Punjab-Haryana High Court
Ram Chander vs The State Of Haryana on 10 November, 1994
Equivalent citations: (1995)109PLR432
JUDGMENT
A.P. Chowdhri and H.K. Sandhu, JJ.
1. Brief facts of the case are that Gram Panchayat, Madlauda, District Panipat, respondent No. 5, instituted an application under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961, on July 12. 1989, against the petitioner for his ejectment from 60 kanals 2 Marias of Shamlat Deh owned by the former. The application was contested. Assistant Collector 1st Grade, Panipat, by order Annexure P-1 dated April 29, 1991, dismissed the application with a finding that though eviction was sought from 60 Kanals 2 Marias, in fact the petitioner was found to be in unauthorised possession over only a portion of Khasra No. 253, which was 1 Kanal and odd. Appeal against the said order filed by the Gram Panchayat was dismissed for a similar reason by the Collector by order Annexure P-1/A dated January 21,1992. The learned Collector in the concluding paragraph of his order Annexure P-1/A observed that the Gram Panchayat did not get demarcation of the land in question carried out, nor filed a site plan indicating the particular portion of khasra No. 253 in which the opposite party was in unauthorised possession. The appeal was dismissed and it was directed that the Gram Panchayat should get the demarcation of the land carried out, get the man prepared and file a fresh eviction application against the opposite party, if so advised. Thereafter the Gram Panchayat got the demarcation done and instituted a fresh application on March 17,1992, which was disposed of by Assistant Collector Ist Grade by order Annexure P-2 dated October 8, 1993. It was observed in the order that on the earlier occasion when the Gram Panchayat had filed an eviction application, the matter had not been decided on merits but the same had been disposed of with the observation that the Gram Panchayat should submit the demarcation report along with a fresh application. For this reason it was held that the previous decision did not operate as res-judicata. It was further held by Assistant Collector Ist Grade that the petitioner herein was in unauthorised occupation but proceeded to add that he had been in possession for "so many years by constructing four walls "including two rooms, kitchen and brick-kiln and that the aforesaid construction was not proving to be an obstruction in any passage. He, therefore, concluded "Therefore, in the interest of justice I do not consider it suitable to evict the respondent. Respondent will pay compensation to the panchayat on the rates fixed by the Collector. The respondent should get fixed the compensation of the disputed land within a reasonable time and pay it to the panchayat otherwise he will be deemed to be evicted from the land". The Gram Panchayat felt aggrieved by the order and accordingly instituted an appeal to the Collector, which was allowed and the direction given by Assistant Collector 1st Grade that the land be sold to the petitioner on the rates as may be fixed by the Collector was set aside and the eviction of the petitioner was ordered. The order is Annexure P-5 dated January 25,1994. The petitioner feeling aggrieved by the order of the Collector preferred an appeal to the Commissioner, which was dismissed by order Annexure P-6 dated February 16,1994, on the ground that the question whether a revision against the order of the Collector was competent under the provisions of the Punjab Village Common Lands (Regulation) Act was pending before the High Court and therefore, the Commissioner had no jurisdiction to entertain any revision, and in this view of the matter he dismissed the revision for want of jurisdiction. The petitioner has assailed the order of eviction Annexure P-5 passed by the Commissioner dismissing his revision petition.
2. Written statement has been filed both by the official respondents 1 to 4 and 6 as well as the Gram Panchayat respondent No. 5. Replication to the written statement filed by the Gram Panchayat has been filed by the petitioner along with some additional documents annexed therewith.
3. We have heard learned counsel for the parties.
4. Mr. R.N. Verma, learned counsel for the petitioner, conceded, at the outset that he does not press the plea that the decision of the earlier application for eviction operated as res judicata. Apart from the above concession, a perusal of the orders shows that the earlier eviction application was in respect of 60 kanals odd. It was found that prima facie the petitioner was only in unauthorised occupation of 1 Kanal and odd Marias, which had not been specified. The panchayat was, therefore, directed to have the demarcation carried out and file a proper site plan indicating the land of which the petitioner was in unlawful occupation. The Gram Panchayat got the land demarcated and along with the proper site plan indicating unlawful occupation of the petitioner in a part of khasra No. 253 filed a fresh eviction application. The application was dismissed with a direction by the Assistant Collector Ist Grade and the direction part was set aside by the Collector in appeal, as already indicated.
5. The contention of Mr. Verma is that it had been shown on record that the petitioner had been in possession, had made certain construction and the order passed by Assistant Collector 1st Grade that the petitioner be transferred the land in question on rates to be fixed by the Collector was fair and did not require to be interfered with. The case of the Gram Panchayat, on the other hand, is that Assistant Collector Ist Grade or for that matter the Collector had no power under the Punjab Village Common Lands (Regulation) Act or for that matter under any other law to direct the Gram Panchayat to sell a particular land vesting in the Gram Panchayat to another person, and if such a direction were to be countenanced, it would set a very dangerous precedent. Mr. M.L: Sarin for the Gram Panchayat submitted that rule 4 of the Punjab Village Common Lands (Regulation) Rules, 1964, as originally framed, provided as under:-
"4. TERMS FOR SAVING EXISTING POSSESSION (Sections 5 and 15(2)(f) of the Act.-
(1) Where a person has built a house or erected any other structure on any land in the Shamilat deh, before the coming into force of the Act, the Panchayat may allow such person to retain possession of the site by -
(a) selling it to him at the market value prevailing at the time of the sale to be determined by the Collector or the officer appointed by him for the purpose :
Provided that if the person concerned is unable to pay the entire amount immediately it shall be recovered in such instalments to be spread over a period not exceeding five years as may be determined by the Panchayat;
(b) leasing out the site to him at an annual rent to be determined by the Collector or the officer appointed by him for the purpose at the rates prevailing at that time.
xx xx xx xx xx "
He pointed out that the aforesaid rule was omitted by Haryana by amendment dated April 1, 1982. That being so, it is not permissible even for the Gram Panchayat to allow a person to retain possession of the site on which he had built a house or erected any other structure on any land in the Shamlat Deh before the coming into force of the Punjab Village Common Lands (Regulation) Act, 1961. He further pointed that the relevant rule applicable in this case is rule 12, which lays down as under:-
"12. PURPOSES FOR WHICH LAND MAY BE SOLD.
(Sections 5 and 15(2)(f) of the Act.)-
(1) A Panchayat may, with the previous approval of the government, sell land in shamilat deh vested in it under the Act for -
(i) the purpose of constructing building for Block Samiti Office or any department of or institution recognised by the Government;
(ii) the purpose of any individual or commercial concern; or
(iii) executing such a scheme as may be a source of recurring income for the benefit of the inhabitants of the village;
(iv) residential purposes of the inhabitants of the village;
(v) for the purpose of financing the construction of buildings for schools and for veterinary and civil dispensaries in the Sabha area (2) Where it is proposed to sell the land in shamilat deh under sub-rule (1), the Panchayat shall forward to Government a copy of its resolution passed by a majority of the three-fourth of its members proposing to sell the land through the Panchayat Samiti and Divisional Deputy Director Panchayat Raj stating-
(a) the area and location of the land proposed for sale;
(b) the estimated income from the sale and whether the income would increase if the land is sold after some years;
(c) the reasons as to why the Panchayat wants to sell the tend and the plants for utilization of the income from the sale.
(3) The publicity for sale of land in shamilat deh by auction shall be made by the Deputy Commissioner in accordance with the procedure laid down in sub-rule (10) of rule 6 on receipt of the approval of Government who shall also decide whether the land should be sold in one or more lots and the officer who should be present at the auction."
He, therefore, contended that it is nobody's case that the Gram panchayat had at any stage taken a decision to sell the land in question to the petitioner, nor was it the case of the petitioner that approval of the State Government had been sought or obtained for such a sale. In fact, Mr. Verma, learned counsel for the petitioner, admitted that at no stage the Gram Panchayat agreed to sell the land to the petitioner. There was, of course, no occasion for the Gram Panchayat to obtain prior approval of the State Government in terms of rule 12 ibid. In view of the foregoing, we find no merit in the contention of Mr. Verma. The observation of Assistant Collector Ist Grade could not be treated on a better footing than a mere suggestion which was there for the Gram Panchayat to accept or not to do so.
6. The observation of Assistant Collector Ist Grade could not be treated on a better footing than a suggestion which was there for the Gram Panchayat to accept or not to do so.
7. The last submission of Mr. Verma is that sub-section (2) of Section 13-B, as applicable in the State of Haryana, expressly confers power of revision on the Commissioner. He further submitted that to his knowledge no matter is pending in the High Court in which the question with regard to revisional jurisdiction of the Commissioner may be pending. He, therefore, prayed that the matter may be remitted to the Commissioner for decision of the revision petition according to law. The contention of Mr. Sarin, learned counsel for the Gram Panchayat, on the other hand, is that as the matter can be disposed of according to law, there was no justification to prolong the entire process by sending the case foiydecision of the revision to the Commissioner. He further submitted that construction of a stadium for the school was held up because of the small piece of land which has been unauthorisely occupied by the petitioner and every day there was escalation of cost of building the stadium. After careful consideration we are of the view that it is not necessary to remit the case to the Commissioner for decision of the revision petition. As the mater has been thrashed out before us, it is only of academic interest that the revision was not disposed of by the Commissioner on merits.
8. For the foregoing reasons, we find no merit in this writ petition. It is dismissed with costs.