IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.21370 OF 2011 Date of Decision: November 18, 2011 Rajdev Singh and another. …Petitioners Versus Joint Development Commissioner, Punjab and others. ….Respondents CORAM: HON’BLE MR. JUSTICE SATISH KUMAR MITTAL, HON’BLE MR. JUSTICE PARAMJEET SINGH. Present: Mr. Jasmail Singh Brar, Advocate, for the petitioners. Mr. Nakul Sharma, Advocate, for the caveator-Respondent No.3. Paramjeet Singh, J. The challenge in this writ petition filed under Articles 226/227 of the Constitution of India is to order dated 07.01.2011 (Annexure P/2) passed by the District Development and Panchayat Officer, Bathinda (exercising the powers of Collector, Bathinda) ordering eviction of the petitioners from the land subject matter of the petition under Sections 3 and 4 of the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1973 (hereinafter referred to as the “Eviction Act”) and order dated 20.09.2011 (Annexure P/3) passed by the Joint Development Commissioner CWP No.21370 of 2011 (I.R.D.) Punjab (exercising the powers of the Commissioner) dismissing the appeal filed by the petitioners. The Gram Panchayat, Village Gatwali, Tehsil Talwandi Sabo, District Bathinda, filed a petition under Sections 3 and 4 of the Eviction Act for delivery of vacant possession of land measuring 97 kanals 9 marlas as described in the petition. The primary ground of the Gram Panchayat is that the land in question although is mentioned as “Jumla Mushtarka Malkan” but its ownership vests in the Gram Panchayat, Gatwali. This matter has been decided by this Court on 08.05.2000 in C.W.P. No. 6165 of 1997 whereby order of the Additional Director, Consolidation, Punjab, Mohali, has been set aside and the land in question was reverted in the name of “Jumla Mushtarka Malkan Hasab Rasad Khewat”. Even the SLP against the order has been dismissed by the Hon’ble Supreme Court. Thereafter, mutation no. 2572 of that effect has also been sanctioned on 25.10.2000 by the Assistant Collector Second Grade, Talwandi Sabo. We have heard learned counsel for the parties and have perused the record. The main contention of the learned counsel for the petitioners is that for quashing the impugned orders, authorities under the Eviction Act were not competent to evict the petitioners from the land mentioned as “Jumla Mushtarka Malkan”. The petitioners could be evicted only under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as the “Common Lands Act”). The second contention of the learned counsel for the petitioners is that in the revenue record, the property is shown as 2 CWP No.21370 of 2011 “Jumla Mushtarka Malkan” and mutation was sanctioned in favour of the petitioners on 30.07.1961. The petitioners are in exclusive possession. The land was never managed and controlled by the respondent – Gram Panchayat. The land belongs to the proprietors and the petitioners being proprietors are in possession of this land. Before we ponder upon the contentions raised by the petitioners, we deem it appropriate to decide the issue whether the “Eviction Act” or the “Common Lands Act” would cover the case of the eviction of the alleged unauthorized occupants of the “Jumla Mushtarka Malkan” land, whose management and control vests in the Gram Panchayat. The words “premises” and “public premises” have been defined in the Eviction Act as under:- “2. Definitions – In this Act, unless the context otherwise requires – xxx xxx xxx (d) “premises” means any land, whether used for agricultural or non-agricultural purposes, or any building or part of a building and includes, - (i) the garden, grounds and out-houses, if any, appertaining to such building or part of a building; and (ii) any fittings affixed to such building or part of a building for the more beneficial enjoyment thereof; (e) “public premises” means any premises belonging to, or taken on lease or requisitioned by, or on behalf of, the 3 CWP No.21370 of 2011 State Government and includes any premises belonging to, or taken on lease by, or on behalf of - (i) any Municipal Committee, Notified Area Committee, Zila Parishad, Parishad, Panchayat Samiti, Panchayat or Improvement Trust; (ii) any company as defined in section 3 of the Companies Act, 1956 (1 of 1956), in which not less than fifty-one per cent of the paid up share capital is held by the State Government; and iii) any Corporation [not being a company as defined in section 3 of the Companies Act, 1956 (1 of 1956), or a local authority] established by or under a Central Act as defined in clause (7) of section 3 of the General Clauses Act, 1897, or a Punjab Act and owned or controlled by the State Government;” The unauthorized occupant has also been defined under Section 3 of the Eviction Act which reads as under:- “3. Unauthorised occupation of public premises – For the purposes of this Act, a person shall be deemed to be in unauthorized occupation of any public premises – (a) where he has, whether before or after the commencement of this Act, entered into possession thereof otherwise than under and in pursuance of any allotment, lease or grant; or (b) where he, being an allottee, lessee or grantee, has, by reason of the determination or cancellation of his allotment, lease or grant in accordance with the 4 CWP No.21370 of 2011 terms in that behalf therein contained, ceased, whether before or after the commencement of this Act, to be entitled to occupy or hold such public premises; or (c) where any person authorized to occupy any public premises has, whether before or after the commencement of this Act, - (i) sub-let, in contravention of the terms of allotment, lease or grant, without the permission of the State Government or of any other authority competent to permit such sub- letting, the whole or any part of such public premises, or (ii) otherwise acted in contravention of any of the terms, express or implied, under which he is authorized to occupy such public premises. Explanation:- For the purposes of clause (a), a person shall not merely by reason of the fact that he has paid any rent be deemed to have entered into possession as allottee, lessee or grantee.” The reading of the above said provisions of the Eviction Act makes it clear that this Act has been enacted for eviction of unauthorized occupants from the public premises and certain incidental matter. Section 3 of the Eviction Act can provide that any person, who has entered into possession otherwise than under and in pursuance of any allotment, lease or grant, shall be deemed to be in unauthorized occupation. If the Collector is of the opinion 5 CWP No.21370 of 2011 that any person is in unauthorized occupation of the public premises, he may issue notice under Section 4 of the Eviction Act in writing calling upon such person to show cause why an order of eviction should not be made. Thereafter, under Section 5 of the Eviction Act after consideration of the reply and documents of the parties, the Collector can pass the order of eviction, if he is satisfied that such person is in an unauthorized occupation of public premises. Thereafter, party can file appeal under Section 9 of the Eviction Act. It is relevant to make reference to the provisions of the Common Lands Act which defines the “shamlat deh” and “abadi deh”. It provides for regulation, use and occupation of the land vested in Panchayat. The provisions of Section 7 of the Common Lands Act authorizing the Collector to put the Panchayat into possession of such land as per the prescribed procedure in this Act. In view of the above provisions and admitted facts on record that in the jamabandi for the year 1958-59, the disputed land was shown as ownership of the Gram Panchayat. The Gram Panchayat itself was cultivating the land and was giving on lease. Vide order dated 01.06.1964, the Additional Director, Consolidation, transferred the land in the name of “Jumla Mushtarka Malkan” and mutation No. 1072 was sanctioned. Thereafter, the Additional Director Consolidation, Punjab, vide order dated 22.03.1996, transferred the ownership of the disputed land in favour of the petitioners and others. Against that, Gram Panchayat filed CWP No. 6165 of 1997 whereby order of the Additional Director Consolidation was quashed by this Court vide order dated 08.05.2000 and the property reverted back in the 6 CWP No.21370 of 2011 name of “Jumla Mushtarka Malkan” and to that effect, mutation No. 2572 was sanctioned on 25.10.2000 in the name of “Jumla Mushtarka Malkan Hasab Rasad Khewatdar”. As per Section 23-A of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 and Rule 16(ii) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949, management and control of “Jumla Mushtarka Malkan” land in the present case, was earlier in the name of Gram Panchayat in the revenue record, vests in the Gram Panchayat. Since, the management and control vest in the Gram Panchayat, such land is public premises and ejectment of unauthorized occupant therefrom can be made under both the Acts i.e. Section 5 of the Eviction Act and Section 7 of the Common Lands Act. The procedure for eviction under both the Acts is almost similar and the right to appeal is also the same. Learned counsel for the petitioners has failed to show that any prejudice has been caused to the petitioners by recourse to the proceedings under Section 5 of the Eviction Act instead of Common Lands Act. We have considered the implications of both the Acts i.e. the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1973 and the Punjab Village Common Lands (Regulation) Act, 1961. These are State Acts. The “Eviction Act” has been enacted after the “Common Lands Act”, it does not exclude the application of Common Lands Act for eviction of the unauthorized occupant, so, unauthorized occupant can be evicted under both the Act. This Court in the matter of Smt. Ram Piari and others vs. Joint Director, Panchayats, Punjab and other 7 CWP No.21370 of 2011 reported in 1993, PLJ, 307 has taken a view that both the remedies are available to the Gram Panchayat. The law as on date provides that Gram Panchayat has remedies under both the Act for eviction of unauthorized occupant. Whichever remedy, Panchayat deem it appropriate speedy, summary and effective, it can avail. So, the contention of the learned counsel for the petitioners that Gram Panchayat has only remedy under Section 7 of the Act is devoid of merit, hence, rejected. So far as the next contention of the learned counsel for the petitioners is concerned that the property is “Jumla Mushtarka Malkan” and the petitioners are proprietors of the village, as such have share in the land in question. This land has neither been reserved for common purposes nor is being used for common purposes. The petitioners are in the cultivating possession, as such, have becomes owners to the extent of their shares. Admittedly on record there is no evidence that what was the share of the petitioners and they were in exclusive possession of any part of the land after having a valid partition of the “Jumla Mushtarka Malkan” land. This is a fact on record that the petitioners had made an attempt to get the land partitioned through the Additional Director Consolidation and even the mutation was got sanctioned in their name, but the Gram Panchayat approached this Court. That order has been set aside and the property has been reverted back in the name of “Jumla Mushtarka Malkan” at the instance of Gram Panchayat. In fact, the land as per jamabandi for the year 1958-59 is Gram Panchayat. So, all the rights vest in the Gram Panchayat for management and control. As such, the application under the Eviction Act filed by the Gram Panchayat has rightly 8 CWP No.21370 of 2011 been allowed by the Collector by passing eviction order against the petitioners. The Commissioner has rightly affirmed the same. We have no cogent reason to differ with the findings recorded by the authorities under the Eviction Act. For the reasons recorded above, the present writ petition is dismissed. (PARAMJEET SINGH) JUDGE November 18, 2011 (SATISH KUMAR MITTAL) vkd JUDGE 9