patti’, ‘shamilat panna’, or‘shamilat thola’. In case theword shamilat is missing from any of these four terms, then the landcannot be said to be belonging to a group of people and could neverbecome ‘shamilat deh’ land.

12. The purpose of the section which defines ‘shamilat deh’ isthat the land described as ‘shamilat’, ‘taraf’, ‘patti’, ‘panna’ and ‘thola’not used for the benefit of the village community will not be treated as‘shamilat deh’.Clause (3) of Section 2(g) is identical. The purpose isthat the land which is described in revenue records as ‘shamilat’, ‘taraf’,‘patti’, ‘panna’ and ‘thola’ and used for the benefit of the entire villagecommunity or a part thereof only would vest in the village proprietarybody. The words ‘part thereof’ have been used with a specific purposein the background of the meaning of patti which we have dealt with indetail above. Even if the land is being utilised for the common purpose ofthe inhabitants of that ‘taraf’, ‘patti’, ‘panna’ and ‘thola’, it would be‘shamilatdeh’ even if it is not used for the benefit of the entire village.However, if the land is not used either for the benefit of the entire villageor for the part of the village community which comprises the patti thenthe land, in our opinion, cannot be said to be ‘shamilat deh’ land withinthe meaning of Section 2(g).

13. From the revenue records produced, we find that the land hasbeen shown as ‘Shamlat Patti Dhera & Khubi’. ‘Dhera & Khubi’are the ancestors of the appellant(s). The possession is shown as that ofproprietors/self-cultivators and an entry was made in favour of thePanchayat Deh in 1987-1988. The land was always shown to be‘Shamlat Patti Dhera & Khubi’ and in the cultivation of the appellant(s)or his ancestors. Moreover, the land was never shown to be used for thebenefit of the entire village community or even for a part of thecommunity.

14. In view of the above, we have no hesitation in holding that theland cannot be described as ‘Shamilat Deh’ and, therefore, would notvest in the village proprietary body. Accordingly, we allow the appeal AB

CD

E

F

G

H

Aand set aside the judgment of the High Court dated 03.07.2008 and theorders of all the authorities below. The name of the appellant(s) beentered in the column of ownership with the entry ‘shamlat patti’.

15. Pending application(s), if any, shall stand(s) disposed of. Noorder as to costs.

B

Devika Gujral

Appeal allowed

C

D

E

F

G

H