Punjab-Haryana High Court
Raghunath Singh And Others vs District Collector on 30 April, 2013
Bench: Rajive Bhalla, Rekha Mittal
Civil Writ Petition No.6936 of 1986 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Civil Writ Petition No.6936 of 1986
Date of Decision: 30.4.2013
Raghunath Singh and others ..Petitioners
Versus
District Collector, Faridabad and others ..Respondents
CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA
HON'BLE MRS. JUSTICE REKHA MITTAL
Present: Mr. Ashwani Kumar Chopra, Senior Advocate
with Mr. Rajneesh Chauhan, Advocate
for the petitioners.
Mr. Randhir Singh, Addl.A.G.,Haryana
for respondent nos. 1 and 2.
Mr. Rajiv Dhawan, Advocate
for respondent nos. 3 to 5.
RAJIVE BHALLA, J. (ORAL)
The petitioners pray for issuance of a writ of certiorari quashing orders dated 27.3.1986 and 11.11.1986 (Annexures P-3 and P-4) passed by the Assistant Collector 1st Grade, Palwal and the District Collector, Fatehabad, respectively, while exercising powers under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961, (as applicable to the State of Haryana) (hereinafter referred to as the "1961 Act").
Counsel for the petitioners submits that respondent nos. 3 to 5 sought eviction of the petitioners, from the land, in dispute, by alleging that the petitioners are in unauthorised occupation of land belonging to the Gram Panchayat. The Assistant Collector 1st Grade, Palwal, ordered the eviction of the petitioners by holding that Civil Writ Petition No.6936 of 1986 2 as the petitioners have stopped performing their obligation as `dholidars', the land has reverted to the Gram Panchayat. The Assistant Collector 1st Grade failed to discern that the petition, filed under Section 7 of the 1961 Act, does not contain an averment that the petitioners are `dholidars', much less, does it raise a plea that the petitioners have stopped serving water. The appellate authority also ignored this flaw in the pleadings and, therefore, committed the same error. It is further submitted that even if it is presumed that such an averment did exist in the petition, the questions whether a dholidar, has ceased to perform his duties and as a result, the land has reverted to the settler of the dholi, raises a disputed question of title. The Assistant Collector 1st Grade, was, therefore, required to follow the procedure prescribed by the first proviso to Section 7 of the 1961 Act, for deciding a question of title. A perusal of the impugned orders reveals that the Assistant Collector 1st Grade, has allowed the petition for eviction, summarily, without following the procedure for deciding a question of title, and by ignoring that there is no pleading on this point. The Collector has also ignored this defect in the pleadings and the error of jurisdiction and dismissed the appeal, summarily.
Counsel for the private respondents submits that as the Assistant Collector and the Collector have recorded concurrent findings of fact that the petitioners have stopped performing their duties as dholidars, they have rightly held that the `dholi' tenure has come to an end and the land has reverted to the Gram Panchayat. The petitioners have pleaded in their civil suits that they are Civil Writ Petition No.6936 of 1986 3 `dholidars' and have an obligation to serve water. The fact that the dholi tenure has come to an end, may not have been pleaded, but this irregularity does not prohibit the Assistant Collector, from taking notice of revenue entries, rights of parties and also from holding that as the petitioners have stopped discharging their obligations as `dholidars', the land has reverted to the Gram Panchayat. Counsel for the private respondents relies upon the judgments:- Dev Dutt versus Gram Panchayat Ramila, 1993(3)R.R.R 54 and Dhani Ram and another versus Gram Sabha and Gram Panchayat of Village Jatmalpur and others, (1984) ILR 2 Punjab and Haryana 22.
We have heard counsel for the parties, perused the impugned orders and have no hesitation in allowing the writ petition and setting aside the impugned orders.
The petitioners have been ordered to be evicted from the land, in dispute, on the ground that as they have stopped performing their obligations as dholidars, the dholi tenure has come to an end and the land has reverted to the Gram Panchayat. A perusal of the application, filed under section 7 of the 1961 Act, (a copy whereof, was produced before us, by counsel for the petitioners) reveals that there is no averment that the dholi, settled, in favour of the petitioners, before the land vested in the Gram Panchayat, has come to an end as the petitioners have stopped performing their obligations as dholidars. The absence of an averment, prohibited the Assistant Collector or the Collector from considering, much less, deciding such a plea. The filing of civil suits by the petitioners, admitting that they are `dholidars' who are obliged to maintain a Civil Writ Petition No.6936 of 1986 4 `piyao' (drinking water station), in the absence of any pleading of default on the part of the petitioners, cannot be pressed into service, in support of findings recorded by the Assistant Collector and the Collector. Accepting for a moment that such a plea was raised, the plea so raised would require the Assistant Collector to determine a tangible question of title, that can not be decided in summary proceedings, under Section 7 of the Act. It would be appropriate at this stage to point out that Section 4(3)(i) of the 1961 Act protects land, in possession of a 'dholidar' from vesting in a panchayat and reads as follows:
"4 Vesting of rights in Panchayat and non- proprietors.--
(1) XX XX XX
(2) XX XX XX
(3) Nothing contained in clause (a) of sub-section
(1) and in sub section (2) shall affect or shall be deemed ever to have affected the -
(i) existing rights, title or interest of person, who though not entered as occupancy tenants in the revenue records are accorded a similar status by custom or otherwise such as Dholidars, Bhondedars, Butimars, Basikhuopahus, Saunjidars, Muqarrirdars;
A Gram Panchayat alleging that as the `dholidar' has lost his right to the "dholi tenure", the land has reverted to the Gram Panchayat, raises a question that the protection to a dholi tenure provided by Section 4(3)(1)(i) of the 1961 Act, is no longer Civil Writ Petition No.6936 of 1986 5 available and the land has come to vest in a Gram Panchayat. The question, so raised, can only be decided by following the procedure prescribed by the first proviso to Section 7 of the 1961 Act, for deciding a question of title or by directing parties to file a suit under Section 13-A of the Act.
A perusal of the impugned orders reveals that the Collector has not followed the procedure prescribed by the first proviso to Section 7 of the 1961 Act, but has summarily recorded that the land vests in the Gram Panchayat as the petitioners have stopped performing their duties as dholidars. The Assistant Collector failed to notice the absence of any relevant pleading and the nature of the question raised before him. A perusal of the impugned order reveals that apart from one sentence that the petitioners have stopped performing their duties as dholidars, the order is bereft of reference to any pleading or evidence, that would conclusively prove that the petitioners have stopped performing their obligations as dholidars. The Assistant Collector has made reference to a spot inspection, but no such inspection report is available on record or has been referred to by the respondents.
As far as the judgments relied by counsel for the petitioners, suffice is to state, that the judgment in Dev Dutt's case (supra) does not apply to the present case as the dholi tenure, in that case, had come to an end in the absence of a Chela. The judgment in Dhani Ram's case (supra) merely reiterates a well known principle of law that a dholi tenure comes to an end, if the `dholidar' stops performing his duties and, therefore, does not enure to the Civil Writ Petition No.6936 of 1986 6 benefit of private respondents.
In view of what has been held hereinabove, we have no hesitation in holding that the question, whether the "dholi tenure"
has come to an end for failure of a dholidar (the petitioners herein) to perform his duties and as a result, the protection to a dholi tenure under Section 4(3)(1)(i) of the 1961 Act, being no longer available, whether the land, in dispute, has come to vest in the Gram Panchayat, was not raised and even otherwise, as it raises a question of title, could have only been decided by following the procedure prescribed by the first proviso to Section 7 of the 1961 Act. The writ petition is, consequently, allowed, the impugned orders are set aside and the matter is remitted to the Assistant Collector 1st Grade, Palwal, to decide the question of title, in accordance with law, after following the procedure prescribed by the first proviso to Section 7 of the 1961 Act, within three months of parties putting in appearance before him on 03.7.2013. Parties may, if they make such a request, be allowed to amend their pleadings. No order as to costs.
( RAJIVE BHALLA ) JUDGE ( REKHA MITTAL) 30.4.2013 JUDGE VK