IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Writ Petition 15468 of 2008 Date of decision:12.8.2009 Pharas Ram …Petitioner Versus Collector, Ambala and ors …Respondents Present: Mr JV Yadav, Advocate for the petitioner. Mr Sudhir Makka, Sr DAG Haryana. Mr SM Sharma, Advocate for respondent-3. S.S. SARON, J. This petition has been filed under Articles 226/227 of the Constitution of India seeking quashing of the order dated 21.3.2001 (P1) passed by the Assistant Collector Ist Grade, Ambala and the order dated 13.8.2008 (P3) passed by the District Collector, Ambala. The case of the petitioner is that he and others had purchased about 105 acres of land from the proprietors of Mushtarka Malkan situated in village Kakkar Kunda, Tehsil Barara, District Ambala. As such, they became co-sharers in the land along with other Mushtarka Malkans of the village who were having 5007 shares. The Mushtarka Malkans were joint in possession of the land and had handed-over the possession to the petitioner, which included the land measuring 19 acres as detailed in para 2 of the petition. The respondent-3 – Gram Panchayat of village Kakkar Kunda filed an application under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (as applicable in Haryana) (Act – for short), 1 CWP 15468 of 2008 seeking eviction of the petitioner from the said land in dispute measuring 19 acres, 1 Kanal and 19 Marlas on the basis of entries made in favour of the Gram Panchayat, in pursuance of Amendment Act No.9 of 1992. On the said basis, mutation had also been sanctioned in favour of respondent-3 – Gram Panchayat of village Kakkar Kunda. The petitioner claims to be in cultivating possession of the land in dispute for the last more than 15 years and his possession is recorded as Gair Marusi in the Jamabandi for the year 1992-93 (P4). Besides, even in the Jamabandi for the year 2002-03 (P7), his name is recorded as Gair Marusi. Therefore, it is submitted that he is not liable to be evicted from the land in question. Learned counsel for the petitioner has contended that the findings reached at by the Assistant Collector Ist Grade and the Collector that the land is Banjar Qadeem Charand, is not based on any documentary evidence. In the Jamabandis for the years 1992-93 (P4) and 2002-03 (P7), it is submitted that the entry of Panchayat in the column of ownership is without any foundation and such an entry does not confer a right of ownership on the Panchayat. It is submitted that as per the revenue records, the land in dispute has been entered in the name of the Gram Panchayat on the basis of Act No.9 of 1992. The said Act, it is submitted, was subject matter of consideration of the Full Bench of this Court in Jai Singh v. State of Haryana (2003-2) PLR 658. It is submitted that in the said judgment, directions were issued that mutations which were sanctioned in favour of the Gram Panchayats should be cancelled. Therefore, not much reliance is liable to be placed on the record which shows that the Gram Panchayat is the owner of the land, as there is no basis for the same. It is also contended that the petitioner was proceeded against exparte and he was not given adequate opportunity to contest the petition. 2 CWP 15468 of 2008 In response, learned counsel for respondent-3 Gram Panchayat has submitted that the authorities under the Act have perused the revenue records and found that the same record the land as ‘Gair Mumkin Charand’ which it is submitted is used for common purposes. It is also submitted that the petitioner has not placed any material on record to dispel the conclusions reached at by the authorities to show that the land in dispute is not Banjar Qadeem Charand. I have given my thoughtful consideration to the contentions of the learned counsel for the parties and with their assistance have perused the record of the case. The learned Assistant Collector Ist Grade, Ambala, in his order dated 21.3.2001 (P1) has, after perusing the revenue record, noticed that as per the Gram Panchayat, Taprian, Paras Ram and others had purchased the partitioned land measuring about 105 acres from the Mushtarka Malkans. However, the 19 acres adjoining land was occupied by them 10 years ago. A paper Mill of Yamuna Nagar had taken this land on Theka (lease) and had planted eucalyptus trees. When the trees were being cut the Gram Panchayat had obtained stay from the Court. Thereafter, on the basis of a joint compromise, the Gram Panchayat had taken Rs 80,000/- from Paras Ram – petitioner which were utilized for the development work of the village. It is also noticed that now that the trees had been cut and the land was of Charand and if the land was not got vacated, then it would be difficult for the cattle to graze. The land was lying vacant at the spot on which grass had come up and somehere wild trees were standing. Therefore, it was observed that in fact the land belonged to the Gram Panchayat of village Taprian and 10 years ago, the petitioner had unauthorisedly occupied it. Accordingly, the order dated 21.3.2008 (P1) of ejectment was passed for 3 CWP 15468 of 2008 evicting the petitioner from the land measuring 19 acres 1 Kanal and 19 Marlas under Section 7(2) of the Act. The petitioner took no action on the order dated 21.3.2001 (P1) and remained dormant for about 7 years and thereafter an appeal (P2) was filed on 29.5.2008. The learned Distt Collector, Ambala in terms of order dated 13.8.2008 (P3) considered the matter. It was observed that the land in dispute, as per the revenue record, is recorded as Gair Mumkin Banjar Qadeem Charand from the year 1982- 83, upon which all residents of the village had right to tether their cattle and such lands vest in the Gram Panchayat. The petitioner, it was observed, had no concern with the land. It was also observed that the order passed by the lower Court was based on facts and there was no defect in the same. Besides, the appeal had been filed much after limitation for which no proper reasons had been given. The contention of the learned counsel for the petitioner that in the Jamabandi for the years 1992-93 (P4) and 2002-03 (P7), Panchayat Deh is recorded as owner of the disputed land and it is not shown that the same is Shamlat land, is not of much significance. A perusal of the mutation (P5) would show that the land at the time of being entered in the name of the Panchayat Deh, is recorded as ‘Shamlat Deh’. The land which is recorded as ‘Shamlat Deh’ in terms of provisions of Section 2(g)(1) of the Act is ‘Shamlat Deh’. Even otherwise, the District Collector has observed that the land is recorded in the revenue records as Banjar Qadeem Charand. Therefore also, the land in question would be Shamlat Deh, in view of the provisions of Section 2(g)(5)of the Act which envisages that the land described as Banjar Qadeem and used for common purposes of the village would be Shamlat Deh. Shamlat Deh lands in terms of the provisions of Section 4(1)(a) of the Act vest in the Panchayat. It is provided therein that 4 CWP 15468 of 2008 notwithstanding anything contrary contained in any other law for the time being in force or in any agreement, instrument, custom or usage or any decree or order of any Court or other authority, all rights, title and interests, whatever in the land, which is included in the Shamlat Deh of any village and which has not vested in a Panchayat under the Shamlat law, shall at the commencement of the Act, vest in the Panchayat constituted for such village. Thus, it is in terms of the statutory provisions of Section 4 (1)(a) of the Act, the land had vested in the Panchayat. Learned counsel for the petitioner has not been able to show or place on record any document to dispel the fact that the land in dispute is not Shamlat Deh. The mutation (P5) clearly records that the land before it was transferred in favour of the Panchayat was recorded as Shamlat Deh. As such, there is nothing on record to dislodge the concurrent findings of facts recorded by the Assistant Collector Ist Grade and the District Collector that the land vests in the Panchayat. Insofar as the Full Bench decision in Jai Singh’s case (supra) is concerned, it may be noticed that challenge in the said case was to the insertion of Clause (6) to Section 2(g) of the Act. In terms of the said clause (6) the lands reserved for common purposes of a village under Section 18 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act 1948, the management and control whereof vests in the Gram Panchayat under Section 23-A of the aforesaid Act, was also included in the definition of ‘Shamlat Deh’ under Section 2(g) of the Act. In terms of the ‘explanation’ to the said Clause (6) to Section 2(g), it was provided that the lands entered in the column of ownership of record of rights as ‘Jumla Malkan Va Digar Haqdaran Arazi Hasab Rasad’ shall be Shamlat Deh within the meaning of the said Section i.e. Section 2(g). In the present case, 5 CWP 15468 of 2008 the said position is not applicable as the land in the present case is not that of Jumla Malkan and is recorded as Shamlat Deh in the mutation (P5). Such lands in any case in view of the provisions of Section 2(g) of the Act is ‘Shamlat Deh’. Besides, the land is also recorded as Banjar Qadeem Charand, which would mean it was being used for common purposes for the grazing of cattle. Such land is also ‘Shamlat Deh’ in view of Section 2(g) (5) of the Act. Therefore, the contention of the learned counsel that the mutation was liable to be cancelled in view of Jai Singh’s case (supra), is not tenable as the ratio of the judgment in the said case is not applicable. The land being Shamlat Deh is to vest in the Gram Panchayat in view of the provisions of Section 4 of the Act, as already noticed above. Therefore also, the contention that the mutation is liable to be cancelled in view of Jai Singh’s case (supra), is clearly devoid of any merit. In the circumstances, there is no merit in this petition and the same is accordingly dismissed. 12.8.2009. ( S.S.SARON ) ASR JUDGE 6