Civil Writ Petition No. 6546 of 1991 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 6546 of 1991 Date of Decision: 7.7.2011 Ruldu Ram ..Petitioner Versus State of Punjab and others ..Respondents CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. K.S.Cheema, Advocate for the petitioner. None for the respondents RAJIVE BHALLA, J. ( ORAL) The petitioner prays for issuance of a writ in the nature of certiorari for setting aside the order dated 18.7.1990, Annexure P-1, passed by the Director, Rural Development and Panchayats, Punjab, Chandigarh. The petitioner filed a petition under Section 11 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as the "Act”) claiming ownership of the land in dispute on the premise that he and before him his fore-fathers were in possession as “Gair Marausi” without payment of any rent, batai or any other form of rent to any person much less the Gram Panchayat. The District Development and Panchayat Officer, Hoshiarpur, allowed the petition by holding that as the petitioner's ancestors were in continuous possession of the land in dispute as Gair Marausi prior to 1918-19, the petitioner has perfected his title under Section 3 of the Punjab Occupancy Tenants (Vesting of Proprietary Right) Act, 1953 Civil Writ Petition No. 6546 of 1991 2 (hereinafter referred to as the "1953 Act"). Aggrieved by this order, the Gram Panchayat, respondent No.4, filed an appeal. The appellate authority accepted the appeal, set aside the order passed by the District Development and Panchayat Officer, and remitted the matter for adjudication afresh by holding that the provisions of the 1953 Act do not apply. The appellate authority, however, granted the petitioner an opportunity to establish his case in accordance with the provisions of the Act. Counsel for the petitioner fairly concedes that the petitioner has erred in raising a plea that he has perfected his right as an occupancy tenant. It is, however, argued that the petitioner's case falls under Section 4(1)(b) and Section 4(3)(ii) of the Act, which provide that a non-proprietor in possession of land outside abadi shall not be ejected and a person in possession before the enactment of the Act shall not be ejected. It is further argued that though the appellate authority was right in rejecting the petitioner's plea of occupancy tenancy, it should have considered the petitioner's plea raised under Section 4(1)(b) and Section 4(3)(ii) of the Act. It is prayed that as the impugned order suffers from an error of jurisdiction, the writ petition should be allowed and the District Development and Panchayat Officer should be directed to decide the petitioner's appeal afresh. No one is present on behalf of contesting respondent No.4. I have heard counsel for the petitioner and perused the order. The petitioner filed a petition, before the District Development and Panchayat Officer, claiming to have perfected his rights of ownership as an occupancy tenant. The District Civil Writ Petition No. 6546 of 1991 3 Development and Panchayat Officer allowed the petition. The appellate authority rightly set aside this order and remanded the matter to the District Development and Panchayat Officer for adjudication afresh, as the petitioner does not claim tenancy but alleges that he has never paid rent to any person whosoever. The petitioner's case, at best, falls under Section 4(1)(b) and Section 4(3)(ii) of the Act provided he proves, by clear and cogent evidence, the ingredients, set out in Section 4(1)(b) and Section 4(3) (ii) of the Act, namely that:- (a) the land is situated outside abadi Deh of the village; (b) is under a house owned by the petitioner; ( c ) the petitioner is a non-proprietor; and (d) was in his possession or in possession of his predecessor prior to the commencement of the Shamilat Law or (e) that he has been in possession of Shamilat Deh for more than 12 years immediately preceding the commencement of the Act, without payment of rent or payment of charges, not exceeding the land revenue and cess payable thereon. The appellate authority has, therefore, rightly set aside the order passed by the District Development and Panchayat Officer, Hoshiarpur and directed him to consider the petitioner's claim, afresh and in accordance with law. As a consequence, the writ petition is dismissed with no order as to costs. The parties are directed to appear before the District Development and Panchayat Officer, Hoshiarpur, exercising the powers of Collector under the Act, on 29.8.2011 for further proceedings. 7.7.2011 ( RAJIVE BHALLA ) VK JUDGE