CIVIL WRIT PETITION NO. 2424 of 1991 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CIVIL WRIT PETITION NO.2424 of 1991 DATE OF DECISION: JULY 15, 2011 Karta Ram & others ..Petitioners VERSUS Assistant Collector and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. R.S. Tacoria, Advocate, for the petitioners. None for respondent No.3. **** RANJIT SINGH, J. Nasib Singh, who is a resident of Village Jakhwala Teh. Pehowa, Distt. Kurukshetra, filed an application under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (for short ‘the Act’) for ejectment of the petitioners and respondent No.5 (Gurnam Singh) on the ground that the suit land measuring 27 kanals 6 marlas was reserved as pond during consolidation proceedings, whereas the petitioners and respondent No.5 have constructed their houses over it and thus, are in unauthorized possession. Jamabandi for the year 1984-85 was attached with the application. In the 1 CIVIL WRIT PETITION NO. 2424 of 1991 Jamabandi entry in the ownership column is described as ‘Panchayat Deh’ and in cultivation column is ‘Mqbuza Rafai Am’ and in column No.9 the nature of the land is described as ‘Gair Mumkin Johar’. This application was allowed by the Assistant Collector and the order evicted the petitioners and respondent No.4 passed besides imposing fine of Rs.2500/- per hectare per annum. The petitioners had filed an appeal before respondent No.2, but they remained unsuccessful. The revision was dismissed being not maintainable. Hence, they have filed the present writ petition. While admitting this writ petition, this Court had stayed the eviction. The said order has been continued ever since till date. The petitioners would plead that they are proprietors in the village and are having possession over portion of suit land as owners to the extent of their shares. It is stated that their forefathers had lived in the said place from the last 50 years and the petitioners had their respective houses on the suit land. In support, reference is made to jamabandi for the years 1943-44, which was produced before the Collector. The entry in cultivation column reads as ‘Makbuza Malkan’. From this, the petitioners would contend that they are having possession, which is very old. They would contest the subsequent entry, which has been relied upon by the applicant to seek their ejectment. No reply is filed. None has appeared to represent the respondents. At some stage, the applicant-Nasib Singh had appeared in person and had moved an application, whereon this 2 CIVIL WRIT PETITION NO. 2424 of 1991 Court had restrained the petitioners from carrying out any further construction. I have heard counsel for the petitioners. The sole submission made by the counsel for the petitioners is that the Assistant Collector had misinformed himself for continuing with the ejectment application filed under Section 7 (2) of the Act once the petitioners had raised a question of title. Counsel has referred to para 3 of the reply filed by the petitioners to the application filed by Nasib Singh. The petitioners have clearly said that they are in possession of the land over a portion of which they are the owners. It was, accordingly, pleaded that they are raising the question of title and since the question of the title is involved in this case, the Court has no jurisdiction to decide the application. To show that this question of title was not just raised for the purpose of raising objection, but in fact was supported on the basis of material on record, counsel refers to the report of Kanungo where this fact is recorded that in khasra numbers, 82 is in possession of different persons. The report is annexed with the map where the construction of houses is shown. Counsel also refers to the amended provisions of Sections 2 (g) and 5 (vi) of the Punjab Village Common Lands (Regulation) Act, 1961 amended by the State of Haryana which has defined portion of the land which will not be included in Shamilat Deh and is being used as gitwar, bara, manure pit, house or for cottage industry, immediately before commencement of the Act. These would not fall within the definition of shamilat deh. From this, the counsel contends that prima facie he has shown that 3 CIVIL WRIT PETITION NO. 2424 of 1991 the petitioners had the title and once this question of title was raised the Assistant Collector was under obligation to convert this petition under Section 13-A of the Act and deal with the same under the said section of the Act. In support, the counsel has referred to a case of Jagir Singh Versus Gram Panchayat Village Mirajpur and others, 1989 PLJ 494. It is observed in this case that where ownership of land is recorded in the revenue record as that of the Gram Panchayat. The duty of the officers would to find out whether suit land was shamilat deh or not and or whether land stood excluded under any of the exceptions. The Single Bench of this Court in Maru & others Versus The Collector, Rohtak & others, has held that where the petitioner has raised that question of title, it would be desirable for the Assistant Collector to decide the matter in terms of Section 13-A of the Act. While taking this view, ratio of law laid down in Tara Chand and Fateh Singh Versus Gram Panchayat and Gram Sabha of Village Atail and others, 1979 PLJ 1, is followed. In this case, the Court has held that when the question of tile 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 4 CIVIL WRIT PETITION NO. 2424 of 1991 avoiding unnecessary delay in the proceedings as has been occasioned in the case in hand. He could not opt for as 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. Since the petitioners have raised the question of title, the Assistant Collector was required to decide the question of tile first under Section 13(A) of the Act. The Collector has failed to do so in accordance with law. The impugned orders cannot be sustained. Accordingly, the orders Annexures P-4 & P-5 are set aside. The matter is remitted back to the Collector to decide the question of title under Section 13-A of the Act and then to pass any appropriate order in accordance with law. Parties through their counsel are directed to appear before the Collector on 29.8.2011. July 15, 2011 (RANJIT SINGH) monika JUDGE 5