Punjab-Haryana High Court
Mannu Alias Mannu Datt vs Gulab Singh Sarot And Ors. on 5 April, 1995
Equivalent citations: (1995)111PLR740
JUDGMENT G.S. Singhvi, J.
1. This petition is directed against the order dated 9.9.1993 passed by the Assistant Collector 1st Grade, Jhajjar, on a petition filed by respondent No. 3 under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (for short 'the Act'). Order dated 4.10.1993 passed by the Collector, Rohtak, dismissing the appeal filed by the petitioner has also been assailed in the writ petition.
2. Briefly stated, the facts of the case are that respondent No. 3 who is a resident of village Dubaldhan Ghikain, Tehsil Jhajjar, district Rohtak filed an application under Section 7 of the Act alleging encroachments on the village land by the petitioner. Respondent No. 3 prayed that a direction be issued for removing unauthorised encroachment made by the petitioner. That application was contested by the petitioner who pleaded that the land in dispute did not form part of the public street but vested in his family. He pleaded that the land had been in possession of his forefathers and, therefore, the village Panchayat had no jurisdiction over the land.
3. The Assistant Collector 1st Grade ordered the Kanungo, Circle Beri, to make an inspection and report the matter about the alleged encroachment over the land in question. He also made an on the spot inspection on 15.7.1993 in the presence of the parties and other villagers. Thereafter, he heard the arguments of both the parties and passed order Annexure P. 1 holding that the land in dispute was a part of the street which was constructed by the Panchayat and was being used by the general public and that respondent No. 1 (petitioner herein) had obstructed the user of the street by placing bricks. Thereupon, respondent No. 2 directed the petitioner to immediately vacate the unauthorised occupation of the village land. The appeal filed by the petitioner against the order of the Assistant Collector has been dismissed by respondent No. 1 vide his letter dated 4.10.1993.
4. The only argument advanced by Shri Adarsh Jain, the learned counsel for the petitioner, is that respondent Nos. 2 and 3 had no jurisdiction to make an adjudication on the application filed by respondent No. 3 under Section 7 of the Act and in any case respondent No. 2 should have decided, the dispute regarding title in accordance with the provisions of Section 13-A of the 1961 Act as added by the Haryana Amendment. Shri Jain argued that even though the petitioner had specifically pleaded that the land in dispute belonged to his predecessors, neither respondent No. 2 nor respondent No. 1 decided this issue and both these authorities have passed cryptic order under the provisions of the 1961 Act. The learned Assistant Advocate General and Mr. Malik vehemnelty argued that the petitioner has been found guilty of unauthorisedly occupying the public land and therefore no writ should be issued in his favour. They argued that the land in question forms part of public street which had been paved and metalled by the village Panchayat for the common use by the public of the village and the petitioner had obstructed the user of the street by raising construction over the street by unauthorisedly occupying it and that respondent No. 2 as well as respondent No. 1, have rightly held him guilty of unauthorised encroachment over the village land. Learned counsel argued that no' real issue of dispute regarding the title of the property was raised by the petitioner and, therefore, it was not at all essential for respondent No. 2 or for that reasons respondent No. 1 to stay their hands from making an adjudication of the application filed by respondent No. 3. Learned Assistant Advocate General pointed out that the Act of 1961 has been amended by the Amending Acts Nos. 15 of 1983 and 9 of 1992 passed by the Haryana Legislature and in view of the amended provisions the dispute regarding title is required to be determined only when such a dispute is raised and prima facie proved on the basis of the documents and as no such documentary evidence was produced by the petitioner, it was not incumbent on the Assistant Collector 1st Grade, Jhajjar, to make an adjudication on the question of life.
5. Both the parties are in agreement that the impugned orders have been passed under the provisions of 1961 Act as it stands amended by the Haryana amendments, 1961 Act has been enacted with a view to vest certain rights in certain areas of land in a representative body, namely, the village Panchayat so that it can be better managed for the benefit of the rural community. By virtue of Section 3 of the Act the lands either vest or are deemed to have vested in the village Panchayats. Section 4 imposes a duty on the village Panchayats to utilise or to dispose of the land for the benefit of the village community. Section 7 lays down the procedure to be followed by an Assistant Collector 1st Grade having jurisdiction over the village concerned to hold a summary enquiry and put the Panchayat in possession of any land or immovable property in the shamilat deh of that village. This Section also vests the Assistant Collector with the power to order ejectment of an unauthorised occupant from such land.
6. Section 7 of the Act, as it stands after Haryana Amendments, reads as under:-
"7. Power to put Panchayat in possession of certain land.--(1) An Assistant Collector of the First Grade having jurisdiction in the village, may either suo motu 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 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 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 1st Grade shall record a finding to that effect and first decide the question of title in the manner laid down hereinafter."
7. Section 13-A, 13-B and 13-C on which reliance has been placed by the learned counsel for the petitioner are also reproduced below:-
"13-A. Adjudication--(1) Any person or in the case a Panchayat, either the Panchayat or its Gram Sachiv, the concerned Block Development and Panchayat Officer or any other officer duly authorised by the State Government in this behalf, claiming right, title or interest in any land or other immovable property, vested or deemed to have vested in the Panchayat under this Act, may within a period of two years from the date of commencement of the Punjab Village Common Lands (Regulation) Haryana Amendment Act, 1980, file a suit for adjudication whether such land or other immovable property is shamilat deh or not or whether any land or other immovable property or any right, title or interest therein vests or does not vest in the Panchayat under this act in the Court of the Assistant Collector of the First Grade having jurisdiction in the area wherein such land or other immovable property is situate.
(2) The procedure for deciding the suits filed under Sub-section (1) shall be the same as laid down in the Code of Civil Procedure, 1908.
13-B. Appeal and Revision--(1) Any person aggrieved by an order passed under Section 13-A may, within a period of thirty days from the date of the order, prefer an appeal to the Collector, in such form and manner, as may be prescribed and the Collector; may after hearing the appeal, confirm, vary or reverse the order, as he deems fit.
(2) The Commissioner may, suo motu at any time, call for the record of any proceedings pending before or order passed by any authority subordinate to him for the purpose of satisfying himself, as to the legality or propriety of the proceedings or order and pass such order in relation thereto, as he may deem fit.
Provided that no order adversely affecting a person shall be passed unless he has been afforded an opportunity of being heard.
13-C. Finality of orders.--Save as otherwise expressly provided in this Act, every order made by the Assistant Collector of the First Schedule the Collector or the Commissioner, shall be final and shall not be called in question in any manner in any Court."
8. Shri Jain argued that proviso to Section 7 which has been added by the Haryana Amendment Act No. 9 of 1992 is not applicable to the present case because the said amendment came into force much after the filing of the application by respondent No. 3. Shri Jain submitted that the proviso added to Section 7 is not retrospective and, therefore, it could not have been applied to the pending proceedings. We find no merit in this submission of Mr. Jain. A bare reading of Section 7 shows that it contains the procedure which is to be followed by an Assistant Collector 1st Grade before he can pass an order to put the panchayat in possession of the land. The Amending Act does not show that the Legislature intended it to be retrospective. It is one of the settled canons of interpretation that an amendment made in a procedural statute is retrospective unless the legislature provides otherwise and that an amendment made in the procedural statute applies to the pending proceedings. Therefore, Section 7 which contains procedural provision will have to be treated as retrospective and shall be treated as applicable to the proceedings pending on the date of the coming into force of the amended provision. Thus, respondent No. 2 cannot be said to have committed any illegality in placing implicit reliance on the amended provisions contained in Section 7.
9. A look at the language of proviso to Section 7 shows that if any question relating to title is raised in the proceedings initiated under Section 7 and it is prima facie proved on the basis of documents, that the question of title is really involved the Collector 1st Grade is required to record a finding to that effect and first decide the question of title in accordance with the procedure laid down in the Act. It is, therefore, clear that primary burden to substantiate the plea of title is on the person who raises the question of title in the proceedings under the Act of 1961. What has happened in the present case is that the petitioner has merely raised a bald plea that the land belonged to his predecessor and it did not form part of the village land. However, he did not produce any document or other evidence to prima facie substantiate his plea regarding his title over the property. In view of the failure of the petitioner to adduce any evidence in support of his plea regarding the title over the property respondent No. 2 was under no obligation to decide the issue relating to title as a condition precedent to the passing or order under Section 7 of the Act.
10. We are further of the opinion that even if amended Section 7 is treated as not applicable to the proceedings initiated on the basis of application filed by respondent No. 3 the petitioner is not entitled to succeed in the petition on the ground that respondent No. 1 and 2 did not decide the issue of title. At the cost of repetition, we may observe that in his reply to the application filed by respondent No. 3 the petitioner did nothing more than to make a bald and vague statement that the land in dispute is owned and possessed by him and since 1879. No document was produced by the petitioner before the Assistant Collector 1st Grade in support of his claim that the property was owned and possessed by him as of right. He did not file any application nor did he make an oral prayer before respondent No. 2 that a regular enquiry be held to determine the question or title and he be given an opportunity to lead evidence. It must, therefore, be held that the petitioner did not even press the issue regarding title.
11. Perusal of the order passed by the appellate authority further supports the conclusion that the petitioner did not press the issue relating to title over the property. Before the appellate authority it was contended on behalf of the petitioner that he was not in unauthorised occupation or possession of the land and that the inspection made by the Local Commissioner as also the report prepared by the Local Commissioner were biased and contrary to the facts. It was further contended that the application filed by respondent No. 3 did not bear his signatures and he had not even signed the Wakalatnama. Apparently, no contention was raised on behalf of the petitioner that respondent No. 2 had committed an illegality by not deciding the issue relating to title. In the face of it, we are of the opinion that failure of the petitioner to press a decision on the question of title before respondent No. 1 and his failure to raise such plea before the appellate authority coupled with the fact that no evidence was adduced by the petitioner before respondent No. 1 and 2 to prima facie establish his plea regarding title, are factors sufficient to negative the submission of Mr. Jain that the impugned order suffers from an error of law.
12. The judgments of the Court in Tara Chand v. Gram Panchayat, 1979 PLJ 1; and Nant Singh v. Joint Director, Panchayat, Punjab, 1993 PLJ 502, on which reliance has been placed by the learned counsel for the petitioner are really of no help to the petitioner's case. In Tara Chand's case (supra) a Division Bench of this Court examined the various provisions of 1961 Act and held that the Assistant Collector 1st Grade is a Tribunal of limited jurisdiction and such a Tribunal cannot decide the question of title except after following the procedure contained in the Code of Civil Procedure. That judgment does not lay down a proposition that even in a case where a bald dispute regarding the title of the property is raised, the case should always be decided in accordance with the procedure contained in the Code of Civil Procedure. Similarly, the judgment of Nant Singh's case (supra) does not lay down any general proposition of law that as soon as a plea regarding title is raised, the procedure contained in the Code of Civil Procedure or Sections 13-A to 13-C of the Act be followed.
13. We would like to emphasise that when proceedings under Section 7 are initiated and a dispute regarding title is raised, the procedure contained in the Code of Civil Procedure or Sections 13-A to 13-C will be required to be followed only where the dispute is bona fide and evidence is produced by the persons claiming title to prima facie show that the land belongs to him and does not vest in the Panchayat. A mere assertion in reply to the show cause notice or a bald plea raising a dispute regarding title will not be sufficient to disentitle the competent authority from passing an order under Section 7.
14. As a result of the above discussion, the writ petition is held to be without merit and is therefore, dismissed. The petitioner shall pay costs of Rs. 5,000/- because he not only encroached the public land but also raised construction over it so as to prevent the entire population of the village from using the land as street.