Punjab-Haryana High Court
Mahender Singh vs The Collector-Cum-Deputy on 18 September, 2012
Bench: Rajive Bhalla, Rekha Mittal
CWP No.10562 of 2012 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No.10562 of 2012
Date of Decision:18.09.2012
Mahender Singh ..... Petitioner
VERSUS
The Collector-cum-Deputy
Commissioner, Jhajjar
and others ..... Respondents
CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA
HON'BLE MRS. JUSTICE REKHA MITTAL
Present: Mr.Mahavir Sandhu, Advocate, for the petitioner.
Mr.D.Khanna, Addl.A.G., Haryana,
for respondents No.1 and 2.
Mr.R.K.Gupta, Advocate, for respondent No.3.
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RAJIVE BHALLA, J.(ORAL)
By way of this order, we shall dispose of CWP Nos.10562, 10816, 10834, 11255, 11339, 11491, 11545 and 11703 of 2012 as they involve adjudication of common questions of law. For the sake of convenience, facts are being taken from CWP No.10562 of 2012.
The petitioner, herein, challenges order dated 10.04.2012, passed by the Collector-cum-Deputy Commissioner, Jhajjar, reversing order dated 27.12.2011, passed by the Assistant Collector Ist Grade, Jhajjar, and as a result, holding that the land, in dispute, vests in the Gram Panchayat.
Counsel for the petitioner submits that the land, in dispute CWP No.10562 of 2012 -2- was created after applying a pro-rata cut on the holdings of proprietors in accordance with Sections 18 and 23-A of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter referred to as the 'Consolidation Act') and Rule 16(ii) of the East Punjab Holdings (Consolidation & Prevention of Fragmentation) Rules, 1949 (hereinafter referred to as the '1949 Rules') but as it was not reserved or earmarked for any common purpose and was recorded as "Khud Kashat Wa Makbuja Malkan" in jamabandi for the year 1960-61, it does not vest in the Gram Panchayat. The Assistant Collector Ist Grade, therefore, rightly dismissed the petition filed by the Gram Panchayat, under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as the '1961 Act') by holding that the land, in dispute, does not vest in the Gram Panchayat. The appeal filed by the Gram Panchayat was wrongly accepted by the Collector, by holding that the Gram Panchayat is owner. A perusal of order, passed by the Collector, reveals that no reasons have been assigned while recording this finding and apart from recording arguments, addressed by counsel for the parties, the arguments have not been dealt with.
Counsel for the State of Haryana submits that order passed by the Collector is legal and valid. The petition under Section 7 of the 1961 Act, was filed on the basis of a demarcation report and even otherwise, as the land, in dispute, was mutated in favour of the Gram Panchayat, the land vests in the Gram Panchayat.
CWP No.10562 of 2012 -3-
Reply filed on behalf of respondent No.3, in Court today, is taken on record.
Counsel for respondent No.3-Gram Panchayat submits that as the petitioner contested the ownership of the Gram Panchayat, it was incumbent upon the petitioner to prove, by reference to, prima-facie, evidence that the land was not reserved for any common purpose much less earmarked for a common purpose during consolidation. The petitioner has not adduced any evidence whether in the shape of documents prepared during consolidation or otherwise to prove that land, which is, admittedly, Jumla Mushtarka Malkan, was not reserved for any common purpose.
We have heard counsel for the parties, perused the impugned order and though order passed by the Assistant Collector Ist Grade, is not under challenge, have no hesitation in holding that neither the Assistant Collector Ist Grade nor the Collector have passed a speaking order. The Assistant Collector Ist Grade and the Collector, have referred to the pleadings, the evidence and arguments addressed, but thereafter proceeded to decide the petition and appeal, without reference to any document much less the revenue record in support of their respective conclusions. The dispute, in the present case, necessarily required the Assistant Collector Ist Grade and the Collector, who exercise quasi-judicial powers, to record a prima-facie finding whether land, which is, admittedly, described as Jumla Mushtarka Malkan and vests in the Gram Panchayat for management and control CWP No.10562 of 2012 -4- in accordance with Sections 18 and 23-A of the Consolidation Act and Rule 16(ii) of the 1949 Rules, was earmarked/reserved during consolidation for any common purpose. The plea was decided in favour of the petitioner by the Assistant Collector Ist Grade without recording any reasons or referring to any document prepared during consolidation. The Collector reversed this finding without recording any reason or referring to any document or revenue entry. The order passed by the Collector, reads as follows: -
"After hearing the learned counsel for both the parties and after perusing the evidence, documents and the rulings cited by them, I came to the conclusion that there is force in the appeal of the appellant. The Gram Panchayat is owner of the land in dispute. Therefore, the appeal of the Gram Panchayat is accepted and the order passed by the lower court is set aside and the orders are being passed in favour of the Gram Panchayat.
Order announced. The file after compliance be consigned to the record room."
The Collector has passed a non-speaking order devoid of any reasons much less a process of reasoning. The Assistant Collector Ist Grade, also passed a non-speaking order. We, therefore, have no option but to allow the writ petitions and set aside orders dated 27.12.2011 and 10.04.2012, passed by the Assistant Collector Ist Grade, Jhajjar and the Collector, Jhajjar, respectively, and remit the matter to the Assistant Collector Ist Grade, Jhajjar, for adjudication afresh and in accordance with law.
Parties are directed to appear before the Assistant Collector Ist Grade, Jhajjar, on 18.10.2012, who shall decide the matter within CWP No.10562 of 2012 -5- three months.
[ RAJIVE BHALLA ]
JUDGE
18.09.2012 [ REKHA MITTAL ]
shamsher JUDGE