IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 13250 of 1995 Date of Decision: November 11, 2011 Resham Singh …Petitioner Versus The State of Punjab and others. …Respondents CORAM: HON’BLE MR. JUSTICE PARAMJEET SINGH Present: Mr. M.S. Kang, Advocate, for the petitioner. Mr. Vijay Chaudhary, A.A.G., Punjab, for respondent Nos. 1, 2, 4 to 7. Mr. S.K. Arora, Advocate, for respondent No.3. None for respondent Nos. 8 to 10. 1. Whether reporters of local news papers may be Allowed to see judgment? 2. To be referred to reporters or not? 3. Whether the judgment should be reported in the Digest? **** Paramjeet Singh, J. This writ petition has been filed under Articles 226/227 of the Constitution of India for quashing notice dated 12.06.1995 (Annexure P/5) issued under section 150 Of the Punjab land Revenue Act 1887( hereinafter to be referred in short as “the Act”) and order dated 30.08.1995 CWP No. 13250 of 1995 (Annexure P/9) passed by District Collector, Ferozepur. Further the petitioner claims compensation worth Rs.1,30,000/- for loss due to non- cultivating the land in question. The brief facts of the case, as stated in the writ petition, are that the petitioner is in cultivating possession of the land measuring 49 Kanals 2 Marlas situated in Village Manjhwala, Tehsil Zira, District Ferozepur,. The land in question in the revenue record is described as “JUMLA MUSHTARKA MALKAN VA DEEGAR HAQDARAN HASAB RASAD RAQBA”. This land has been carved out at the time of consolidation by imposing prorata cut in the holdings of right holders of the village. The land in question is not being used for any common purpose, rather the same is under cultivation of the share-holders of the village as owners. It is agitated by the petitioner that the Mutation No. 346 has been sanctioned in the name of the Gram Panchayat by the Revenue Authorities illegally, arbitrary without notice to the right holders and the same does not confer title as owner on the Gram Panchayat. It is also alleged by the petitioner that earlier a suit for permanent injunction was filed by the petitioner against the Gram Panchayat which was contested by the Gram Panchayat and a decree had been passed in favour of the petitioner restraining the Gram Panchayat from interfering in his 2 CWP No. 13250 of 1995 possession vide decree dated 11.09.1992 (Annexure P/1). It is also pleaded by the petitioner that earlier Gram Panchayat had filed application under Sections 4, 5 and 7 of the Punjab Public Premises and Land Eviction and Rent Recovery Act, 1973. The said application of the Gram Panchayat was dismissed vide order dated 27.03.1995 (Annexure P/2), prima facie holding that the land in dispute does not fall within the definition of Public Premises or Section 2(g) of the Punjab Village Common Lands (Regulation) Act, 1961. It is further averred by the petitioner that against the said order, Gram Panchayat had filed appeal before the Commissioner, Ferozepur Division, Ferozepur, however, the parties have failed to show any order, passed in the said appeal. It is submitted that the matter has also come before the Additional Director Consolidation of Holdings who had ordered status quo vide order dated 15.06.1993 (Annexure P/3). Respondent Nos. 1, 2, 5, 6 and 7 have filed separate written statements. It stated in reply filed by respondent Nos. 1, 2 and 5 that alternative remedy of appeal is available, hence, present petition is not maintainable. The possession of the land in dispute has already been handed over by Sub Divisional Magistrate, Zira to the Sarpanch of the Gram Panchayat in the presence of the Revenue Authorities on 31.08.1995 vide rapat No. 570 duly entered in 3 CWP No. 13250 of 1995 the Roznamcha Waquiati. It is also pleaded that the Deputy Commissioner has full power to issue the eviction order in respect of the land which is encroached upon by the petitioner herein. Respondent No.6 – Block Development and Panchayat Officer has submitted in his written statement, on identical lines. Respondent No.7 has stated that police help was provided and possession of the land was delivered. I have heard the learned counsel for the parties and have perused the record. Learned counsel for the petitioner contended that impugned notice dated 12.06.1995 (Annexure P/5) is defective being against the provisions of Section 150 of the Act, so, is illegal, arbitrary and without jurisdiction. The order dated 30.08.1995 (Annexure P/9) is also illegal, arbitrary and not sustainable in the eyes of law. The learned counsel contended that the Deputy Commissioner can only proceed under Section 150 of the Act if a co-sharer submits application stating that the land reserved for common purpose has been encroached upon by one of the co-sharers. The learned counsel for the petitioner further contended that such an order shall be subject to any decree/order which may be subsequently passed any Court of competent jurisdiction. Reference to the relevant provision of Section 150 is necessary, which reads as under:- 4 CWP No. 13250 of 1995 “150.Prevention of encroachment on common lands – (1) where land which has been reserved for the common purposes of the co-sharers therein has been encroached on by any co-sharer, a Revenue- Officer may, on the application of any other co- sharer, eject the encroaching co-sharer from the land and by order proclaimed in manner mentioned in Section 22, forbid repetition of the encroachment. (2) The proceeding of the Revenue-officer under sub-section (1) shall be subject to any decree or order which may be subsequently passed by any Court of competent jurisdiction.” The reading of Section 150 of the Act, makes it clear that firstly, the land must be reserved for the common purposes of the co-sharers; secondly, it must have been encroached on by any co-sharer; thirdly, ejectment of the encroaching co-sharer can be at the instance of any other co- sharer. The order of the Collector operates only for limited period and it is subject to any decree or order which may be subsequently passed by the Court of competent jurisdiction. The notice 12.06.2005 (Annexure P/5) which is challenged in this writ petition reads as under:- “That it has come to my notice that you are in unauthorized possession of land measuring 49K 2M Khasra Nos. 13M //13(8-0), 18/1 (3-7), 18M//16(4- 5 CWP No. 13250 of 1995 8), 17(8-0), 18(8-0), 19(7-2), 22 (0-6), 23 (3-0), 24 (3- 0), 25(1-10) situated in Village Manjhwala, Tehsil Zira, which is owned by Gram Panchayat, Manjhwala. By this notice I call upon you that you appear in person in my court at 10 AM on 21.6.95 and show cause as to why the above said land be not got vacated from unauthorise possession. In the case of non-appearance exparte decision would be given against you and, thereafter no objection would remain worth hearing.” When the said notice is examined in the light of the aforesaid provisions of the Act, I find that in the notice dated 12.06.2005 (Annexure P/5), it is nowhere mentioned that the petitioner has encroached upon the land as cosharer, rather, it is alleged that the possession over the land is unauthorized. It is also not mentioned in the notice that any application has been given by a co-sharer. It is also not mentioned that the said land is used for common purposes. So, the notice issued by the District Collector to the petitioner does not fulfill the ingredients of Section 150 of the Act, so the same is defective and cannot be said to be a valid notice. So I hold that notice dated 12.06.2005 (Annexure P/5), is illegal, arbitrary and not sustainable in the eyes of law, hence, it is quashed. 6 CWP No. 13250 of 1995 The order (Annexure P/9) is based on the notice (Annexure P/5). As notice stands quashed, the impugned order dated 30.08.1995 (Annexure P/9) is also not sustainable in the eyes of law, hence, this order is also quashed. Further, prayer in this writ petition is for compensation to the tune of Rs.1,30,000/- for the loss of the non-cultivation of the disputed land. There is no iota of evidence on record in the shape of crops sown and the average yield per acre per year. Thus, there is no cogent evidence on record to come to a conclusion that damage to the tune of Rs.1,30,000/- had been caused to the petitioner. So the prayer for award of damages to the petitioner is rejected. I deem it appropriate to observe here that prima facie the question of title is involved with regard to the land in dispute and the said question of title could be got decided from the Competent Authority under the provisions of the Punjab Village Common Lands (Regulation) Act. Until the question of title is not got decided either at the instance of the petitioner or the Gram Panchayat, the amount deposited by the petitioner in pursuance to the order dated 06.03.1996 passed in this writ petition will not be disbursed to either of the parties. The petitioner will further continue to deposit at the rate and terms mentioned in the order dated 06.03.1996. 7 CWP No. 13250 of 1995 The Gram Panchayat is granted liberty to proceed against the petitioner for ejectment under the provisions of the Punjab Village Common Lands (Regulation) Act 1961 or may avail any other appropriate remedy, in accordance with law. Accordingly, the present petition is partly allowed in the above terms. No order as to costs. November 11, 2011 (Paramjeet Singh) vkd Judge 8