Civil Writ Petition No.14652 of 1991 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.14652 of 1991(O&M) Date of Decision:19.05.2011 Kanhi Ram and another ......Petitioners Versus Gram Panchayat Dhani Silawali and others .....Respondents CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR. Present: Mr.Mani Ram Verma, Advocate, for the petitioners. Mr.Vivek Singla, Advocate, for respondent No.1. Mr.Rajiv Prashad, Deputy Advocate General, Haryana, for respondent Nos.2 and 3. **** M EHINDER S INGH S ULLAR , J.(oral) Concisely, the facts, which need a necessary mention for the limited purpose of deciding the core controversy, involved in the instant writ petition and emanating from the record, are that Gram Panchayat of Village Dhani Silawali, District Bhiwani(for brevity “the respondent-Gram Panchayat”) initiated the ejectment petition against the petitioners to eject them from the land in question, belonging to it(Gram Panchayat), situated within the abadi deh of the village, before the Assistant Collector Ist Grade(for short “the A.C.Ist Grade”), invoking the provisions of Section 7 of The Punjab Village Common Lands (Regulation) Act, 1961, as applicable to the State of Haryana(hereinafter to be referred as “the Act”). The respondent-Gram Panchayat claimed that the petitioners are in unauthorized possession of its land. 2. The petitioners contested the claim of the respondent-Gram Panchayat and filed the written statement, inter alia, pleading that the land in Civil Writ Petition No.14652 of 1991 2 question does not belong to the respondent-Gram Panchayat. It was claimed that as majority of the owners of the land in dispute in the village were Muslims, therefore, after partition of the country, the suit land being their evacuee property vested in the custodian department. They purchased a plot measuring 542 square yards from the custodian department and got a 'Bada' measuring 135 square yards. Thus, they are owners and are in possession of the suit land for the last about 60 years and have constructed their residential houses and boundary wall on it. They became the owners of the land, much prior to the commencement of the Act. The other allegations were denied by the petitioners and prayed for dismissal of the ejectment petition under Section 7 of the Act. 3. After taking into consideration the evidence brought on record by the parties, in order to substantiate their respective stands, the A.C.Ist Grade ejected the petitioners from the land in dispute by way of ejectment order dated 15.11.1990(Annexure P-1). 4. Aggrieved by the order(Annexure P-1), the petitioners filed the appeal, which was dismissed as well by the District Collector-cum-Appellate Authority, vide impugned order dated 18.02.1991(Annexure P-2). 5. The petitioners still did not feel satisfied and preferred the instant writ petition, challenging the impugned orders(Annexures P-1 and P-2), inter alia, mainly on the ground that although the property does not belong to the respondent- Gram Panchayat and they raised a question of title and prima facie proved by producing the sale certificate/sale-deed and other evidence, but the A.C.Ist Grade fell in legal error in this relevant behalf. The impugned orders were stated, not only arbitrary and illegal, but against the statutory provisions of the Act as well. On the basis of aforesaid allegations, the petitioners sought to challenge the impugned orders(Annexures P-1 and P-2), in the manner depicted hereinabove. 6. The respondent-Gram Panchayat contested the claim of the petitioners and filed the written statement, wherein, it was reiterated that the land Civil Writ Petition No.14652 of 1991 3 in dispute is shamilat deh vests in the Gram Panchayat and the petitioners were rightly ejected from it by the A.C.Ist Grade. The impugned orders were claimed to be valid and legal. It will not be out of place to mention here that the respondent- Gram Panchayat has stoutly denied all other allegations contained in the writ petition and prayed for its dismissal. That is how, I am seized of the matter. 7. After hearing the learned counsel for the parties, going through the record of the case and legal position with their valuable help and after deep consideration of the entire matter, to my mind, the instant writ petition deserves to be accepted in this respect. 8. As is evident from the record that the respondent-Gram Panchayat claimed that the land in dispute is shamilat deh and belonged to it. On the contrary, the petitioners claimed that almost majority of the owners of the suit land were Muslims and after their migration, the land vests in the custodian department, being the evacuee property. They purchased a plot measuring 542 square yards from the custodian department and they acquired remaining land as a 'Bada'. Hence, they are owners and in possession of the suit land for the last about 60 years and have constructed their residential houses and boundary wall on it, much prior to the commencement of the Act. 9. Therefore, it is clear that the petitioners have raised a legitimate question of title and prima facie proved it, by producing the sale certificate, copy of the site plan and other related documents, but the same were ignored with impunity by the A.C.Ist Grade and he did not decide the question of title. The same mistake was repeated by the Appellate Authority as well. 10. Meaning thereby, the petitioners have raised the deep questions of title of the land in dispute before the A.C. Ist Grade, during the course of trial of the petition under Section 7 of the Act, which postulates that 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 Civil Writ Petition No.14652 of 1991 4 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 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 doing so, 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 Punjab Tenancy Act, 1887. Proviso to Section 7 of the Act further posits 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 of the first grade shall record a finding to that effect and first decide the question of title, in the manner laid down hereinafter. 11. Sequelly, the procedure for deciding such question of title under proviso to Sub-Section(1) is provided in Sub-Section(3) of Section 7 of the Act, which envisaged that the procedure of deciding the question of title shall be the same, as laid down in the Code of Civil Procedure, 1908. 12. A conjoint reading of Section 7 of the Act, would leave no manner of doubt that, it was incumbent upon and the statutory/mandatory duty of the A.C. Ist Grade to first decide the question of title and without deciding the question of title at the first instance, he was not legally competent to pass the ejectment order against the petitioners. This matter is not res integra and is well settled. 13. An identical question came to be decided by a Division Bench of this Court in case Tara Chand and Fateh Singh Versus Gram Panchayat and Gram Sabha of Village Atail and others 1979 PLJ 5. Having interpreted the relevant provisions of Section 7 of the Act, it was, inter alia, ruled as under:- Civil Writ Petition No.14652 of 1991 5 “The Assistant Collector Ist Grade conducting proceedings under section 13-B is a Tribunal of wider jurisdiction as compared with the same officer under section 7. The latter is a Tribunal of comparatively limited jurisdiction. The Tribunal of limited jurisdiction cannot oust the jurisdiction of a Tribunal with wider jurisdiction even if both the Tribunals are manned by the same person. The separate statutory provisions are made for achieving the interest of justice and the parties cannot be denied their right to have their claims adjudicated from the proper forum by the officers manning such Tribunals, by adopting short-cut methods of summary enquiry. In the case in hand, the Assistant Collector Ist Grade, Sonepat, while passing orders Annexure P-2 to the petition under section 7 for the eviction of the petitioners from the land in dispute, travelled beyond the scope of his jurisdiction under that section to determine the question of title which was raised before him. When the question of title was raised by the petitioners, the appropriate procedure to be adopted by him should have been either to convert himself into a Tribunal under section 13-B of the Act and proceed in accordance with the procedure laid down for determination of the title or ask the petitioners raising the question of title to move appropriate petitions before him under section 13-B. He could keep the proceedings under section 7 in abeyance till the final determination of the question raised before him under section 13-B. Such a procedure is to further the purpose of the amendment of the Act by avoiding unnecessary delay in the proceedings as has been occasioned in the case in hand. He could not opt for an easier course for the sake of convenience to try the case in a summary manner. The rights of the petitioners have been prejudiced by denial to try their case under section 13-B in accordance with the provisions of Civil Procedure Code and this has resulted in failure of justice”. 14. Subsequently, the same view was again reiterated by this Court in cases Sewa Ram and Kanwar Bhan Versus Gram Panchayat Village Shergarh Tapu and others, 2010(1) R.C.R.(Civil) 118 and Bant Singh and others Versus The Joint Director, Panchayat, Punjab and others, 2010(3) R.C.R.(Civil) 724. 15. What is not disputed here is that the petitioners have specifically raised an important question of title of the land in dispute and prima facie proved by producing the evidence of sale certificate etc., as discussed here-in-above, but Civil Writ Petition No.14652 of 1991 6 the A.C. Ist Grade has ordered their ejectment in a casual fashion and routine manner, without deciding the question of title and failed in his statutory duty in this relevant behalf. In that eventuality, the A.C. Ist Grade ought to have stayed his hands, as regards the ejectment petition was concerned, at that stage, and it was incumbent upon him to decide the question of title, at the first instance, as per procedure, as contemplated under Section 7(3) of the Act. 16. Thus, it would be seen that the clear and explicit intention of the legislature underlying Section 7 has to be respected and complied with in the manner commanded by the Act. The command of the legislature is mandatory and the procedure of deciding the question of title, at the first instance, is to avoid unscrupulous ejectments, which admittedly, the A.C. Ist Grade has omitted to follow. Therefore, the A.C. Ist Grade has bye-passed the mandatory provisions with impunity and illegally passed the impugned ejectment order(Annexure P-1) and the Appellate Authority has also dismissed the appeal in a mechanical manner, inculcating and perpetuating injustice to the petitioners, by virtue of impugned order(Annexure P-2), which cannot legally be sustained in this respect. 17. This is not the end of the matter. It is not a matter of dispute that the A.C. Ist Grade did not decide the question of title and passed the non-speaking ejectment order(Annexure P-1). The same very mistake was repeated by the Appellate Authority, while passing the impugned order(Annexure P-2). That means, the impugned ejectment orders(Annexures P-1 and P-2) passed by the A.C. Ist Grade and the Appellate Authority, are non-speaking orders and lack application of mind in this connection. They ought to have discussed the evidence brought on record and were legally required to record the valid reasons, for arriving at a right conclusion, in order to decide the real controversy between the parties, in the right perspective. The orders of such statutory authorities must be fair, clear, reasonable and in the interest of fair play and must be informed by reasons. Every order must be confined and structured by rational and relevant Civil Writ Petition No.14652 of 1991 7 material on record, which is totally lacking in the instant case. Therefore, to my mind, the impugned ejectment orders(Annexures P-1 and P-2) cannot legally be maintained, in the obtaining circumstances of the case. 18. In this manner, whether the land in dispute was the evacuee property, vests in the custodian department or falls within the definition of shamilat deh, as defined under Section 2(G) of the Act, or that the land of the petitioners is exempted from the operation of law, in view of Section 4 of the Act, on account of their long possession for the last about 60 years etc., would be the moot points to be decided by the authorities under the Act. Therefore, to my mind, it would be in the interest and justice would be sub-served, if this matter is remanded back to the A.C. Ist Grade, for its fresh decision. 19. In the light of aforesaid reasons, thus, seen from any angle and without commenting further anything on merits, lest it may prejudice the case of either side during the adjudication of question of title between the parties, by the A.C. Ist Grade, the instant writ petition is accepted. The impugned ejectment 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 opportunity to the parties, to lead their respective evidence, in view of the aforesaid observations and in accordance with law and then to pass appropriate order, as warranted by the situation. 20. Needless to mention here that, nothing observed hereinabove would 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 present controversy. 21. The parties through their counsel are directed to appear before the concerned A.C. Ist Grade on 28.07.2011. May 19, 2011 (MEHINDER SINGH SULLAR) seema JUDGE Whether to be referred to reporter?Yes/No