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Common land proprietorship remains with owner, rules Punjab and Haryana High Court

In a significant judgment on land laws, the Punjab and Haryana High Court has ruled that the title of a landowner in the land reserved for common purposes or the ‘Jumla Mushtarka Malkan’ land was still with the property owner, even after insertion of Section 42A in the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act.

Justice Anil Kshetarpal ruled Section 42A on “prohibition to partition the land reserved for common purposes” did not take away the title of the proprietor in the land reserved for common purposes at the time of consolidation. However, the control and management of such land would continue to vest in the gram panchayat or the state government till it was used, or was capable of being used, for village common purposes.

The ruling by Justice Kshetarpal came on a petition filed against the state of Punjab and other respondents by Labh Singh and other petitioners. Going into the technical aspects of the matter, Justice Kshetarpal asserted Rule 16 (ii) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules provided that the proprietary rights of land reserved for village common purposes, by imposing pro-rata cut on landholding of the owners at the time of consolidation, would continue to vest in the proprietary body of the estate or estates concerned.

Justice Kshetarpal added a five-Judge Bench of the Supreme Court held in 1965 that the land so carved out by imposing a pro-rata cut for common use of the villagers would not result in divesting the ownership of the proprietors or proprietary body. Subsequently, another five-Judge Bench again held that the proprietors would continue to be the owner and there was no divesting of the title. Another Bench also held that the ownership of Jumla Mushtarka Malkan land did not vest in the gram panchayat.

But the state counsel insisted that the proprietary body stood divested of the title of the ‘Jumla Mushtarka Malkan’ land in view of Section 42A. Justice Kshetarpal asserted the Act did not provide for acquisition, divesting, confiscation, seizure, impounding, appropriation or annexation of the proprietary rights. “If the argument of state’s counsel is accepted, the provision most likely would be rendered unconstitutional,” he said.

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