Punjab-Haryana High Court
Naresh vs State Of Haryana And Another on 29 July, 2013
Author: Rekha Mittal
Bench: Rajive Bhalla, Rekha Mittal
Civil Writ Petition No. 19732 of 2012 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
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Civil Writ Petition No. 19732 of 2012 (O&M)
Date of decision: July 29th 2013
Naresh ........ Petitioner
Versus
State of Haryana and another .......Respondent(s)
Coram: Hon'ble Mr. Justice Rajive Bhalla
Hon'ble Mrs. Justice Rekha Mittal
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Present: Mr. S P Tyagi, Advocate
for the petitioner
M. Randhir Singh, Addl. A G, Haryana
for the respondent No. 1
Mr. S P Chahar, Advocate
for respondent No. 2
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1. Whether Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in
the Digest?
Rekha Mittal, J.
The petitioner prays for issuance of a writ of certiorari quashing order dated 26.11.2008 (Annexure P1), passed by the Collector, Sonepat, accepting the appeal filed by the Gram Panchayat and thereby ordering his eviction from the land, in dispute, and order dated 18.05.2012 (Annexure P2) passed by the Commissioner, Rohtak Division, Camp at Sonepat, dismissing his appeal.
Counsel for the petitioner submits that khasra No. 57 measuring 174 kanals 12 marlas belongs to abadi deh of village Malha Majra, Sonepat. Civil Writ Petition No. 19732 of 2012 2 The petitioner is owner in possession of plot No. 97 within the area of abadi deh and has raised construction of his house. He is in possession of the land, in dispute, for the last many years and it does not vest in the Gram Panchayat. The Collector, without a correct appreciation of the matter held in favour of the Gram Panchayat and ordered eviction of the petitioner while accepting the appeal filed by the Gram Panchayat assailing order dated 18.02.2008 passed by the Assistant Collector, Ist Grade, Sonepat, dismissing the application for eviction. It is further argued that the Collector has wrongly recorded a finding that the land, in dispute, is a vacant plot and the petitioner has failed to prove his ownership of the said land. The Commissioner has also failed to take into consideration that as the land, in dispute, is neither used for common purposes of the village nor is a vacant plot, the same is excluded from shamilat deh and, therefore, does not vest in the Gram Panchayat.
Counsel for the Gram Panchayat, on the contrary, submits that the land, in dispute, does not form part of plot No. 97 of which the petitioner is the owner in possession and has raised construction of his house. The petitioner has illegally occupied the vacant land between plot No. 97 and a street (gali) being used for the public at large and, therefore, the land, in dispute, belongs to the Gram Panchayat and the petitioner has no right, title or interest to perpetuate his illegal possession. The Collector and the Commissioner, after due consideration have recorded a concurrent finding of fact that the land, in dispute, is a vacant land and, therefore, the same belongs to the Gram Panchayat as per Section 2(g) (4a) of the Punjab Village Common Land (Regulations) Act, 1961 (applicable to Haryana) (for brevity, 'the 1961 Act').
Civil Writ Petition No. 19732 of 2012 3
We have heard counsel for the parties and perused the records. Admittedly, khasra No.57, measuring 174 kanals 12 marlas, as per jamabandi for the year 2003-2004 is gair mumkin abadi deh of village Malha Majra. The petitioner is a resident of village Malha Majra and has raised construction of his house on plot No. 97. It is none of the plea of the petitioner that the land, in dispute, is a part of plot No. 97. A perusal of the orders passed by the Collector and the Commissioner as well as the spot inspection report dated 29.01.2008 (Annexure P5)would reveal that the land, in dispute, is situated between plot No.97 and a gali (path). The petitioner raised a plea before the Collector that the land between plot No. 97 and the gali (path) is in his possession from the time of his forefathers. The Collector has recorded a factual finding that the land, in dispute, is vacant land and the petitioner has failed to produce evidence to prove his ownership. Before the Appellate Authority, the petitioner urged that he has raised a boundary wall on the land, in dispute, and the same is being used for tethering cattle, putting bricks, parking vehicles etc. The question that arises for adjudication is whether the land, in dispute, which falls in abadi deh, is excluded from shamilat deh.
Section 2(g) of the 1961 Act (as applicable to Haryana), defines shamilat deh to include land described as shamilat deh or charand but excludes land within abadi deh. Section 2(g) (4) of the 1961 Act, however, provides that if land within abadi deh is used or reserved for the benefit of village community including streets, lanes, playgrounds, schools, drinking wells etc., the land shall be included in shamilat deh. Section 2(g) (4-a) of the 1961 Act provides that vacant land, situated in abadi deh or gorah deh not owned by any person, shall be included in shamilat deh. As a general Civil Writ Petition No. 19732 of 2012 4 rule, revenue authorities assign a single khewat/khatauni/kharsa number to land within abadi deh without any further sub division.
The petitioner asserts that as he is using the land, in dispute, for tethering cattle, parking of vehicles, placing bricks etc., the land is not vacant and is, therefore, excluded from shamilat deh. The petitioner has not pleaded or adduced any evidence that he has raised any construction over the land, in dispute. The Collector and the Commissioner have recorded concurrent finding of fact that as the land, in dispute, is vacant land within abadi deh, it is shamilat deh within the meaning of Section 2(g) (4-a) of the 1961 Act. The petitioner has failed to adduce any evidence to prove his ownership and/or any documentary evidence to substantiate his plea that he is entitled to retain possession of the land, in dispute. The petitioner relies upon 'Prem Chand and others v. Mehar Singh and others, 1987 (2) PLR 406, to contend that as the land, in dispute, is vacant and is, admittedly, situated within abadi deh, it does not vest in the Gram Panchayat. A perusal of the judgment in Prem Chand and others (supra) reveals that as the land was occupied by houses and was not vacant. It was, therefore, rightly held that the land is excluded from shamilat deh. The observations made in the last paragraph of the judgment that from the phraseology used in Section 2(g)(4-a) of the 1961 Act, it is not possible to hold that the vacant land in abadi deh vests in shamilat deh, are obiter as there was no challenge to the vires of Section 2(g)(4-a) of the 1961 Act and, therefore, have to be read in the context of the facts of the said case. Section 2(g)(4-a) of the 1961 Act, in our considered opinion is unambiguous in the words used and, therefore, observations made in the above judgment about the phraseology of the words used in Section 2(g) Civil Writ Petition No. 19732 of 2012 5 (4-a) of the 1961 Act, are mere obiter.
The petitioner's plea that as he tethers cattle, parks vehicles, has placed bricks etc. the land is not vacant disregards the fact that these are mere incidents of user that do not ripen into an indefeasible right of possession or of ownership. The petitioner cannot, on the basis of user, assert that the land is not vacant and, therefore, is excluded from shamilat deh.
We do not find any error of law or of jurisdiction in the order passed by the Collector and the Commissioner, ordering eviction of the petitioner.
In view of what has been stated herein above, the writ petition is dismissed and impugned orders dated 26.11.2008 (Annexure P1) and 18.05.2012 (Annexure P2), passed by the Collector, Sonepat and the Commissioner, Rohtak Division, Camp at Sonepat, respectively, are affirmed. No order as to costs.
(Rekha Mittal) Judge (Rajive Bhalla) Judge July 29th 2013 mohan