Punjab-Haryana High Court
Raj Karan vs State Of Haryana And Others on 31 October, 2022
Author: Lisa Gill
Bench: Lisa Gill
106
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP-14691-2022
Date of Decision: 31.10.2022
RAJ KARAN
...Petitioner
Versus
STATE OF HARYANA AND OTHERS
...Respondents
CORAM: HON'BLE MRS. JUSTICE LISA GILL
HON'BLE MR. JUSTICE HARSH BUNGER
Present : Mr. B.S. Rana, Senior Advocate
with Mr. Nayandeep Rana, Advocate
for the petitioner.
Mr. Raman Sharma, Addl. A.G., Haryana.
Mr. Sumit Sangwan, Advocate
for respondent No.6.
HARSH BUNGER, J.
Petitioner herein, inter alia, seeks issuance of a writ in the nature of certiorari for quashing the order dated 20.08.2021 (Annexure P-7) passed by Assistant Collector-cum-District Development and Panchayat Officer, Charkhi Dadri, whereby, he was ordered to be ejected under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (as applicable to Haryana) (here-in-after referred to as `the Act, 1961') from land measuring 198 Kanals-2 Marlas, situated within the revenue estate of Village Kaliyana, Charkhi Dadri, Bhiwani. A further prayer has also been made to quash order dated 08.12.2021 (Annexure P-8) passed by Deputy Collector, Charkhi Dadri as well as order dated 30.05.2022 (Annexure P-10) Page 1 of 18 1 of 18 ::: Downloaded on - 04-11-2022 00:28:03 ::: passed by Commissioner, Rohtak Division, Rohtak, whereby, the appeal and revision filed by the petitioner against ejectment order dated 20.08.2021 (Annexure P-7) have been dismissed.
Briefly stated, the writ petition has been filed on the averment that the petitioner is owner in possession of land in dispute prior to 1950 and has been continuously cultivating the said land without interference of anyone. It is stated that way back in the year 1980, respondent No.5-Gram Panchayat Kaliyana, had filed an eviction petition under Section 7 of the Act, 1961. However, the same was dismissed vide order dated 28.05.1981 (Annexure P-1) passed by Assistant Collector 1St Grade, Dadri, by holding that the suit land is described as "Jumla Malkan Wa Digar Haqdaran", accordingly Section 7 of the 1961 Act, is not applicable. It is further stated that since respondent No.5-Gram Panchayat Kaliyana, was harassing the petitioner again and again, hence, he filed a Civil Suit for permanent injunction against the Gram Panchayat, which was decreed vide judgment and decree dated 02.06.1995 (Annexure P-2) and the Gram Panchayat was restrained to interfere in the possession of the petitioner except in due course of law. It is further submitted that in the year 2001, another eviction petition came to be filed by one Dharam Chand resident of Village Kaliyana, which was subsequently withdrawn by him vide order dated 23.10.2003 (Annexure P-3). Thereafter, respondent No.5-Gram Panchayat, Kaliyana, in the year 2012, filed another eviction petition under Section 7 of the Act, 1961. However, the same was dismissed by Assistant Collector Ist Grade, Charkhi Dadri, vide order dated 30.05.2012 (Annexure P-4). In the meantime, the petitioner filed another Civil Suit No.904 of 2011, seeking permanent injunction, which was also decreed vide judgment and decree dated Page 2 of 18 2 of 18 ::: Downloaded on - 04-11-2022 00:28:04 ::: 12.12.2016 (Annexure P-5) passed by Civil Judge (Junior Division), Charkhi Dadri and the respondents therein (including Gram Panchayat, Kaliyana) were restrained from interfering into the peaceful possession of the petitioner (plaintiff therein) or dispossessing him from the suit property without following/adopting due procedure of law.
It is submitted that an appeal against said judgment and decree dated 12.12.2016 (Annexure P-5) filed by Gram Panchayat Kaliyana was withdrawn vide order dated 10.12.2019 (Annexure P-6) passed by learned Additional District Judge, Charkhi Dadri.
It is stated that order dated 30.05.2012 (Annexure P-4) passed by Assistant Collector Ist Grade, Charkhi Dadri was challenged in appeal by respondent No.5-Gram Panchayat Kaliyana, which was allowed by the learned Collector, Charkhi Dadri, vide its order dated 05.09.2013 by setting aside order dated 30.05.2012 (Annexure P-4) and the matter was remitted to the Assistant Collector to decide the case afresh after affording opportunity to the parties.
Upon remand, learned Assistant Collector Ist Grade-cum- District Development and Panchayat Officer, Charkhi Dadri, allowed the eviction petition filed under Section 7 of the Act, 1961 vide order dated 20.08.2021 (Annexure P-7) and ordered ejectment of the petitioner from the suit property and further directed the petitioner to deposit the penalty amount of Rs.7500/- per hectare per annum from 11.12.1980 to date of decision i.e. 20.08.2021 in the account of Gram Panchayat Kaliyana, District Charkhi Dadri.
Aggrieved, the petitioner challenged said order dated 20.08.2021 (Annexure P-7) by filing an appeal, however, the same was Page 3 of 18 3 of 18 ::: Downloaded on - 04-11-2022 00:28:04 ::: dismissed by the learned Collector, Charkhi Dadri vide its order dated 08.12.2021 (Annexure P-8). Further a revision petition preferred by the petitioner before the learned Divisional Commissioner Rohtak Division, Rohtak, was also dismissed vide order dated 30.05.2022 (Annexure P-10). Hence, the present petition.
Learned counsel for the petitioner has argued that the petitioner is owner in possession of land in dispute and he has been continuously cultivating the land in dispute since the time of his father, much prior to 1950 and said land does not fall within the definition of "shamlat deh" under Section 2(g) of the Act, 1961. It is submitted that while passing the ejectment order against the petitioner, the Courts below have failed to take note of an earlier order dated 28.05.1981 (Annexure P-1) passed by the then Assistant Collector, First Grade, Dadri, under Section 7 of the Act, 1961, wherein, it has been held that the land is described as Jumla Malkan Wa Digar Haqdaran and in this way, Section 7 of the Act, 1961, for dispossession is not applicable and the eviction petition was dismissed. Learned counsel further submitted that even the learned Civil Court, while passing the judgment and decree dated 02.06.1995 (Annexure P-2), had restrained the respondent-Gram Panchayat from interfering into the peaceful possession of father of the petitioner, namely, Amar Singh over the suit land as tenant in any manner except in due course of law. It is to be noted that complete copy of judgment dated 02.06.1995 was not on record. Complete photocopy thereof provided by learned counsel for the petitioner at a later stage is taken on record. It is the contention of learned counsel for the petitioner that since the tenancy has not been determined by the Gram Panchayat, therefore, the petitioner is not liable to be ejected. It is also the Page 4 of 18 4 of 18 ::: Downloaded on - 04-11-2022 00:28:04 ::: contention of the petitioner that the learned Assistant Collector Ist Grade- cum-District Development and Panchayat Officer, Charkhi Dadri, has erred in imposing penalty amount of Rs.7500/- per hectare per annum from 11.12.1980 to date of decision i.e. 20.08.2021 upon the Petitioner and there is no basis for directing that the penalty be paid with effect from 20.08.1980. It is thus prayed that the impugned orders, being illegal, may be quashed.
On the other hand, learned counsel for the State and learned counsel appearing for respondent No.6 have supported the order dated 20.08.2021 (Annexure P-7) passed by Assistant Collector-cum-District Development and Panchayat Officer, Charkhi Dadri, whereby, the petitioner was ordered to be ejected from the land in dispute. They contended that the petitioner and his family members have been unauthorizedly using the land in dispute and enjoying the usufruct therefrom, accordingly the penalty was rightly imposed upon the petitioner. They have further contended that the appeal and revision filed by the petitioner against ejectment order dated 20.08.2021 (Annexure P-7) have been rightly dismissed vide order dated 08.12.2021 (Annexure P-8) and order dated 30.05.2022 (Annexure P-10), respectively.They accordingly prayed for dismissal of the writ petition being devoid of any merit.
We heard learned counsel for the parties and went through the paper book with their able assistance.
Before dealing with the contentions of the respective parties, it is apposite to mention that Section 7 of the 1961 Act empowers the Assistant Collector of the first grade having jurisdiction over the concerned village to 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 Page 5 of 18 5 of 18 ::: Downloaded on - 04-11-2022 00:28:04 ::: or is deemed to have been vested in the panchayat under the 1961 Act and put the panchayat in possession thereof. Section 7 of the 1961 Act reads as under:-
"7. Power to put Panchayat in possession of certain lands. -(1) 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 shamilatdeh 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 for possession of land under the Haryana Tenancy Act, 1887:
Provided that if in any such proceedings the question of title is raised and provided 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. (2) The Assistant Collector of the first grade shall by an order, in writing, require any person to pay a penalty, in respect of the land or other immovable property which was or has been in his wrongful or unauthorised possession, 1[at the rate of one percent of the Collector rate of the land per acre per annum with the ceiling of total penalty amount equal to ten percent of the current Collector rate of the encroached land], having regard to the benefit which could be derived from the land or other 1 Substituted for the words "at a rate not less than five thousand rupees and not more than ten thousand rupees per hectare per annum" substituted by Haryana Act No.30 of 2020 (notified in the Haryana Government Gazette on dated 07.12.2020.) Page 6 of 18
6 of 18 ::: Downloaded on - 04-11-2022 00:28:04 ::: immovable property. If the penalty is not paid within the period of thirty days from the date of the order, the same shall be recoverable as arrears of land revenue.
(3) The procedure for deciding the questions of title under proviso to sub-section (1) shall be the same as laid down in the Code of Civil Procedure, 1908.
(4) If any person refuses or fails to comply with the order of eviction passed under sub-section (1), within ten days of the date of such order, the Assistant Collector of the first grade may use such force, including police force, as may be necessary for putting the panchayat in possession.
(5) Any person who is found in wrongful or unauthorised possession of the land or other immovable property in:
shamilatdeh and is ordered to be ejected under subsection (l), shall be punishable with imprisonment for a term which may extend to two years."
Further, "Shamilat deh" is defined under Section 2(g) of the 1961 Act, which reads as under:-
"2(g) "shamilatdeh" includes-
(1) lands described in the revenue records as [Shamilat Deh or Charand] excluding abadi deh;
(2) shamilattikkas;
(3) lands described in the revenue records as shamilat, tarafs, pattis, pannas and tholas and used according to revenue records for the benefit of the village community or a part thereof or for common purposes of the village;
(4) lands used or reserved for the benefit of village community including streets. Lanes, playgrounds, schools, drinking wells or ponds situated within the sabha area as defined in clause (mmm) of Section 3 of the Punjab Gram Panchayat Act, 1952, excluding 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 Page 7 of 18
7 of 18 ::: Downloaded on - 04-11-2022 00:28:04 ::: 1948), the management and control whereof vests in the State Government under Section 23-A of the aforesaid Act; (4a) vacant land situate in abadi deh or gorah deh not owned by any person;
(5) lands in any village described as banjar qadim and used for common purposes of the village according to revenue records; but does not include land which -
(i) becomes or has become shamilatdeh due to river action or has been reserved as shamilat in villages subject to river action except shamilatdeh entered as pasture, pond or playground in the revenue records;
(ii) has been allotted on quasi-permanent basis to a displaced person;
(ii) (a) was shamilatdeh, but has been allotted to any person by the Rehabilitation Department of the State Government, after the commencement of this Act, but on or before the 9th day of July, 1985;
(iii) has been partitioned and brought under cultivation by individual land-holders before the 26th January, 1950;
(iv) having been acquired before the 26th January, 1950, by a person by purchase or in exchange for proprietary land from a co-sharer in the shamilatdeh is so recorded in the jamabandi or is supported by a valid deed;
(v) is described in the revenue records as shamilattaraf, pattis, pannas and thola and not used according to revenue records for the benefit of the village community or a part thereof or for common purposes of the village;
(vi) lies outside the abadideh and was being used as gitwar, bara, manure pit, house or for cottage industry, immediately before the commencement of this Act;
(vii) Omitted.
(viii) was shamilatdeh, was assessed to land revenue and has been in the individual cultivating possession of co-sharers not being in excess of their respective shares in such shamilatdeh on or before the 26th January, 1950; or Page 8 of 18 8 of 18 ::: Downloaded on - 04-11-2022 00:28:04 :::
(ix) is used as a place of worship or for purposes subservient thereto;
[(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 shamilatdeh with the meaning of this section.]"
Rule 19 of the Punjab Village Common Lands (Regulation) Rules, 1964, which defines as to what constitutes unauthorized occupation of shamlatdeh, reads as under:-
"19. Unauthorised occupation Shamlat Deh. [Sections 7 and 1 5(2)(k)] - For purposes of section 7 of the Act, a person shall be deemed to be in unauthorised occupation of any land in shamlat deh -
(a) where he has, whether before or after the commencement of the Act, entered into possession there of otherwise than under and in pursuance [of] any allotment, lease or grant by the Panchayat; or
(b) where he being an allottee, lessee or grantee, has, by reason of the determination or cancellation of his allotment, lease or grant in accordance with the terms in this behalf, therein contained, ceased whether before or after the commencement of the Act, to be entitled to occupy or hold such land in shamlat deh; or
(c) where any person authorised to occupy any land in shamlat deh has, whether before or after the commencement of the Act -
(i) sub-let in contravention of the terms of allotment, lease or grant, without the permission of the Panchayat or of any other authority competent to permit such subletting, the whole or any part of such land in shamlat deh; or Page 9 of 18
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(ii) otherwise acted in contravention of any of the terms express or implied, under which he is authorised to occupy such land in shamlatdeh;
Explanation. - For purposes of clause (a), a person shall not, merely by reason of the fact that he has paid any rent be deemed to have entered into possession as allottee, lessee or grantee."
We have considered the submissions addressed by learned counsel for the respective parties and having perused the paper book, we are of the considered view that the writ petition challenging the impugned orders passed under Section 7 of the Act, 1961, whereby the petitioner has been evicted from the land in dispute, is devoid of any merit and is liable to be dismissed, for more than one reason.
So far as the submission of the petitioner that he is owner in possession of the land in dispute prior to 1950, is concerned, suffice it to say that the petitioner has not placed on record any document/revenue record in support of said plea. Even otherwise, a perusal of paper book would reveal that the petitioner has been shifting stands, apparently in order to prolong his unauthorized possession over the land in dispute. In the writ petition, especially in para Nos.2, 16 and 26, following stand has been taken by the petitioner:
"2. That the petitioner is owner in possession of land in dispute prior to 1950 and continuously cultivating without interference of anyone. The respondent No.5 is bent upon to dispossess the petitioner from the disputed land without any right and adopted each and every illegal way for this purpose but they failed to fulfil their motive only because it is clearly proved that they have no right in the land in dispute.
16. xxx xxx xxx However, the proprietors of the village, including the petitioner continued to be in actual Page 10 of 18
10 of 18 ::: Downloaded on - 04-11-2022 00:28:04 ::: cultivating possession of the land in their respective occupation and continue to be so up till date.
26. xxx xxx xxx the entry in the revenue record transferred to Panchayat Deh from Shamlat Deh is illegal and the Gram Panchayat has no right over such type of land."
However, now at the time of arguments, the stand of the petitioner is that as per the Civil Court judgment and decree dated 02.06.1995 (Annexure P-2), the Gram Panchayat has been restrained from interfering in the petitioner's peaceful possession over the land in question as "tenant".
In our considered view, the above referred two stands are mutually destructive inasmuch as, on one hand, the petitioner is claiming ownership of the land in question and at the same time, he is seeking protection of his possession as a "tenant". It is well settled that mutually destructive stands are not permissible in law.
Further, it may be mentioned that petitioner's plea regarding protection of his possession as a "tenant" is based upon the judgment and decree dated 02.06.1995 (Annexure P-2); which in our considered view, was passed on account of apparent collusion of the then Sarpanch of the Village with father of the petitioner namely, Amar Singh. The said fact is clearly borne out from the following observations made by the learned Additional Senior Sub Judge, Charkhi Dadri in para No.7 of the judgment and decree ibid :-
"......The defendant has not led any evidence so much so that even the sarpanch of the village panchayat has not appeared in the witness to say that the plaintiff is not in possession of the suit land as tenant under the defendant. The evidence led by the Page 11 of 18 11 of 18 ::: Downloaded on - 04-11-2022 00:28:04 ::: plaintiff goes unrebutted and unchallenged. I, therefore, decide this issue in favour of the plaintiff."
Besides, the petitioner has not placed on record any document to substantiate his plea that he is a tenant under the Gram Panchayat Kaliyana.
Still further, in the judgment and decree dated 12.12.2016 (Annexure P-5) passed by the learned Civil Judge (Junior Division), Charkhi Dadri, the following findings have been returned :-
"......that though the suit property is the ownership of the Gram Panchayat Kaliyana but the same is possessed by the plaintiff. It is settled law that an owner of the immovable property cannot dispossess the person in possession of such immovable property, without following due procedure of law illegally. Therefore, it would be in the fitness at the things if the defendant is restrained from interfering to the possession of the plaintiff and from dispossessing the plaintiff from the suit property except by adopting the due procedure of law."
Learned counsel for the petitioner has not disputed that the above extracted finding regarding ownership of the Gram Panchayat Kaliyana, in respect of land in dispute, have not been challenged by the petitioner before any Forum.
In view of the abovementioned facts & circumstances and also the provisions contained in Section 7 read with Section 2(g) of the Act, 1961 and Rule 19 of the Rules, 1964; the land in dispute vests with the Gram Panchayat Kaliyana.
With regard to the submission that the earlier eviction petition filed by the Gram Panchayat in respect of land in question was dismissed by the then Assistant Collector, First Grade, Dadri vide order dated 28.05.1981 Page 12 of 18 12 of 18 ::: Downloaded on - 04-11-2022 00:28:04 ::: (Annexure P-1), by holding the same to be not maintainable; it is worth noticing that the said order dated 28.05.1981 (Annexure P-1) was passed prior to the notification of Haryana Act No.9 of 1992, whereby, sub Section 6 was inserted in Section 2(g) of the Act, 1961 (as applicable to Haryana). The explanation appended to sub Section 6 of Section 2(g) of the Act, 1961 clearly states that the 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 shamilat deh within the meaning of this section.
Furthermore, in order dated 28.05.1981 (Annexure P-1), the parties were permitted to proceed in the Court as per law for their respective grievances.
As far as the second eviction petition filed by one Dharam Chand is concerned, the same also does not have any bearing on the case in hand; especially when the said eviction petition was not decided on merits and rather the same was withdrawn by Dharam Chand.
Even otherwise, it is well settled that the proceedings under Section 7 of the Act, 1961 are summary in nature and the principles of res judicata are not attracted thereto. Thus, the order dated 28.05.1981 (Annexure P-1), cannot in any manner, be taken to inhibit/bar the Gram Panchayatfor filing a fresh eviction petition in accordance with law.
Further, the petitioner has not produced any document pertaining to allotment, lease or grant by the Panchayat, so as to justify his possession over the land in dispute i.e. 198 Kanals - 2 Marlas. Neither is there any document on record indicating possession of the petitioner/his Page 13 of 18 13 of 18 ::: Downloaded on - 04-11-2022 00:28:04 ::: father over the land prior to 1950, as claimed in writ petition.
Accordingly, no fault can be found with the eviction petition filed by the Gram Panchayat in the year 2012, whereupon, the eviction of the petitioner was rightly ordered by the Assistant Collector First Class-cum- District Development and Panchayat Officer, Charkhi Dadri, vide order dated 20.08.2021 (Annexure P-7) and the same having been upheld by the Appellate and Revisional authorities vide orders dated 08.12.2021 (Annexure P-8) and 30.05.2022 (Annexure P-10), respectively.
Apart from the above, learned counsel for the State and learned counsel appearing for respondent No.6 have brought to our notice that in another case bearing CWP-8975-2022, filed by respondent No.6 herein, namely Sher Singh son of Sh. Banwari Lal, the issue of non implementation of eviction order (as impugned in the present case) was raised; wherein the Coordinate Bench of this Court passed the following order on 29.04.2022 :-
"Learned counsel for the State prays for an adjournment to seek instructions as to what steps have been taken to give effect to the order of eviction passed by the Assistant Collector, 1st Grade-cum-District Development and Panchayat Officer, Charkhi Dadri- respondent No. 4 dated 20.08.2021 (Annexure P-3), appeal against which stands dismissed by the Appellate Court vide order dated 08.12.2021 (Annexure P-4). It is asserted by the counsel that thereafter, to the knowledge of the petitioner, there has been no further challenge to this order.
List on 17.05.2022."Page 14 of 18
14 of 18 ::: Downloaded on - 04-11-2022 00:28:04 ::: Thereafter, on 17.05.2022, the following order was passed in CWP-8975-2022 :-
" Learned counsel for the State, in pursuance to the order dated 29.04.2022 passed by this Court, on instruction from Sh. Ajit Singh, DDPO, Charkhi Dadri, informs the Court that a Duty Magistrate has been appointed on 16.05.2022 and the needful shall be done within a period of three weeks. She prays for an adjournment to file the status report.
Let the needful be done within a period of five weeks with a copy in advance to the counsel for the petitioner.
List for consideration on 28.07.2022."
Thereafter, on 28.07.2022, the following order was passed in CWP-8975-2022 :-
"Status report by way of affidavit dated 27.07.2022 of the Block Development and Panchayat Officer, Jhojhu, in compliance with the order passed by this Court on 17.05.2022, has been filed in Court, which is taken on record.
Learned counsel for the State submits that the possession of the land, in pursuance to the executive order, has been handed over to the Gram Panchayat after the removal of the encroachment. He prays for and is granted six months' time to effect recovery of the amount to be collected from the persons concerned as penalty.
In the light of the above, the present writ petition is disposed of.
Liberty is, however, granted to the petitioner to revive the writ petition in case the statement made by the counsel for the State is not adhered to."
From the aforesaid orders passed in CWP-8975-2022, it is evident that the possession over the land in dispute has been handed over to Page 15 of 18 15 of 18 ::: Downloaded on - 04-11-2022 00:28:04 ::: Gram Panchayat Kaliyana after the removal of encroachment of the petitioner herein.
We have also considered the contention of the petitioner regarding imposition of penalty amount of Rs.7500/- per hectare per annum from 11.12.1980 to date of decision i.e. 20.08.2021 (Annexure P-7) passed by Assistant Collector-cum-District Development and Panchayat Officer, Charkhi Dadri, whereby, he was ordered to be ejected under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (as applicable to Haryana).
After going through the provisions contained in Section 7(2) of the Act, 1961, which empowers the Assistant Collector First Grade to impose a penalty on the unauthorised occupant; we have noticed that the learned Assistant Collector has not taken note of the amendment carried out in sub Section 2 of Section 7 of the Act, 1961 vide Haryana Act No.30 of 2020 (notified in the Haryana Gazette on 07.12.2020), whereby, the words "at a rate not less than five thousand rupees and not more than ten thousand rupees per hectare per annum" have been substituted with words "at the rate of one percent of the Collector rate of the land per acre per annum with the ceiling of total penalty amount equal to ten percent of the current Collector rate of the encroached land." Even the Appellate and Revisional authorities have not take note of the said amendment.
Since the petitioner had continued inillegal and unauthorised possession of the land in dispute measuring198 Kanals - 2 Marlas and he along with his family had been enjoying the fruits from this large parcel of land, accordingly, having regard to the benefit which could be derived from the land and in terms of the provisions contained in Section 7(2) of the Act, Page 16 of 18 16 of 18 ::: Downloaded on - 04-11-2022 00:28:04 ::: 1961; we therefore impose thepenalty at the rate of 1% of the Collector rate of the land per acre per annum, as provided under Section 7(2) of the Act, 1961, upon the petitioner.
Although the petitioner and prior to him, his father had been unauthorizedly using the land in dispute; however, the eviction petition wherein the ejectment of the petitioner had been ordered, came to be filed only in the year 2012. Accordingly, we are of the considered view that the petitioner would be liable to pay the abovesaid penalty amount with effect from the date of filing of the eviction petition wherein eviction order dated 20.08.2021 (Annexure P-7) was passed, up to the date of taking over the possession of the land in dispute from the petitioner. Accordingly, the impugned orders shall stand modified to that limited extent.
The petitioner is directed to pay the said penalty amount before the District Development and Panchayat Officer, Charkhi Dadri within a period of 30 days from the date of passing of this order who shall before accepting the said amount, duly carry out determination of the total amount of penalty in terms of Section 7(2) of the Act, 1961 and shall ensure that the said penalty amount does not exceed 10% of the current Collector rate on the date when the said amount is deposited in terms of Section 7(2) of the Act, 1961. It is made clear that the determination by the District Development and Panchayat Officer shall be carried out expeditiously but not later than 15 days from the date when the petitioner approaches the concerned District Development and Panchayat Officer for depositing of penalty. However, in case, the petitioner does not approach the District Development and Panchayat Officer, Charkhi Dadri for depositing of said penalty amount within the stipulated period of 30 days, in that eventuality, the District Page 17 of 18 17 of 18 ::: Downloaded on - 04-11-2022 00:28:04 ::: Development and Panchayat Officer, Charkhi Dadri shall proceed to determine the total penalty amount in accordance with Section 7(2) of the Act, 1961 and then forward the same to the concerned Revenue authority to recover the amount as arrears of land revenue. After recovering the said amount, the concerned Revenue Authority/District Development and Panchayat Officer, Charkhi Dadri, shall deposit the recovered amount of penalty into the Gram Panchayat fund of Gram Panchayat Kaliyana forthwith.
No other point has been raised.
In view of the above discussion, the writ petition for quashing of theimpugned orders is dismissed with the aforesaid limited modification.
(LISA GILL) (HARSH BUNGER)
JUDGE JUDGE
October 31, 2022
gurpreet
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
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