Punjab-Haryana High Court
Gram Panchayat vs Commissioner on 2 May, 2014
Author: Hemant Gupta
Bench: Hemant Gupta, Fateh Deep Singh
1
CWP No.22176 of 2012 &
RSA No.4987 of 2012
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARAYANA AT CHANDIGARH
Date of Decision: 02.05.2014
CWP No.22176 of 2012
Gram Panchayat, Kalinjar, Tehsil Nuh, District Mewat
....Petitioner
Versus
Commissioner, Gurgaon Division, Gurgaon
....Respondents
Present: Mr. Vikas Kumar, Advocate, for the petitioner.
Mr. Amit Jhanji, Advocate, for respondent No.3.
RSA No.4987 of 2012
Deenu
....Appellant
Versus
Gram Panchayat, Kalinjar, Tehsil Nuh, District Mewat & others
....Respondents
Present: Mr. Amit Jhanji, Advocate, for the appellant.
Mr. Vikas Kumar, Advocate, for respondent No.1.
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE FATEH DEEP SINGH
HEMANT GUPTA, J.
This order shall dispose of aforesaid two cases i.e. CWP No.22176 of 2012 filed by Gram Panchayat, Kalinjar and RSA No.4987 of 2012 filed by the plaintiff-appellant (respondent No.3 in the writ petition). Both the proceedings i.e. writ petition and the appeal pertain to the same land. Kumar Vimal
Deenu - appellant in Regular Second Appeal filed a suit for 2014.05.05 17:20 I attest to the accuracy and integrity of this document Chandigarh 2 CWP No.22176 of 2012 & RSA No.4987 of 2012 declaration to the effect that he is owner and in possession of the suit land and the defendants including Gram Panchayat, Kalinjar - defendant No.6 have no right, title or interest in the suit land. The appellant also claimed a decree for permanent injunction restraining the defendants from dispossessing the plaintiff from the suit land. The appellant claims to be occupancy tenant on agricultural land in question without payment of any rent. As per revenue record, in the column of ownership 'Jumla Mustarka Malkan' are recorded as owners, therefore, some of them were impleaded to represent the proprietary body in representative capacity. The plaintiff claims that he is in possession for the last more than 60 years and paid no rent except the amount of land revenue and the rates and cesses for the time being chargeable thereon. Therefore, he has acquired propriety rights after coming into force of the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952. The plaintiff-appellant asserts that he has never paid any batai to the defendants or their predecessors-in-interest. The land was recorded as owned by Gram Panchayat vide mutation dated 29.07.1991.
It is also pleaded that earlier he filed a suit claiming ownership against the Gram Panchayat before the Assistant Collector Ist Grade, Nuh, which was decreed on 22.09.2000. In appeal, the matter was remanded back by the District Collector, Gurgaon to the Assistant Collector Ist Grade, Nuh. After remand, the Assistant Collector Ist Grade dismissed the suit on 14.03.2003. The appeal was also dismissed by the District Collector on 25.03.2004. The further revision was dismissed on 20.02.2008, however, it was observed that the appellant may seek relief before the competent Court i.e. Civil Court on the basis of judgment reported as Shiv Charan Vs. The Financial Commissioner, Revenue Department, Haryana & others (2004) 3 Kumar Vimal 2014.05.05 17:20 I attest to the accuracy and integrity of this document Chandigarh 3 CWP No.22176 of 2012 & RSA No.4987 of 2012 PLR 569, wherein it has been held that the Civil Court alone would have the jurisdiction to determine the dispute envisaged in Section 77 of the Punjab Tenancy Act, 1887 (for short 'the Tenancy Act').
Such suit was contested by the Gram Panchayat. The jurisdiction of the Civil Court was denied. It was pleaded that in earlier proceedings before the Assistant Collector, the appellant averred that he is Gair Morusi tenant on payment of Chakota of Rs.200/- per annum, whereas in the present proceedings, he asserted possession for more than 60 years and that without payment of any rent.
Though such suit was decreed by the trial Court vide judgment and decree dated 14.12.2011, but the appeal has been allowed by the learned first Appellate Court vide judgment and decree dated 20.09.2012. Referring to jamabandi for the year 1963-64 (Ex.P1), it was observed by the first Appellate Court that column No.9 records payment of Chakota (rent) of Rs.200/- per annum. In column No.11, the payment of Rs.31.36 was mentioned, out of which Rs.20.23 was the land revenue and Rs.11.13 was sawai. The first Appellate Court relied upon Full Bench judgment of this Court reported as Jai Singh Vs. State of Haryana 2003 (2) PLR 658 to the effect that 'Jumla Mustarka Malkan Wa Digar Haqdaran Hasab Rasad Arazi Khewat' vests with Panchayat. From the jamabandis for the year 1963-64 (Ex.P1) and for the year 2000-01 (P-18), it was found that the plaintiff was not inducted as a tenant at a nominal rent with a promise not to eject him so as to fulfill the conditions under Section 5(1)(a) of the Tenancy Act. The Court also found that the appellant was bound to prove that he was in possession as tenant for more than two generations in the male line and for a period of not less than twenty years at the time of commencement of the Tenancy Act Kumar Vimal 2014.05.05 17:20 I attest to the accuracy and integrity of this document Chandigarh 4 CWP No.22176 of 2012 & RSA No.4987 of 2012 without payment of any rent beyond the amount of land revenue. It was found that the plaintiff has failed to produce the jamabandies to prove his continuous possession for 30 years nor has proved the conditions to claim propriety rights. It was also found that the Chakota was more than six times of the land revenue, therefore, it is not a case of nominal rent. It was also found that the land in question was reserved for common purposes during consolidation, which took place in the year 1962 reserving the same for Panchayat farm. The Court found that the land was neither surplus nor bachat land. Since the land was reserved for Panchayat farm, therefore, it is for common purposes of the village and will not vest with the proprietors after the judgment of Full Bench in Jai Singh's case (supra).
The first Appellate Court also records a finding that the plaintiff is recorded as proprietor in the list of proprietors of the Village Kalinjar (Ex.P17) at Sr.No.186. Thus, he is co-owner of the land as per entry in the column of ownership. Therefore, he cannot claim vesting of propriety rights in him being an owner himself. The appellant has claimed that the following substantial questions of law arise for consideration in the present second appeal:
(i) Whether the learned Appellate Court is justifiable in reversing the judgment passed by learned Civil Judge (Sr.Dn.), Nuh?
(ii) Whether the judgment of the learned Lower Appellate Court is based upon misappreciation and misreading of the evidence and facts?
(iii) Whether appellant has complied the provisions of Section 5(1)(a) and Section 5 (2) of Punjab Tenancy Act, 1952?
(iv) Whether the learned lower Appellate Court is justifiable by reversing the judgment by holding that the property under the ownership of 'Jumla Malkan' vests with the Gram Panchayat?
(v) Whether the finding recorded by the learned Lower Appellate Court by holding that the suit land vest with the Gram Panchayat without Kumar Vimal 2014.05.05 17:20 I attest to the accuracy and integrity of this document Chandigarh 5 CWP No.22176 of 2012 & RSA No.4987 of 2012 taking cogent evidence on record regarding the property reserved for common purpose for the benefit of the villagers is justifiable?
In the writ petition, challenge is to the orders passed by the Commissioner on 17.05.2012 (Annexure P-4) in proceedings under Haryana Public Premises and Land (Eviction & Rent Recovery) Act, 1972 (for short 'the Public Premises Act'). The Gram Panchayat initiated proceedings for eviction of respondent No.3 (plaintiff-appellant in RSA) from the land measuring 174 kanals 1 marla. The land was reserved for Panchayat farm during consolidation and recorded as Jumla Mustarka Malkan. Such land has been managed by the Gram Panchayat. It is averred that the petitioner earlier initiated proceedings under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (for short 'the Act'), but such application was dismissed with the observation that if the Gram Panchayat intends to evict the respondent from the land in dispute, then it can take proceedings against the respondent under the Public Premises Act, as Jumla Mustarka Malkan land is governed by the aforesaid Act. In evidence, the consolidation scheme was tendered as Ex.P1 whereas the order of Assistant Collector Ist Grade in proceedings under Section 7 of the Act dated 09.09.2005 is Ex.P2. The Collector considered the pendency of proceedings before the Civil Court and found that land in dispute is owned by Gram Panchayat reserved for Panchayat farm in the consolidation scheme. It is for the common purposes, therefore, the land vests in Panchayat. Respondent No.3 was, thus, ordered to be evicted. The appeal against the said order was allowed on the basis of the judgment of the Civil Court dated 14.12.2011 even though the appeal against the said judgment was pending before the learned first Appellate Court. Kumar Vimal 2014.05.05 17:20 I attest to the accuracy and integrity of this document Chandigarh 6 CWP No.22176 of 2012 & RSA No.4987 of 2012 Since the issues in both the cases are common, therefore, both are decided together. We find that no substantial question of law arises ffor consideration.
Before this Court, learned counsel for the Gram Panchayat has vehemently argued that Jumla Mustarka Malkan land vest in Panchayat consequent to amendment in the Punjab Village Common Lands (Regulation) Act, 1961 vide Haryana Act No.9 of 1991. Since the land vests with a Panchayat, therefore, the petitioner has rightly invoked the jurisdiction of the Public Premises Act. It is contended that the Gram Panchayat is a local authority in terms of Section 2(xxix) of the Haryana Panchayati Raj Act, 1994. Therefore, any land whether used for agricultural or non-agricultural purposes belonging to any local authority falls within the scope of the Public Premises Act. Learned counsel for the petitioner relies upon a Division Bench judgment of this Court in Rajdev Singh & another Vs. Joint Development Commissioner, Punjab & others 2012 (2) RCR (Civil) 623, wherein it has been held that the Panchayat has the option to initiate proceedings under the Punjab Village Common Lands (Regulation) Act, 1961 and or Public Premises Act. Such judgment follows the earlier Division Bench judgment of this Court reported as Smt. Ram Piari Vs. Joint Director, Panchayats, Punjab 1993 PLJ 307. The relevant extract from Rajdev Singh's case (supra) reads as under:
"13. We have considered the implications of both the Acts i.e. the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1973 and the Punjab Village Common Lands (Regulation) Act, 1961. These are State Acts. The "Eviction Act" has been enacted after the "Common Lands Act", it does not exclude the application of Common Lands Act for eviction of the unauthorized occupant, so, unauthorized occupant can be evicted under both the Act. This Court in the matter of Smt. Ram Piari and others vs. Joint Director, Panchayats, Punjab and other reported in 1993, PLJ, 307 has Kumar Vimal 2014.05.05 17:20 I attest to the accuracy and integrity of this document Chandigarh 7 CWP No.22176 of 2012 & RSA No.4987 of 2012 taken a view that both the remedies are available to the Gram Panchayat. The law as on date provides that Gram Panchayat has remedies under both the Act for eviction of unauthorized occupant. Whichever remedy, Panchayat deem it appropriate speedy, summary and effective, it can avail. So, the contention of the learned counsel for the petitioners that Gram Panchayat has only remedy under Section 7 of the Act is devoid of merit, hence, rejected."
On the other hand, Mr. Jhanji relies upon a Division Bench judgment of this Court reported as Banwari Vs. State of Haryana 2009 (1) PLR 394, to contend that the proceedings under the Public Premises Act are not maintainable. He also contends that the plaintiff has proved his possession over the land in question for more than 60 years, thus, he cannot be ordered to be evicted.
We have heard learned counsel for the parties at length. The land in question is described as Jumla Mustarka Malkan in the jamabandi for the year 1963-64 (Ex.P1). Such land vests with the Gram Panchayat in terms of Section 2(g)(6) of the Act in terms of Haryana Act No.9 of 1991. The legality of such provision has been upheld by the Full Bench of this Court in Jai Singh's case (supra). Section 2(g)(6) reads as under:
"2. Definitions - In this Act unless the context otherwise requires -
xx xx xx
(g) "shamilat deh" includes -
xx xx
(6) lands reserved for the common purposes of a village under Section 18 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (East Punjab Act 50 of 1948), the management and control whereof vests in the Gram Panchayat under Section 23-A of the aforesaid Act.
Explanation - Lands entered in the column of ownership of record of rights as 'Jumla Malkan Wa Digar Haqdaran Arazi Hassab Rasad', 'Jumla Malkan' or 'Mushtarka Malkan' shall be shamlat Kumar Vimal deh with the meaning of this section."
2014.05.05 17:20I attest to the accuracy and integrity of this document Chandigarh 8
CWP No.22176 of 2012 & RSA No.4987 of 2012 In view thereof, the land vests in Panchayat and the Panchayat is competent to initiate proceedings against the unauthorized occupants.
Though Mr. Jhanji has relied upon Single Bench judgment reported as Boor Singh Vs. State of Punjab & others 1968 Cur. L. J. 911, wherein land reserved for the Panchayat farm was said to be no for common purposes, but we find that such judgment is of no help to the argument raised. The 'common purposes' for which land can be reserved during the process of consolidation are mentioned in Section 2(bb)(iii) and (iv) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948. Though in terms of Supreme Court judgment in Bhagat Ram & others Vs. State of Punjab & others AIR 1967 SC 927, the land reserved for income of the Panchayat during consolidation does not vest in Panchayat, but the land reserved for Panchayat farm is not reserved for income of the Panchayat.
In Banwari's case (supra), the judgment in Ram Piari's case (supra) was referred to, but the same was not followed in view of the judgment of Full Bench in Roshan @ Roshan Lal Vs. Secretary, Govt. of Haryana, 1998 (3) PLR 651. It may be noticed that the land falls within the definition of the expression "premises" in the Public Premises Act. The Gram Panchayat is a local authority in terms of Section 2(xxix) of the Haryana Panchayati Raj Act, 1994. It appears that the definition reproduced in the judgment in Banwari's case (Supra) is not correct reproduction as well. Any premises including land owned by Panchayat is Public Premises. The correct definition of the 'premises' and 'public premises' as defined in the Haryana Public Premises and Land (Eviction and Rent Recovery) Act, 1972 reads as under:
"2. Definitions - In this Act, unless the context otherwise requires-
xx xx xx Kumar Vimal 2014.05.05 17:20 I attest to the accuracy and integrity of this document Chandigarh 9 CWP No.22176 of 2012 & RSA No.4987 of 2012
(c) 'premises' means any land, whether used for agricultural or non- agriculutral purposes, or any building or part of a building and includes:
(i) the garden, grounds and out-houses, if any, appertaining to such building or part of a building; and
(ii) any fittings affixed to such building or part of a building for the more beneficial enjoyment thereof;
xx xx xx
(e) 'public premises' means any premises belonging to, or taken on lease or requisitioned by, or on behalf of, the State Government, or requisitioned by the competent authority under the Punjab Requisitioning and Acquistion of Immovable Property Act, 1953, and includes any premises belonging to any Local Authority or District Soldier, Sailors and Airmen's Board or any university established by law or any Corporation or Board owned or controlled by the State Government."
We find that Roshan's case (supra), was a case of a lessee, who over-stayed on the land leased to him. In the said case, the proceedings were initiated against the unauthorized occupant under the Punjab Village Common Lands (Regulation) Act, 1961. The Full Bench has overruled the judgment of the Division Bench in Om Parkash Vs. The Assistant Collector Ist Grade, Narnual & others reported as 1992 (1) RRR 327. An argument was raised before the Full Bench that the lessee, whose lease period has expired can be ejected from the land either by filing a suit or under the provisions of the Haryana Public Premises and Land (Eviction and Rent Recovery) Act. It was held that a lessee, whose lease period has expired, can be evicted in proceedings under the Punjab Village Common Lands (Regulation) Act, 1961. There is no finding in the aforesaid judgment that such a lessee cannot be evicted under the provisions of the Haryana Public Premises and Land (Eviction and Rent Recovery) Act. Since eviction was sought under the Punjab Village Common Lands (Regulation) Act, it was allowed. The converse cannot be said to be the finding recorded by the Full Bench. The Division Benches in Smt. Ram Piari's and Rajdev Singh's cases (supra) have Kumar Vimal 2014.05.05 17:20 I attest to the accuracy and integrity of this document Chandigarh 10 CWP No.22176 of 2012 & RSA No.4987 of 2012 categorically held that Panchayat has an option to seek eviction of unauthorized occupant under either of the two statutes both being State Legislations conferring jurisdiction on the Panchayat to seek eviction of unauthorized occupant. Thus, we find that the judgment in Roshan Lal's case (supra) does not support the finding recorded in Banwari's case (supra).
In view of the above discussion, we find no merit in the regular second appeal and that the order passed by the Commissioner, subject matter of challenge in the writ petition is not sustainable. Consequently, the writ petition filed by the Gram Panchayat, Kalinjar is allowed, whereas the regular second appeal filed by the plaintiff is dismissed.
(HEMANT GUPTA)
JUDGE
.05.2014 (FATEH DEEP SINGH)
Vimal JUDGE
Kumar Vimal
2014.05.05 17:20
I attest to the accuracy and
integrity of this document
Chandigarh