Civil Writ Petition No.3776 of 1989 1 IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Writ Petition No.3776 of 1989 Date of Decision:-November 3,2009 Sewa Ram and Kanwar Bhan ...Petitioners Versus Gram Panchayat village Shergarh Tapu and others ...Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present: Mr.Ram Chand Saini, Advocate for the petitioners. Mr.Amit Ghanghas, Advocate for respondent No.1. Mehinder Singh Sullar, J. Invoking the provisions of this Court under Articles 226/227 of the Constitution of India, the petitioners have directed the present writ petition for quashing the impugned order of Assistant Collector Ist Grade, Karnal dated 12.12.1988 (Annexure P3). The matrix of the facts culminating in the commencement, relevant for disposal, of present writ petition and emanating from the record is that originally, Gram Panchayat-respondent No.1 filed a petition (Annexure P1) under section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (as applicable to State of Haryana) (hereinafter to be referred as “the Act”) before the Assistant Collector, for ejectment of the petitioners and others from the land comprised in Khasra Nos.73 and 76 situated in village Shergarh Tapu Distt.Karnal on the ground that as the Gram Panchayat is the Civil Writ Petition No.3776 of 1989 2 owner and petitioners are in unauthorized possession, therefore, they are liable to be evicted from the same. The petitioners contested the petition under section 7 of the Act and filed the reply (Annexure P2), inter-alia, stoutly denying the title of the Gram Panchayat, and all other allegations contained in the petition and claimed their ownership. The Assistant Collector accepted the petition of the Gram Panchayat, ejected the petitioners and imposed a penalty of Rs.2000/- per annum per hectare vide impugned order (Annexure P3). The petitioners did not feel satisfied with the impugned order and filed the present writ petition. The case set up by the petitioners before the Assistant Collector and this Court, in brief, in so far as relevant, was that the Gram Panchayat is not owner and the land in dispute was Banjar and Gairmumkin Jungle and the abadi deh. They are in possession of the land in dispute for the last more than 40 years and, thus, they have become its owners. According to the petitioners, although they hotly contested the petition under section 7 of the Act (Annexure P1) by filing reply (Annexure P2), produced the revenue record of the land in dispute and raised questions of title, but the Collector did not decide the same and illegally ordered their ejectment. Levelling a variety of allegations, in all, according to the petitioners that they are owners in possession and the Gram Panchayat has no concern with the land in dispute. They raised legitimate questions of title, but instead of deciding the same first, the Collector has wrongly ordered their eviction. On the basis of the Civil Writ Petition No.3776 of 1989 3 aforesaid allegations, the petitioners have filed the present writ petition in the manner indicated here-in-above. The Gram Panchayat contested the writ petition and filed written statement, inter-alia, pleading preliminary objection of maintainability of the writ petition. On merits, it was claimed that the land in dispute vests in the Gram Panchayat as per section 2 (g) (4) of the Act, which was reserved for extension of abadi and Rasta during consolidation of holdings in the year 1964-65 as per jamabandi for the year 1981-82 (Annexure R1/1) and copy of Sharat-Wajab-Ul-Arz (Annexure R1/2). However, it was admitted that although the petitioners raised question of title, but the same was not proved. In all, according to the Gram Panchayat, the land was reserved for common purposes, it vests in it under section 2 (g) of the Act and as the petitioners were in unauthorized possession, therefore, the Collector has rightly ordered their ejectment. It will not be out of place to mention here that the Gram Panchayat has stoutly denied all other allegations contained in the writ petition and prayed for its dismissal. That is how I am seized of the matter. Having heard the learned counsel for the parties, having gone through the record of the case with their valuable help and after bestowal of thoughts over the entire matter, to me, as the impugned order (Annexure P3) cannot legally be maintained, therefore, this writ petition deserves to be accepted, for the reasons mentioned here-in- below. As mentioned above, the petitioners claimed that they are owners in possession of the land in dispute, on the contrary, Civil Writ Petition No.3776 of 1989 4 according to the Gram Panchayat, it has already vested in it under section 2(g) of the Act. Thus, it would be seen that the facts of this case are neither intricate nor much disputed. Above being the position, now the short and significant question, though important, arises for determination in this petition, is that, at what stage and which authority will decide the question of title of the land in dispute between the parties. The Gram Panchayat invoked the provisions of Section 7 of the Act for the ejectment of the petitioners, which postulates that an Assistant Collector of the first grade on an application made to him by the Panchayat after making such summary enquiry 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 this Act and put the panchayat in possession thereof. Proviso to sub-section (1) of this section further posits that if in any such proceedings the 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 therein. According to sub-section (3) of section 7, the procedure for deciding the question of title under proviso to sub-section (1) shall be the same as laid down in the Code of Civil Procedure, 1908. A co-joint reading of section 7 of the Act would reveal that it was incumbent upon and the statutory/mandatory duty of the Civil Writ Petition No.3776 of 1989 5 Assistant Collector to decide the questions of title either way, before ordering the ejectment of the petitioners and without deciding the questions of title first, the Collector was not legally authorized to order their ejectment as has been done in this case. However, the celebrated argument of learned counsel for the respondent-Gram Panchayat that as the petitioners did not raise any legitimate questions of title, therefore, the Collector has rightly ordered their eviction, is not only devoid of merits, but misplaced as well. Because the bare perusal of the reply (Annexure P2) filed by the petitioners before the Collector would reveal that they have specifically pleaded that the land in dispute never vested in the Gram Panchayat and civil court, Karnal had already passed a decree in their favour, vide which Gram Panchayat was restrained from dispossessing them in any manner. They have also pleaded that it was Banjar Land and Jungle. They converted it fit for cultivation by putting hard labour and since then are in possession for the last more than 40 years. They are proprietors of the village and cultivating the same as such without any payment of any kind. Not only that, the petitioners have specifically raised questions of title, the Assistant Collector also noticed the revenue record i.e. Jamabandi, khasra-girdawari and pedigree table but has not decided the questions of title either way as contemplated under section 7 of the Act. The matter did not rest there. Even in the present writ petition, the Gram Panchayat has produced the copy of jamabandi for the year 1981-82 (Annexure R1/1) in which the abadi deh has been depicted as owner, while Maqbuja abadi deh (gairmumkin Civil Writ Petition No.3776 of 1989 6 abadi) has been described in the column of cultivation. If that is so, then the contention of learned counsel for the petitioners that such abadi deh is excluded from the definition of shamilat deh as defined under section 2 (g) of the Act and will not vest in the Gram Panchayat, prima-facie, has considerable force. Be that as it may, the perusal of the record would indicate that the petitioners, who were stated to be share-holders and are in possession of the land in dispute, have raised the questions of title. Once, it is proved that they have raised and prima facie proved such valid and legitimate questions of title (as in the present case), in that eventuality, the Assistant Collector ought to have stayed his hand as regard to ejectment petition was concerned at that stage and it was incumbent upon him to first decide the questions of title either way as per sub-section (3) of Section 7 of the Act before passing the order of ejectment against the petitioners, because the legislature intent and mandate under section 7 of the Act is clear and implicit in this respect, which admittedly, he has omitted to do so . Meaning thereby, the Collector has failed to perform his statutory duty and illegally passed the impugned order (Annexure P3), which cannot legally be maintained, in the obtaining circumstances of the case. In the light of the aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the adjudication of questions of title between the parties, this writ petition is hereby accepted with costs. The impugned order (Annexure P3) is set aside and the matter is remitted back to the Assistant Collector for its fresh decision on the questions Civil Writ Petition No.3776 of 1989 7 of title in accordance with law and then to pass appropriate order as warranted by the situation. However, it is made clear that nothing observed in this judgment would reflect in any manner on the merits of the main case, because the same has been so recorded for a limited purpose of deciding the present writ petition. The parties are directed to appear before the Assistant Collector on 17.12.2009. (Mehinder Singh Sullar) November 3,2009 Judge AS