Chet Ram Thakur, J.
1. Major Todar Singh, defendant, feeling aggrieved against the dismissal of his appeal by the District Judge. Gurdaspur and Ex-Officer Additional District Judge. Hoshiarpur. Camp at Dharamsala affirming the judgment and decree of the Senior Sub Judge, Kangra, dated 6-2-1959, had filed the second appeal in the Punjab High Court in 1960. After reorganisation of the State of Punjab, the case was transferred to the Court of Judicial Commissioner. Himachal Pradesh and from there it was transferred to Delhi High Court and now it has come to this Court.
2. The facts of the case are that land Khasra No. 1175 min measuring 45 kanals situate in Tika and Mauza Kosri, Tehsil Palampur was recorded as shamilat Tika Kosri. Shri Jogeshwar and Shri Birbal, plaintiffs, who are also the proprietors in the villages, instituted a suit in respect of this land on 18-2-1958 in the Court of the Senior Sub Judge, Kangra at Dharamsala, for joint possession of the land with all the other proprietors of the Tika on the allegations that the defendant No. 1 had taken 5 kanals of land in his exclusive possession as a proprietor and 40 kanals of land had been taken by him in his possession on the basis of a Patta, dated 9-5-1952, granted by defendant No. 2. It was contended that the land was shamilat, pasture land of the proprietors of Tika Kosri. The plaintiffs, therefore, claimed joint owner ship in their suit. The defendant No. 2 did not put in appearance despite service. Defendant No. 1 resisted the claim pleading, inter alia, that he was legally entitled to occupy the land as he has obtained the land from Raja Saheb (defendant No. 2) and was otherwise too within his rights as a village proprietor to keep the land with him. It was further pleaded that he had effected improvements on the land to the tune of Rupees 1,000/-, and in case of a decree, he was entitled to the costs of improvements. On these pleadings the Court framed the following issues:
1. Was a valid lease given by RajaSaheb. Lamba Goan, to the defendantNo. 1? O. D. I.
2. If issue No. 1 is not proved is the defendant entitled to remain in possession of the suit land? O. D.
3. Has the defendant No. I effected any improvements in the land in suit? If so, of what value and is he entitled to reimbursed for them? O. D. I.
4. Is the suit within time? O. P.
5. Are the other co-sharers of Shamilat necessary party? O, D.
3. The trial Court found that Gobind Ram had no legal right exclusively to enjoy the pasture land. The Patta was not found to have been established. The result, therefore, was that the suit was decreed. The defendant therefore, went up in appeal to the District Judge. Hoshiarpur, who (vide judgment and decree, dated 29-4-1960), found that the trial Court was right in holding that the lease had not been, established. The second point canvassed before the learned District Judge was that the appellant, as a village proprietor, was entitled to appropriate the village common land when his total holding of the Shamilat did not exceed his lawful share. The ether proprietors could not evict him unless they prove some special damage. This point was also repelled and the findings on this point recorded by the trial Court were affirmed.
4. It may be stated here that, during the pendency of the appeal in the Punjab High Court, the Punjab Village Common Lands (Regulation) Act, 1961, had come into force, and according to this Act, Shamilat land in a village had vested in the Gram Panchayat of the area. This Act was further amended by the Punjab Village Common Lands (Regulation) Amendment Act 1965 (Punjab Act No. 31 of 1965). By this amending Act an amendment was introduced in the Punjab Village Common Lands (Regulation) Act 1961, as a result of which the whole of Kangra district was included in the definition of hilly area and some other sections were also amended.
5. During the course of arguments before V.D. Mishra. J. of Delhi High Court, it was argued that the Punjab Village Common Lands (Regulation) Act 1961 having come into operation after the decision of the lower appellate Court, the land which had been found to be Shamilat deh by the two Courts below now vested in the Panchayat under Section 4 of the Act and the respondent had now no right, title, or interest in the land. On the other hand, the counsel for the respondent contended that this Act did not apply to the land in question inasmuch as it was covered by the definition 'hilly area' as given in Section 2 (bb) and Section 14-A saved this land from the operation of the Act, and the appellant had placed reliance on S.A. No. 202 of 1967 (Delhi) (Siri Ram v. Gram Sabha of village Khad) decided on 24-7-1967 by Jagjit Singh. J., who had held in that case;
'It will be seen that the insertion of the definition of 'hilly area' and certain other provisions relating to hilly areas in Punjab Act No. 18 of 1961, did not save the hilly areas which are covered by the definition of shamilat deh from being vested in the Panchayat concerned'. The counsel for the respondent argued that the Act was enacted to regulate the rights in shamilat deh and practically it deals with shamilat deh and with no other land and further contended that Section 14 (b) referred to 'any land' in the hilly area and did not talk about the land which was not shamilat deh, and that, according to Section 3, the Act applies to all lands which are shamilat deh as defined in that Act, and that the learned Judge found great substance in the contention of the counsel for the respondent, and therefore, thought, it desirable that the case should be decided by a larger Bench, and this is how the case has now come up before us.
6. The learned counsel for the appellant in support of bis argument that the land has vested in the Gram Panchayat under the provisions of the Village Common Lands Act 1961, and that the plaintiffs, who had obtained a decree in their favour, had lost their light, title and interest in the land to dispossess or eject the defendant, has relied on an unreported case of this Court. SectionA. No. 228 of 1967. D/- 13-1-1970. (Him Pra) (Chingaru Ram v. Gram Panchavat Dhagwar), (1964) 66 Pun LR 629 (Khiali Ram v. Mast Ram) and on 1970 Delhi LT 391. The contention of the counsel for the respondent is that the provisions of the Act did not apply to the hilly areas as defined in Section 2 (bb) and that the Panchayat was not authorised to exercise any right or to do any act in respect of any land in the hilly areas vested or deemed to be vested in the 'Panchayat'. whether such land has or has not been declared as a protected forest under Section 29 of the Indian Forest Act. Reliance is also placed on two unreported cases of the Delhi High Court, Himachal Pradesh Bench, which are; S.A. No. 107 of 1967 (Gram Sabha v. Prilhi Chand). D/- 6-6-1967 (Delhi), by H. R. Khanna. J. (as he then was) and SectionA. No. 370 of 1967 (Gram Sabha Bhogpur v. Radha Ram) D/- 26-9-1968 (Delhi) by I.D. Dua. C. J. (as he then was).
7. The facts of the case in R. S. A. 288 of 1967 are that Chingaru Ram and others had brought a representative suit against the village Panchayat of Dhagwar for a permanent injunction restraining the panchayat from obstructing the plaintiffs from grazing their cattle in land measuring 73 kanals and 13 marlas located in the north-eastern part of khasra No. 2, situate in Tika Chakben of village Dhagwar, on the ground that they had a customary right of grazing their cattle in the said land and that the panchayat of Dhagwar was denying them this right on the ground that the land and the grazing rights, if any had vested in the panchayat after the passing of the Punjab Act I of 1954, and the plaintiffs could no longer claim any customary rights in the said land. The suit was dismissed by the trial Court and an appeal to the District Judge, Hoshiarpur at Dharamsala was also unsuccessful. The plaintiffs filed a second appeal in the High Court.
8. It was argued before the High Court, by the learned counsel for the appellants, that on a construction of Section 3 of the Act of 1954 or Section 4 of the Act of 1961 what was to vest in the panchayat were certain rights in the land. The customary rights claimed by the appellants were not rights in the land but rights over land. Further, it was contended that, after the passing of these statutes, it was the right of the proprietary body alone which stood transferred to the Gram Panchayat. The learned Judge held that rights in the land and over the land are distinct concepts in law and unless a statute specifically takes away rights over the land, the same, if they exist, cannot be regarded as having been extinguished by implication. Further, he held that what vested in the Gram Panchayat under Section 4 of the Act of 1961 were the general rights like full ownership extinguishing such rights that anyone may have had in shamilat deh whether such person had acquired these rights by operation of any law or any agreement, instrument custom or usage or any decree or order of any Court or other authority. The right, title and interest in the land thus vested in the Gram Panchayats but the Legislature did not enact that rights over land, which would include easements or other collateral rights, would stand extinguished except to the extent set out in the five Sub-Clauses of Clause (g) of Section 2 of the Act of 1961. In view of that, he further held that the appellants' grazing rights did not stand extinguished, if they had those rights by custom by virtue of the enacting of the Acts of 1954 and 1961.
9. In fact, this authority is not of any assistance to the appellant's learned counsel because this authority did not consider the effect of Section 14-A (b) of the Punjab Village Common Lands (Regulation) Act. This contention, however was raised in that case but it was left undecided because it was not considered necessary to deal with this point. In the instant case, we have to consider whether the land, which is admittedly in the hilly area, has vested in the panchayat or it is saved from the operation of the Act by Section 14-A, as is sought to be argued by the learned counsel for the respondent.
10. According to (1964) 66 pun LR 629, as soon as a land vests in pursuance of Section 4 of the Punjab Village Common Lands (Regulation) Act in the panchayat, it is panchayat alone which has the right to the possession of the land, and the proprietors, under the decree which was passed before the Act, have ceased to have any right in the shamilat tikka and the proprietor's right under the decree to obtain possession also vests in the panchayat. The decree obtained by the proprietors for possession of shamilat tikka becomes unexecutable and infructuous. Panchayat alone can claim and ask for possession. In the instant case also the contention of the learned counsel for the appellant is that, since the land has vested in the Gram Panchavat being the shamilat the decree has become unexecutable as the proprirtor's rights have now vested in the Gram Panchayat and the Gram Panchayat alone is competent to claim possession from the appellant and not the respondents, who have ceased to have any right in the shamilat tikka. This authority would be applicable to the case only if it is decided that the hilly areas are not exempt from the operation of the Act. If the hilly areas are exempt, as is sought to be argued by the learned counsel for the respondent, then this authority will not apply to the case.
11. In 1970 Delhi LT 391, It was held that Section 3 of the Punjab Village Common Lands (Regulation) Act 1953 as well as Section 4 of the Punjab Village Common Lands (Regulation) Act 1961 had the effect of vesting in the panchayat all rights, title and interest whatever in the land which was included in the shamilat deh of the village. It was further held that by the amending Punjab Act No. 19 of 1964, definition of hilly area was added and Section 5 of the Act was also amended in order to provide that the third proviso to Sub-section (I) of that section, relating to use of certain lands vested in panchayats was not to apply to the hilly areas bY the same amending Act a new Section 14-A was also added, Clause (b) whereof provided that nothing contained in the Act or the shamilat law was to entitle or was to be deemed ever to have entitled the panchayat or any other authority under the Act or the shamilat law to exercise any right to do any act in respect of any land in the hilly area vested or deemed to be vested in the panchayat whether such land has or has not been declared as a protected forest under Section 29 of the Indian Forest Act. 1927, in contravention of the provisions of that Act or the Rules made thereunder. There is thus no basis for the contention that hilly areas covered by the definition of shamilat deh did not vest in panchayats.
12. In S. A. No. 370 of 1967 (Delhi) the counsel for the appellant conceded that provisions of the Punjab Village Common Lands (Regulation) Act do not apply to the hilly areas and that Section 14-A exempted the vesting of such lands in the Gram Panchayat. It was on the basis of concession made by the appellant's counsel himself that it was held that the Act did not apply to the land in hilly area. The other case. S.A. No. 107 of 1967 (Delhi) also did not lay down that hilly areas were exempt from the scope of the Punjab Village Common Lands (Regulation) Act 1961 for all purposes. In fact, the learned Judge did not consider fully the scope of Section 14-A. Therefore, these two authorities relied upon by the learned counsel for the respondents are not of any avail to him.
13. After going through the authorities, we are of the view that the case of (1970 Delhi LT 391) appears to be applicable to the facts of the present case. In the other three unreported cases, one cited by the appellant and the other two referred to by the respondents no reasons have been given for the view that the hilly areas were exempt from the operation of the provisions of the Punjab Village Common Lands (Regulation) Act.
14. Clause (bb) of Section 2 of the Punjab Village Common Lands (Regulation) Amendment Act 1964 (Punjab Act 19 of 1964) lays down, what hilly area means. According to this. District Kangra is also shown as hilly area. Section 2 (g) of the Punjab Village Common Lands (Regulation) Amendment Act says what 'shamilat deh' includes. If it had been the intention of the Legislature that the Act was not to operate in respect of the hilly areas then after the proviso to Clause (g) of Section 2 it should have been mentioned that the hilly areas are also not included in the definition of shamilat land as has been done in the case of other type of land as mentioned therein. Further Section 3 of the aforesaid Act applies to all lands which are shamilat deh as defined in Clause (g) of Section 2. By the Amending Act of 1964, an amendment has also been made to Section 5 to the following effect:--
'Section 5. -- After Sub-section (3), add the following: (4) Nothing contained in the third proviso to Sub-section (I) and in Subsection (2) and Sub-section (3), shall apply to the hilly area.'
15. Section 5 provides for that regulation of use and occupation, etc. of lands vested or deemed to have been vested in panchayats. Sub-section (I) and the two provisos to this section read as under:
'5 (I) All lands vested or deemed to have been vested in a Panchayat under this Act shall be utilized 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 mere villages have a Common Panchayat the 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 the village the shamilat tikka shall be utilised and disposed of by the Panchayat for the benefit of the inhabitants of that tikka:'
16. Thus, from the plain reading of this section it would have been noticed that it is the third proviso and Subsections (2) and (3) which have been made not applicable or shall be deemed to have been omitted in so far as the lands vested or deemed to have been vested in the panchayats are concerned. In so far as Sub-section (I) and two provisos are concerned these shall have application to the lands vested or deemed to have been vested in the panchayats in the hilly areas. The added Section 14-A reads as under:
'14 A. Nothing contained in this Act or the Shamilat law shall:---
(a) affect or shall be deemed ever to have affected any rights of the State Governments in the land vested or deemed to be vested in a Panchayat under this Act; or
(b) entitle or shall be deemed ever to have entitled a Panchayat or any other authority under this Act or the Shamilat law to exercise any right or to do any act in respect of any land in the hilly areas or elsewhere i.e. it saves the Panchayat whether such land has or has not been declared as a protected forest under Section 29 of the Indian Forest Act. 1927, in contravention of the provisions of that Act or the Rules made thereunder.'
17. Section 14-A (a) deals with the rights of the State Government in the land which has vested or shall be deemed to have vested in the panchayat under the Act. This further goes to show that the vesting of any land in the panchayat shall not affect any right of the State Government in the land. So it applies to all the lands, whether in the hilly areas or elsewhere, i.e. it saves the rights of the Government, if any, in the land which has vested or shall be deemed to have vested in the panchayats: whereas Sub-section (b) of this newly added Section 14-A, saves the rights of the Government in respect of the lands in the hilly areas vested in the panchayats or deemed to be vested in the panchayats for purposes of Section 29 of the Indian Forest Act. Sub-section (b) of this amended section protects the rights of the Government, which it has got under Section 29 of the Indian Forest Act and the panchayat has been prohibited from exercising any right or to do any act in respect of any land in respect of the hilly areas vested in it so as to contravene the provisions of the Forest Act or the Rules made thereunder. It further becomes clear that this amendment does not take away the land in the hilly area which is shamilat from vesting in the panchayat. The land would definitely vest in the panchayat but certain rights of the Government with regard to the acquisition of certain produce from the land which may be declared as a protected forest in the hilly area under Section 29 of the Indian Forest Act have been saved. Thus we are of the clear opinion that the land in the hilly area under Section 14-A (b) is not exempt from the operation of the Act rather the rights of the Government have been protected in such land which has vested in the Gram Panchayat. Once it is held that the land has vested in the Gram Panchayat then as is rightly argued by the learned counsel for the appellant on the strength of (1964) 66 Pun LR 629, it is the panchayat alone which has act the right to claim possession from the appellant under the decree and the respondents have ceased to have any right, title and interest in the land after the vesting of the land in the panchayat and the decree qua them has become quite in executable.
18. For the above, the judgment and decree of the trial Court are set aside and the appeal is accepted. As the case has been decided on legal point, therefore, the parties are left to bear their own costs.
M.H. Beg, C.J.
19. I agree