In the High Court of Punjab and Haryana at Chandigarh ...... C.W.P. No.17768 of 2006 ..... Date of decision:15.7.2009 Amar Singh and others .....Petitioners v. State of Haryana and others .....Respondents .... Present: Mr. Sanjiv Gupta, Advocate for the petitioners. Mr. Sudhir Makkar, Senior Deputy Advocate General, Haryana for respondents No.1 to 3. Mr. Ashok Verma, Advocate for respondent No.4-Gram Panchayat. ..... S.S. Saron, J. Heard learned counsel for the parties at length. The civil writ petition has been filed under Articles 226/227 of the Constitution of India seeking quashing of the order dated 3.10.2006 (Annexure-P.10) passed by the Deputy Commissioner, Sirsa in terms of which the claim of the petitioners has not been accepted. The dispute in the present case relates to two parcels of land measuring 26 Kanals 6 Marlas comprised in Rectangle No.118, Khasra No.2 (8-0); 3 (7-0); Rectangle No.119, Khasra No.6 (7-16) and 15 (3-10); besides, land measuring 10 Kanals 17 Marlas comprised in Rectangle No.118, Khasra No.9 (5-0); 10/2 (2-13), 11/1 (3-4) situated in Village Godikan, Tehsil and District Sirsa. The Gram Panchayat Godikan (respondent No.4) filed two separate petitions dated 8.6.2005 (Annexures- P.11 and P.12) under Section 7(1) of the Punjab Village Common Lands C.W.P. No.17768 of 2006 [2] (Regulation) Act, 1961 (as applicable in the State of Haryana) (`Act' – for short) seeking eviction of Amar Singh (petitioner No.1) from land measuring 10 Kanals 17 Marlas. Another petition was filed by the Gram Panchayat (respondent No.4) seeking eviction of the land measuring 26 Kanals 6 Marlas against Amar Singh; Badri Ram alias Badri Parshad; Ram Chander and Ram Kishan (petitioners). The petitioners claim that the land from which their eviction is sought is that of `Jumla Mushtarka Malkan', which does not vest in the Gram Panchayat. They had earlier filed CWP No.9008 of 2006 which was disposed of by this Court vide order dated 31.5.2006 with the direction to dispose of the representations (Annexures-P.9 and P.10) filed by the petitioners. In consequence of the directions issued by this Court the said representations have been decided in terms of order dated 3.10.2006 (Annexure-P.10) passed by the Deputy Commissioner, Sirsa. The said order is assailed by the petitioners. In the two petitions filed by the Gram Panchayat (respondent No.4) under Section 7 (1) of the Act eviction has been sought from two separate parcels of land measuring 10 Kanals 17 Marlas and 26 Kanals and 6 Marlas respectively, the details of which has been mentioned above. According to the Gram Panchayat (respondent No.4) the possession of the petitioners in the aforesaid land was illegal and unauthorized and, therefore, they are liable to be evicted. According to the petitioners the said land measuring 10 Kanals 17 Marlas has been recorded in the Jamabandi for the year 1987-88 (Annexure-P.4) in the column of ownership as Mushtarka Malkan Hasab Rasad Raqba. Besides, the same position has been reiterated in the C.W.P. No.17768 of 2006 [3] Jamabandi for the year 1992-93. The proceedings under Section 7 are pending before Assistant Collector Ist Grade. The complete revenue records giving the details and the nature of land are not before this Court. It may, however, be noticed that in terms of Section 7 (1) an Assistant Collector of the first grade having jurisdiction in the village may, either suo motu or on an application made to him by a Panchayat or an inhabitant of the village or the Block Development and Panchayat Officer or Social Education and Panchayat Officer, or any other Officer authorized by the Block Development and Panchayat Officer, after making such summary inquiry as he may deem fit and in accordance with such procedure as may be prescribed, eject any person who is in wrongful or unauthorized 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 the Act and put the panchayat in possession thereof and for so doing 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. In terms of the proviso to Section 7 (1) if in any such proceedings a 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 under Section 7 of the Act. As already noticed, the Gram Panchayat has filed two separate petitions (Anneuxres.P.11 and P.12) seeking eviction of the petitioners from the land in dispute. In case the petitioners claim any title to the property the same is to be urged before the Assistant Collector by invoking the proviso C.W.P. No.17768 of 2006 [4] to Section 7(1) of the Act. The same is to be urged and proved prima facie on the basis of documents that the question of title is really involved in terms of proviso to Section 7 (1) of the Act. Besides, the petitioners also have a remedy under Section 13-A of the Act claiming right, title or interest in any land or immovable property vested or deemed to have been vested in the panchayat under the Act. Therefore, the decision of the Deputy Commissioner though on the directions of this Court would not, in any case, determine the claim of either party with regard to their right, title or interest. The same can only be determined in accordance with the provisions of the Act. The power to determine whether a question of title is really involved vests with the Assistant Collector of the first grade in terms of the proviso to Section 7(1) of the Act. Besides, the Collector has the power to adjudicate the claim of any person in respect to his right, title or interest in any land or other immovable property vested or deemed to have been vested in the Panchayat under the Act in a suit filed for such adjudication. In State of U.P. v. Shingara Singh, AIR 1964 SC 358 the principle that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that the other methods of performance are necessarily forbidden was applied. In Union of India v. Rajpal Singh, (2009) 1 SCC 216 discharge of a Junior Commissioned Officer (JCO) on ground of medical unfitness on the recommendation of Release Medical Board was held to be invalid. It was held that the rule prescribes a particular procedure for discharge of a JCO on account of medical unfitness, which must be followed and, therefore, any order of discharge passed without subjecting the respondent to the Invalidating Board would fall foul of the Statutory C.W.P. No.17768 of 2006 [5] rule. Therefore, for the determination of the question of title in proceedings under Section 7 of the Act if to be raised is to be in the manner provided for in terms of the proviso to Section 7(1) of the Act. Besides, adjudication of right, title or interest in any land vested or deemed to have been vested in the Panchayat is to be done by the Collector in accordance with the provisions of Section 13-A of the Act. As such, the forum of the Deputy Commissioner in deciding the representations in terms of the order dated 3.10.2006 (Annexure-P.10) is not in accordance with the statutory provisions of the Act. The Supreme Court in the case of Gram Panchayat, Nurpur v. State of Punjab and others, (1998) 8 SCC 672 where question of title with regard to `Shamilat Deh' land was decided by the Director Consolidation while exercising jurisdiction under Section 42-A of the Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 held that Collector under the Act is the competent authority to adjudicate and decide the said question. The same view was reiterated in Gram Panchayat Village Kot-Mana v. Additional Director, Consolidation of Holdings and others, (1998) 9 SCC 269 in which reliance was placed on the case of Gram Panchayat Village Sidh v. Additional Director, Consolidation of Holdings Punjab and others , Civil Appeal No.14786 of 1996 decided on 21.11.1996. Therefore, in terms of the provisions of the Act the question of title is liable to be raised in the proceedings under Section 7(1) of the Act on the basis of documents that the land measuring 26 Kanals 6 Marlas and 10 Kanals 17 Marlas is not in the ownership of the Gram Panchayat and that the petitioners have a right, title or interest in the same. In case such a plea is raised the same is liable to be decided by the Assistant Collector Ist Grade C.W.P. No.17768 of 2006 [6] in proceedings under Section 7(1) of the Act or adjudicated by the Collector in a suit under Section 13-A of the Act, as the case may be. The order dated 3.10.2006 (Annexure-P.10) passed by the Deputy Commissioner is inconsequential as the same does not determine the right, claim or interest of either parties in accordance with the provisions of the Act. The same is not liable to be referred or adverted to for any purpose. Learned counsel appearing for the Gram Panchayat (respondent No.4) has fairly stated that in case the question of title is raised by the petitioners and is held to be prima facie proved on the basis of documents by the Assistant Collector Ist Grade, the Gram Panchayat (respondent No.4) will not initiate proceedings for his dispossession till such question is decided. In view of the above, the petition is disposed of with the direction that the petitioners may first raise their claim to question of title in proceedings under Section 7(1) of the Act by prima facie showing on the basis of documents before the Assistant Collector Ist Grade that question of title is really involved or if so advised they may file a suit under Section 13- A of the Act. However, for the present the question of title cannot be said to be involved. In case, it is raised the competent authorities under the Act shall consider the question on the basis of documents with regard to two separate parcels of land measuring 26 Kanals 6 Marlas and 10 Kanals 17 Marlas, the details of which are mentioned above. July 15, 2009. (S.S. Saron) Judge *hsp* NOTE: Whether to be referred to the Reporter or not:Yes/No