Punjab-Haryana High Court
Date Of Decision: 06.08.2013 vs State Of Haryana And Others on 6 August, 2013
Bench: Jasbir Singh, G.S.Sandhawalia
LPA No.503 of 2013 & others connected cases -1-
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
1. LPA No.503 of 2013
Date of decision: 06.08.2013
Balwant Singh and others .Appellants
Vs.
State of Haryana and others .Respondents
2. LPA No.539 of 2013
Shakuntla Devi and others .Appellants
Vs.
State of Haryana and others .Respondents
3. LPA No.540 of 2013
Ram Parshad and others .Appellants
Vs.
State of Haryana and others .Respondents
4. LPA No.551 of 2013
Randhir Singh and others .Appellants
Vs.
State of Haryana and others .Respondents
5. LPA No.591 of 2013
Ram Sarup and others .Appellants
Vs.
State of Haryana and others .Respondents
Kumar Pardeep
2013.08.23 10:43
I attest to the accuracy and
integrity of this document
LPA No.503 of 2013 & others connected cases -2-
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6. LPA No.620 of 2013
Ram Chander and others .Appellants
Vs.
State of Haryana and others .Respondents
CORAM: HON'BLE MR.JUSTICE JASBIR SINGH
HON'BLE MR.JUSTICE G.S.SANDHAWALIA
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1. Whether Reporters of local papers may be allowed to
see the judgment?
2. Whether to be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
****
Present: Mr. S.D.Sharma, Senior Advocate with
Mr. Pritam Saini,. Advocate for the appellants.
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G.S.SANDHAWALIA, J.
1. This order shall dispose of Letters Patent Appeals No.503, 539, 540, 551, 591 and 620 of 2013 since the common questions of law and facts are involved in these appeals. However, the facts have been taken from the Letters Patent Appeal No.503 of 2013 Balwant Singh and others Vs. State of Haryana and others which arises out of the order dated 28.6.2010 whereby Civil Writ Petition No.2198 of 2001 was dismissed and the subsequent review application filed therein was also dismissed vide order dated 16.11.2012.
2. The case has a chequered history since the first application under Section 7(2) of the Punjab Village Common Lands (Regulation) Act, 1961 as applicable to the State of Haryana (hereinafter referred to Kumar Pardeep 2013.08.23 10:43 I attest to the accuracy and integrity of this document LPA No.503 of 2013 & others connected cases -3- ***** as "the Act") was filed on 28.5.1991 for ejectment against the appellants by the Gram Panchayat, Bodhni, Tehsil Pehowa, District Kurukshetra. The plea taken was that the appellants were in unauthorised possession of 104 Kanals 1 Marla of land comprised in Khasra Nos. 103/17, 24,25,104/6/1, 15,16,25, 116/5, 6,15,16, 22 min, 117,4,7 and they were not paying anything to the Gram Panchayat. A penalty of ` 2500/- per hectare was also sought for. The said case was clubbed with other 17 cases of village and in view of fact that the Gram Panchayat did not lead evidence and due to an order dated 23.12.1965 passed by the Consolidation Officer whereby the land was given to the appellants after deduction from the land of the leaseholders and the proprietors the application was dismissed being not maintainable by the Assistant Collector Ist Grade, Kurukshetra vide order dated 16.2.1994 (Annexure P-12). The Gram Panchayat preferred appeal before the Collector, who remanded the case on 18.6.1994 to the Assistant Collector, Pehowa with the direction that both the sides be afforded an opportunity to adduce additional evidence and after hearing the parties, the case be decided as per rules. Thereafter, on 28.5.1996, the Assistant Collector Ist Grade passed the order of eviction on the ground that the appellants were claiming their possession on the basis of sale deeds in their favour and their predecessors-in-interest but in the Jamabandi for the year 1992-93 there are such Khasra Nos. the possession of which was not given to the right holders and the Panchayat was owner of the same. The appeals against the said order were filed and the Collector, Kurukshetra vide order 11.12.1996 (Annexure P-14) came to the conclusion that as per Kumar Pardeep 2013.08.23 10:43 I attest to the accuracy and integrity of this document LPA No.503 of 2013 & others connected cases -4- ***** Jamabandi for the year 1987-88 the Panchayat was the owner of the land in dispute and the original sale deeds had not been produced and the purchase made before 26.1.1950 was to be taken into account as the sale deeds were of subsequent dates i.e. 30.12.1950 and 28.2.1951. However, since the question of title had not been decided, the issue was remanded again to the Assistant Collector Ist Grade, Pehowa with a direction that decision be first taken under Section 7(3) of the Act and after that the decision regarding ejectment be taken. Thereafter, the Assistant Collector Ist Grade, framed the following issues on 21.10.1997:-
"1. Whether the land in dispute is Shamilat Deh and in unauthorised possession of the respondents?OPP
2. Whether the respondents are owners and in possession of the land in dispute?OPD
3. Relief."
3. On the statement of counsel for the respondents collective evidence which had already been recorded was taken into consideration. The Assistant Collector Ist Grade vide order dated 30.8.1999 came to the conclusion that the appellants were not in continuous possession from 26.1.1950 under issue no.1 and, therefore, they would not be declared as owner in possession of the land in dispute under issue no.2 and accordingly, it was held that the owner of the land was Gram Panchayat and the appellants have failed to prove their ownership rights and their eviction was ordered along with penalty @ ` 5000/-per hectare till the year 1995 and @ ` 8000/- per hectare per year from the year Kumar Pardeep 2013.08.23 10:43 I attest to the accuracy and integrity of this document LPA No.503 of 2013 & others connected cases -5- ***** 1996. Relevant portion of the order reads as under:-
"I have carefully perused the evidence/statements on the file as also the revenue record and after hearing the learned counsel for both the parties I have arrived at the conclusion, that possession of the respondents over the land in dispute is proved to be unauthorised because from the Jamabandi for the year 1941-42 it is found that the owner of this land is Panchayat Deh, according to Jamabandi for the year 1953- 54 also, owner is Shamilat Deh and in the Jamabandi for the year 1957-58 as well, owner of the land in dispute is Panchayat Deh and in the column of ownership, KHUD KASHT VA MAKBOOJA MALKAN has been recorded. Therefore, possession of the respondents from 26.1.1950 is not proved and the respondents have also failed to prove their ownership rights. Therefore, in these circumstances, the respondents are evicted from the land described in the petition and from the time of unauthorised possession penalty @ ` 5000/- till the year 1995 and from 1996 till the delivery of possession @ ` 8000/- per hectare per year is imposed. One copy of this order be placed in each file. The files be consigned to record room after compliance."
4. The appellants filed the appeals before the Collector, Kurukshetra which were dismissed on 30.5.2000 on the ground that the land in dispute was purchased vide sale deeds dated 30.12.1950 and 28.2.1951 and as per definition of the Exception Clause under Section 2 Kumar Pardeep 2013.08.23 10:43 I attest to the accuracy and integrity of this document LPA No.503 of 2013 & others connected cases -6- *****
(g) (iv) of the Act, concession could be granted if the purchases were made prior to 26.1.1950. Reference was made to the Jamabandis for the years 1941-42, 1953-54 and 1957-58 to uphold the ownership of the Panchayat. Thereafter, revision petitions were filed before the Commissioner, Ambala Division, which were dismissed on 27.9.2000 by holding as under:-
"I have heard the learned counsel for the parties and perused the record. After perusal of the record, it is clear that the sale deeds produced by the petitioners are of after 26.1.1950 and a mere mention in sale deed that the Shamilat shares have been purchased, does not prove that the petitioners have in fact purchased the Shamilat share. Before that, it is to be proved that the persons from whom the petitioners purchased the land had how much share in the Shamilat and whether they had any right to sell the same or not. The concessions under the Rules cannot be granted for the land purchased by the petitioners vide sale deed dated 30.12.50 and 28.2.51 because as per Section 2
(g) of the Punjab Village Common Lands Act, 1961, this concession can be granted only if the land is purchased prior to 26.1.1950. But in these cases, the purchases were made after 26.1.1950. Besides, the Gram Panchayat is recorded as owner in the column of ownership in the Jamabandis for the years 1941-42, 1953-54 and 1957-58 and the Shamilat land is being looked after by the Gram Kumar Pardeep 2013.08.23 10:43 I attest to the accuracy and integrity of this document LPA No.503 of 2013 & others connected cases -7-
***** Panchayat. In the ejectment proceedings, such like old entries in the revenue record, cannot be ignored. Further, from the revenue record it is clear that the Panchayat is the owner of the land in dispute. Even as per Mutation No.429, of which the petitioners are seeking benefit, the ownership vested in the Panchayat and the petitioner have till now never challenged these entries. In this way, the Gram Panchayat is the owner of the land in dispute and the petitioners have failed to prove in which capacity they are in possession. Apart from it, the perusal of the file reveals that as per the order dated 11.12.1996 passed by the Collector, Kurukshetra these cases were remanded to the lower Court with the directions that after framing the issues as per Section 7(3) of the Punjab Village Common Lands Act, 1961 and after obtaining evidence of the parties, the question of title was to be determined and thereafter the decision regarding ejectment was to be taken. The Assistant Collector Ist Grade, Pehowa after framing the issues and granting full opportunity to the parties to lead their evidence, came to the conclusion that the land in dispute is Shamilat deh and the petitioners are in unauthorised possession of the land in dispute. Further from the perusal of the evidence brought on record, it is clear that after 26.1.1950, the continuous cultivating possession of the petitioners is not proved. Besides, the petitioners have failed to prove their Kumar Pardeep 2013.08.23 10:43 I attest to the accuracy and integrity of this document LPA No.503 of 2013 & others connected cases -8- ***** continuous possession over the land in dispute since 26.1.1950. Therefore, they cannot be declared as owners of the land in dispute. The Assistant Collector Ist Grade, Pehowa also came to the conclusion that the possession of the petitioners over the land in dispute is proved to be unauthorised because perusal of the Jamabandi for the year 1940-41 on the file shows that ownership of the Panchayat Deh. In the Jamabandi for the year 1953-54 also, Shamilat Deh is the owner and even in the Jamabandi for the year 1957-58, the owner of the land is Panchayat Deh and in the column of cultivation, self cultivation and MAQBOOJA MALKAN exists. In this way, the possession of the petitioners over the land in dispute as cultivators continuously after 26.1.1950 is not proved. The Assistant Collector Ist Grade, Pehowa on the basis of the documents on record, have clearly come to the conclusion that the possession of the petitioners is unauthorised and on its basis only,the ejectment of the petitioners has been ordered and penalty imposed. The Collector, Kurukeshtra also confirmed the order under revision passed by the Assistant Collector Ist Grade, Pehowa. In my opinion, the orders in revision passed by the Courts below have no infirmity and there is no force in the arguments of the counsel for the petitioners. I, therefore, finding no justification to interfere in the orders under revision passed by the Courts below, the Kumar Pardeep 2013.08.23 10:43 I attest to the accuracy and integrity of this document LPA No.503 of 2013 & others connected cases -9- ***** revisions filed by the petitioners being devoid of any merit, dismiss the same."
5. The said order along with order dated 30.8.1999 passed by the Assistant Collector Ist Grade, Pehowa and order dated 30.5.2000 passed by the Collector was the subject matter of challenge before the learned Single Judge in Civil Writ Petition No.2198 of 2001. The learned Single Judge vide its detailed order dated 28.6.2010 while considering the provisions of the Exception Clause of Section 2(g)(iv), Section 3 and Section 4 upheld the said orders by holding as under:-
"A conjoint reading of Section 4 and proviso (iv) to Section 2(g) of the Act, leads to a singular conclusion that only such sales/purchases of share in Shamilat deh would be excluded from the definition of Shamilat deh as were effected prior to 31 January, 1950. The petitioners, admittedly purchased the land in dispute vide sale deeds dated 30.12.1950 and 28.02.1951 i.e. after the said date and therefore, cannot be heard to urge that the land does not vest in the Gram Panchayat. In this view of the matter, I have no hesitation in holding that the Assistant Collector, the Collector and the Commissioner, have not committed any error in holding that the land in dispute vests in the Gram Panchayat.
Before parting with the judgment, it would be necessary to deal with certain other arguments raised by counsel for the petitioners. The argument that the order Kumar Pardeep 2013.08.23 10:43 I attest to the accuracy and integrity of this document LPA No.503 of 2013 & others connected cases -10- ***** passed by the Director Consolidation, is binding upon the Gram Panchayat, disregards the inherent lack of jurisdiction in a authority exercising powers under the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, to record such a finding against the ownership of a Gram Panchayat.
Another argument pressed into service by counsel for the petitioners is that as the land is described as 'Shamilat patti', in the year 1941-42, it does not vest in the Gram Panchayat as it was never used for the common purposes of the village or a part thereof, cannot be urged for the first time in writ jurisdiction as no such plea was raised before the Assistant Collector, the Collector or the Commissioner.
In view of what has been stated hereinabove, the writ petitions are dismissed with no order as to costs."
6. Thereafter, Letters Patent Appeal No.1584 of 2010 was filed which came up for hearing before the Division Bench wherein argument was raised that the land in question was Shamilat Patti land and was not used for common purposes of the village at any time. The said appeal was dismissed as withdrawn with liberty to bring the said fact to the notice of the learned Single Judge vide order dated 26.7.2011 which reads as under:-
"Before this Court, an attempt has been made to show that the land in dispute will not vest in the Gram Panchayat because it is Shamlat Patti land and was not used for the Kumar Pardeep 2013.08.23 10:43 I attest to the accuracy and integrity of this document LPA No.503 of 2013 & others connected cases -11- ***** common purposes of the village at any time. It is further stated that the learned Single Judge has erred in saying that this point was not raised before the Assistant Collector, Collector and the Commissioner.
If that is so, the appellants may move an appropriate application before the learned Single Judge for review of the order under challenge in this appeal.
Faced with the situation, counsel for the appellants wishes to withdraw this appeal to avail an appropriate remedy.
Ordered accordingly."
7. In view of the said liberty granted, review application was filed before the learned Single Judge whereby the plea taken was that the land was ownership of Patti Gehla and Patti Nagraj and was not used for common purposes and, therefore, case of the petitioners was covered under Exception Clause of Section 2(g)(v) of the Act and did not fall within the definition of Shamilat land. The review application was dismissed on 16.11.2012 by the learned Single Judge holding that no such plea was raised before the Assistant Collector Ist Grade, therefore, it could not be raised for the first time before the Collector, Commissioner and before this Court. The order passed in review application reads as under:-
"Prayer in this application is for review of order dated 28.06.2010.
Counsel for the petitioners submits that finding Kumar Pardeep 2013.08.23 10:43 I attest to the accuracy and integrity of this document LPA No.503 of 2013 & others connected cases -12- ***** recorded in the penultimate paragraph of the writ petition that the petitioners did not raise a plea that as the land was Shamilat Patti and not used for common purposes of the village, it cannot be urged for the first time in the writ petition, is factually incorrect, as such a plea was raised before the Assistant Collector, the Collector and the Commissioner but was not decided by these authorities. It is prayed that as fact noticed in the penultimate paragraph of the writ petition are incorrect, the review application may be allowed and the writ petition be set down for rehearing.
Counsel for the Gram Panchayat-respondent no.5 submits that though such a plea was raised before the Collector and the Commissioner, no such averment was made in the written statement filed before the Assistant Collector. The review application, therefore, should be dismissed.
I have heard counsel for the parties, perused order dated 28.6.2010 and find no reason to allow the application for review. A perusal of the order, passed by the Assistant Collector Ist Grade, Pehowa, the court of original jurisdiction, reveals that petitioners did not raise a plea that land is excluded from Shamilat Deh as it is Shamilat Patti, not used for common purposes of the village, or a part thereof as per the revenue record. Counsel for the Gram Panchayat has drawn my attention to the written statement Kumar Pardeep 2013.08.23 10:43 I attest to the accuracy and integrity of this document LPA No.503 of 2013 & others connected cases -13- ***** filed by the petitioners before the Assistant Collector Ist Grade-cum-DDPO, Kurukshetra. A perusal of the written statement reveals that no such plea was raised before the Assistant Collector Ist Grade-cum-DDPO, Kurukshetra.
In this view of the matter, I find no reason to review/recall order dated 28.6.2010 except to the extent of clarifying that as, no such plea was raised before the Assistant Collector Ist Grade-cum-DDPO, Kurukshetra/Pehowa, such a plea could not be raised for the first time in appeal before the Collector or in revision before the Commissioner or before this Court."
8. Counsel for the appellants has accordingly submitted that the land belongs to Patti Gehla and Patti Nagraj and not being used for the benefit of village community or for the common purposes and, therefore, under Section 2(g)(v) of the Act, it would not be Shamilat Deh and, therefore, eviction could not be ordered and the appellants were entitled to continue in possession and as such order of eviction and penalty was bad.
9. Section 2(g) describes various types of land which is Shamilat Deh under sub Clauses 1 to 5, whereas under Exceptions (i) to
(v) description of the land which is not Shamilat Deh is given. A further perusal of Exceptions (iv) and (v) of the Act would go on to show that in the exception clauses two categories of land described therein would not be Shamilat Deh. Firstly under Section 2(g)(iv), the land acquired before 26.1.1950 by a person by purchase or in exchange for Kumar Pardeep 2013.08.23 10:43 I attest to the accuracy and integrity of this document LPA No.503 of 2013 & others connected cases -14- ***** proprietary land from a co-sharer and was recorded in the revenue record or supported by a valid deed and under Section 2(g)(v), the land which was Shamilat Patti/Taraf/Pannas/Thola and not used for the benefit of village community or for the common purposes as per revenue record was also excluded from the Shamilat Deh. Section 2(g)
(iv) and 2(g)(v) of the Act are reproduced below:-
"2(g) "shamilat deh" includes: -
(1) lands described in the revenue record as [Shamilat deh or Charand] excluding abadi deh;
(2) shamilat tikkas;
(3) lands described in the revenue records as shamilat, tarafs, pattis, pannas and tholas and used according to revenue records for the benefit of the village community or a part thereof or for common purposes of the village; (4) lands used or reserved for the benefit of village community including streets, lanes, playgrounds, schools, drinking wells or ponds situated within the sabha area as defined in clause (mmm) of section 3 of the Punjab Gram Panchayat Act, 1952, excluding lands reserved for the common purposes of a village under section 18 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (East Punjab Act 50 of 1948), the management and control whereof vests in the State Government under Section 23-A of the aforesaid Act; Kumar Pardeep 2013.08.23 10:43 I attest to the accuracy and integrity of this document
LPA No.503 of 2013 & others connected cases -15- ***** (4a) Vacant land situated in abadi deh or gorah deh not owned by any person;
(5) lands in any village described as banjar qadim and used for common purposes of the village according to revenue records;
but does not include land which: -
(i) becomes or has become shamilat deh due to river action or has been reserved as shamilat in villages subject to river action except shamilat deh entered as pasture, pond or playground in the revenue records;
(ii) has been allotted on quasi-permanent basis to a displaced person;
(ii-a) was shamilat deh, but has been allotted to any person by the Rehabilitation Department of the State Government, after the commencement of this Act, but on or before the 9th day of July, 1985;
(iii) has been partitioned and brought under cultivation by individual landholders before the 26th January, 1950.
(iv) having been acquired before the 26th January, 1950, by a person by purchase or in exchange for proprietary land from a co-sharer in the shamilat deh is so recorded in the jamabandi or is supported by a valid deed;
(v) is described in the revenue records as shamilat, taraf, pattis, pannas, and thola and not used according to revenue records for the benefit of the village community or a part Kumar Pardeep 2013.08.23 10:43 I attest to the accuracy and integrity of this document LPA No.503 of 2013 & others connected cases -16- ***** thereof or for common purposes of the village;
10. A perusal of the litigation in the present case which in continuation since 28.5.1991 would go on to show that the appellants in their reply to the application had raised the question of title. In their preliminary objections in the written statement dated 18.6.1993 they had set up sale deeds dated 30.12.1950 and 28.2.1951 (Annexures P/1 and P/2) in their favour and their predecessors-in-interest and taken the plea that mutations had been entered, however, at the time of consolidation their interest had not been protected and they had to file a petition under Section 5(2) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 and eventually an order dated 23.12.1965 was passed in their favour. Specific plea taken was that they were in possession since 23.12.1950. The said paragraphs read as under:-
"5. That the applicant has not come with clean hands and has not disclose material facts. Actually the respondents/predecessor in interest had purchased the land/share of the erstwhile proprietors vide Regd. Sale deed No.460 dated 30.12.1950 and Regd. Sale deed dated 28.2.1951 from the erstwhile proprietors. Mutation Nos. 212 and 236 were entered. However, at the time of consolidation, the land belonging to respondents and other co-vendees/their predecessor in interest was not given and Jyoti Singh etc. the purchasers had to fight for four years and the petition u/s 42 of the Consolidation Act was ultimately accepted after the case was remanded by Asstt. Kumar Pardeep 2013.08.23 10:43 I attest to the accuracy and integrity of this document LPA No.503 of 2013 & others connected cases -17- ***** Director vide his order dated 23.12.1965 and the possession of the lands was delivered to the respondents and co- vendees/their predecessor in interest in accordance with law finally after lot of litigation before consolidation authority.
6. That if all the pleas fail then in the alternative the respondents having been in possession in their own right openly, continuously, without interruption since 23.12.1950 asserting in their own rights and also the possession of their own rights vide purchase from the erstwhile proprietors and also for the reasons that erstwhile proprietors who sold as alleged above had themselves in continuous possession since the time of their predecessor."
11. No where in the said written statement, the plea has been taken that the land fell under exception 2(g)(v) of the Act. Once this was never the case of the appellants before the authorities below, it cannot be accepted that such a plea can be raised at a subsequent stage merely because such a plea had been taken in the grounds of appeal before the authorities. It is settled position that the authorities had to decide on the basis of the pleadings and the issues which are framed before it. Evidence had to be led on the basis of the pleadings and since the appellants had never taken this plea in their written statement, wherein they raised question of title they cannot be now after a period of more than 20 years allowed to take a fresh plea to justify their unauthorised possession. The learned Single Judge has dealt with all the issues in his detailed judgment taking into account the relevant Kumar Pardeep 2013.08.23 10:43 I attest to the accuracy and integrity of this document LPA No.503 of 2013 & others connected cases -18- ***** provisions of Act and the factual findings had been recorded on the plea of purchase of land after 26.1.1950 and there is no scope for interference in the concurrent orders passed by the authorities below under the Act which have upheld by the learned Single Judge.
12. Accordingly, all the appeals are dismissed.
(G.S.SANDHAWALIA)
JUDGE
06.08.2013 (JASBIR SINGH)
Pka JUDGE
Kumar Pardeep
2013.08.23 10:43
I attest to the accuracy and
integrity of this document