IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Writ Petition No. 18117 of 2009 Date of decision: 26.11.2009 Gram Panchayat Kakoda …Petitioner Versus State of Haryana and ors …Respondents Present: Mr BS Bairagi, Advocate for the petitioner. S.S. SARON, J. Petitioner – Gram Panchayat – Kakoda, Tehsil Ishrana District Panipat, by way of the present petition under Articles 226/227 of the Constitution of India, seeks quashing of the order dated 17.9.2008 (P2) passed by the Collector, Panipat, order dated 16.12.2008 (P3) passed by the Commissioner, Rohtak Division, Rohtak and the order dated 16.7.2009 (P4) passed by the Financial Commissioner, Haryana. A further prayer has been made for directing the authorities to restore the order dated 27.8.2007 (P1) passed by the Assistant Collector Ist Grade, Panipat. The petitioner – Gram Panchayat filed an application under Section 7 of the Punjab Village Common Lands (Regulation) Act 1961 (as applicable in Haryana) ( Act – for short). It was alleged by the petitioner that according to measurement report dated 27.7.2005, some land in the revenue estate of village Kakoda, Tehsil Ishrana District Panipat, was in illegal occupation of various persons including Balwan (respondent-5). It is CWP 18117 of 2009 submitted that the said petitions were disposed of by the Assistant Collector Ist Grade, Panipat by a common order which was passed on 54 applications filed by the petitioner – Gram Panchayat. The petition of the Gram Panchayat was allowed by the Assistant Collector Ist Grade, Panipat vide order dated 27.8.2007 (P1). Against the said order, it is submitted that occupants of the land of the Gram Panchayat filed an appeal before the Collector, Panipat. The appeals were filed almost after one year of the passing of the order dated 27.8.2007 (P1) passed by the Assistant Collector Ist Grade, Panipat. The said appeals have been allowed by the Collector, Panipat, vide order dated 17.9.2008 (P2) and the case was remanded back to the Assistant Collector Ist Grade. The petitioner – Gram Panchayat filed 39 revision petitions against 39 separate but similar orders of the District Collector, Panipat before the Commissioner, Rohtak Division, Rohtak, which were dismissed on 16.12.2008 (P3). The petitioner – Gram Panchayat thereafter filed 39 revision petitions before the Financial Commissioner, Haryana, who has, vide order dated 16.7.2009 (P4), held the same to be not maintainable. Aggrieved against the same, the petitioner has filed the present petition. Learned counsel for the petitioner has contended that the appeal filed by respondent-5 – Balwan before the Collector Panipat against the order dated 27.8.2007 (P1) was highly belated inasmuch as it was filed after more than one year on 28.8.2008. Besides, it is submitted that the Collector gravely erred in remanding the matter to the Assistant Collector Ist Grade. It is submitted that the land in question is Panchayat land and it vests in the Panchayat. Therefore, the order of eviction was rightly passed by the Assistant Collector Ist Grade Panipat vide order dated 27.8.2007 (P1). 2 CWP 18117 of 2009 I have given my thoughtful consideration to the contentions of the learned counsel for the petitioner and perused the record. A perusal of the order dated 23.10.2008 (P2) passed by the Collector, Panipat shows that the contention on behalf of the occupants of the land was that the land in dispute is part of Jumla Mushtarka Malkan and after 1992, an amendment was made in the Act, by which land mentioned as Jumla Mushtarka Malkan was transferred to the Gram Panchayat and a mutation was entered in favour of the Gram Panchayat. A reference was made to the Full Bench judgment of this Court in Jai Singh v. State of Haryana (2003-2) PLR 658. It was contended that the Assistant Collector Ist Grade Panipat did not consider the same and without considering the same, has passed the order of eviction. Besides, it was necessary for the Assistant Collector Ist Grade Panipat to pass a speaking order on the question of title and then take some decision on merit. As regards delay in filing the appeals, it was held that wrong orders may be challenged at any time and there was no limitation for the same. The appeals of the occupants of the land were accepted and after setting aside the order dated 27.8.2007 (P1) of the Assistant Collector Ist Grade Panipat, the case was sent back to the Assistant Collector Ist Grade to pass a speaking order according to law. Against the order dated 23.10.2008 (Annexure P2) passed by the Collector Panipat, the petitioner Gram Panchayat filed 39 revision petitions against 39 separate but similar orders of District Collector, Panipat. It was contended by the petitioner Gram Panchayat that it was the owner of the land in question, which was reserved for the common purposes of the village community during consolidation. It was submitted that the Gram Panchayat had filed separate ejectment petitions under Section 7 of the Act, which 3 CWP 18117 of 2009 were rightly allowed by the Assistant Collector Ist Grade Panipat. However, the order of the Assistant Collector Ist Grade, Panipat was wrongly set aside by the Collector Panipat and the case was remanded. It may be noticed that the land in which Balwan (respondent No.5) and the other occupants are stated to be in illegal occupation, was not shown to be that of the Jumla Mushtarka Malkan. The said question as has been held by the Collector in his order dated 23.10.2008 (P3) is liable to be gone into by the Assistant Collector Ist Grade, Panipat. In fact, it was the case of the respondents before the Assistant Collector Ist Grade, Panipat that the land from which their eviction was sought, was not owned by the Gram Panchayat and it did not fall within the definition of ‘Shamlat Deh’. The land in fact was that of Jumla Mushtarka Malkan Hasab Rasad Rakba. It is further stated that inadvertently mutation No.612 was entered in favour of the Gram Panchayat. Against the same, a case was filed before this Court and was decided in favour of the owners. The Gram Panchayat had no right to file an application for their eviction. The stand of the occupants of the land was that it belongs to the Jumla Mushtarka Malkan and was used by the land owners of the village. The Panchayat had no right in respect of the same. Therefore, it is liable to be seen in the facts and circumstances of the case as to whether the land vests in the Gram Panchayat or it is that of the Jumla Mushtarka Malkan; besides, whether the said land was reserved or assigned for common purposes under the Consolidation Scheme framed under Section 14 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act 1948. The position as it stands is that the case stands remanded to the Assistant Collector Ist Grade, Panipat so as to determine the nature of the land and as to whom it vests in. There is no 4 CWP 18117 of 2009 material before this Court to go in the said question. The authorities under the Act would be in a better position to ascertain the true nature of the land on the basis of revenue records and other evidence and material which is produced before it. Therefore, it cannot be said that there is any illegality or irregularity in the order dated 23.10.2008 (P2) passed by the Collector, Panipat. The revision against the same has also been rightly dismissed by the Commissioner, Rohtak Division, Rohtak. The Commissioner, Rohtak Division, Rohtak in his order dated 16.12.2008 (P3) observed that the respondents before him had raised the question of title in their written statement before the Assistant Collector Ist Grade with regard to ownership of the land but the same was not decided by the Assistant Collector Ist Grade. It was observed that the question of title, if raised was liable to be decided before taking final decision in such proceedings. Therefore, indeed the matter is liable to be re-considered by the Assistant Collector Ist Grade so as to ascertain whether the land in question which is stated to be in the illegal occupation of Balwan (respondent-5) was earlier recorded as Jumla Mushtarka Malkan Hasab Rasad Khewat and whether it was reserved or assigned for common purposes of the village. Therefore, the order of remand having been passed for re-consideration of the matter would not warrant interference of this Court in exercise of its supervisory writ jurisdiction. Insofar as the contention of the petitioner that the appeal against the order dated 27.8.2007 (P1) passed by the Assistant Collector Ist Grade, Panipat was filed after more than a year on 28.8.2008, it may be noticed that the matter is now to be re-considered on merits. It is well- known that where technical considerations and cause of substantial justice 5 CWP 18117 of 2009 are pitted against each other, the cause of substantial justice is to be preferred for the other side cannot seek any advantage of a non-deliberate act in delay in filing the appeal. Even otherwise, in the facts and circumstances of the case, the question regarding the nature of the land is to be considered and determined. Consequently, there is no merit in this petition and the same is accordingly dismissed. 26.11.2009 ( S.S.SARON ) ASR JUDGE 6