LPA No.147 of 1996 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH LPA No.147 of 1996 Date of decision: 29.01.2010 Municipal Committee, Rania, District Sirsa through the President of the Committee ............Appellant Versus Hari Chand and others ..........Respondents CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE ALOK SINGH -.- Present: Mr. R. S. Mittal, Sr. Advocate with Mr. Atul Gaur, Advocate for the appellant. Mr. L.N. Verma, Advocate for the respondent. ALOK SINGH, J. The appellant is assailing the order dated 28.11.1995 passed by learned Single Judge in CWP No.5057 of 1992 thereby remanding the case to the prescribed authority with the direction to the prescribed authority to decide the question of legality of the auction, acceptance of sale LPA No.147 of 1996 -2- consideration and other related issues in the light of provisions of the Punjab Village Common Lands (Regulation) Act, 1961. 2. The brief facts of the present case are that gram Panchayat/appellant moved an application under Section 7(2) of the Punjab Village Common Lands (Regulation) Act, 1961 for ejectment. Vide order dated 15.7.1989, learned Asstt. Collector Grade -I, Sirsa allowed the application of ejectment holding respondent No.1 herein as unauthorized occupant. Feeling aggrieved from the order dated 15.7.1989, appeal was filed before the Collector, Sirsa which also came to be dismissed vide order dated 31.07.1991. Writ petition was filed challenging both the orders with the allegation that once gram Panchayat decided to auction the property in dispute by way of public auction and in the public auction held on 01.05.1966 petitioners were declared highest bidder, hence, having received the sale consideration, Gram Panchayat can not dispute very auction. 3. We have heard learned Counsel for the parties and perused the record. 4. Learned Counsel appearing for the appellant argued that alleged auction dated 1.5.1966 was in violation of Rule 12 of the Punjab Village Common Lands (Regulation) Rules, 1964 (As applicable to Haryana). Hence, no right whatsoever can be said having been accrued in favour of the writ petitioners. He further submitted that since no sale deed was ever executed in favour of the petitioners and possession of the writ petitioners was unauthorized, hence, gram Panchayat has every right to LPA No.147 of 1996 -3- eject the writ petitioners. 5. Learned Counsel for the writ petitioners/respondents herein argued that since writ petitioners participated in the public auction and paid money and agreement to sell were executed in their favour, hence, writ petitioners cannot be evicted taking shelter of Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961. He further stated that while passing the impugned orders neither prescribed authority nor learned Collector decided question of title involved in the proceedings of ejectment as raised by the writ petitioners before them being bonafide purchaser in auction. 6. Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 as applicable to Haryana is being reproduced herein as under:- “7. Power to put Panchayat in possession of certain lands.--(1) An Assistant Collector of the first grade having jurisdiction in the village may, either suo moto or on an application made to him by a Panchayat or an inhabitant of the village or the Block Development and Panchayat Officer or Social Education and Panchayat Officer, or any other Officer authorised by the Block Development and Panchayat Officer, after making such summary LPA No.147 of 1996 -4- enquiry as he may deem fit and in accordance with such procedure as may be prescribed, eject any person who is in wrongful or unauthorised 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 and for so doing the Assistant Collector of the first grade may exercise the powers of a revenue court in relation to the execution of a decree for possession of land under the Punjab Tenancy Act, 1887. Provided 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 hereinafter. (2) The Assistant Collector of the first grade shall by an order, in writing, require any person to pay a penalty, in LPA No.147 of 1996 -5- respect of the land or other immovable property which was or has been in his wrongful or unauthorised possession, at a rate not less than five thousand rupees and not more than ten thousand rupees per hectare per annum, having regard to the benefit which could be derived from the land or other immovable property. If the penalty is not paid within the period of thirty days from the date of the order, the same shall be recoverable as arrears of land revenue. (3) 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. (4) If any person refuses or fails to comply with the order of eviction passed under sub-section (1), within ten days of the date of such order, the Assistant Collector of the first grade may use such force, including police force, as may be necessary for putting the panchayat in possession. (5) Any person who is found in wrongful LPA No.147 of 1996 -6- or unauthorised possession of the land or other immovable property in shamilat deh and is ordered to be ejected under sub-section(1), shall be punishable with imprisonment for a term which may extend to two years. ” 7. From the perusal of the Section 7, it can safely be said that Asstt. Collector Grade – I shall record a finding on the question of title, if in any proceeding, the question of title is raised and proved, prima-facie on the basis of document produced before him. We are of the opinion that if prima facie title is not proved before him then learned Asstt. Collector is not obliged to decide the question of title. 8. Learned Counsel for the appellant argued that since auction is ipso fecto illegal and void and is in violation of the provision of the Act and Rules, hence, no title can be acquired by the writ petitioners. He further stated that in view of Section 5-B of the Act, disputed property stood reverted/revested in the Gram Panchayat. He further argued that there was no case of prima facie title before the Asstt. Collector, hence, there was no need to record any finding on the question of title. Hence, learned Asstt. Collector was correct in not entering into the question of title. He further argued that alleged agreement to sell are nullity and waste paper. Payment of consideration pursuant to the illegal auction and illegal agreement/transfer deed can not pass on title to the writ petitioners. LPA No.147 of 1996 -7- 9. Without expressing any opinion on the question raised by learned Counsel for the parties, we are of the view that since learned Single Judge only remanded the matter with the direction to decide legality of the auction, we do not find any reason to interfere with the directions issued by learned Single Judge except with the clarification that learned prescribed authority shall first of all record the finding, as to whether writ petitioners are able to prove their prima facie title on the basis of auction which is said to be illegal, viod ab nitio in violation of Act and Rules. Before entering into the question of title, learned prescribed authority shall also record the finding on the question of Jurisdiction/Authority of the gram Panchayat to order the auction in violation of Rule 12. 10. With above observation, the appeal stands dismissed. However, we direct the learned prescribed authority to decide the case as early as possible, in any case, within one year from the date of production of a certified copy of this order before him. (ALOK SINGH) JUDGE (ADARSH KUMAR GOEL) 29.01.2010 JUDGE ashish