Karim Khan(Deceased) Through vs Gram Panchayat on 29 April, 2011

[Cites 6, Cited by 0]

Punjab-Haryana High Court

Karim Khan(Deceased) Through vs Gram Panchayat on 29 April, 2011

Bench: Mehinder Singh Sullar

Civil Writ Petition Nos.7300 to 7304 of 1992                       1

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

                                   Civil Writ Petition Nos.7300 to 7304 of 1992

                                   Date of Decision:29.04.2011


Karim Khan(deceased) through
his LRs and another                                                ......Petitioners

Versus

Gram Panchayat, Jamalgarh and others                             ......Respondents



CORAM:        HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR.


Present:      Mr.Amit Jain, Advocate,
              for the petitioners.

              Mr.Pritam Saini, Advocate,
              for respondent No.1.

              Ms.Kirti Singh, Deputy Advocate General Haryana,
              for respondent Nos.2 to 4.

              ****
MEHINDER SINGH SULLAR, J.(Oral)

As identical questions of law and facts are involved, therefore, I propose to decide the instant writ petitions vide this common judgment, in order to avoid the repetition. However, the epitome of the facts which needs a necessary mention for deciding the core controversy involved in these writ petitions, have been extracted from main (1) Civil Writ Petition No.7300 of 1992, titled as Karim Khan(deceased) through his LRs and another Versus Gram Panchayat, Jamalgarh and others in this context.

2. Concisely, the facts, culminating in the commencement, relevant for disposal of the present writ petitions and emanating from the record, are that the Block Development and Panchayat Officer, Punhana-respondent No.2(for brevity "the BDPO"), instituted the petitions to eject the petitioners from the land in dispute, belonging to the Gram Panchayat Jamalgarh, District Gurgaon-respondent No.1(for short "the respondent-Gram Panchayat") before the Assistant Collector Civil Writ Petition Nos.7300 to 7304 of 1992 2 Ist Grade-respondent No.3(for brevity "A.C. Ist Grade"), invoking the provisions of Section 7 of The Punjab Village Common Lands(Regulation) Act, 1961, as applicable to the State of Haryana(hereinafter to be referred as "the Act").

3. The BDPO claimed that the land in dispute belongs to the respondent-Gram Panchayat and as they are not paying any rent, therefore, the petitioners are in its unauthorised possession. On the basis of aforesaid allegations, the BDPO sought the ejectment of the petitioners from the land in dispute in this context.

4. The petitioners contested the claim of the respondent-Gram Panchayat and filed the written statement, taking certain preliminary objections of, maintainability, cause of action and locus standi of the BDPO, to file the ejectment petition. The case set-up by the petitioners, in brief, insofar as relevant, was that they are in possession of the land in dispute, as Bhondedars, much prior to the commencement of the Act, in lieu of services rendered to the Choupal of the village and it is so recorded in the revenue record.

5. The parties to the lis produced oral as well as the documentary evidence on record, in order to substantiate their respective stands.

6. Taking into consideration the evidence brought on record, the A.C. Ist Grade, accepted the petition and ordered the ejectment of the petitioners, by way of impugned ejectment order dated 25.11.1991(Annexure P-1).

7. Aggrieved by the ejectment order(Annexure P-1), the appeal filed by the petitioners was dismissed as well by the District Collector, Gurgaon- respondent No.4-cum-Appellate Authority(for short "the Appellate Authority"), by virtue of impugned order dated 31.03.1992(Annexure P-2).

8. The petitioners still did not feel satisfied and preferred the instant writ petitions, challenging the impugned orders(Annexures P-1 and P-2) inter alia, on the ground that since, they are Bhondedars and are in legal possession of the suit land, in lieu of the Choupal services rendered by them, so, the petitions filed Civil Writ Petition Nos.7300 to 7304 of 1992 3 by the BDPO under Section 7 of the Act, were not maintainable against them. The petitioners claimed that they are in legal possession as Bhondedars over the land in dispute from the time of their ancestors since 1938-39 and their possession is protected under Section 4(3)(ii)(i) of the Act.

9. Levelling a variety of allegations and narrating the sequence of events, in all, according to the petitioners, their possession is legal and not unauthorized, as claimed by the respondent-Gram Panchayat and the A.C. Ist Grade and the Appellate Authority fell in legal error to eject them from the land in dispute. On the basis of aforesaid allegations, the petitioners sought to challenge the impugned ejectment orders(Annexures P-1 and P-2), in the manner depicted hereinabove.

10. The respondents contested the claim of the petitioners, wherein it was pleaded that the land in dispute, belongs to the respondent-Gram Panchayat. Since, the possession of the petitioners over the suit land was unauthorized, so, the A.C. Ist Grade has rightly passed the ejectment order against them. Sequelly, the parties have toed the same line of averments in other connected cases, as pleaded in the main case. It will not be out of place to mention here that the contesting respondents have stoutly denied all other allegations contained in the writ petitions and prayed for their dismissal.

11. Having heard the learned counsel for the parties, having gone through the record with their valuable help and after bestowal of thoughts over the entire matter, to my mind, the present writ petitions deserve to be accepted, for the reasons mentioned here-in-below.

12. As is evident from the record that the petitioners claimed in their written statement before the A.C. Ist Grade that they are Bhondedars(owners) and are in possession of the land in question from the time of their ancestors since immemorial, their possession is protected under Section 4 of the Act and the land does not fall within the definition of shamilat deh. Thus, they have raised a clear Civil Writ Petition Nos.7300 to 7304 of 1992 4 question of title before the A.C. Ist Grade. On the other hand, the respondent- Gram Panchayat has denied their legal possession. Not only that, it is so stated by petitioner-Ashraf vide statement(Annexure P-4).

13. Moreover, the bare perusal of the revenue record, Jamabandis for the years 1938-39(Annexure P-5), 1942-43(Annexure P-6), 1946-47(Annexure P-7), 1950-51(Annexure P-8), 1954-55(Annexure P-9) and 1957-58(Annexure P-10), would reveal that the land in dispute has been described as shamilat deh "malkan hasab hissa pattiyat" in the column of ownership and Chhitar Singh son of Maluka, father of the original petitioners, was shown in possession as "billa lagan bavajah khidmat choupal and batai nisfi basharah khata No.3". The petitioners have produced the copy of the Jamabandi for the year 1983-84, whereas the respondents have produced the copies of the Jamabandis for the years 1950-51, 1954- 55, 1957-58, 1963-64, 1968-69, 1973-74 and 1978-79 before the A.C. Ist Grade, containing the same entries. But this aspect of the matter was completely ignored with impunity by the A.C. Ist Grade and the same mistake was repeated by the Appellate Authority as well.

14. Meaning thereby, the petitioners have raised the deep questions of title of the land in dispute before the A.C. Ist Grade, during the course of trial of the petitions under Section 7 of the Act, which postulates that 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 doing so, the Civil Writ Petition Nos.7300 to 7304 of 1992 5 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.

Proviso to Section 7 of the Act further posits 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.

15. Sequelly, the procedure for deciding the question of title under proviso to Sub-Section(1) is provided in Sub-Section(3) of Section 7 of the Act, which envisaged that such procedure shall be the same, as laid down in the Code of Civil Procedure, 1908.

16. A conjoint reading of Section 7 of the Act, would leave no manner of doubt that, it was incumbent upon and the statutory/mandatory duty of the A.C. Ist Grade to first decide the question of title and without deciding the question of title at the first instance, he was not legally competent to pass the ejectment order against the petitioners. This matter is not res integra and is well settled.

17. An identical question came to be decided by a Division Bench of this Court in case Tara Chand and Fateh Singh Versus Gram Panchayat and Gram Sabha of Village Atail and others 1979 PLJ 5. Having interpreted the relevant provisions of Section 7 of the Act, it was, inter alia, ruled as under:-

"The Assistant Collector Ist Grade conducting proceedings under section 13-B is a Tribunal of wider jurisdiction as compared with the same officer under section 7. The latter is a Tribunal of comparatively limited jurisdiction. The Tribunal of limited jurisdiction cannot oust the jurisdiction of a Tribunal with wider jurisdiction even if both the Tribunals are manned by the same person. The separate statutory provisions are made for achieving the interest of justice and the parties cannot be denied their right to have their claims adjudicated from the proper forum by the officers Civil Writ Petition Nos.7300 to 7304 of 1992 6 manning such Tribunals, by adopting short-cut methods of summary enquiry. In the case in hand, the Assistant Collector Ist Grade, Sonepat, while passing orders Annexure P-2 to the petition under section 7 for the eviction of the petitioners from the land in dispute, travelled beyond the scope of his jurisdiction under that section to determine the question of title which was raised before him. When the question of title was raised by the petitioners, the appropriate procedure to be adopted by him should have been either to convert himself into a Tribunal under section 13-B of the Act and proceed in accordance with the procedure laid down for determination of the title or ask the petitioners raising the question of title to move appropriate petitions before him under section 13-B. He could keep the proceedings under section 7 in abeyance till the final determination of the question raised before him under section 13-B. Such a procedure is to further the purpose of the amendment of the Act by avoiding unnecessary delay in the proceedings as has been occasioned in the case in hand. He could not opt for an easier course for the sake of convenience to try the case in a summary manner. The rights of the petitioners have been prejudiced by denial to try their case under section 13-B in accordance with the provisions of Civil Procedure Code and this has resulted in failure of justice".

18. Subsequently, the same view was again reiterated by this Court in cases Sewa Ram and Kanwar Bhan Versus Gram Panchayat Village Shergarh Tapu and others, 2010(1) R.C.R.(Civil) 118 and Bant Singh and others Versus The Joint Director, Panchayat, Punjab and others, 2010(3) R.C.R.(Civil) 724.

19. What is not disputed here is that the petitioners have specifically raised an important question of title of the land in dispute and prima facie proved by producing the revenue record, as discussed here-in-above, but the A.C. Ist Grade has ordered their ejectment in a casual fashion and routine manner, without deciding the question of title and failed in his statutory duty in this relevant behalf. In that eventuality, the A.C. Ist Grade ought to have stayed his hands, as regards the ejectment petitions were concerned, at that stage, and it was incumbent upon Civil Writ Petition Nos.7300 to 7304 of 1992 7 him to decide the question of title, at the first instance, as per procedure contemplated under Section 7(3) of the Act.

20. The clear and explicit intention of the legislature underlying Section 7 has to be respected and complied with in the manner commanded by the Act. The command of the legislature is mandatory and to avoid unscrupulous ejectments, which admittedly, the A.C. Ist Grade has omitted to follow. Therefore, the A.C. Ist Grade has bye-passed the mandatory provisions with impunity and illegally passed the impugned ejectment order(Annexure P-1) and the Appellate Authority has also dismissed the appeal in a mechanical manner, inculcating and perpetuating injustice to the petitioners, by virtue of impugned order(Annexure P-

2), which cannot legally be sustained in this respect.

21. This is not the end of the matter. It is not a matter of dispute that the A.C. Ist Grade did not decide the question of title and passed the non-speaking ejectment order(Annexure P-1). The same very mistake was repeated by the Appellate Authority, while passing the impugned order(Annexure P-2). That means, the impugned ejectment orders(Annexures P-1 and P-2) passed by the A.C. Ist Grade and the Appellate Authority, are non-speaking orders and lack application of mind in this connection. They ought to have discussed the evidence brought on record and were legally required to record the valid reasons, for arriving at a conclusion, in order to decide the real controversy between the parties, in the right perspective. The orders of such statutory authorities must be fair, clear, reasonable and in the interest of fair play and must be informed by reasons. Every order must be confined and structured by rational and relevant material on record, which is totally lacking in the instant cases. Therefore, to my mind, the impugned ejectment orders(Annexures P-1 and P-2) cannot legally be maintained, in the obtaining circumstances of the case.

22. There is another aspect of the matter, which can be viewed from a different angle. Again, it is not a matter of dispute that during the pendency of the Civil Writ Petition Nos.7300 to 7304 of 1992 8 writ petitions, the State of Haryana has enacted The Haryana Dohlidar, Butimar, Bhondedar and Muqarridar (Vesting of Proprietary Rights) Act, 2010, by way of which, all rights, title and interest, including the contingent interest, if any recognized by any law, custom, usage or deed for the time being in force, with respect to the land and vested in the land-owner, shall be extinguished, and such rights, title and interest shall vest in the Dohlidar, Butimar, Bhondedar and Muqarridar, under whose occupation the land is free from all encumbrances, if any, created by the land-owner and the land-owner shall cease to have any right to collect or receive any rent or service in respect of such land, notwithstanding anything to the contrary contained in any other law, custom, usage or deed for the time being in force.

23. In this manner, whether (i) the land in dispute falls within the definition of shamilat deh, as defined under Section 2(G) of the Act, (ii) the land of the petitioners is exempted from the operation of law, in view of Section 4 of the Act, on account of their long possession as Bhondedars, and (iii) their possession matures into proprietary rights, in view of the indicated Act of 2010 or not, would be the moot points to be decided by the authorities under the Act. Therefore, to my mind, it would be in the interest and justice would be sub-served, if these matters are remanded back to the A.C. Ist Grade, for its fresh decision.

24. In the light of aforesaid reasons, thus, seen from any angle and without commenting further anything on merits, lest it may prejudice the case of either side during the adjudication of question of title between the parties, by the A.C. Ist Grade, the instant writ petitions are accepted. The impugned ejectment orders(Annexures P-1 and P-2) are hereby set aside. The matter is remitted back to the concerned A.C. Ist Grade, for its fresh decision, on the question of title, after affording adequate opportunity to the parties, to lead their respective evidence, in view of the aforesaid observations and in accordance with law and then to pass appropriate order, as warranted by the situation. Civil Writ Petition Nos.7300 to 7304 of 1992 9

25. Needless to mention here that, nothing observed in this judgment would reflect, in any manner, on merits of the main case, because the same has been so recorded for a limited purpose of deciding the present controversy.

26. The parties through their counsel are directed to appear before the concerned A.C. Ist Grade on 08.08.2011.

April 29, 2011                                        (MEHINDER SINGH SULLAR)
seema                                                       JUDGE


                 Whether to be referred to reporter?Yes/No
 Civil Writ Petition Nos.7300 to 7304 of 1992                         10

             Civil Misc.No.5074 of 2011 in
             Civil Writ Petition No.7300 of 1992


Present:     Mr.Amit Jain, Advocate,
             for the petitioners.

             Mr.Pritam Saini, Advocate,
             for respondent No.1.

Ms.Kirti Singh, Deputy Advocate General Haryana, for respondent Nos.2 to 4.

**** Learned counsel for the petitioners has moved the instant application for impleading the LRs of petitioner-Karim Khan.

Learned counsel for the respondents has neither filed, nor sought to be filed the reply and did not raise any objection, for impleading the applicants, as the LRs of petitioner-Karim Khan.

After hearing the learned counsel for the parties, going through the record and the contents of the application, which is supported by an affidavit of Sattar son of Karim Khan, the same is allowed. The applicants mentioned in para 2 of the application, are ordered to be impleaded as the LRs and are substituted in place of petitioner-Karim Khan, subject to all just exceptions.