IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP 9032 of 2005 Date of decision: 17.9.2009 Balwinder Singh ….Petitioner Vs Joint Development Commissioner (IRD), Punjab, Sector 22, Chandigarh (Exercising the Powers of Commissioner) and ors ….Respondents … CWP 9034 of 2005 Baljit Kumar ….Petitioner Vs Joint Development Commissioner (IRD), Punjab, Sector 22, Chandigarh (Exercising the Powers of Commissioner) and ors ….Respondents … CWP 7447 of 2005 Kashmir Singh and anr ….Petitioners Vs Joint Development Commissioner (Exercising the Powers of Commissioner) Punjab, Chandigarh and ors …. Respondents … CWP 10604 of 2005 Smt Charanjit Kaur ….Petitioner Vs Joint Development Commissioner (Exercising the Powers of Commissioner) Punjab, Chandigarh and ors ….Respondents … CWP 9032 of 2005 2 CWP 10774 of 2005 Ajaib Singh ….Petitioner Vs Joint Development Commissioner (Exercising the Powers of Commissioner) Punjab, Chandigarh and ors ….Respondents … Present: Mr Vikas Bahl, Advocate for the petitioners in CWPs 9032 and 9034 of 2005. Mr Umesh Kumar Kanwar, Advocate for Mr RS Chauhan, Advocate for the petitioners in CWPs 7447, 10774 and 10604 of 2005. Mr HS Gill, DAG Punjab for the State. Mr BS Bal, Advocate for respondent-3 Gram Panchayat Mirzapur. S.S.SARON, J. This order will dispose of CWPs 7447, 9032, 9034, 10604 and 10774 of 2005 as they relate to common questions of law and facts. CWP 9032 of 2005 Petitioner – Balwinder Singh seeks quashing of the order dated 12.1.2005 (P6) passed by the Commissioner/Joint Development Commissioner, IRD Punjab (respondent-1) whereby the appeal filed by the petitioner against the order dated 14.11.2000 (P4) passed by the Collector/DDPO (respondent-2) has been dismissed. A further prayer has been made for quashing the order dated 14.11.2000 (P4) passed by the Collector/DDPO ordering the eviction of the petitioner from the land in dispute. The petitioner is a resident of village Mirzapur. The case of the petitioner is that he is in possession of land measuring 15 Kanals 2 Marlas CWP 9032 of 2005 3 comprised in Khasra Nos.13//16 (8-0) and 17 (7-2) which is the land of the proprietors of the village. The said land adjoins the other land of the petitioner measuring 32 Kanals. The land claimed by the petitioner is recorded in the revenue records as ‘Sailab’. Besides, it has never been used for common purposes. In the Jamabandi for the year 1994-95, the aforesaid land in the column of ownership is recorded as ‘Shamlat Deh Hasab Rasad Khewat’ and is in the occupation of the petitioner. It is recorded as ‘Sailab’. It is submitted that the Gram Panchayat has no right to possession of the said land. CWP 9034 of 2005 Petitioner – Baljit Kumar seeks quashing of the order dated 12.1.2005 (P7) passed by the Commissioner/Joint Development Commissioner, IRD Punjab (respondent-1) vide which the appeal of the petitioner against the order dated 14.11.2000 (P3) passed by the Collector/DDPO, has been dismissed. The case of the petitioner is that land measuring 33 Kanals 12 Marlas comprised in Khasra Nos.13//20 and 21; Khasra No. 24//11 and Khasra Nos.25//5 and 6 belongs to the proprietors of the village and is in possession of the petitioner. The said land adjoins the other land of the petitioner and in the ownership of the proprietors of the village. The said land, it is stated, is ‘Sailab’ and after much effort, has been made cultivable by the petitioner. In the Jamabandi for the year 1994-95 (P1), it is recorded in the column of ownership as ‘Shamlat Deh Hasab Rasad Khewat’. Besides, the petitioner is recorded in possession of the said land. The land in Khasra Nos.13//20 and 21 is recorded as ‘Sailab’. Besides, it has never been used for common purposes. CWP 9032 of 2005 4 CWP 7447 of 2005 Petitioners – Kashmir Singh and Lakhwinder Singh sons of Joginder Singh seek quashing of order dated 24.4.2000 (P3) passed by the Collector/DDPO, Nawanshahr (respondent-2) and the order dated 12.1.2005 (P7) passed by the Commissioner/Joint Development Commissioner, Punjab (respondent-1). It is alleged that Joginder Singh – father of the petitioners was in possession of land measuring 37 Kanals 6 Marlas, comprised in Khasra No. 13//18 (7-2), 19 (7-2), 20 (7-2), 21 (8-0) and 22 (8-0) as detailed in para 2 of the petition. The Gram Panchayat tried to forcibly dispossess said Joginder Singh, which led to the filing of a suit for permanent injunction against Gram Panchayat, Mirzapur (respondent-3). The learned Sub Judge IInd Class, Nawanshahr decreed the suit of Joginder Singh vide judgment and decree dated 7.4.1993 (P1). The Gram Panchayat, Mirzapur filed an application seeking ejectment of Joginder Singh from land measuring 15 Kanals 2 Marlas comprised in Khasra Nos.13//19 (7-2) and 22 (8-0) as per Jamabandi for the year 1994-95. Joginder Singh – father of petitioners died in 1998, but the DDPO passed order dated 24.4.2000 (P1) against Joginder Singh. The petitioners filed appeal (P5) along with an application (P4) seeking condonation of delay was dismissed vide order dated 12.1.2005 (P7). In the Jamabandi for the year 1999-2000 (P2), the land comprised in Khasra Nos.13//19 (7-2) and 22 (8-0) is recorded as ‘Shamlat Deh Hasab Rasad Khewat’. The type of the land is recorded as ‘Nadi’ (stream) and Joginder Singh is recorded in possession as ‘Gair Marusi’. CWP 10604 of 2005 Petitioner – Charanjit Kaur seeks quashing of order dated 14.11.2000 (P2) passed by the Collector/DDPO (respondent-2) Nawanshahr CWP 9032 of 2005 5 and the order dated 12.1.2005 (P5) passed by the Commissioner/Joint Development Commissioner (respondent-1). It is stated that the petitioner has been in established and continuous possession of land measuring 61 Kanals 18Marlas comprised in Khasra Nos.24//12 (8-0), 13 (8-0), 14 (8-0), 15 (8-0), 16 (8-0), 17 (8-0), 18 (8-0) and 19 (5-18) as detailed in para 2 of the petition. The Gram Panchayat, Mirzapur, sought ejectment of Mohinder Singh son of Mansa Singh from the land in question which was duly contested by Mohinder Singh. It was contended that the land in question did not vest in the Gram Panchayat and, therefore, its application seeking ejectment was not maintainable. It is submitted that the petitioner was not a party to the proceedings before the Collector and, therefore, she had no knowledge about the ejectment order dated 14.11.2000 (P2). It is also stated that in fact the Gram Panchayat, Mirzapur (respondent-3) itself made a statement that the Panchayat has no objection if the entries recorded in the name of the petitioner and the application filed by the petitioner before the Naib Tehsildar-cum-Assistant Collector IInd Grade, Nawanshahr for correcting the entries in the revenue records in her favour, were ordered to be corrected w.e.f. Kharif 2002 as per order dated 28.4.2003 (P1). After passing of the order dated 14.11.2000 (P2) by the Collector (respondent-2), warrants of possession were issued. Thereafter, the petitioner filed an appeal before the Commissioner (respondent-1) along with an application under Section 5 of the Limitation Act seeking condonation of delay. It is submitted that the petitioner was never served in the proceedings and she came to know about the same when the warrants of possession had been issued. It is further submitted that the petitioner was not heard and the Commissioner (respondent-1) by a cryptic and injudicious manner had passed the order dated 12.1.2005 (P5). The Gram Panchayat, Mirzapur had CWP 9032 of 2005 6 filed an application dated 16.11.1995 for eviction against Balwinder Singh son of Joginder Singh of village Mirzapur, seeking his eviction from land measuring 15 Kanals 9 Marlas comprised in Khasra Nos.13//16(8-0) and 17 (7-9), as shown in the Jamabandi for the year 1989-90 in the area of Mirzapur, Tehsil Nawanshahr. CWP 10774 of 2005 Petitioner – Ajaib Singh seeks quashing of order dated 14.11.2000 (P2) passed by the Collector/DDPO, Nawanshahr (respondent- 2) and the order dated 12.1.2005 passed by the Commissioner/Joint Development Commissioner, Punjab (respondent-1). It is claimed that the petitioner has been in established and continuous possession of land measuring 61 Kanals 18 Marlas comprised in Khasra Nos. 24//12 (8-0), 13 (8-0), 14 (8-0), 15 (8-0), 16 (8-0), 17 (8-0), 18 (8-0) and 19 (5-18) as detailed in para 2 of the petition. The Assistant Collector IInd Grade, Nawanshahr, it is submitted, after visiting the spot and recording the statements of the respectables of the village as well as Gram Panchayat, Mirzapur, ordered correction of the entries in favour of the petitioner in terms of order dated 28.4.2003 (P3). The Gram Panchayat, Mirzapur, on 19.11.1995 filed an application against Mohinder Singh son of Mansa Singh for eviction from land measuring 45 Kanals 2 Marlas comprised in Khewat No.89 Khatauni No.186 Khasra Nos.24//17 (8-0), 18 (8-0), 19 (5-18), 23 (7-4), 24 (8-0) and 25 (8-0), as shown in the Jamabandi for the year 1989-90 situated in village Mirzapur, Tehsil Nawanshahr. It is submitted that the petitioner had no knowledge of the order of ejectment dated 14.11.2000 (P2). However, in consequence of the same warrants of possession were issued. On the issuance of the warrants, the petitioner came to know of the said order dated 14.11.2000 (P2). Thereafter, the petitioner CWP 9032 of 2005 7 filed an appeal (P4) along with an application (P3) seeking condonation of delay which have been dismissed vide impugned order dated 12.11.2005 (P5), which are assailed in the present petition. On notice, replies have been filed in all the cases by the Gram Panchayat, Mirzapur (respondent-3). In CWP 9032 of 2005, it is stated that the Gram Panchayat, Mirzapur, is owner in possession of the land in dispute. The brother of the petitioner - Balwinder Singh namely Balvir Singh had taken the Panchayat land on lease from the Gram Panchayat in the year 1992-93. Thereafter, the petitioner in connivance with his brother had encroached upon the Panchayat land. After the expiry of the lease period, the petitioner Balwinder Singh and his brother – Balvir Singh were requested by the Gram Panchayat to vacate the land but they refused to do so. The Gram Panchayat then filed an ejectment petition seeking eviction of the petitioner from the land in their occupation. After issuance of notice, the petitioner had appeared in the case and filed reply but inspite of number of opportunities that he availed, he did not produce evidence in support of his case. Accordingly, an order of eviction dated 14.11.2000 was passed against the petitioner – Balwinder Singh. After a gap of more than 3 years and 6 months, the petitioner filed an appeal before the Commissioner, which has been dismissed vide impugned order dated 12.1.2005. After passing of the order of eviction dated 14.11.2000, the Gram Panchayat had taken possession of the land from the petitioner as per proceedings (R1) recorded in the Roznamcha. Thereafter, the land had been leased out on 17.6.2005 (R2). The petitioner has filed replication to the written statement denying the averments made in the written statement and reiterated those made in the writ petition. CWP 9032 of 2005 8 In CWP 9034 of 2005, the Gram Panchayat, Mirzapur has stated that Joginder Singh had taken the Panchayat land from the Gram Panchayat, Mirzapur in the year 1992-93. The petitioner had encroached upon the Panchayat land in connivance with said Joginder Singh. After expiry of the lease period when the Gram Panchayat requested the petitioner to hand-over possession, the petitioner flatly refused to vacate the possession of the Panchayat land. Then the Gram Panchayat filed an application for ejectment against the petitioner. After issuance of notice, the petitioner appeared and filed reply but inspite of availing number of opportunities, he did not produce any evidence in support of his claim. Accordingly, an order of eviction dated 14.11.2000 was passed against the petitioner. Against the order of eviction, the petitioner – Baljit Kumar filed an appeal, which has been dismissed vide order dated 12.1.2005 as it was barred by 3 years and 6 months, for which there was no sufficient explanation. It is also submitted that after passing of the order of eviction on 14.11.2000, the Gram Panchayat has taken possession of the land from the petitioner in pursuance of the proceedings (R1) recorded in the Roznamcha. Thereafter the land has been further leased out on 17.6.2006 (R2). In CWP 7447 of 2005, reply has been filed by the Joint Director, Rural Development and Panchayats on behalf of respondent-2. It is stated that the Gram Panchayat, Mirzapur had field a petition against Joginder Singh (father of the petitioners – Kashmir Singh and Lakhwinder Singh) and his brothers namely Balwinder Singh, Balbir Singh, Kashmir Singh and Kuldip Singh. It is submitted that the petitioners were present at the time of passing the order dated 24.4.2000 (P3) by the Collector/DDPO. However, they did not disclose about the death of their father – Joginder Singh at the time of passing the said order. Besides, it is submitted that the CWP 9032 of 2005 9 Gram Panchayat, Mirzapur has taken possession of the land in dispute and the said land had been auctioned continuously by the Gram Panchayat after taking possession. The Girdawaris have been entered in the name of the Gram Panchayat. The Gram Panchayat had taken possession of 50 acres 2 kanals of land through Police on 10.6.2005 from the petitioners in the presence of respectables for complying with the order of the Collector. After taking over the possession, the Gram Panchayat has further auctioned the land. The possession has been handed over to the bidders and they are cultivating the land. A separate reply has been filed by the Gram Panchayat (respondent-3), in which it is stated that father of the petitioners i.e. Joginder Singh had taken the Panchayat land on lease vide resolution dated 8.6.1992 (R1). After the expiry of the lease, the father of the petitioners refused to give the possession of the land to the Panchayat. Therefore, an application was filed seeking his eviction. Notice was issued to Joginder Singh – father of the petitioners and he put in appearance through his counsel, who had been appearing regularly. On 28.5.1997, the case was fixed for filing reply on behalf of the petitioners. Thereafter, order of eviction dated 24.4.2000 was passed after affording proper opportunity to the petitioners. Against the order of eviction, the petitioners, their brother and their father filed an appeal before the Commissioner, who dismissed the same vide order dated 12.1.2005 as there was delay of more than 3 years and 6 months in some cases and in other cases there was a delay of more than 4 years. It is stated that the petitioners did not inform the authorities about the death of their father, who died on 17.3.1998. In CWP 10604 of 2005, the Gram Panchayat, Mirzapur has filed reply, in which it is stated that Charanjit Kaur – petitioner has no locus CWP 9032 of 2005 10 standi to file the writ petition as she is neither an aggrieved party nor any order has been passed against her. The order of eviction dated 14.11.2000 has been passed by the Collector against Balwinder Singh son of Joginder Singh. The petitioner had purchased the land in question from said Balwinder Singh. Such a transaction of sale, it is stated, is quite illegal for which suitable action is liable to be taken against the petitioner Charanjit Kaur as also the seller who sold the land. It is stated that the petitioner Charanjit Kaur was not a party before the Collector and, therefore, the appeal filed by her against the order dated 14.11.2000 of her eviction was not maintainable. The Panchayat is the owner of land in dispute which was taken on lease by Balvir Singh son of Joginder Singh. Balwinder Singh, who is the brother of said Balvir Singh, did not return the possession of the land to the Panchayat. Then a petition for eviction of the occupants was filed by the Gram Panchayat. After issuing of notice, the respondents in the eviction application appeared and filed their reply but despite availing a number of opportunities, no evidence was produced by them in support of their claim. This showed that Balwinder Singh – respondent in the eviction petition was not interested in pursuing the case. Accordingly, an order of eviction was passed against Balwinder Singh son of Joginder Singh on 14.11.2000. The petitioner is the purchaser of land from said Balwinder Singh. After the order of eviction, the petitioner filed an appeal before the Commissioner/Joint Development Commissioner, which was dismissed as the same had been filed after a gap of more than 3 years and 6 months. In CWP 10774 of 2005, reply has been filed by the Gram Panchayat, in which it is stated that the petitioner –Ajaib Singh has no locus standi to file the petition as he was not an aggrieved party before the Collector/DDPO, Nawanshahr. The order of eviction passed on 14.11.2000 CWP 9032 of 2005 11 is against Mohinder Singh son of Mansa Singh. The petitioner had purchased the land from Mohinder Singh son of Mansa Singh. The transaction of sale, it is submitted, is quite illegal, which warrants a suitable action against the petitioner. The Gram Panchayat is the owner of the land in dispute which was taken on lease by Joginder Singh in 1992-93. Said Joginder Singh in connivance with Mohinder Singh son of Mansa Singh established his illegal possession and refused to give possession of the land in dispute after expiry of the lease period. On account of his refusal to give back the possession of the land in question, the Gram Panchayat filed an application seeking his eviction. The petitioner – Ajaib Singh was not a party before the lower Court. However, Mohinder Singh son of Mansa Singh, was a respondent in the application for eviction. He had appeared and filed his reply. Thereafter, inspite of a number of opportunities, he did not produce any evidence in support of his claim, which showed that Mohinder Singh was no more interested to pursue the case. Accordingly, an order of eviction was passed against Mohinder Singh son of Mansa Singh. After the passing of the order of eviction, the petitioner filed an appeal before the Commissioner/Joint Development Commissioner, which was dismissed being barred by 3 years and 6 months. Besides, after the order of eviction had been passed on 14.11.2000, the possession of the land had been taken by the Gram Panchayat in pursuance of the proceedings (R1) recorded in the Roznamcha. Thereafter, the Gram Panchayat, Mirzapur had further leased out the land in question on 17.6.2005 (R2). Satnam Singh, Panch, who had given statement in favour of the petitioner during the proceedings of correction of entries in the Khasra Girdawari, it is stated, had no authority on behalf of the Gram Panchayat to give such a statement which shows the connivance of the Panchayat members with the petitioner. CWP 9032 of 2005 12 The position, therefore, is that in all the cases, the Gram Panchayat, Mirzapur (respondent-3) filed an application under Section 7 of the Punjab Village Common Lands (Regulation) Act 1961 (1961 Act – for short) seeking eviction of the occupants on the land of the Gram Panchayat. Petitioner – Balwinder Singh in CWP 9032 of 2005 claimed that he is in possession of the Panchayat land which belongs to the proprietors of the village and as such does not vest in the Gram Panchayat. According to the Gram Panchayat, Balvir Singh is a brother of the petitioner who had taken the Panchayat land on lease in the year 1992-93 and thereafter, in connivance with Balwinder Singh – petitioner had encroached upon the Panchayat land. Petitioner – Baljit Kumar in CWP 9034 of 2005 also claims occupation to the Panchayat land. It is stated that the land does not vest in the Panchayat and belongs to the village proprietary body. According to the Gram Panchayat, Joginder Singh had taken the Panchayat land on lease in the year 1992 and the petitioner – Baljit Kumar had encroached upon the land in connivance with said Joginder Singh. Petitioners – Kashmir Singh and Lakhwinder Singh sons of Joginder Singh in CWP 7447of 2005, stated that they are in occupation of the land and they were not liable to be evicted. According to the Gram Panchayat, Mirzapur, the land was given on lease to Joginder Singh (father of the petitioners – Kashmir Singh and Lakhwinder Singh) and after the expiry of the lease period, they had refused to give back the possession of the Panchayat land to the Gram Panchayat. Therefore, an application under Section 7 of the 1961 Act was filed, in which order of eviction has rightly been passed in favour of the Gram Panchayat. Petitioner – Charanjit Kaur in CWP 10604 of 2005 was not a party before the Collector/DDPO, Nawanshahr. The land in the said case had been given on lease to Balvir Singh son of Joginder Singh in the year 1992-93. Said Balvir CWP 9032 of 2005 13 Singh in connivance with his brother – Balwinder Singh established illegal possession of Balwinder Singh. When Balwinder Singh refused to give back the possession of the Panchayat land to the Gram Panchayat, then a petition under Section 7 of the 1961 Act was filed by the Gram Panchayat. Charanjit Kaur – petitioner, it is stated had purchased the land in question from said Balwinder Singh son of Joginder Singh. Said sale transaction, it is alleged, is quite illegal. Petitioner – Ajaib Singh in CWP 10774 of 2005 is also a purchaser of land from Mohinder Singh son of Mansa Singh. A petition for eviction was filed against said Mohinder Singh. The land in dispute was taken on lease by Joginder Singh in 1992-93. Mohinder Singh son of Mansa Singh in connivance with Joginder Singh established his illegal possession and refused to give back possession of the Panchayat land to the Gram Panchayat after the expiry of the lease period. Therefore, a petition for eviction had been filed. Mr Vikas Bahl, Advocate appearing for the petitioner in CWP Nos.9032 and 9034 of 2005 has submitted that the land in question is recorded in the revenue records as ‘Shamlat Deh Hasab Rasad Khewat’ and as such the land does not vest in the Gram Panchayat. Therefore, the Gram Panchayat had no locus standi to evict the petitioners in the said petitions from the land in dispute. In support of his contention, the learned counsel cites Gram Panchayat village Bhedpura, Tehsil & Distt Patiala v. Additional Director, Consolidation, Punjab 1997 (1) PLJ 535 (DB) (P&H), Joginder Singh and ors v. The Director, Consolidation of Holdings, Punjab and ors 1988 PLJ 535 (DB) (P&H), Mela Vijay Dashmi Sabha v. Amar Nath and anr 1995 (3) RRR 584 (P&H), Gurjant Singh v. Commissioner, Ferozepur Division 2000 (2) RCR (Civil) 437 (DB) (P&H), State of Punjab v. Gurjant Singh and ors 2002 (2) PLJ 438 CWP 9032 of 2005 14 (SC), Kala Singh v. Commissioner, Hissar Division and ors 1984 PLJ 169 (DB) (P&H) and Jagir Singh v. State of Punjab 1994 (1) PLR 521 (DB) (P&H). Mr Omesh Kumar Kanwar, Advocate appearing in CWP Nos.7447, 10604 and 10774 of 2005 has contended that an order of injunction had been passed by the civil Court in favour of Joginder Singh, (father of petitioners – Kashmir Singh and Lakhwinder Singh in CWP 7447 of 2005). Therefore, the said petitioners were not liable to be evicted in view of the injunction order. It is submitted that once the civil Court had protected the rights of the father of the petitioners, they are not liable to be evicted. It is also submitted that the appellate authority i.e. the Commissioner under the 1961 Act erred in dismissing the appeal of the petitioners in the said three petitions only on the ground of limitation which were liable to be considered on merit. Mr HS Gill learned Deputy Advocate General Punjab appearing for the State has submitted that the orders passed by the authorities under the 1961 Act are just and proper orders and do not warrant any interference. Mr BS Bali, Advocate, learned counsel for the respondent Gram Panchayat, Mirzapur has submitted that