Punjab-Haryana High Court
Telu Ram And Another vs The Commissioner on 9 December, 2008
Bench: J.S.Khehar, Nirmaljit Kaur
CWP No.16174 of 2006 1
IN THE HIGH COURTOF PUNJAB AND HARYANA, CHANDIGARH.
CWP No. 16174 of 2006
Date of decision: 9.12.2008
Telu Ram and another
....Petitioners.
vs.
The Commissioner, Rohtak Division,Rohtak, and others.
..Respondents
CORAM: HON'BLE MR.JUSTICE J.S.KHEHAR.
HON'BLE MS.JUSTICE NIRMALJIT KAUR.
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Present: Mr.R.S.Tacoria, Advocate, for the petitioners.
Mr.S.K.Bishnoi, DAG Haryana, for respondent No.1.
None for respondent No.2.
Mr.Parminder Singh, Advocate, for respondent No.3.
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J.S.KHEHAR,J. (Oral)
Respondent No.2 filed an ejectment petition under section 7 of the Punjab Village Common Lands (Regulation)Act, 1961 on 6.1.2004 (Annexure P4). The petitioners submitted a reply thereto on 7.1.2005 (Annexure P5). After adjudicating upon the controversy raised by the rival parties, the Assistant Collector Ist Grade, Karnal, by his order dated 25.5.2005 (Annexure P6) arrived at the conclusion that the petitioners were in unauthorised possession of the land in question. The petitioners were accordingly ordered to be ejected therefrom. They were also required to CWP No.16174 of 2006 2 pay a penalty to the respondents at the rate of Rs.10,000/- per annum per hectare commencing from the crop of "kharif" 2000.
Aggrieved by the order passed by the Assistant Collector Ist Grade, Karnal, dated 25.5.2005 (Annexure P6), the petitioners preferred an appeal before the Collector,Karnal, on 11.7.2005. The aforesaid appeal came to be dismissed by the Collector,Karnal, vide his order dated 14.9.2005 (Annexure P8). The petitioners were now dissatisfied with the two orders i.e., the order dated 25.5.2005, passed by the Assistant Collector Ist Grade,Karnal, and the order dated 14.9.2005, passed by the Collector, Karnal. The petitioners preferred a revision petition impugning the aforesaid two orders before the Commissioner, Rohtak Division, Rohtak. The revision petition filed by the petitioners was also dismissed by an order dated 20.7.2006 (Annexure P10). Through the instant writ petition, the petitioners have impugned the orders passed by the revenue authorities which have culminated in the order passed by the Commissioner, Rohtak Division, Rohtak dated 20.7.2006 (Annexure P10).
During the course of hearing, learned counsel for the petitioners advanced only one contention, namely, that the petitioners having raised the plea of title, the proceedings in the petition filed by respondent No.2 should have been deferred, so as to adjudicate the claim of the petitioners on the issue of title in terms of the mandate of section 13-A of the Punjab Village Common Lands (Regulation) Act, 1961 ( as applicable to the State of Haryana).
We have considered the solitary contention raised by the learned counsel for the petitioners. In fact, the aforesaid contention emerges from proviso to section 7(1) of the Punjab Village common Lands CWP No.16174 of 2006 3 (Regulation) Act, 1961. Section 7(1), as also the proviso thereto, are being extracted hereunder:-
" 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 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) to (5) xxx xxx xxx".
A perusal of the proviso to section 7(1) of the Punjab Village Common Lands (Regulation)Act, 1961, undoubtedly supports the contention of the learned counsel for the petitioners namely, that in a case initiated under Section 7 of the Punjab Village Common Lands (Regulation)Act, 1961, when a question of title is raised, the Assistant Collector Ist Grade, is CWP No.16174 of 2006 4 required to record a finding on the issue of title first "in the manner laid down hereinafter", and thereupon adjudicate on the issue of ejectment if the same still survives.
We have considered the aforesaid contention raised by the learned counsel for the petitioners on the basis of proviso to section 7(1) of the Punjab Village Common Lands (Regulation)Act, 1961. In our view, in order to require the Assistant Collector Ist Grade, to adjudicate upon the issue of title, the mandate of the proviso to section 7(1), referred to by the learned counsel for the petitioners, imposes a burden on the person in alleged unauthorised occupation of the land to prove prima facie " on the basis of documents that the question of title is really involved".
It is on the basis of the aforesaid mandate contained in the proviso to section 7(1) extracted hereinabove, that we required learned counsel for the petitioners to invite our attention to the documents placed before the Assistant Collector, requiring him to adjudicate upon the issue of title before taking upon the eviction petition filed by respondent No.2. In furtherance of our query, learned counsel for the petitioners invited our attention to a copy of jamabandi of village Lathron Tehsil and District Karnal, for the year 1904-09 (Annexure P1). A perusal thereof reveals that the same pertains to Khewat No.15,Khatoni No.47 wherein the name of "tarf or patt",has been described as "shamilat deh hasab rasad" , and the name of the owner has been described as "makbuja malkan". On the basis of the aforesaid entry, learned counsel for the petitioners vehemently contends that the petitioners prima facie established their possession and title over the land in question.
The aforesaid plea advanced at the hands of the learned counsel CWP No.16174 of 2006 5 for the petitioners, is unacceptable on account of the fact that in the ejectment application filed by respondent No.2 the land from where the petitioners' ejectment was sought was described as under:-
"...Khewat No.74 Khatoni No.130 Rect.19, Killa Nos.12(8-0), 14(8-0), 15(8-0), 16(8-0), 17(8-0), 19(8-0), 22(8-0), 23(8-0), 24 (8-0), 25(8-0), Rect.No.20, Killa No.25(5-11), Rect No.24, Killa No.1 (7-18), 2(6-2), 3(3-9), 4(0-12), 10(0-18), 13(0-6), Rect No.25 Killa No.16(0-3), 21(0-2), 22(1-2), 23(2-6), 24(4-
18), 25(7-5), Rect.No.28 Killa No.1 (7-19), 2(8-0), 3(8-0), 5(8-
0), 6(7-8), 7(8-0), 8(8-0), 9(8-0), 10(7-8), 11(5-12), 12(8-0), 13 (8-0), 14(8-0), 15(7-8), 18(8-0), 19(7-17), 20(1-17) and Khewat No.74 Khatoni No.103, Rect No.48, Killa No.40(21-0) situated in village Lathron.....".
The petitioners in order to succeed needed to have also established that the land depicted in the jamabandi Annexure P-1 was the same from which the petitioners eviction was sought.
It is, therefore, that we posed a further query to the learned counsel for the petitioners requiring him to substantiate that the land from which the petitioners' ejectment was sought tallies with the land referred to in the jamabandi Annexure P1 (on the basis whereof, the petitioners claim their right). In response to our aforesaid query, learned counsel for the petitioners informed us, that the land under reference was described in the manner depicted in Annexure P1 prior to consolidation, whereas, the aforesaid numbers came to be recorded as the ones depicted hereinabove (from which the petitioners ejectment was sought by respondent No.2). There is no material to establish the instant submission advanced by the learned counsel for the petitioners. In fact, we were ready and willing to afford an opportunity to the petitioners to enable them to place further CWP No.16174 of 2006 6 material on the record of this case to show that after consolidation the numbers referred to in the jamabandi Annexure P1 came to be substituted by the numbers from which the ejectment of the petitioners was sought. Learned counsel for the petitioners rather than availing the aforesaid opportunity vehemently contended that it was the responsibility of the Assistant Collector in terms of section 7(1) of the Punjab Village Common Lands (Regulation)Act, 1961, to afford the petitioners such an opportunity, and had such an opportunity been afforded to the petitioners, they would have led sufficient and cogent evidence to substantiate their claim.
Having considered the facts and circumstances of this case, referred to hereinabove, we are satisfied that the petitioners did not place sufficient documents before the Assistant Collector, so as to enable him to arrive at a prima facie conclusion, that a question of title was really involved. The jamabandi Annexure P1 relied upon by the petitioners, cannot in any manner be linked with the khasra numbers from which the petitioners eviction was sought by respondent No.2. Even liberty granted by us to place the documents of the consolidation to substantiate their claim was not accepted. In view thereof an adverse inference is liable to be drawn against the petitioners to the effect that after consolidation the numbers referred to in the jamabandi Annexure P-1 were not substituted by the khasra numbers from which the ejectment of the petitioners has been sought by respondent No.2. Had that been so, the petitioners would have readily availed of the opportunity afforded to them to place the said material on the record of this case.
For the aforesaid reasons, we find no justification in the solitary contention advanced by the learned counsel for the petitioners, that CWP No.16174 of 2006 7 the claim of the petitioners on the issue of title, needed to have been determined in the first instance under Section 13-A of the Punjab Village Common Lands (Regulation) Act, 1961 (as applicable to the State of Haryana) i.e., before adjudicating upon the application for eviction filed by respondent No.2.
Dismissed.
( J.S.Khehar) Judge (Nirmaljit Kaur) Judge December 9, 2008 rk