Civil Writ Petition No. 1956 of 1985 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 1956 of 1985 Date of decision: 28.4.2009 Gurbakhsh Singh and others ...petitioners Versus State of Punjab and others ...respondents. CORAM: HON'BLE MR. JUSTICE RANJIT SINGH Present: Mr. Amit Jhanji, Advocate for the petitioners. Mr. Parveen Chander Goyal, Addl.A.G., Punjab for the State. Mr. Swapan Dhir, Advocate for Mr. Anju Kaushik, Advocate Mr. K.S. Boparai, Advocate for respondent No.4. ***** RANJIT SINGH J. This order will dispose of CWP Nos. 1956 of 1985, 3711, 4273, 4274, 4275, 4276, 4277 of 1987, as the common question of law arises in these cases. The facts are taken from CWP No. 1956 of 1985. The petitioners herein are residents of village Pandher Kheri, Tehsil and District Ludhiana. They are the land owners in the village having their individual khewats. By virtue of that, they claimed to be co-sharers in Jumla Mushtarqa Malkan land, which is left after consolidation operations in the village. The consolidation took place in the year 1964-65 and two khewats were created in respect of shamlat land. One of which belonged to the Panchayat and other Civil Writ Petition No. 1956 of 1985 2 was the Bachat land. Total area of these shamlat Panchayat land is 109 kanaL 18 marlas. The land of Jumla Mushtarqa Malkan, which is claimed to be a Bachat land is about 15 or 16 killas. The petitioners claim that they are in cultivating possession of some land in Jumla Mushtarqa Malkan and possession of each petitioners is as per their respective share in the shamlat land. This aspect, accordingly to the petitioners, is reflected in Khasra Girdawari entries annexed with the petition as Annexure P-2. On 8.8.1977, District Development and Panchayat Officer ordered the eviction of the petitioners from the land in their respective possessions. The petitioners filed an appeal against this order, which was accepted on 14.2.1979. Copy of the order is at Annexure P-4. The entries accordingly were made in Roznamcha Waqiati in village on 25.12.1979. It is alleged that subsequently Sarpanch, Gram Panchayat again moved an application before the District Development and Panchayat Officer, Ludhiana for eviction of the petitioners from the Jumla Mushtarqa Malkan land in their respective possession and the order of their eviction was passed on 26.10.1981 (Annexure P-6). Appeal filed by the petitioners against this order was dismissed on 16.11.1984. These orders are under challenge in the present writ petition. At the time of issuing notice of motion on 18.4.1985, dispossession of the petitioners was stayed. The writ petition was admitted on 18.9.1985 and has now come up for hearing. Respondents have filed written statement. It is pointed out as preliminary objection that land in dispute was left for common purposes of the village during consolidation, which was to augment Civil Writ Petition No. 1956 of 1985 3 income of the Punjab under Section 18 of the Consolidation Act. It is stated that the management, custody of this land vested in the Gram Panchayat under Section 23 (A) of the Act. It is also claimed that all rights and interests of individual land owners in this land stood extinguished. It is disclosed that Gurbakhsh Singh and Hardial Singh were members of the Advisory Committee on whose recommendations the scheme for consolidation was framed. Still Gurbakhsh Singh alongwith other land owner filed a petition under Section 42 of the Consolidation Act seeking partition of the land amongst the individual land owners. Additional Director, rejected this petition on 19.9.1975. Accordingly, the land is being leased out by the Gram Panchayat since 1963-64 by way of public auction from year to year. Panchayat has undertaken to produce the receipt book and Patta-namas before the Court at the time of hearing, if required. To substantiate that the land had regularly been auctioned by the Gram Panchayat on different occasions, various minutes of the auction proceedings are annexed with the reply. It is stated that minutes of auction proceedings dated 28.8.1975 contain signatures of Hardial Singh, Gurbachan Singh and Joginder Singh, who are the petitioners and Joginder Singh. Minutes dated 24.7.1972 auctioning this land and containing signatures of Hardial Singh and Gurbachan Singh and the minutes dated 4.7.1973, 7.11.1973, 21.6.1974 and 19.8.1975, are also referred to in the reply. Reference is also made to a criminal case titled State of Labh Singh. In the said case, Gurbakhsh Singh, Karnail Singh and Gurbachan Singh petitioners made a detailed statement saying that the disputed land was Mushtarka Malkan. The petitioners statedly admitted in a Civil Writ Petition No. 1956 of 1985 4 civil suit filed in the year 1975 that the land in dispute was reserved by the consolidation Authority for the common benefits of the inhabitants of the village. Making reference to all these facts and by disclosing that the petitioners had took forcible possession of the part of the land, which the Panchayat got vacated by moving an application under Section 7 of the Punjab Village Common Lands Act, 1961, it is averred that present writ petition to claim land is not maintainable. Mr. Amit Jhanji, counsel for the petitioners has referred to the impugned orders to urge that the land was Jumla Mushtarka Malkhan land and as such application under Section 7 seeking eviction of the petitioners was not maintainable. The counsel would further submit that the impugned orders cannot be sustained on the ground that the petitioners in response to the application filed under Section 7 has raised a question of title, which has not been decided and thus would plead that case be remanded back to the Assistant Collector for reconsidering and deciding the title and then to decide if the petitioners were required to be evicted. In support of his submission, counsel referred to the case of Kala Singh versus Commissioner, Hisar Division and others 1984 PLJ 169. In this case, the Court has held that if the land is not reserved for common purposes during consolidation proceedings, it would be a shamlat deh and as such the Assistant collector would have no jurisdiction to entertain the application under Section 7 of the Act. Reference is also made to the case of Jai Singh and others versus State of Punjab and others 1991 PLJ 659 to urge that it is incumbent upon Civil Writ Petition No. 1956 of 1985 5 authority to first decide question of title under Section 11 and then proceed to decide application under Section 7 where it is disputed that the land is not a shamlat deh and as such had not vested in the Gram Panchayat. Support is also sought from the case of Gram Panchayat versus Commissioner Amabla Division and others 2007 (4) RCR (Civil) 59. In this case Collector had ordered that the question of title be decided first and matter regarding ejectment will be taken up thereafter. This order was upheld by the Commissioner and this Court had declined to interfere in the same. Reference is made to Ladu Ram versus The Commissioner, Hisar Division, Hisar and others 2009 (1) RCR (Civil) 747, where this Court took a view that Assistant Collector could not proceed further in the matter of ejectment where the question of title was involved. Counsel for the respondents, however, points out that the petitioners did not place any material on record which prima facie indicated that there was dispute in regard to question of title. Under such circumstances, as per the counsel, the authorities were not under any obligation to decide the question of title before directing eviction of the petitioners. I have heard the counsel for the parties. District Development and Panchayat Officer has considered the material and the evidence produced before him in detail. He has noticed that it was accepted before him that as per the consolidation scheme, the land in dispute was left under the management of the Panchayat. The case filed by the proprietors for partition of the land was dismissed by the Director, Consolidation. Copy of this order was also Civil Writ Petition No. 1956 of 1985 6 exhibited on record before the District Development and Panchayat Officer. The fact that the Panchayat had been leasing this land since 1964 is also noticed. Reference is then made to the earlier order passed by the District Development and Panchayat Officer, wherein he had directed ejectment of the petitioners. The Panchayat was accordingly put in possession of the land in the year 1978. Having noticed these facts, District Development and Panchayat Officer went on to record that no documentary evidence was produced by the petitioners to support their plea that they were in possession of the disputed land for 17 to 18 years as claimed. He accordingly came to conclude that the land in question belong to the Panchayat as the petitioners could not produce any document in support of their claim. Thus the application under Section 7 was allowed and order of the eviction of the petitioners made. Joint Director, Panchayat while dismissing the appeal filed by the petitioners also took notice of all the these facts. He also considered the fact that application filed by the villagers under Section 42 of the Consolidation Act for partition of the land was dismissed in the year 1975. Even suit filed for restraining the Gram Panchayat from auctioning the land was also dismissed on 25.9.1975. In view of this overwhelming evidence on record and the stand taken in the written statement would evidently show that the petitioners have not been able to show even any prima facie material, which would indicate that any dispute in regard to the title of the land was at issue. Numerous documents are referred in the written statement showing that the petitioners were the one who were signatories on the minutes when the land was put to auction by the Panchayat. The petitioners have Civil Writ Petition No. 1956 of 1985 7 not denied these facts. It is also not disputed that application filed by the petitioners and the other share holders for partition of the land was declined and it was not further pursued. The petitioners even did not succeed in the efforts to restrain the Panchayat from auctioning the land. The Panchayat would also refer to the admissions made by some of the petitioners to the effect that the land in question was being auctioned by the Panchayat. The fact that some of the petitioners were member of the Advisory Committee and on their recommendations consolidation scheme was framed is also not disputed by the petitioners. The suit filed by the petitioners would also show that they had themselves mentioned that the land in question was reserved for common benefits of the inhabitants of the village by the consolidation authority. Copy of the suit is annexed with the reply as Annexure R-6. In view of this overwhelming record, it is not possible for the petitioners to urge that they have a title to the land or that they had placed material to show that question of title would be involved in this case, which would need to be decided. No doubt, when the question of title is raised in an application filed under Section 7 then the authorities may have to decide the title before ordering the eviction but this requirement would arise only if it is prima facie shown on the basis of document that the question of title would be in an issue. This is what is observed in Ladu Ram's case (supra). Merely by raising the question of title the person would not be able to ask for deciding the same. Reading of Section 7 of the Act would make it clear. The authorities may be under an obligation to decide the title only once prima facie material is placed to show that the Civil Writ Petition No. 1956 of 1985 8 question of title is being raised and may require adjudication. The ratio of the judgments cited by the counsel for the petitioners thus would not be attracted to the facts to this case. The petitioners have not been able to show even any prima facie material that they have a title to this property which is required to be decided. Rather all the material and evidence, which was produced by the Panchayat clearly prove that this land was reserved for common purposes of the village and had been so used and was regularly being auctioned by the Panchayat where the petitioners were also the participants on behalf of the Panchayat in auctioning the land. The view thus is possible that there was no prima facie material placed by the petitioners to show that any question of title would require adjudication. It can even be observed that the authorities had infact considered the relevant material to satisfy itself that title was that of the Panchayat or at any rate, it need not to have been gone into having regard to the facts pleaded and proved on record of the case. The impugned order does not suffer from infirmity, which would call for any interference in exercise of writ jurisdiction. The writ petition is accordingly dismissed. April 28, 2009 ( RANJIT SINGH ) rts JUDGE