Punjab-Haryana High Court
Gram Panchayat Dewlawas And Others vs The Commissioner Gurgaon Division on 11 March, 2013
Author: Rajive Bhalla
Bench: Rajive Bhalla, Rekha Mittal
Civil Writ Petition No. 20242 of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Writ Petition No.20242 of 2011
Date of Decision: 11th March, 2013
Gram Panchayat Dewlawas and others ..Petitioners
Versus
The Commissioner Gurgaon Division, Gurgaon
and others ..Respondents
CORAM: HON'BLE MR.JUSTICE RAJIVE BHALLA
HON'BLE MRS.JUSTICE REKHA MITTAL
Present: None for the petitioners
Mr. D.Khanna, Addl.Advocate General, Haryana
for respondent nos. 1 to 3.
Mr. Alok Jain, Advocate, for respondent nos.4 to 10.
RAJIVE BHALLA, J.
The Gram Panchayat of Village Dewlawas prays for issuance of a writ of certiorari quashing order dated 4.8.2011 passed by the Commissioner Gurgaon Division, Gurgaon, whereby orders dated 31.3.2010 and 21.9.2010 passed by the Assistant Collector 1st Grade-cum- SDO (Civil), Pataudi, District Gurgaon and the Collector, Gurgaon, respectively under the Punjab Village Common Lands (Regulation) Act,1961 (as applicable to the State of Haryana) (hereinafter referred to as the "1961 Act"), have been reversed.
The petitioners aver that as the Assistant Collector 1st Grade and the Collector recorded concurrent finding that as the land, in dispute, is being used by residents of the village for common purposes, it vests in the Gram Panchayat, and, therefore, respondent Civil Writ Petition No. 20242 of 2011 2 nos. 4 to 10 are liable to be evicted. The land, in dispute, is, admittedly, part of Khasra no. 83, that measures 1 Kanal-09 Marlas and is used by the village community for common purposes, namely, for a tubewell, a water tank, a khal and a path to connect the village abadi with the cremation ground. It is further averred that the well, tubewell, water tank and metalled path leading to the cremation ground are maintained by the Gram Panchayat, duly proved by documents Exhibits PW6/1 to PW6/5, and the muster roll etc.The land, in dispute, is, therefore, "Shamilat Deh" as defined in Section 2(g)(4) of the 1961 Act. The finding recorded, by the learned Commissioner, to the contrary, should, therefore, be set aside.
Counsel for the private respondents submits that as per jamabandi for the year 1964-65, khasra no.83 is recorded as "Gair Mumkin Chah Pukhta" (a source of water) owned by and in possession of Pyare Lal and others. The mere fact that Tej Ram and Devi Ram sons of Jagdish, transferred 02 Marlas of land, being 1/12th share, out of total land measuring 01 Kanal 09 Marlas to the Gram Panchayat, by a deed of transfer dated 1.2.2008, does not entitle the Gram Panchayat to claim ownership or possession of the entire land. It is further submitted that as proceedings under Section 7 of the 1961 Act are summary in nature, the Assistant Collector 1st Grade and the Collector should have decided the question of ownership before proceeding to order the petitioners' eviction. The learned Commissioner, has rightly reversed orders passed by the Assistant Collector 1st Grade and the Collector by holding that the land is not "Shamilat Deh".
Civil Writ Petition No. 20242 of 2011 3
We have perused the petition, the impugned orders and heard counsel for the contesting respondents.
The Gram Panchayat filed a petition under section 7 of the 1961 Act for eviction of respondent nos. 4 to 10 from Khasra no.83, measuring 01 Kanal-09 Marlas. The Gram Panchayat pleaded that the land, in dispute, vests in the Gram Panchayat as it has constructed a water tank for animals, installed a tubewell, which is proved by entries in the muster roll and stock register and a part of the land is used as a passage that leads to the cremation ground. The Assistant Collector 1st Grade, Pataudi, held that as the land is "Shamilat Deh" under Section 2(g)(4) of the 1961 Act, it vests in the Gram Panchayat and, therefore, ordered the eviction of respondent nos. 4 to 10. The Collector dismissed the appeal filed by respondent nos. 4 to 10. The learned Commissioner has, however, reversed these orders by holding as follows:-
" After hearing the arguments raised by the counsel for both the parties carefully and after perusing the record and the documents placed on the file it was found that as per jamabandi for the year 1964-65 the land in dispute bearing Khewat no.18, khasra no.89 (1-9) is entered as gair mumkin chah pukhta and in the column of ownership Pyare Lal and others were recorded as owners and in the column of cultivation the self cultivation is embodied and one Tej Ram, Devi Ram sons of Jagdish vide deed of transfer bearing Vasika No.2279 dated 1.2.2008 transferred 2 marla of land being 1/12th share of Khewat Civil Writ Petition No. 20242 of 2011 4 No.31/44 Khasra No.83 (1-9) as per jamabandi for the year 2004-05 in favour of the Gram Panchayat Dewlawas for use and maintenance as animal -khel, piao in the village and for not destructing the same. In this way, the rest of the land beneath khasra no.83, does not fall under the Gram Panchayat as the disputed land is owned and possessed by the petitioner as per the revenue record and therefore, the land in dispute was never used for common purposes and neither fall under the definition of shamilat deh nor fall under the definition of Section 2(g) of the Punjab Village Common Land Act...."
A perusal of the pleadings, orders passed by the Assistant Collector 1st Grade, the Collector and the Commissioner, reveal that the dispute essentially revolves around the ownership of Khasra no.83. The Gram Panchayat claims that as the tubewell, water tank for animals, water tank and a path that exist in the land, are maintained by the Gram Panchayat and the land, in dispute, is used for common purposes, by residents of the village, the land vests in the Gram Panchayat. The respondents, in contrast, refer to the revenue record to contend that as the land is recorded as ownership of Pyare Lal and others and only 02 Marlas, of land was gifted to the Gram Panchayat, by Tej Ram and Devi Ram sons of Jagdish, vide gift deed dated 1.2.2008, the Gram Panchayat can not claim ownership of the entire land, measuring 01Kanal-09Marlas. A perusal of pleadings, the arguments and the record clearly reveals that a disputed question of ownership arose for adjudication but the Civil Writ Petition No. 20242 of 2011 5 Assistant Collector 1st Grade, Pataudi, decided this question summarily by placing reliance on the fact that part of the land, in dispute, contains a tubewell, a water tank, ponds for animals and a path leading to the cremation ground maintained and constructed by the Gram Panchayat. The Assistant Collector 1st Grade was required to adopt the procedure prescribed by the proviso to Section 7 of the 1961 Act, namely, to call upon parties to lead evidence to establish their title. The Collector did not discern this error in the order passed by the Assistant Collector 1st Grade, Pataudi. The learned Commissioner has reversed these orders and held that the Gram Panchayat is not owner of the land, in dispute by disregarding the muster roll, the resolutions passed by the Gram Panchayat, the nature of the land, the nature of the structures existing thereon and the gift of 02 Marlas to the Gram Panchayat. The learned Commissioner committed the same error of jurisdiction as was committed by the Assistant Collector 1st Grade and the Collector as he should have, after recording his prima facie opinion on the question of title, directed the Assistant Collector 1st Grade, Pataudi, to adopt the procedure prescribed by the proviso to Section 7 of the 1961 Act, which reads as follows:
" 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 Civil Writ Petition No. 20242 of 2011 6 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 proved 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 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 Civil Writ Petition No. 20242 of 2011 7 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 question 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 to 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."
In view of what has been stated hereinabove, as authorities under the 1961 Act have not decided the question of title by following the procedure prescribed by the proviso to Section 7 of the 1961 Act, the writ petition is allowed, order dated 4.8.2011 passed by the learned Commissioner, Gurgaon, and orders passed by the Assistant Collector 1st Grade Pataudi, District Gurgaon and the Collector, Gurgaon, are set aside and the matter is remanded to the Assistant Collector 1st Grade-cum-SDO (Civil), Pataudi, District Gurgaon, to decide the question of title by following the procedure prescribed by the proviso to Section 7 of the 1961 Act before considering the prayer for ejectment.
Parties are directed to appear before the Assistant Collector 1st Grade-cum-SDO (Civil), Pataudi, District Gurgaon, who shall decide the disputed question of title, within six months of parties Civil Writ Petition No. 20242 of 2011 8 putting in appearance, on 23.4.2013.
( RAJIE BHALLA ) JUDGE ( REKHA MITTAL ) th 11 March, 2013 JUDGE VK