Punjab-Haryana High Court

Municipal Council vs The Addl. Director C/H on 18 November, 2025

RSA-3434-1997 (O&M)                      -:1:-
CWP-2548-1997 (O&M)


          IN THE HIGH COURT OF PUNJAB AND HARYANA
                              AT CHANDIGARH

1.                                            RSA-3434-1997 (O&M)
                                              Reserved on :-11.11.2025
                                              Date of Pronouncement:-18.11.2025
                                              Date uploaded on:-19.11.2025

Atma Ram (Since Deceased) through his LRs and others
                                                               ... Appellants
                                 Versus


Municipal Committee, Hoshiarpur and others
                                                               ...Respondents


2.                                            CWP-2548-1997 (O&M)

Municipal Committee, Hoshiarpur through its Executive Officer

                                                               ...Appellant

                                 Versus

The Additional Director, Consolidation of Holdings, Punjab and others

                                                               ...Respondents

              ****


CORAM: HON'BLE MR. JUSTICE VIRINDER AGGARWAL

Argued by :-
            Mr. G.S. Punia, Senior Advocate with
            Mr. P.S. Punia, Advocate and
            Ms. Manleen Kaur, Advocates
            for the appellants in RSA-3434-1997 and
            for respondents No. 4 to 8 in CWP-2548-1997.

              Mr. K.S. Dadwal, Advocate for
              respondent No. 1 in RSA-3434-1997.

              Mr. I.S. Kingra, Sr. DAG, Punjab.

              ****



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 RSA-3434-1997 (O&M)                      -:2:-
CWP-2548-1997 (O&M)


VIRINDER AGGARWAL, J.

1. Through this unified and consolidated judgment, this Court

proceeds to adjudicate both the Regular Second Appeal (for short to be

referred as 'RSA') and the Civil Writ Petition (for short to be referred as

'CWP'), each emanating from a common factual substratum and raising

cognate questions of law. The matters are being disposed of together in order

to obviate unnecessary repetition, promote judicial economy, and secure the

expeditious administration of justice.

1.1. The appellants-plaintiffs have instituted the present RSA

challenging the concurrent findings recorded by the learned Sub-Judge II

Class, Hoshiarpur vide judgment dated 24.12.1993, and affirmed by the

learned Additional District Judge, Hoshiarpur vide judgment dated

28.08.1997, whereby the suit for permanent injunction filed by the

appellants-plaintiffs was dismissed.

1.2. Simultaneously, the respondent-Municipal Committee has filed

a CWP impugning the order dated 09.03.1995 passed by the Consolidation

Officer, Hoshiarpur, by which a portion of the property forming the subject-

matter of the present civil suit was allocated to certain objectors, namely

Balwant Singh, Harbans Singh, Avtar Singh, Kulwant Singh, Daljit Singh

and Resham Kaur. The said order has been challenged on the grounds that it

was passed ex-parte, without affording the petitioner an opportunity of

hearing, that it suffers from inherent lack of jurisdiction, and that it was

issued during the pendency of the civil proceedings, thereby rendering it

legally unsustainable.

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2. Briefly stated, the appellants-plaintiffs instituted a suit for

permanent injunction seeking to restrain the defendant-Municipal

Committee from interfering with the ownership and proprietary rights of the

plaintiff and other co-sharers over the suit land, the full particulars of which

are set out in the head-note of the plaint. It was averred that the appellant-

plaintiffs are proprietors of village Khawaspur, Had Bast No. 246, Tehsil and

District Hoshiarpur. It was further pleaded that several other proprietors,

who presently reside outside the village, also have an interest in the suit

property, and the action has been filed for their benefit as well, with liberty

to them to join as plaintiffs at any stage.

2.1. According to the plaintiffs, the suit land had been reserved as

'Mushtarka Malkan, Hasab Rasad, Khewat' during the consolidation

operations, and continues to vest in the proprietary body of the village.

While certain parcels of land were entrusted to the Gram Panchayat merely

for management and administration for the benefit of the village proprietors,

the agricultural portion of the land remained in the possession of tenants

under the proprietors.

2.2. It is further stated that the revenue estate of village Khawaspur

has since been merged into the Municipal Committee, Hoshiarpur. The

defendant-Committee, however, claims ownership of the suit land on the

premise that it previously vested in the Gram Panchayat, and, upon merger,

the Municipal Committee has assumed ownership thereof. Despite repeated

requests by the appellants-plaintiffs to acknowledge their proprietary rights,

the defendant failed to do so, thereby necessitating the filing of the present

suit.

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3. Upon service of notice, the respondent-defendant Municipal

Committee entered appearance and contested the suit, primarily raising

objections to its maintainability. It was pleaded that the Civil Court lacked

jurisdiction to entertain the matter in view of the express bar contained in

Section 13 of the Punjab Village Commons Lands Act. The defendant further

asserted that a suit for permanent injunction, as framed, was not

maintainable in law. It was additionally contended that the suit land vests in

the Municipal Committee, which has, in any event, acquired ownership

thereof by way of adverse possession.

3.1. On the factual matrix, the respondent-defendant expressly

denied that the proprietary body of the village ever owned the suit land or

that the land had been entrusted to the Gram Panchayat merely for purposes

of management or for utilization in the interest of the village proprietors. It

was further denied that the plaintiffs or their alleged tenants were in

possession of the suit property.

3.2. Conversely, the respondent pleaded that the suit land had

consistently been utilized by the Gram Panchayat for the benefit of the

village inhabitants. It was averred that the Panchayat, in the past, regularly

conducted auctions of the suit land, and the proceeds were duly credited to

the Gram Panchayat fund and employed for the welfare and developmental

needs of the village community. Following the extension of the territorial

limits of the Municipal Committee to include village Khawaspur, the

Municipal Committee thereafter assumed this function and has been

conducting auctions of the suit land.

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CWP-2548-1997 (O&M)

3.3. It was further asserted that the suit land vested in the Gram

Panchayat upon the enforcement of the Punjab Village Common Lands

(Regulation) Act, and, upon such vesting, the Gram Panchayat became the

lawful owner thereof. Subsequently, with the expansion of municipal limits,

all rights, title and interest of the Gram Panchayat in the suit land devolved

upon and were succeeded by the respondent-Municipal Committee.

4. The appellants-plaintiffs filed a replication, specifically

traversing the assertions set forth in the written statement and reaffirming the

pleadings contained in the plaint. Upon a comprehensive examination of the

pleadings and the rival contentions raised by the parties, the Court was

pleased to frame the following issues for adjudication, so as to facilitate a

precise, orderly, and legally coherent determination of the matters in

controversy:-

1. Whether the land in question is ownership of Mushtarka Malkan of

the village and plaintiffs being Mushtarka Malkan are owners in

possession of the suit lands OPP

2. Whether the plaintiffs are entitled to injunction prayed for? OPP

3. Whether defendant-committee is owner of the land by adverse

possession or otherwise entitled to manage the property and the

plaintiffs have no case? OPD

4. Relief.

5. Both parties were afforded ample and adequate opportunity to

lead evidence in support of their respective claims and defence. Upon the

conclusion of the evidentiary proceedings and after hearing the learned

counsel for the parties at considerable length, the learned Sub-Judge II

Class, Hoshiarpur dismissed the suit. The learned First Appellate Court-cum-

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CWP-2548-1997 (O&M)

learned Additional District Judge, Hoshiarpur, upon reappraisal of the record

and submissions, likewise affirmed the findings and dismissed the appeal.

5.1. Aggrieved by the concurrent judgments and decrees rendered by

the Courts below, the appellants have preferred the present RSA.

6. During the pendency of the first appeal, the Consolidation

Officer, Hoshiarpur, passed an order dated 09.03.1995 whereby a portion of

the suit land was mutated in favour of Balwant Singh, Harbans Singh, Avtar

Singh, Kulwant Singh, Daljit Singh and Resham Kaur. Aggrieved by the

said order, the respondent-Municipal Committee instituted CWP-2548-

1997, challenging the same on the ground that the Consolidation Officer

lacked jurisdiction to adjudicate upon or effect any alteration in respect of

the property in question.

6.1. It was further asserted that despite several communications

addressed to the Consolidation Officer requesting that the respondent-

petitioner be afforded an opportunity of hearing prior to the passing of any

order, the impugned order was nonetheless issued ex-parte, in complete

violation of the principles of natural justice. The respondent-Committee

contended that the order was passed during the subsistence and pendency of

civil proceedings before competent Courts, and that the Consolidation

Officer failed to appreciate that the suit land vested in the respondent-

petitioner, rendering the impugned mutation order legally unsustainable.

7. The appellants have instituted the present RSA, assailing the

concurrent judgments and decrees passed by the learned Courts below. In

parallel, the respondent-Municipal Committee has filed a CWP challenging

the order dated 09.03.1995 passed by the Consolidation Officer, Hoshiarpur.

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Both matters were duly admitted to regular hearing, and notices were issued

to the respondents, who entered appearance and contested the proceedings.

7.2. Subsequently, the entire record of the Courts below was

requisitioned to enable a thorough, informed, and comprehensive

adjudication of the issues arising in the appeal as well as in the connected

writ petition.

8. I have heard learned counsel for the parties at considerable

length and have bestowed my thoughtful and anxious consideration upon

their respective submissions, keeping in view the pleadings, the evidentiary

record, and the concurrent findings returned by the Courts below. The entire

record has been meticulously scrutinized to determine 'whether the

impugned judgments and decrees, as well as the order dated 09.03.1995

passed by the Consolidation Officer, Hoshiarpur, are vitiated by any

jurisdictional error, perversity, or legal infirmity warranting interference in

appellate jurisdiction'?

9. The appeal gives rise to the following "quaestio juris

substantialis" for determination by this Court:-

i. Whether the suit land vested in respondent-Municipal

Committee after issuance of Notification Ex.D8?

ii. Whether Civil Court has no jurisdiction to entertain and decide

the present suit?

iii. Whether suit for permanent injunction is not maintainable?

iv. Whether the Consolidation Officer, Hoshiarpur was incompetent

to pass order dated 09.03.1995?

10. Whether the suit land vested in respondent-Municipal

Committee after issuance of Notification Ex.D8:- Learned counsel

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appearing for the respondent-defendant Municipal Committee contended

that the suit land vests in the respondent-Committee by virtue of

Notification dated 27.01.1989 (Ex. D-8), through which all assets and

liabilities of the Gram Panchayat of village Khawaspur were transferred to

and vested in the Municipal Committee, Hoshiarpur. He further submitted

that prior to such vesting, the suit land already stood vested in the Gram

Panchayat, as it was admittedly in the Panchayat's possession and was being

periodically auctioned by it, with the proceeds being credited to the

Panchayat fund and utilized for the welfare of the village community. It was

argued that, in terms of the provisions of the Punjab Village Common Lands

(Regulation) Act, 1961, the suit property had vested in the Gram Panchayat;

and, consequently, upon the extension of municipal limits and the takeover

of the Panchayat area by the Municipal Committee, the suit land

automatically vested in the Committee. Thus, according to learned counsel,

the appellant-plaintiffs have no surviving right, title, or interest in the

property in dispute.

10.1. Conversely, learned counsel for the appellant-plaintiffs asserted

that the suit land forms part of the proprietary estate of the village and never

vested in the Gram Panchayat. The revenue record consistently describes the

land as "Jumla Mushtarka Malkan Mualqa Hasab Rasad Khewat",

signifying that it belongs to the village proprietary body. It was urged that

the land constitutes bachat land carved out during consolidation proceedings

by imposing a pro-rata cut on the holdings of the proprietors, and the Gram

Panchayat merely managed the land for the benefit of the proprietary body

without ever acquiring ownership. Consequently, no question arises of the

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ownership of the suit land being transferred to the Municipal Committee

pursuant to Notification Ex. D-8.

10.2. It is undisputed that the revenue entries classify the suit property

as "Jumla Mushtarka Malkan Mualqa Hasab Rasad Khewat." The Full

Bench of this Court, in 'Suraj Bhan and others v. State of Haryana and

another, 2017 (2) PLR 605', has authoritatively held that land recorded in

such a manner vests in the village proprietary body, and not in the Gram

Panchayat. The Full Bench further held that entries in the revenue record

carry a statutory presumption of correctness, which can be rebutted only by

demonstrating that the entries are founded on erroneous material, or are

vitiated by fraud or manipulation a circumstance not pleaded or established

in the present case. The relevant observations of the Full Bench appear in

paragraph 218, sub-paragraphs (g), (h), and (i), which are reproduced here-

in-below:-

(g) The entries in the revenue records carry a presumption of truth,

which, however, are rebuttable and can be shown to be wrong by

other material (s) on record. The entries, however, in case based

on fraud or manipulation of revenue records, the same would not

confer any right or title on the person so entered as owner in the

records;

(h) The 'Jumla Mushtarka Malkan' lands are distinct and separate

from the 'shamlat deh' lands. The ownership and title of the

'Jumla Mushtarka Malkan' lands or the lands recorded as 'Jumla

Malkan Wa Digar Haqdaran Arazi Hasab Rasad Raqba' vest in

the proprietary body of the village and not in the Panchayat;

however, the management and control of these lands vest in the

Panchayats in view of Section 2 (bb) and Section 23A of the

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CWP-2548-1997 (O&M)

Consolidation Act 1948; besides, Rule 16 (ii) of the

Consolidation Rules 1949 as also the judgment of the Five Judge

Bench of the Supreme Court in Ajit Singh's case (supra);

(i) The Jumla Mushtarka Malkan' or 'Jumla Malkan Wa Digar

Haqdaran Arazi Hasab Rasad Raqba' lands have been carved out

in consolidation proceedings and operations carried out in

accordance with the Consolidation Act 1948 and the

Consolidation Rules 1949 by imposing a pro rata cut on the

lands of the proprietors. The cut that has been made is clearly

identifiable and discernible as it is so mentioned in the 'Missal

Haqiyat' (document of ownership), 'Naksha Haqdaran'

(document of share of the proprietors), 'Khatauni Pamaish'

(measurement of total land on the basis of its valuation) and

'Khatauni Istemal' (first jamabandi after consolidation which

mentions the old khasra numbers and the new khasra numbers).

Therefore, where the shares of the proprietors in the 'Jumla

Mushtarka Malkan' or 'Jumla Malkan Wa Digar Haqdaran Arazi

Hasab Rasad Raqba' lands are identifiable and the land vests in

the municipality, then the proprietors would be entitled for

compensation to the extent of their share as they are admittedly

owners of the same. In Ajit Singh's case (supra), it has

specifically been held that the ownership of such land vests in

the proprietary body of the village to the extent of its share in the

holdings in the village;

10.3 This legal position now stands further crystallized by the

Hon'ble Supreme Court in The State of Haryana v. Jai Singh and Others,

2025 INSC 1122, wherein the Apex Court drew a clear and categorical

distinction between:-

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(i) land reserved for common purposes under Section 18-C of

the East Punjab Holdings (Consolidation and Prevention

of Fragmentation) Act, 1948, and

(ii) land contributed by proprietors on a pro-rata basis, which

is not reserved or earmarked for any specific purpose

under the Consolidation Scheme.

10.4. In the present case, the respondent-defendant has failed to

demonstrate that the suit land was ever earmarked or reserved for common

purposes during the formulation of the Consolidation Scheme. On the

contrary, the revenue description "Jumla Mushtarka Malkan Mualqa Hasab

Rasad Khewat," which remains unrebutted, clearly indicates that the land

was carved out by imposing a pro-rata cut on the holdings of the proprietors

and forms part of the proprietary pool not land reserved for common

purposes of the Scheme.

10.5. The Hon'ble Supreme Court, in Jai Singh's case (supra), has

authoritatively held that land of this nature continues to vest in the village

proprietary body and does not vest in the Gram Panchayat under Article 31-A

of the Constitution of India. The Court expressly approved the principles laid

down in Bhagat Ram and Others v. State of Punjab and Others, AIR

1967 SC 927, wherein it was held that if the Consolidation Officer, after

imposing a pro-rata cut, reserves land to generate income for the Panchayat,

such action violates the second proviso to Article 31-A and defeats its

constitutional mandate. The Apex Court observed that reserving proprietary

land to augment Panchayat revenue is ultra vires and contrary to the

constitutional scheme.

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CWP-2548-1997 (O&M)

10.6. In the present case, although the respondent-Committee asserts

that the land was previously being auctioned by the Gram Panchayat and the

income was utilized for village welfare, it is an admitted position that no

Consolidation Scheme ever reserved this land for generating Panchayat

income. Thus, the present matter stands on an even stronger footing than the

factual matrix in Bhagat Ram's case (supra), where such reservation was

expressly disapproved by the Supreme Court.

10.7. The pertinent findings of the Hon'ble Supreme Court in The

State of Haryana v. Jai Singh's case (supra) are reproduced here-in-

below:-

52. The Full Bench of the High Court in the impugned judgment and

final order attempted to draw a distinction between the land

reserved for common purposes under Section 18(c) of the

Consolidation Act of 1948 which might become part and parcel

of a Scheme framed under Section 14, for the areas reserved for

common purposes, though they have actually not been put to any

common use and may be put to common use in a later point of

time on one hand and the lands which might have been

contributed by the proprietors on pro-rata basis but have not been

reserved or earmarked for common purposes in the Scheme. It

will be relevant to refer to the following observations of the Full

Bench of the High Court:

The land reserved for common purposes under Section 18(c),

which might become part and parcel of a scheme framed under

Section 14, for the areas reserved for common purposes, vests

with the Government or Gram Panchayat, as the case may be,

and the proprietors are left with no right or interest in such lands

meant for common purposes under the scheme. There is nothing

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at all mentioned either in the Act or the rules or the scheme, that

came to be framed, that the proprietors will lose right only with

regard to land which was actually put to any use and not the land

which may be put to common use later in point of time. In none

of the sections or Rules, which have been referred to by us in the

earlier part of scheme envisages only such lands which have

been utilized. That apart, in all the relevant sections and the

rules, words mentioned are 'reserved or assigned'. Reference in

this connection may be made to sub-section (3) of Section 18

and Section 23-A. The provisions of the statute, as referred to

above, would, thus, further fortify that reference is to land

reserved or assigned for common use, whether utilized or not.

*** *** ***

The lands which, however, might have been contributed by the

proprietors on pro-rata basis, but have not been reserved or

earmarked for common purposes in a scheme, known as Bachat

land, it is equally true, would not vest either with the State or the

Gram Panchayat and instead continue to be owned by the

proprietors of the village in the same proportion in which they

contribute the land owned by them. The Bachat land, which is

not used for common purposes under the scheme, in view of

provisions contained in Section 22 of the Act of 1948, is

recorded as Jumla Mustarka Malkan Wa Digar Haqdaran Hasab

Rasad Arazi Khewat but the significant differences is that in the

column of ownership proprietors are shown in possession in

contrast to the land which vests with the Gram Panchayat which

is shown as being used for some or the other common purposes

as per the scheme.

We might have gone into this issue in all its details but in as

much as the point in issue is not res-integra and in fact stands

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clinched by string of judicial pronouncements of this Court as

well as Hon'ble Supreme Court, there is no necessity at all to

interpret the provisions of the Act and the rules any further on

this issue.

The Hon'ble Supreme Court in Bhagat Ram and ors. Vs.

State of Punjab and ors. AIR 1967 Supreme Court 927, dealt

with reservation of certain area in the consolidation scheme for

income of the Panchayat. Brief facts of the case aforesaid would

reveal that a scheme made in respect of consolidation of village

Dolike Sunderpur was questioned on the ground that in as much

as it makes reservation of land for income of the Gram

Panchayat, it is hit by second proviso to Article 31-A of the

Constitution of India. The scheme in question reserved lands for

phirni, paths, agricultural paths, manure pits, cremation grounds

etc. and also reserved an area of 100 kanals 2 marlas (standard

kanals) for income of the Panchayat. It was held as under:-

"The income derived by the Panchayat is in no way different

from its any other income. It is true that Section 2(bb) of the East

Punjab Holdings (Consolidation and Prevention of

Fragmentation) Act, 1948, defines "common purpose" to include

the following purposes:

"... providing income for the Panchayat of the village concerned for the benefit of the village community."

Therefore, the income can only be used for the benefit of the

village community. But so is any other income of the Panchayat

of a village to be used. The income is the income of the

Panchayat and it would defeat the whole object of the second

proviso if we were to give any other construction. The

Consolidation Officer could easily defeat the object of the

second proviso to Article 31-A by reserving for the income of the

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Panchayat a major portion of the land belonging to a person

holding land within the ceiling limit. Therefore, in our opinion,

the reservation of 100 kanals 2 marlas for the income of the

Panchayat in the scheme is contrary to the second proviso and

the scheme must be modified by the competent authority

accordingly.

The ratio of the judgment aforesaid would clearly suggest

that it is the land reserved for common purposes under the

scheme which would be saved, which, otherwise, would be hit

by second proviso to Article 31-A of the Constitution of India.

Surely, if the land, which has not been reserved for common

purposes under the scheme and is Bachat or surplus land, i.e., the

one which is still left out after providing the land in scheme for

common purposes, if it is to vest with the State or Gram

Panchayat, the same would be nothing but compulsory

acquisition within the ceiling limit of an individual without

payment of compensation and would offend second proviso to

Article 31-A of the Constitution of India.

53. We have therefore no hesitation in holding that no error Vcould

be noticed in the impugned judgment and final order of the Full

Bench of the High Court to the extent that it holds that the lands

which have not been earmarked for any specific purpose do not

vest in the Gram Panchayat or the State."

11. The Hon'ble Apex Court has now conclusively settled the legal

position that lands which have not been specifically earmarked or reserved

for any purpose do not vest in the Gram Panchayat or the State. Applying this

authoritative principle to the facts of the present case, it stands established on

the record that the suit land was never reserved for any defined common

purpose under the consolidation scheme. Consequently, the land could not

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have vested in the Gram Panchayat, nor could it thereafter devolve upon the

respondent-Municipal Committee by virtue of Notification Ex. D-8. Only

such lands as were legally vested in the Gram Panchayat of village

Khawaspur could be succeeded to by the Municipal Committee, Hoshiarpur

under the said notification. Since the evidence unequivocally demonstrates

that the suit land never vested in the Gram Panchayat, no title or interest

therein could pass to the respondent-Committee.

11.1. Accordingly, this issue is answered against the respondent-

Municipal Committee. It stands proved that the suit land continued to vest in

the proprietary body of village Khawaspur, and the respondent-Committee is

devoid of any lawful claim of ownership over the same.

12. Whether Civil Court has no jurisdiction to entertain and

decide the present suit:- Learned counsel for the appellant-plaintiffs

submitted that the Civil Court is fully competent to entertain and adjudicate

the present suit, inasmuch as the evidence on record unequivocally

establishes that the suit land forms part of the proprietary estate of the village

and does not constitute Shamlat Deh, nor does it vest in the Gram Panchayat.

13. Conversely, learned counsel for the respondent-Municipal

Committee contended that the Civil Court is divested of jurisdiction to try

the suit, asserting that the land stands vested in the Gram Panchayat and,

therefore, the bar under Section 13 of the Punjab Village Common Lands

(Regulation) Act squarely applies. It was argued that only the Collector is

competent to adjudicate upon the question whether the suit land constitutes

Shamlat Deh and whether it vests in the Gram Panchayat.

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14. It is, however, significant to note that the respondent-Committee

has not been able to prove a case that the Gram Panchayat was the owner of

the suit land. Furthermore in the present case Gram Panchayat is not party to

suit. The stand of the respondent is confined to asserting that the suit land

vested in the Gram Panchayat merely for purposes of management and that

its income was being utilized for the welfare of the village community. Once

it stands established on record that the title to the suit property does not vest

in the Gram Panchayat and that ownership continues to rest with the village

proprietary body, the bar of jurisdiction under Section 13 of the Punjab

Village Common Lands (Regulation) Act is not attracted.

15. The issue relating to the jurisdiction of the Civil Court came up

for authoritative consideration before the Full Bench of this Court in

Parkash Singh and others v. Joint Development Commissioner, Punjab

and others, 2014 (3) PLR 543. In that case, the plea that the land was not

'Jumla Mushtarka Malkan' was raised, and the Full Bench held that the Civil

Court indeed retains jurisdiction to adjudicate such disputes. Paragraphs 63

and 64 of the said judgment, which lucidly articulate the legal position, are

reproduced here-in-below:-

"63. The question that now remains is to identify the forum, a person who

raises a plea that the land is not "Jumla Mushtarka Malkan" or that

it was created by applying an illegal pro rata cut or that the land was

not reserved for common purposes during consolidation, would be

required to approach. After due consideration of the entire matter,

we find no provision in the 1961 Act, the 1976 Act or the

Consolidation Act that provides a forum to a person who raises such

a plea and, therefore, in the absence of any fora for deciding such a

dispute a person may have to approach a Civil Court but Section 44

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of the Consolidation Act prohibits a Civil Court from entertaining

any matter which the State Government or any officers are

empowered by the Consolidation Act to determine or dispose of.

Section 44, however, cannot be read to prohibit Civil Courts from

deciding a question of title relating to "Jumla Mushtarka Malkan"

as what is prohibited by Section 44 is matters that fall to the

jurisdiction of State Government or to any officer duly empowered

by the Consolidation Act to decide. The Consolidation Act does not

confer power whether on the State Government or the officers

empowered thereunder to decide a question of title. The jurisdiction

of a Civil Court to entertain a dispute regarding "Jumla Mushtarka

Malkan" is, therefore, not barred by Section 44 of the Consolidation

Act. The only forum available to a person, who raises a dispute

regarding title in Jumla Mushtarka Malkan" is the principal Court of

civil jurisdiction having jurisdiction in the matter, as provided by

Section 9 of the Code of Civil Procedure, Le., a Civil Court.

64. Thus, where a party seeks to raise a plea that the land is not "Jumla

Mushtarka Malkan" etc., he shall be obliged to approach a Civil

Court, exercising jurisdiction in accordance with Section 9 of the

Code of Civil Procedure till such time as the State does not provide

an appropriate forum. The first question is answered accordingly."

15.1. Accordingly, it is held that the Civil Court is vested with the

jurisdiction to entertain and adjudicate upon the present suit.

16. Whether suit for permanent injunction is not maintainable:-

Learned counsel for the respondent-Committee submitted that the Courts

below have rightly concluded that the suit for permanent injunction is not

maintainable, as the evidence on record clearly establishes that none of the

plaintiffs was in possession of the suit land and that the actual possession

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remained with the respondent-defendant. It was further pointed out that,

during the pendency of the suit, the plaintiffs moved an application seeking

amendment of the plaint to claim possession of suit land, which came to be

adjudicated upon by the learned Sub-Judge II Class, Hoshiarpur and was

declined.

17. Learned counsel for the appellant-plaintiffs submitted that, in an

appeal, the appellate Court is empowered to examine the correctness,

legality, and propriety of all orders passed by the Courts below, including

interlocutory orders. It was argued that the learned Sub-Judge II Class,

Hoshiarpur committed a manifest illegality in declining the plaintiffs' prayer

for amendment of the plaint. In support of this contention, reliance was

placed upon the judgment of this Court in Amar Singh (since deceased)

through his LRs v. Mukhtiar Singh and others, 2018 (3) PLR 121.

18. Upon a meticulous examination of the record, it stands

undisputed that the plaintiffs are not in possession of the suit land. It is

equally undisputed that, during the pendency of the suit, the plaintiffs moved

an application seeking amendment of the plaint so as to incorporate the relief

of possession. The said application was declined by the learned Sub-Judge II

Class, Hoshiarpur. By way of the proposed amendment, the plaintiffs sought

merely to convert the existing prayer for injunction into an appropriate and

complete relief by adding the relief of possession of the suit property.

18.1. This Court, in Amar Singh's case (supra), has categorically

held as under:-

:-

"10. Answer to Question No.4 It has been found by the learned First

Appellate Court that an application under Section 12 was filed

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before the learned trial Court, which was dismissed. While filing an

appeal, all interim orders passed by the Court can be challenged and

are subject to scrutiny of the learned Appellate Court. No fresh

application was required to be filed. In any case, now Sona Singh

has already compromised with the plaintiff-appellant. Even before

the learned First Appellate Court, Sona Singh and Malkiat Singh

had filed an application for allowing the appeal with respect to the

share of Sona Singh on the basis of compromise. However, learned

First Appellate Court committed an error in rejecting the aforesaid

application on the ground that since Sona Singh was minor on the

day of agreement to sell and there is an opinion of the expert that

thumb impression of Sona Singh on the agreement to sell does not

match with the standard thumb impression, therefore, there cannot

be any compromise.

11. In view of the what has been discussed above, question No.4 is also

answered in favour of the appellant."

19. During the pendency of the present appeal, the respondent-

Committee placed on record certain documents demonstrating that the suit

land has been utilized for the installation of the town's sewerage

infrastructure, and that a sewage treatment plant has been established upon

the said land. In these circumstances, restoration of possession to the

appellants is neither feasible nor equitable, as such an order would result in

substantial loss to the respondent-Committee and lead to the wasteful

destruction of valuable public resources and infrastructure created for the

benefit of the community.

19.1. Having regard to the fact that a sewage treatment plant has now

been established upon the suit land, it would neither be feasible nor desirable

to direct delivery of possession to the plaintiffs. Moreover, the plaintiffs

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constitute only a minuscule fraction of the village proprietary body whose

members number in the thousands and, therefore, possession of the entirety

of the suit land cannot be handed over to a few proprietors to the exclusion

and prejudice of the remaining co-sharers.

19.2. It consequently stands established that, the plaintiffs being

admittedly out of possession, are not entitled to the relief of injunction as

prayed for. However, the utilization of the suit land by the respondent-

Municipal Committee for the purpose of laying a sewage system and

establishing a sewage treatment plant, without initiating any lawful process

of acquisition or without payment of compensation to the appellants,

constitutes a clear infraction of Article 300-A of the Constitution of India.

The proprietary rights of the landowners cannot be extinguished by unilateral

appropriation of land, nor can the Committee be presumed to have lawfully

acquired title without compensating the true owners.

19.3. At the same time, the nature of the present proceedings does not

permit this Court to undertake the detailed and extensive inquiry necessary to

determine the quantum of compensation or the individualized entitlement of

each proprietor based on the precise extent of land contributed by them. Such

questions fall outside the scope of the present suit. The appellant-plaintiffs

are, however, granted liberty to pursue their remedy for compensation and

other consequential reliefs before the appropriate forum in accordance with

law.

19.4. Support for the above proposition is found in the decision of the

Hon'ble Supreme Court in Rajiv Sarin v. State of Uttarakhand, (2011) 8

SCC 708, which has been approvingly relied upon by the Full Bench of this

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Court in Suraj Bhan and others v. State of Haryana and another, (2017)

2 PLR 605. The relevant extract from the Full Bench judgment reads as

follows:-

"180. In Rajiv Sarin v. State of Uttarakhand, 2011(3) RCR (Civil)

946: (2011) 8 SCC 708, a Five Judge Bench of Hon'ble the

Supreme Court considered the effect of deprivation of property

and the entitlement for compensation to those deprived of the

property. The appellants in the said case in 1945 acquired

proprietary rights as intermediaries in a forest estate in

Uttarakhand. The UP Zamindari Abolition and Land Reforms

Act, 1950 (UPZALR Act) intended to abolish the zamindari and

intermediaries and vest these lands in the State. The said

UPZALR Act was applicable to the entire State of U.P. except

the areas of Kumaun and Uttarakhand. Subsequently, the

Kumaun and Uttarakhand Zamindari Abolition and Land

Reforms Act, 1960 (KUZALR Act) was enacted on 02.08.1960.

The said KUZALR Act introduced land reforms in the State of

U.P. in respect of Kumaun and Uttarakhand. The original

KUZALR Act as applicable in Kumaun and Uttarakhand did not

provide for vesting of private forests, and the definition of the

word "land" in Section 3 (1) thereof excluded forest.

181. After the commencement of the Constitution (Forty-second

Amendment) Act, 1976 which came into effect from 03.01.1977

the subject "forests" was included in Schedule VII List III of the

Constitution as Entry 17-A. The U.P. Zamindari Abolition Laws

(Amendment) Act, 1978 was passed on 30.11.1977 whereby the

KUZALR Act was amended. The original KUZALR Act had

received the President's assent on 10.09.1960 and the amendment

had also received the President's assent on 26.04.1976. By a

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Gazette Notification dated 21.12.1977 under Section 4-A

KUZALR Act, as amended by U.P. Act 15 of 1978, the rights,

title and interest of every intermediary in respect of forest land

situated in the specified areas ceased w.e.f. 01.01.1978 and the

same vested in the State Government.

182. The appellants in the said case were served with a notice under

Rule 2 of the Kumaun and Uttarakhand Zamindari Abolition and

Land Reforms Rules, 1965 intimating them of the said vesting of

their lands in the State w.e.f. 01.01.1978. The notice also invited

objections and statement, if any, relating to the compensation qua

the property in question. The appellants challenged the said

notice and validity of the KUZALR Act, as amended by U.P. Act

15 of 1978. The appellants also challenged the order of the High

Court which had been passed on the basis of Sections 18 (1) (cc)

and 19 (1) (b) KUZALR Act, and it had been held that they were

not entitled to any compensation as they had not derived any

income from the forests.

183. Partly allowing the appeal, Hon'ble the Supreme Court inter alia

held that any law which deprived a person of his private property

for private interest would be amenable to judicial review.

Though the concept of public purpose had been given quite a

wide interpretation, nevertheless, "public purpose remained the

most important condition in order to invoke Article 300A of the

Constitution. Besides, the right to property being no more a

fundamental right, a legislation enacted under the authority of

law as provided in Article 300A of the Constitution is not

amenable to judicial review merely for alleged violation of Part

III of the Constitution. However, the laws added to Schedule IX

to the Constitution, by violating the Constitutional amendment

after 24.12.1973, would be amenable to judicial review on a

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ground like violation of the basic structure of the Constitution. It

was further held that right to property is no longer a fundamental

right. In view of the aforesaid position, the entire concept of

right to property had to be viewed with a different mindset than

the mindset which was prevalent during the period when the

concept of eminent domain was the embodied provision of

fundamental rights. But even now as provided under Article

300A of the Constitution the State could proceed to acquire land

for specified use but by enacting a law through State Legislature

or by Parliament and in the manner having force of law.

184. With regard to claiming compensation, it was observed that all

modern constitutions which are invariably of democratic

character provide for payment of compensation as the condition

to exercise the right of expropriation. Acquisition of land and

thereby deprivation of property was possible and permissible in

accordance with the statutory framework enacted and when the

State exercises the power of acquisition of a private property

thereby depriving the private person of the property, provision

was generally made in the statute to pay compensation to be

fixed or determined according to the criteria laid down in the

statute itself. It was observed that it must be understood in this

context that the acquisition of the property by the State in

furtherance of the directive principles of State policy was to

distribute the material resources of the community including

acquisition and taking possession of private property for public

purpose It does not require payment of market value or

indemnification to the owner of the property expropriated.

Payment of market value in lieu of acquired property is not a

condition precedent or sine qua non for acquisition. It must be

clearly understood that the acquisition and payment of amount

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are part of the same scheme and they cannot be separated. It was

considered as true that the adequacy of compensation could not

be questioned in a court of law, but at the same time the

compensation could not be illusory. A distinction and difference

had been drawn between the concept of "no compensation" and

the concept of "nil compensation". As mandated by Article

300A, a person could be deprived of his property but in a just

fair and reasonable manner. In an appropriate case the Court may

find "nil compensation" also justified and fair if it was found that

the State had undertaken to take over the hability and also had

assured to compensate in a just and fair 'manner. But the

situation would be totally different if it was a case of "no

compensation" at all. A law seeking to acquire private property

for public purpose cannot say that "no compensation" would be

paid.

185. The case before Hon'ble the Supreme Court was a case of

payment of "no compensation" at all. In the said case, the forest

land which had vested in the State by operation of law, it was

observed, could not be said to be non-productive or unproductive

by any stretch of imagination. The property in question was

definitely a productive asset. That being so, the criteria to

determine possible income on the date of vesting would be to

ascertain such compensation paid to similarly situated owners of

neighbouring forests on the date of vesting. Even otherwise, it

was observed, that the revenue authority could always make an

estimation of possible income on the date of vesting if the

property in question had been exploited by the appellants therein

and then calculate compensation on the basis thereof in terms of

Section 18 (1) (cc) and 19 (1) (b) of the KUZALR Act.

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186. Awarding no compensation, it was held, attracted the vice of

illegal deprivation of property even in the light of the provisions

of the Act and was, therefore, amenable to writ jurisdiction. That

being so, the omission of Section 39 (1) (e) (ii) of the UPZALR

Act, 1950, as amended in 1978 was held to be of no consequence

since the UPZALR Act left no choice to the State other than to

pay compensation for the private forests acquired by it in

accordance with the mandate of the law. Therefore, while

upholding the validity of the KUZALR Act and particularly

Sections 4-A, 18 (1) (cc) and 19 (1) (b) thereof, the Assistant

Collector was directed to determine and award compensation to

the appellants therein by following a reasonable and intelligible

criterion evolved on the aforesaid guidelines provided and in the

light of aforesaid law as has been enunciated. The appellants

were also held entitled to interest at 6% per annum on the

compensation amount from the date of dispossession till the date

of payment provided possession of the forest was handed and

taken over formally by the respondent physically and provided

that the appellants were totally deprived of physical possession

of the forest. In case the physical/actual possession had not been

handed over by the appellants to the State Government or had

been handed over at some subsequent date, i.e. after the date of

vesting, the interest on the compensation amount, it was ordered,

would be payable only from the date of actual/physical

possession of the property in question and not from the date of

vesting.

187. Therefore, it is quite evident that payment of compensation when

a person is deprived of his property is a necessary consequence

of the acquisition except of course where the acquisition has

been made for agrarian reforms in which case also in view of the

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second proviso to Article 31-A, compensation is payable in terms

thereof."

20. Whether the Consolidation Officer, Hoshiarpur was

incompetent to pass order dated 09.03.1995:- Learned counsel for the

Municipal Committee, Hoshiarpur submitted that the Consolidation Officer,

Hoshiarpur wholly lacked jurisdiction to allot or apportion any portion of the

suit land, particularly when the question of title to the property was sub

judice before the competent Civil Court. It was argued that the matter

squarely fell within the exclusive domain of the Civil Court, and therefore,

any exercise of authority by the Consolidation Officer over the disputed land

was without lawful competence.

20.1. It was further contended that the impugned order stands vitiated

for having been passed in complete violation of the fundamental principles of

natural justice, especially the rule of 'audi alteram partem', inasmuch as no

opportunity of hearing was afforded to the petitioner-Committee despite

repeated communications addressed to the Consolidation Officer requesting

that an opportunity be granted prior to the issuance of any such order.

Learned counsel emphasized that the Officer had been duly apprised of the

fact that the suit land was subject to pending adjudication before the Civil

Court, wherein the petitioner's claim of title and rights over the property was

already under consideration. Notwithstanding such explicit intimation, the

Consolidation Officer proceeded to pass the order ex parte, thereby rendering

it legally unsustainable and void.

21. Conversely, learned counsel appearing on behalf of respondents

No. 4 to 8 submitted that the impugned order suffers from no illegality,

irrationality, or procedural infirmity warranting interference in the exercise of

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writ jurisdiction. It was argued that the order has been passed by the

competent statutory authority in the lawful exercise of jurisdiction, after due

consideration of the material placed before it, and thus the writ petition

merits outright dismissal.

21.1. With respect to the issue concerning the jurisdiction of the

Consolidation Officer, learned counsel placed reliance upon the authoritative

pronouncement of the Full Bench of this Court in Parkash Singh and

others v. Joint Development Commissioner, Punjab and others, 2014 (3)

PLR 543, wherein the legal position governing the jurisdiction of

consolidation authorities particularly in matters involving questions of title

has been comprehensively delineated and reaffirmed. The Full Bench has

enunciated the governing principles in the following terms:-

"63. The question that now remains is to identify the forum, a person who

raises a plea that the land is not "Jumla Mushtarka Malkan" or that

it was created by applying an illegal pro rata cut or that the land was

not reserved for common purposes during consolidation, would be

required to approach. After due consideration of the entire matter,

we find no provision in the 1961 Act, the 1976 Act or the

Consolidation Act that provides a forum to a person who raises such

a plea and, therefore, in the absence of any fora for deciding such a

dispute a person may have to approach a Civil Court but Section 44

of the Consolidation Act prohibits a Civil Court from entertaining

any matter which the State Government or any officers are

empowered by the Consolidation Act to determine or dispose of.

Section 44, however, cannot be read to prohibit Civil Courts from

deciding a question of title relating to "Jumla Mushtarka Malkan"

as what is prohibited by Section 44 is matters that fall to the

jurisdiction of State Government or to any officer duly empowered

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