Punjab-Haryana High Court
Ranbir Singh And Ors vs State Of Haryana And Ors on 29 May, 2019
Author: Jaswant Singh
Bench: Jaswant Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP No.14754 of 2019
Date of Decision: 29.05.2019
Ranbir Singh and others .....Petitioners
Versus
State of Haryana and others .....Respondents
CORAM: HON'BLE MR. JUSTICE JASWANT SINGH
HON'BLE MR. JUSTICE ARUN KUMAR TYAGI
Present: Mr. Vineet Chaudhary, Advocate for the petitioners.
ARUN KUMAR TYAGI, J.
The petitioners, who are permanent residents of village Israna, Tehsil Israna, District Panipat, have filed the present writ petition for issuance of a writ in the nature of certiorari for questioning the impugned orders dated 07.06.2012 and 23.07.2012 (Annexures P-1 and P-2) passed by respondent No.4-Asst. Collector first grade, Panipat whereby the ejectment of the petitioners was ordered under section 7 (1) of the Punjab Village Common Lands (Regulation) Act, 1961 (for short the 1961 Act) from land comprised in Khewat No.951min/836 Khatauni No.1156, rectangle No. 12, Killa No.7 (6-3), 8 (9-18), 13 (8-0), 14 (8-0), 15 (9-
18), 16 (8-0), 17 (8-0), 18 (8-0), rectangle No. 13, Killa No. 11 (5-2) total measuring 71 Kanals and 1 Marla situated in village Israna, Tehsil Israna, District Panipat vide Jamabandi for the year 2003-04 (hereinafter referred to as the land in dispute) and order dated 09.08.2017 (Annexure P-3) passed by respondent No.3-the Collector, Panipat whereby the appeal filed against orders dated 1 of 13 ::: Downloaded on - 21-07-2019 05:59:02 ::: CWP No.14754 of 2019 -2- 07.06.2012 and 23.07.2012 (Annexure P-1 and P-2) was dismissed and order dated 07.12.2018 (Annexure P-4) passed by respondent No.2-the Commissioner, Panipat Division, Panipat whereby revision filed against order dated 09.08.2017 (Annexure P-3) was dismissed.
2. Briefly stated the petition has been filed on the averments that respondent No.5-Gram Panchayat, Israna filed a petition under section 7 (1) of the 1961 Act for ejectment of the petitioners from the land in dispute and imposition of the penalty on them for unauthorised occupation. The petitioners filed reply that they are in regular continuous possession of the land in dispute being gair marusi tenants since the time of their father Dalip Singh who was a gair marusi tenant and question of title is involved. Respondent No.4 wrongly ordered ejectment of the petitioners from the land in dispute by passing ex-parte order dated 07.06.2012 (Annexure P-1) without deciding the question of title. The petitioners filed application for setting aside the ex-parte order which was wrongly and illegally dismissed vide order dated 23.07.2012 (Annexure P-2). The petitioners filed appeal before respondent No.3 who wrongly and illegally dismissed the same vide order dated 09.08.2017 (Annexure P-3). Revision filed by the petitioners was wrongly and illegally dismissed by respondent No. 2 vide order dated 07.12.2018 (Annexure P-4). The petitioners are in cultivating possession of the land in dispute since the time of their forefathers, much prior to 50 years and the land in dispute does not fall within the definition of shamilat deh under Section 2 (g) of the 1961 Act. The petitioners are in long, uninterrupted and continuous 2 of 13 ::: Downloaded on - 21-07-2019 05:59:02 ::: CWP No.14754 of 2019 -3- possession of the land in dispute as gair marusi tenants and tenancy has not been determined by the Gram Panchayat. The petitioners not being in unauthorized possession of the land in dispute are not liable to be ejected there from. Since the petitioners have no alternative remedy of appeal or revision, hence the petition.
3. We have heard learned Counsel for the petitioners and have gone through the material on record.
4. Learned Counsel for the petitioners has argued that the petitioners are in cultivating possession of the land in dispute since the time of their forefathers much prior to 1950 and the land in dispute does not fall within the definition of shamilat deh under section 2 (g) of the 1961 Act. The petitioners have been ordered to be evicted from the land in dispute without deciding the question of title. Even otherwise the petitioners are in long, uninterrupted and continuous possession of the land in dispute as gair marusi tenants since the time of their father Dalip Singh who made the land in dispute cultivable by spending a huge amount and tenancy has not been determined by the Gram Panchayat. The petitioners, not being in unauthorized possession of the land in dispute, are not liable to be ejected there from. Therefore, the impugned orders being illegal may be quashed.
5. Learned Counsel for the petitioners has alternatively argued that the Assistant Collector first grade, Panipat had no authority to impose penalty more than the maximum prescribed. No reasons have been given for imposition of the penalty. Therefore, the impugned orders imposing penalty may be quashed.
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6. On perusal of the material on record and consideration of the submissions made by the learned Counsel for the petitioners we are of the considered view that the writ petition challenging the impugned orders qua their eviction from the land in dispute is devoid of any merit and is liable to be dismissed.
7. Section 7 of the 1961 Act empowers the Assistant Collector of the first grade having jurisdiction over the concerned village to eject any person who is in wrongful or unauthorised possession of the land or other immovable property in the shamilat deh of that village which vests or is deemed to have been vested in the panchayat under the 1961 Act and put the panchayat in possession thereof. Section 7 of the 1961 Act reads as under:-
"7. Power to put Panchayat in possession of certain lands. -(1) An Assistant Collector of the first grade having jurisdiction in the village may, either suo moto or on an application made to him by a Panchayat or an inhabitant of the village or the Block Development and Panchayat Officer or Social Education and Panchayat Officer, or any other Officer authorised by the Block Development and Panchayat Officer, after making such summary enquiry as he may deem fit and in accordance with such procedure as may be prescribed, eject any person who is in wrongful or unauthorised possession of the land or other immovable property in the shamilat deh of that village which vests or is deemed to have been vested in the panchayat under this Act and put the panchayat in possession thereof and for so doing the Assistant Collector of the first grade may exercise the powers of a revenue court in relation to the execution of a decree for possession of land under the Punjab Tenancy Act, 1887:
Provided that if in any such proceedings the question of title is raised and provided prima facie on the basis of documents that the question of title is really involved, the Assistant Collector of the first grade shall record a finding to that effect and first decide the question of title in the manner laid down hereinafter.
(2) The Assistant Collector of the first grade shall by an order, in writing, require any person to pay a penalty, in respect of the land or other immovable property which 4 of 13 ::: Downloaded on - 21-07-2019 05:59:02 ::: CWP No.14754 of 2019 -5- was or has been in his wrongful or unauthorised possession, at a rate not less than five thousand rupees and not more than ten thousand rupees per hectare per annum, having regard to the benefit which could be derived from the land or other immovable property. If the penalty is not paid within the period of thirty days from the date of the order, the same shall be recoverable as arrears of land revenue.
(3) The procedure for deciding the questions of title under proviso to sub-section (1) shall be the same as laid down in the Code of Civil Procedure, 1908. (4) If any person refuses or fails to comply with the order of eviction passed under sub-section (1), within ten days of the date of such order, the Assistant Collector of the first grade may use such force, including police force, as may be necessary for putting the panchayat in possession.
(5) Any person who is found in wrongful or unauthorised possession of the land or other immovable property in:
shamilat deh and is ordered to be ejected under sub- section (l), shall be punishable with imprisonment for a term which may extend to two years."
8. "Shamilat deh" is defined by section 2(g) of the 1961 Act, which reads as under:-
"2(g) "shamilat deh" includes-
(1) lands described in the revenue records 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;
(4a) vacant land situate in abadi deh or gorah deh not owned by any person;
5 of 13 ::: Downloaded on - 21-07-2019 05:59:02 ::: CWP No.14754 of 2019 -6- (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 land-holders 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 thereof or for common purposes of the village;
(vi) lies outside the abadi deh and was being used as gitwar, bara, manure pit, house or for cottage industry, immediately before the commencement of this Act;
(vii) Omitted.
(viii) was shamilat deh, was assessed to land revenue and has been in the individual cultivating possession of co-sharers not being in excess of their respective shares in such shamilat deh on or before the 26th January, 1950; or
(ix) is used as a place of worship or for purposes subservient thereto;
[(6) 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 Gram Panchayat under Section 23-A of the aforesaid Act.
Explanation. - Lands entered in the column of ownership of record of rights as 'Jumla Malkan Wa Digar Haqdaran Arazi Hassab Rasad', 'Jumla Malkan' or 'Mushtarka Malkan' shall be shamilat deh with the meaning of this section.]"
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9. Section 3 of the 1961 Act specifies the lands to which 1961 Act applies and Section 4 of the 1961 Act provides for vesting of rights in Panchayats and non-proprietors which read as under:-
3. Lands to which this Act applies. - (1) This Act shall apply and before the commencement of this Act, the shamilat law shall be deemed always to have applied to all lands which are shamilat deh as defined in clause (g) of section 2.
(2) Notwithstanding anything contained in sub-section (1) of Section 4--
(i) Where any land has vested in a panchayat under the shamilat law, but such land, other than excluded under sub-clause (ii-a) of clause (g) of section 2, has been excluded from shamilat deh as defined in clause (g) of section 2, all rights, title and interest of the panchayat in such land shall, as from the commencement of this Act, cease and such rights, title and interest shall be revested in the person or persons in whom they vested immediately before the commencement of the shamilat law; and the panchayat shall deliver possession of such land to such person or persons :
Provided that where a panchayat is unable to deliver possession of any such land on account of its having been sold or utilised for any of its purposes, the rights, title and interest of the panchayat in such land shall not so cease but the panchayat shall, notwithstanding anything contained in section 10, pay to the person or persons entitled to such land, compensation to be determined in accordance with such principles and in such manner as may be prescribed;
(ii) where any land has vested in a panchayat under this Act, but such land has been excluded from shamilat deh under sub-clause (ii-a) of clause (g) of section 2, all rights, title and interest of the panchayat in such land, from the date of allotment of such land by the Rehabilitation Department of the State Government, shall cease and all such rights, title and interest shall vest in the person or persons to whom the land so excluded has been allotted by the Rehabilitation Department of the State Government on or before the 9th day of July, 1985 subject to the condition that -
(a) any sum of money realised by the Rehabilitation Department of the State Government as a result of allotment of such land; or 7 of 13 ::: Downloaded on - 21-07-2019 05:59:02 ::: CWP No.14754 of 2019 -8-
(b) where no money was realisable by the Rehabilitation Department of the State Government as a result of allotment of such land, the amount of compensation in respect of such land as determined under sub-section (3) by the Collector of the district in which such a land is situated, shall be paid by the Rehabilitation Department of the State Government to the Development and Panchayats Department for onwards disbursement to the Panchayat to which such shamilat deh belonged.
(3) As soon as may be, on the commencement of the Punjab Village Common Lands (Regulation) Amendment Act, 1996, the Development and Panchayats Department shall make a reference to the Collector of the District to determine the amount of compensation under sub-clause (b) of clause (ii) of sub- section (2) and the Collector of the district shall, keeping in view the market value of the shamilat deh at the time it was allotted, determine the amount of compensation.
4. Vesting of rights in Panchayats and non- proprietors. -
(1) Notwithstanding anything to the contrary contained in any other law for the time being in force or in any agreement, instrument, custom or usage or any decree or order of any court or other authority, all rights, title and interests whatever in the land, -
(a) which is included in the shamilat deh of any village and which has not vested in a panchayat under the shamilat law shall, at the commencement of this Act, vest in Panchayat constituted for such village, and where no such Panchayat has been constituted for such village, vest in the Panchayat on such date as a panchayat having jurisdiction over that village is constituted;
(b) which is situated within or outside the abadi deh of a village and which is under the house owned by a non-proprietor, shall, on the commencement of the shamilat law, be deemed to have been vested in such non-proprietor.
(2) Any land which is vested in a Panchayat under the shamilat law shall be deemed to have been vested in Panchayat under this Act.
(3) Nothing contained in clause (a) of sub-section (1) and in sub-section (2) shall affect or shall be deemed ever to have affected the-
(i) existing rights, title or interest of persons, who though not entered as occupancy tenants in the revenue records are accorded a similar status by custom or otherwise, such as Dholidars, 8 of 13 ::: Downloaded on - 21-07-2019 05:59:02 ::: CWP No.14754 of 2019 -9- Bhondedars, Butimars, Bassikhuopahus, Saunjidars, Muqarrirdars;
(ii) rights of persons who were in cultivating possession of shamilat deh on the date of the commencement of the Punjab Village Common Lands (Regulation) Act, 1953, or the Pepsu Village Common Lands (Regulation) Act, 1954, and were in such cultivating possession for more than twelve years on such commencement without payment of rent or by payment of charges not exceeding the land revenue and cesses payable thereon;]
(iii) rights of a mortgagee to whom such land is mortgaged with possession before the 26th January, 1950."
10. Rule 19 of the Punjab Village Common Lands (Regulation) Rules, 1964, which defines as to what constitutes unauthorized occupation of shamilat deh, reads as under:-
"19. Unauthorised occupation Shamlat Deh. [Sections 7 and 1 5(2)(k)] - For purposes of section 7 of the Act, a person shall be deemed to be in unauthorised occupation of any land in shamlat deh -
(a) where he has, whether before or after the commencement of the Act, entered into possession there of otherwise than under and in pursuance [of] any allotment, lease or grant by the Panchayat; or
(b) where he being an allottee, lessee or grantee, has, by reason of the determination or cancellation of his allotment, lease or grant in accordance with the terms in this behalf, therein contained, ceased whether before or after the commencement of the Act, to be entitled to occupy or hold such land in shamlat deh; or
(c) where any person authorised to occupy any land in shamlat deh has, whether before or after the commencement of the Act --
(i) sub-let in contravention of the terms of allotment, lease or grant, without the permission of the Panchayat or of any other authority competent to permit such sub-
letting, the whole or any part of such land in shamlat deh; or
(ii) otherwise acted in contravention of any of the terms express or implied, under which 9 of 13 ::: Downloaded on - 21-07-2019 05:59:02 ::: CWP No.14754 of 2019 -10- he is authorised to occupy such land in shamlat deh;
Explanation. - For purposes of clause (a), a person shall not, merely by reason of the fact that he has paid any rent be deemed to have entered into possession as allottee, lessee or grantee."
11. The petitioners have claimed in para No.8(h) of the petition that they are in cultivating possession of the land in dispute since the time of their forefathers much prior to 50 years and the land in dispute does not fall within the definition of shamilat deh as contained under section 2(g) of the 1961 Act. However, the petitioners did not produce any evidence to prove that (i) the land in dispute was in individual cultivating possession of their predecessor in interest Dalip Singh as a proprietor of the village prior to 26.01.1950 not being in excess of his share and was never leased out to him and he had never paid any rent except the land revenue or (ii) that Dalip Singh was in possession of the land in dispute for more than 12 years at the time of commencement of the Punjab Village Common Lands (Regulation) Act, 1953 without payment of rent or by payment of charges not exceeding the land revenue and cesses payable thereon. The petitioners failed to prove essential conditions for applicability of exclusion clauses of Section 2(g) and Section 4 (3) of the 1961 Act to carve the land in dispute out of the ambit of shamilat deh vesting in Gram Panchayat. Moreover, this plea as to exclusion of the land in dispute from definition of shamilat deh is also negated and falsified by the plea taken by the petitioners as to their father Dalip Singh being gair marusi tenant under the Gram Panchayat, which implies admission by the petitioners that 10 of 13 ::: Downloaded on - 21-07-2019 05:59:02 ::: CWP No.14754 of 2019 -11- the land in dispute was shamilat deh and vested in the Gram Panchayat as Gram Panchayat had leased out the land to Dalip Singh and therefore, question of title did not arise.
12. In jamabandies for the year 1978-79, 1983-84, 1993-94 and 2014-15 Annexure P-7 (colly) in column No.4-name of owner with description Panchayat Deh is recorded as owner, in column No.5-name of cultivator and description Dalip Singh son of Jeeta son of Dashondi is recorded as gair marusi. In Khasra Girdawari from Kharif 2009 to Rabi 2014 Annexure P-8 also Dalip Singh son of Jeeta son of Dashondi is recorded as gair marusi. In jamabandi for the year 1978-79 in column No.9-rate and details of amount which cultivator pays entry "Bila Lagan Bawajah Najayaz Kabja" (without rent due to unauthorized possession) was made while in jamabandies for the year 1983-84 and 1993-1994 in column No.9-rate and details of amount which cultivator pays entry "Bila Lagan Bawajah Kabja Malkana" (without rent due to possession being as owner) was made. However, the entry as to possession of Dalip Singh being "Bila Lagan Bawajah Kabja Malkana" (without rent due to possession being as owner) was without any basis. In CWP No.9371 of 2013 titled "Mukhtiar Singh and another Vs. State of Haryana and others" decided on 02.05.2013, it was held by a Division Bench of this Court that the words "gair marusi" merely refer to an occupant of land and only if it is accompanied by an entry of payment of rent, in the column of the revenue record, would raise inference of a tenancy. Since, as per the entries made in column No.9 of the above referred jamabandies Dalip Singh was not paying any rent to Gram 11 of 13 ::: Downloaded on - 21-07-2019 05:59:02 ::: CWP No.14754 of 2019 -12- Panchayat, possession of Dalip Singh could not be said to be as tenant under the Gram Panchayat. The petitioners have failed to rebut the presumption of truth attached to entries in the above said jamabandies as to possession of their father Dalip over the land in dispute being as unauthorized occupant. Therefore, by the revenue record referred to above, Dalip Singh and after his death petitioners are proved to be in unauthorized possession of the land in dispute and the petitioners have been rightly ordered to be ejected from the land in dispute by the authorities and impugned orders do not suffer from any illegality and are not liable to be set aside.
13. In the present case, the Assistant Collector first grade, Panipat while ordering ejectment of the petitioners from the land in dispute, imposed penalty of Rs.20,000/- per acre per year on them for causing financial loss to the Gram Panchayat which is challenged by the petitioners to be illegal.
14. Under Section 7 (2) of the 1961 Act, reproduced hereinbefore, the Assistant Collector of the first grade has the power to require any person in wrongful or unauthorized possession of the shamilat deh to pay a penalty at a rate not less than Rs.5,000/- and not more than Rs.10,000/- per hectare per annum having regard to the benefit which could be derived from the same. In view thereof, imposition of penalty by the Assistant Collector first grade, Panipat in the present case at the rate of Rs.20,000/- per acre per annum was illegal. However, having regard to the nature of land in dispute benefit of Rs.10,000/- per hectare per annum could have been derived there-from and there is no assertion in the writ petition to the contrary. Therefore, we find that imposition of penalty 12 of 13 ::: Downloaded on - 21-07-2019 05:59:02 ::: CWP No.14754 of 2019 -13- by Assistant Collector first grade, Panipat is illegal only to the extent of being beyond Rs.10,000/- per hectare per annum and accordingly modify the impugned orders to that limited extent.
15. In view of the above discussion, the writ petition for quashing of the impugned orders is dismissed with the aforesaid limited modification.
(JASWANT SINGH) (ARUN KUMAR TYAGI)
JUDGE JUDGE
29.05.2019
Vinay
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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