Punjab-Haryana High Court
Hazari And Others vs The Gram Panchayat Khatoti Sultanpur ... on 7 February, 2011
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
Civil Writ Petition No.8346 of 1991 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Date of decision : 7.2.2011
Hazari and others ....Petitioners
Vs.
The Gram Panchayat Khatoti Sultanpur and another ....Respondents
CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR
Present : Mr. Anurag Chopra, Advocate, for the petitioners
Mr. Sumit Sangwan, Advocate for
Mr. Harish Rathee, Advocate for respondent No.1.
Nemo for respondent No.2.
Mehinder Singh Sullar, J. (Oral)
The epitome of facts, which needs a necessary mention for the limited purpose of deciding the core controversy, involved in the instant writ petition and emanating from the record, is that the Gram Panchayat Khatoti Sultanpur, Tehsil Narnaul, Distt. Mahendergarh (respondent No.1) (for brevity "G.P.") instituted a petition against the petitioners, under Section 7 of The Punjab Village Common Lands (Regulation) Act, 1961 as applicable to Haryana (hereinafter to be referred as 'the Act") before the Assistant Collector Ist Grade (for short "AC Ist Grade") for their ejectment from its land in dispute, inter alia, pleading that since the petitioners are in un-authorized occupation of the 'shamlat baras' so, it (G.P.) is entitled to its possession.
2. In the wake of notice, the petitioners appeared before the AC Ist Grade and filed their reply on 27.7.1987, in which, it was specifically pleaded that the land in dispute did not vest in the G.P. They are owners in possession and have constructed their houses on it for the last about more than 70 years. The G.P. has no connection whatsoever with the land in dispute. Thus, they prayed for Civil Writ Petition No.8346 of 1991 2 dismissal of the petition under Section 7 of the Act.
3. The A.C.Ist Grade accepted the application of G.P. and ordered the ejectment of the petitioners from the disputed land, by means of impugned order dated 12.3.1990 (Annexure P-1).
4. Aggrieved by the order (Annexure P-1), petitioner Hazari filed the appeal, which was dismissed as well, by the appellate authority (Collector), by virtue of impugned order dated 9.1.1991 (Annexure P-2).
5. The petitioners still did not feel satisfied and instituted the instant writ petition, challenging the impugned orders (Annexures P-1 and P-2), invoking the provisions of Article 226 of the Constitution of India.
6. The case set up by the petitioners, in brief in so far as relevant, was that they contested the claim of the G.P. and specifically raised the question of title before the A.C. Ist Grade and a preliminary objection was pleaded in the reply that the land in dispute did not vest in the G.P., is not covered by the definition of 'shamlat deh' under Section 2 of the Act and the A.C.Ist Grade has no jurisdiction to entertain the application. The land in dispute is situated outside the abadi deh and is used as bara (manure pit). The petitioners have constructed and are residing in their respective residential houses for the last more than 70 years. The version of the petitioners was claimed to have been supported by the report of Local Commissioner appointed by the A.C.Ist Grade at the instance of G.P. Still, the question of title was not decided by the authorities below.
7. Levelling a variety of allegations and narrating the sequence of events, in all, according to the petitioners that they are owners and in possession of their residential houses situated on the disputed property and G.P. has no right, title or interest in it. The authorities were stated to have illegally passed the impugned orders (Annexures P-1 and P-2), which are arbitrary and without jurisdiction. On the basis of aforesaid allegations, the petitioners sought the quashment of impugned orders (Annexures P-1 and P-2), in the manner indicated hereinabove. Civil Writ Petition No.8346 of 1991 3
8. The respondent-G.P. contested the claim of the petitioners and filed the written statement, inter alia, pleading that as they (petitioners) were in un- authorized possession of the disputed land of the G.P., therefore, they were rightly ejected, by way of impugned orders (Annexures P-1 and P-2). The land in dispute is stated to be a shamlat and owned by the G.P. It will not be out of place to mention here that the contesting respondent has stoutly denied all other allegations contained in writ petition and prayed for its dismissal. That is how I am seized of the matter.
9. Having heard the learned counsel for the parties, having gone through the record, relevant provisions of the Act with their valuable help and after bestowal of thoughts over the entire matter, to my mind, the instant writ petition deserves to be partly accepted in this context.
10. As is evident from the record, that the petitioners have filed the reply before the A.C. Ist Grade on 27.7.1987, in which, it was specifically stated that the land in dispute did not vest in the G.P. They are owners and in possession of the land in question. They have constructed and are residing in their residential houses for the last about 70 years. In this manner, the petitioners have raised a question of title in the land in dispute.
11. Such thus being the position on record, now the short and significant question, that arises for determination in this petition is that, at what stage and which authority will decide the question of title of the land in dispute between the parties in this relevant connection.
12. As is clear that Section 7 of the Act escalates that "A.C.Ist Grade, 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 un- authorized possession of the land or other immovable property in the shamlat deh of that village which vests or is deemed to have been vested in the panchayat and put the panchayat in possession thereof and for so doing the A.C. Ist Grade may Civil Writ Petition No.8346 of 1991 4 exercise the powers of a revenue court in relation to the execution of a decree for possession of the land under the Punjab Tenancy Act."
13. Sequelly, the proviso to sub-section (1) of this Section further envisages that if in any such proceedings the question of title is raised and proved prime facie on the basis of documents that the question of title is really involved, the A.C.Ist Grade shall record a finding to that effect and first decide the question of title in the manner laid down hereinafter. Likewise, Sub-section (3) of Section 7 provides that the procedure for deciding the question of title shall be the same as laid down in the Code of Civil Procedure, 1908.
14. A conjoint reading of these provisions would reveal that it was imperative and the statutory duty of the A.C. Ist Grade was to first decide the question of title and without deciding it as contemplated under sub-section (3) of Section 7, he was not legally competent to order the ejectment of the petitioners in a routine fashion.
15. A similar question came to be determined by this Court in case Sewa Ram and Kanwar Bhan v. Gram Panchayat village Shergarh Tapu and others, 2010 (1) RCR (Civil) 118. Having considered the provisions of Section 7 of the Act, it was ruled that it was the mandatory duty of A.C.Ist Grade to decide the question of title, before passing an order of ejectment against the petitioners. The law laid down in the aforesaid judgment "mutatis mutandis' is applicable in the instant case and is the complete answer to the problem in hand.
16. Moreover, what to talk of deciding the question of title as escalated under Section 7 of the Act, even the A.C.Ist Grade did not afford adequate opportunity to the petitioners to lead their evidence. He decided such an important matter, by means of impugned cryptic and non-speaking order (Annexure P-1). The same very error was repeated by the Appellate Authority, while passing the impugned order (Annexure P-2).
17. Meaning thereby, the impugned orders are non-speaking and lack Civil Writ Petition No.8346 of 1991 5 application of mind in this regard. The authorities below ought to have discussed the evidence brought on record and were legally required to record valid reasons for arriving at a right conclusion, in order to decide the real controversy between the parties in the right perspective. Such statutory authorities, exercising the powers under the Code of Civil Procedure, 1908 as envisaged under Section 7 (3) of the Act, should act independently instead of functioning as a representative of the State/G.P. It is now well settled principle of law that every action of such authority must be informed by reasons. The order must be fair, clear, reasonable and in the interest of fair play. Every order must be confined and structured by rational and relevant material on record because the valuable rights of the parties are involved. The same are totally lacking in this case. Therefore, the impugned orders cannot legally be maintained. So, taking into consideration the totality of the facts and circumstances emanating from the record as discussed hereinabove, to me, justice would be sub served, if the matter is remanded back to the A.C.Ist Grade to enable him to decide the question of title at first instance, in the obtaining circumstances of the case.
18. No other legal point, worth consideration, has either been urged or pressed by learned counsel for the parties.
19. In the light of aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side, during the course of adjudication of question of title between the parties, the instant writ instant petition is accepted. Consequently, the impugned orders (Annexures P-1 and P-2) are hereby set aside. The matter is remitted back to the concerned A.C.Ist Grade, for its fresh decision, on the question of title after affording adequate opportunities to the parties to lead their respective evidence in view of aforesaid observations and in accordance with law and then to pass appropriate order as warranted by the situation in this relevant direction.
20. Needless to mention here that nothing observed hereinabove, would Civil Writ Petition No.8346 of 1991 6 reflect in any manner on the merits of the main case, as the same has been so recorded for a limited purpose of deciding the instant writ petition.
21. The parties through their counsel are directed to appear before the A.C.Ist Grade on 16.3.2011 for further proceedings.
(Mehinder Singh Sullar) 7.2.2011 Judge AS Whether to be referred to reporter? Yes/No