IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No. 20385 of 2011 DATE OF DECISION : 08.12.2011 Orion Infrastructure Ltd. .... PETITIONER Versus The Commissioner, Gurgaon Division, Gurgaon and others ..... RESPONDENTS C.W.P. No. 10521 of 2011 DATE OF DECISION : 08.12.2011 Rajender Kumar .... PETITIONER Versus State of Haryana and others ..... RESPONDENTS CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE PARAMJEET SINGH Present: Mr. Arun Jain, Senior Advocate, with Mr. Adarsh Jain, Advocate, for the petitioner (in CWP No. 20385 of 2011) Mr. Varun Baanth, Advocate, for the petitioner (in CWP No. 10521 of 2011) Mr. Ajay Kumar Gupta, Addl. A.G., Haryana, for respondents No.1 to 8 (in CWP No. 20385 of 2011) and for respondents No.1 to 6 (in CWP No. 10521 of 2011) None for Gram Panchayat (respondent No.9 in CWP No. 20385 of 2011 and respondent No.7 in CWP No. 10521 of 2011) CWPs No. 20385 and 10521 of 2011 -2- SATISH KUMAR MITTAL , J. This order shall dispose of Civil Writ Petitions No. 20385 and 10521 of 2011, which are arising from a common order dated 4.2.2010 (Annexure P-26 in CWP No. 20385 of 2011 and Annexure P-20 in CWP No. 10521 of 2011), passed by the Commissioner, Gurgaon Division, Gurgaon, whereby the revision petition filed by the Social Education and Panchayat Officer, Gurgaon under Section 13-B (2) of the Punjab Village Common Lands (Regulation) Act, 1961 (As Applicable to Haryana) (hereinafter referred to as `the Act of 1961') has been allowed and the order dated 21.11.2000 (Annexure P-5 in CWP No. 20385 of 2011 and Annexure P-7 in CWP No. 10521 of 2011), passed by the Assistant Collector Ist Grade, Gurgaon, partly decreeing the title suit filed by the predecessors of the petitioners, has been set aside being illegal and passed without jurisdiction. Since the common questions of facts and law are involved in both these petitions, therefore, for the purpose of convenience, the facts are being taken from CWP No. 20385 of 2011. The petitioner in this petition has also challenged the interim orders dated 6.2.2006 and 8.1.2008 (Annexures P-22 and P-25), passed by the Commissioner. Vide order dated 6.2.2006, the predecessors of the petitioners and their heirs were restrained from alienating the disputed land by way of mortgage, sale, gift or any other mode, to any other person. They were further restrained from changing the nature of the disputed land or CWPs No. 20385 and 10521 of 2011 -3- excavating earth from it. Vide order dated 8.1.2008, the revision petition was held to be maintainable and the same was ordered to be heard on merits. It is pertinent to mention here that earlier, the petitioner had filed CWP No. 9024 of 2006 for quashing the order dated 6.2.2006. However, during the pendency of the said petition, the interim order dated 8.1.2008 and the final order dated 4.2.2010 were passed by the Commissioner. When the petitioner filed application to amend the said petition to challenge these two subsequent orders, the petitioner was permitted to withdraw the writ petition with liberty to file fresh one challenging those orders. Hence, the present writ petition was filed. The brief facts of the case are that as per the revenue record, as existed on 9.1.1954, the date on which the Punjab Village Common Lands (Regulation) Act, 1953 (hereinafter referred to as `the Act of 1953') came into force, out of total land measuring 6265 bighas 9 biswas, situated in village Bandhwari, land measuring 4895 bighas 10 biswas was recorded as `Shamilat Deh Hasab Rasad Kabja Zamin'. With the coming into force of the Act of 1953, vide mutation No. 144 dated 31.3.1955, the aforesaid land was mutated in the name of the Gram Panchayat, being Shamilat Deh vested in the Gram Panchayat under Section 3 of the Act of 1953, which reads as under : “3. Vesting of rights in Panchayats and in non- proprietors – Notwithstanding anything to the contrary contained in any other law for the time being in force, and notwithstanding any agreement, instrument, custom or usage or CWPs No. 20385 and 10521 of 2011 -4- any decree or order of any Court or other authority, all rights, title and interest whatever in the land :- (a) which is included in Shamilat deh of any village, shall, on the appointed date, vest in a Panchayat having jurisdiction over the village; (b) which is situated in the Abadi deh of a village and which is under the house owned by a non-proprietor, shall at the commencement of the Act vest in the said non-proprietor.” . Thereafter, in the subsequent jamabandi, i.e. for the year 1960-61, 4895 bighas 10 biswas of land was recorded in the name of the Panchayat Deh and continued as such in subsequent revenue record. On 1.3.1985, proprietors of the village filed a title suit (Annexure P-1) under Section 13-A of the Act of 1961 before the Assistant Collector Ist Grade (who was having jurisdiction at that time under the un- amended Section 13-A of the Act of 1961), seeking declaration that the land in dispute is not Shamilat Deh and under the provisions of the Act of 1961, it does not vest in the Gram Panchayat. It was the claim of the proprietors that as per proviso to clause (5) of Section 2 (g) of the Act of 1961, out of the total area of the village (which in the present case was 6265 bighas 9 biswas), only 25% area, i.e. 1566 bighas 7 biswas, could be described and treated as Shamilat Deh vesting in the Gram Panchayat and the remaining land, i.e. 3329 bighas 5 biswas, shall vest in the proprietors. It was also alleged that the proprietors were in cultivating possession of the disputed land for more than 12 years prior to 9.1.1954, therefore, it did not vest in the CWPs No. 20385 and 10521 of 2011 -5- Gram Panchayat. The Assistant Collector Ist Grade, vide order dated 9.11.1989 (Annexure P-2), partly decreed the said suit while holding that in view of proviso to clause (5) of Section 2 (g) of the Act of 1961, out of total land of the village, measuring 6265 bighas, only 25% area, i.e. 1566 bighas 5 biswas, shall vest in the Gram Panchayat, whereas the remaining land measuring 3329 bighas 5 biswas will not vest in the Gram Panchayat, and the mutation with regard to the said land was held to be illegal. However, on issue No.2, a categoric finding was recorded against the proprietors, while holding that they have failed to prove their individual cultivating possession of more than 12 years prior to the date of coming into force of the Act of 1953, i.e. 9.1.1954, on any particular khasra number of the land in question. Feeling aggrieved against the said order of the Assistant Collector Ist Grade, the Gram Panchayat filed appeal before the Collector claiming that the land, which was `Gair Mumkin Pahar, Nadi Nala etc.' could not be included to determine the area of 25%. It was argued that when the land falls under the definition of Shamilat Deh under clause (1) of Section 2 (g) of the Act of 1961, then the said land stands vested in the Gram Panchayat, independent of other clauses. It was further argued that when any land comes within the definition of Shamilat Deh on the basis of any of the sub-clauses mentioned in Section 2 (g) of the Act of 1961, then there is no need of reading the other sub-clauses of the said Section. Thus, the Assistant Collector Ist Grade has committed grave illegality, while CWPs No. 20385 and 10521 of 2011 -6- relying upon the proviso to clause (5) of Section 2 (g) of the Act of 1961, while holding that 3329 Bighas 5 Biswas Shamilat land vests in the proprietors, particularly when such land falls under clause (1) of Section 2 (g) of the Act of 1961. The Collector, vide order dated 18.12.1991 (Annexure P-3), accepted the appeal of the Gram Panchayat and after setting aside the order of the Assistant Collector Ist Grade, remanded the matter to the Assistant Collector Ist Grade to decide it afresh, keeping in view the land of Nadi- Nala, Gair Mumkin Pahar and actual cultivating possession of the proprietors on the relevant date, after giving opportunity to both the parties to lead evidence. The proprietors challenged the abovesaid order of the Collector before the Commissioner, by filing revision petition. The Commissioner, vide order dated 21.1.1993 (Annexure P-4), dismissed the revision petition, while observing that “all the sub clauses of section 2 (g) are independent of each other and on this basis also the Assistant Collector Ist Grade has taken a wrong decision. Besides this, now according to the amended Act, shamilat land vest in the Gram Panchayat.” It is pertinent to mention here that during the pendency of the revision petition, vide Haryana Amendment Act 9 of 1992, proviso to clause (5) of Section 2 (g) of the Act of 1961 was deleted. The Commissioner, while dismissing the revision petition, had drawn the attention towards this deletion, which was to be looked into by the Assistant Collector Ist Grade. It CWPs No. 20385 and 10521 of 2011 -7- is further pertinent to mention that after the remand, when the matter was pending before the Assistant Collector Ist Grade, vide Haryana Amendment Act 9 of 1992, Section 13-A of the Act of 1961 was deleted. For seven years, this Section remained in abeyance and subsequently, vide Haryana Amendment Act 9 of 1999, new Sections 13-A and 13-AA were inserted in the Act of 1961. In Section 13-A, now the title suit is to be filed before the Collector, appeal against the order of the Collector before the Commissioner, and revision petition before the Financial Commissioner. After the said amendment, only the Collector was having the jurisdiction to determine the issue raised in the title suit, as to whether the land in dispute is Shamilat Deh and the same vests in the Gram Panchayat or not. Sections 13-A and 13-AA of the Act of 1961 are re-produced below for ready reference :- 13-A. Adjudication – (1) Any person or in the case of a panchayat, either the Panchayat or its Gram Sachiv, the concerned Block Development and Panchayat Officer, Social Education and Panchayat Officer or any other officer duly authorised by the State Government in this behalf, claiming right, title or interest in any land or other immovable property, vested or deemed to have been vested in the Panchayat under this Act, may file a suit for adjudication, whether such land or other immovable property is shamilat deh or not and whether any land or other immovable property or any right, title or interest therein vests or does not vest in a Panchayat under this Act, in the court of the Collector, having jurisdiction in the area wherein such land or other immovable property is situated : CWPs No. 20385 and 10521 of 2011 -8- Provided that no suit shall lie under this section in respect of the land or other immovable property, which is or has been the subject matter of the proceedings under section 7 of this Act under which the question of title has been raised and decided or under adjudication. (2) The procedure for deciding the suits filed under sub-section (1), shall be the same as laid down in the Code of Civil Procedure 1908 (5 of 1908). 13AA. Appeal and revision – (1) Any person, aggrieved by an order passed under sub-section (1) of section 13A, may within a period of thirty days from the date of such order, prefer an appeal to the Commissioner in such form and manner, as may be prescribed, and the Commissioner may after hearing the appeal, confirm, vary or reverse the order as he deems fit. (2) The Financial Commissioner may, suo motu or on an application made to him by any person aggrieved by an order passed under sub-section (1), call for the record of any proceedings pending before, or order passed by the Commissioner for the purpose of satisfying himself as to the legality or propriety of the proceedings or order and pass such order in relation thereto as he may deem fit : Provided that no order adversely affecting any person shall be passed unless he has been afforded an opportunity of being heard. The Assistant Collector Ist Grade, in total disregard to the amendments made vide Haryana Amendments Act 9 of 1992 and 9 of 1999, vide order dated 21.11.2000 (Annexure P-5) finally decided the title suit partly in favour of the proprietors, after holding that according to proviso to clause (5) of Section 2 (g) of the Act of 1961, which was prevailing at the CWPs No. 20385 and 10521 of 2011 -9- time of filing of the suit, out of the total Shamilat Deh land of 4703 bighas 15 biswas, 2104 bighas 9 biswas of land was uncultivable and the remaining land, i.e. 2599 bighas 6 biswas, was cultivable, out of which only 25 % (649 bighas 16 biswas) vests in the Gram Panchayat and the remaining land of 1949 bighas 10 biswas does not vest in the Panchayat, but the same vests in the proprietors. Thus, suit of the proprietors qua 1949 bighas 10 biswas of cultivable Shamilat Deh land was decreed in their favour. It is pertinent to mention here that the Assistant Collector Ist Grade again decided the matter, while taking into consideration the proviso to clause (5) of Section 2 (g) of the Act of 1961, which was already deleted vide Haryana Amendment Act 9 of 1992. However, on issue No.2, no finding was recorded that 12 years prior to the coming into force of the Act of 1953, any of the proprietors was in individual cultivating possession of the land measuring 2599 bighas 6 biswas. Against the aforesaid order of the Assistant Collector Ist Grade, the Gram Panchayat and the Block Development and Panchayat Officer preferred appeal before the Collector. However, during the pendency of the appeal, the Sarpanch of the Gram Panchayat filed an application (Annexure P-6) for withdrawal of the appeal. It is pertinent to mention that this application was filed only by the Sarpanch of the Gram Panchayat. The Collector, vide order dated 27.2.2001 (Annexure P-8), allowed the said application and permitted the Gram Panchayat to withdraw the appeal. Subsequently, in pursuance of the order dated 21.11.2000, CWPs No. 20385 and 10521 of 2011 -10- passed by the Assistant Collector Ist Grade, mutation No. 2055 dated 29.5.2001 (Annexure P-10) with regard to 22709 kanals 17 marlas of land was sanctioned in the name of Shamilat Deh Hasab Rasad Kabza Zamin and on the same day, vide subsequent mutation No. 2056 (Annexure P-11), mutation of the said land was sanctioned in the name of the individual proprietors. Thereafter, some of the proprietors started selling the land in question vide various sale deeds to different persons, after getting the land in question partitioned. The petitioner company had purchased 2292 kanals 8 marlas of land from different proprietors vide 18 different sale deeds. Mutations of those sale deeds were sanctioned in favour of the petitioner company on 13.12.2004. Similarly, the petitioner in the connected writ petition (CWP No. 10521 of 2011) purchased 2579 marlas (16.11 acres) of land in the year 2005, regarding which mutation No. 3368 dated 20.12.2005 was sanctioned in his favour. It is the further case of the petitioner company that after getting the areas purchased by it demarcated, the petitioner company got a license in form LC-1 from the Director, Town and Country Planning, Haryana, for development of a residential colony on the land in question, after paying the requisite fee and charges, and also obtained certain Environmental permits, required by law. When it came to the notice of the Panchayat Department that the Sarpanch, in connivance with the proprietors or their vendees, has got the appeal (which was filed by the Gram Panchayat and the Block Development and Panchayat Officer) withdrawn and got finalised the illegal CWPs No. 20385 and 10521 of 2011 -11- order of the Assistant Collector Ist Grade, which was wholly without jurisdiction, under which a big chunk of land vesting in the Gram Panchayat was declared to be owned and possessed by the proprietors, the Social Education and Panchayat Officer, Gurgaon filed a revision petition under Section 13-B (2) of the Act of 1961, on 6.2.2006, before the Commissioner for setting aside the order dated 21.11.2000 being illegal and without jurisdiction, in exercise of its suo motu power. Along with the revision petition, an application for stay was also filed. On the said application, vide order dated 6.2.2006, the Commissioner stayed the operation of the order dated 21.11.2000, passed by the Assistant Collector Ist Grade, and restrained the proprietors and their heirs from alienating the disputed land by way of mortgage, sale, gift or any other mode, to any other person. They were further restrained from changing the nature of the disputed land or excavating earth from it. During the pendency of the revision petition, the petitioner filed various applications for vacation of stay and with regard to the maintainability of the revision petition, but those applications were dismissed and finally, the Commissioner, after hearing counsel for the parties, including the proprietors and the petitioner allowed the said revision petition vide order dated 4.2.2010, and set aside the order dated 21.11.2000, passed by the Assistant Collector Ist Grade, Gurgaon, being wholly illegal and passed without jurisdiction. Firstly, it has been held that the order of the Assistant Collector Ist Grade, declaring 1949 bighas 10 biswas of land as CWPs No. 20385 and 10521 of 2011 -12- not vesting in the Gram Panchayat and vesting in the proprietors, is totally illegal and contrary to the revenue record and the provisions of the Act of 1961, and the same is based upon the proviso to clause (5) of Section 2 (g) of the Act of 1961, which on the date of passing of the order stood already deleted vide Haryana Amendment Act 9 of 1992. Thus, the Assistant Collector Ist Grade has not complied with the direction given by the Collector, while remanding the case and the observations made by the Commissioner while upholding the said order of the Collector. Secondly, it has been held that the order dated 21.11.2000, passed by the Assistant Collector Ist Grade, was wholly without jurisdiction, as on the date of passing of the order, vide Haryana Amendment Act 9 of 1999, new provision of Section 13-A was inserted in the Act of 1961, where only the Collector has been empowered to adjudicate as to whether the land is Shamilat Deh or not and whether any land or any right, title or interest therein, vests or does not vest in the Gram Panchayat under this Act. Thus, the order of the Assistant Collector Ist Grade was without jurisdiction and nullity. It has also been observed that the Gram Panchayat was in collusion with the proprietors, including their predecessors, and without safeguarding the interest of the Gram Panchayat, which the Gram Panchayat was supposed to do, it withdrew the appeal, without getting the right, title and interest in the Shamilat Deh land determined properly. A liberty has also been given that if any of the parties wants to get its right, title declared under the Act of 1961, he may file a fresh suit before the competent CWPs No. 20385 and 10521 of 2011 -13- authority i.e. the Collector, Gurgaon. The aforesaid order of the Commissioner has been challenged in these writ petitions. During the course of hearing, when the Court was not agreeing with the arguments raised by learned counsel for the petitioners, learned counsel appearing on behalf of the petitioners in Civil Writ Petition No. 22709 of 2011, titled as Tej Pal Jain versus State of Haryana and others (connected petition), withdrew the petition, with liberty to approach the Collector. In that petition, the following order was passed : After having instructions from the attorney of the petitioner, who is present in Court, learned counsel states that the petitioner may be permitted to withdraw this petition with liberty to file a title suit before the Collector, Gurgaon, in terms of the order passed by the Commissioner, Gurgaon Division, Gurgaon. Dismissed as withdrawn with the aforesaid liberty. If the petitioner files such title suit within a period of two months from today, the Collector is directed to decide the same in accordance with law, expeditiously, as early as possible, after issuing notice to the necessary parties and hearing them in accordance with the procedure prescribed under the Punjab Village Common Lands (Regulation) Act, 1961 (As Applicable to Haryana) and the Rules framed thereunder. We hope that the suit will be decided by the Collector within a period of nine months from the date of its filing.” However, counsel for the petitioners appearing in these two writ petitions submitted that these petitions be decided on merits. CWPs No. 20385 and 10521 of 2011 -14- We have heard learned counsel for the parties in detail and perused the record of the case. Learned counsel for the petitioners made the following submissions : (i) That the order dated 21.11.2000 passed by the Assistant Collector Ist Grade was in accordance with law and under the un-amended Section 13-A of the Act of 1961, the Assistant Collector Ist Grade was fully competent to decide the suit filed by the proprietors. According to the learned counsel, new Section 13-A inserted vide Haryana Amendment Act 9 of 1999 was not applicable to the pending suits, because this Section was inserted prospectively and not retrospectively. Therefore, on the date of decision by the Assistant Collector Ist Grade, though new Section 13-A was in force, but the same did not debar the Assistant Collector Ist Grade from adjudicating the title suit already pending with him. In support of his contention, learned counsel relied upon the decisions of the Hon'ble Supreme Court in R. Rajagopal Reddy (Dead) by LRs and others Versus Padmini Chandrasekharan (Dead) by LRs, (1995) 2 Supreme Court Cases 630, Shri Kishan alias Krishan Kumar and others Versus Manoj Kumar and others, (1998) 2 Supreme Court Cases 710 and Shyam Sunder and others Versus Ram Kumar and another, (2001) 8 Supreme Court Cases 24. (ii) That under Section 13-B (2) of the Act of 1961, the Commissioner has no suo motu power to set aside the order of the Assistant Collector Ist Grade, passed under the un-amended Section 13-A of the Act CWPs No. 20385 and 10521 of 2011 -15- of 1961. According to the learned counsel, under the aforesaid un-amended provision, a title suit could have been filed within a period of two years from the date of commencement of the Punjab Village Common Lands (Regulation) Haryana Amendment Act 1980, which was subsequently extended upto five years, and in this case, the proprietors (predecessors of the petitioners) filed the said suit before the Assistant Collector Ist Grade, within the prescribed period. Learned counsel argued that under sub-section (2) of Section 13-B of the Act of 1961, the Commissioner may, suo motu or on an application made to him by any aggrieved person, entertain the revision against the order passed by the Assistant Collector Ist Grade, if the said order was passed under the proviso to sub-section (1) of Section 7 and not against any other order. According to the learned counsel, against the order passed by the Assistant Collector Ist Grade under the un-amended Section 13-A of the Act of 1961, the Commissioner had no suo motu power to revise such an order passed by the Assistant Collector Ist Grade. While referring to Section 13-AA of the Act of 1961 (which was inserted vide Haryana Amendment Act 9 of 1999), learned counsel argued that against an order passed by the Collector under Section 13-A, revisional power has been given