IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Letters Patent Appeal No.240 of 2008 Date of Decision: 9.01.2009 Dharam Singh Appellant Versus Collector, Karnal and others Respondents CORAM:- HON'BLE MR. JUSTICE T.S.THAKUR, CHIEFJUSTICE HON'BLE MR. JUSTICE JASBIR SINGH Present: Mr.C.B.Goel, Advocate for the appellant Shri Ashish Aggarwal, Advocate for the respondents ….. Jasbir Singh, J. This Letters Patent Appeal has been filed against judgment passed by the learned Single Judge on 20.8.2008, vide which Civil Writ Petition No.3601 of 1985 filed by the appellant, laying challenge to the order of ejectment passed against him, was dismissed. Admittedly, the appellant is not owner of the land, in dispute. Present is a classic case of land grabbing by the appellant of the land owned by the Gram Panchayat, which was meant for general benefit of the residents of the village. Even as per jamabandis placed on record by the appellant (Annexure P-3 to P-5), in column No.5, nature of the land has been shown as charand (grazing ground) in occupation of the appellant. It is apparent from the records that the Gram Panchayat, by asserting its ownership on 32 kanals and 15 marlas of land, filed an application under Section 7 of the Punjab Village Commons Land (Regulation) Act, 1961, as applicable in Haryana (in short, the Act), for Letters Patent Appeal No.240 of 2008 ejectment of the appellant from the above said land. It was case of respondent No.3 (Gram Panchayat) that possession of the appellant over the land, in dispute, was unauthorized since 1973, prayer was made that order for his ejectment be passed. It was further prayed that the Gram Panchayat has suffered loss to the tune of Rs.4100/- per hectare per annum, for that, penalty be also imposed upon the appellant for use and occupation of the above said land. Upon notice, reply was filed by the appellant wherein by claiming relationship of landlord and tenant, it was asserted that the appellant entered in possession of the land in question before the year 1973, had been paying rent to the Gram Panchayat and his possession is authorized. Prayer for imposition of penalty was also controverted by stating that status of the appellant was as a gair marusi tenant, on payment of rent @ Rs.125/- per acre per annum. Reliance was placed upon some receipts, to show that appellant had been paying the rent continuously. After recording evidence of both the parties, Assistant Collector Ist Grade, Karnal, vide order dated 29.8.1984, allowed application of the Gram Panchayat. Ejectment of the appellant from the land, in dispute, was ordered and he was further directed to pay Rs.2755/- towards penalty for unauthorized use and occupation of the land in question. Appellant went in appeal, which also was dismissed by the Collector vide order dated 13.11.1984. Appellant laid challenge to the orders, referred to above, by filing Civil Writ Petition No.3601 of 1985, which was dismissed by the learned Single Judge vide order dated 20.8.2008. Hence, this appeal. It is necessary to mention here that to uphold orders passed by the authorities below, the learned Single Judge has placed reliance upon 2 Letters Patent Appeal No.240 of 2008 Patanama (Ex.A-4), by taking it as if the same was executed by the appellant in favour of the Gram Panchayat. During pendency of this appeal, by moving an application, the appellant brought on record copy of the document, referred to above, to show that, in fact, Patanama was executed in favour of Prem son of Bicha and not in favour of the appellant. Mr. C.B.Goel, learned counsel for the appellant has vehemently argued that the learned Single Judge has gone wrong in dismissing the writ petition filed by the appellant. By making reference to the Patanama (Ex.A-4), counsel argued that this document was made sole basis for rejection of the claim of the appellant, treating it as a lease in his favour, whereas above document was executed in favour of one Prem Singh son of Bicha. By placing reliance upon jamabandis Annexures P-3 to P-5, counsel argued that possession of the appellant is continuing from the year 1973 till today, on payment of rent @ Rs.125/- per acre per annum. To say that rent was paid, reference was made to receipts Ex.R1 to R7, on record of the Courts below. Mr. Goel argued that once there existed relationship of landlord and tenant, between the appellant and the Gram Panchayat, he cannot be ejected by taking recourse to the provisions of the Act. He prayed that appeal be allowed, judgment under challenge be set aside and the matter be remanded to the learned Single Judge, for deciding it afresh, on merits. Prayer made has vehemently been opposed by Mr. Ashish Aggarwal, learned counsel, appearing on behalf of respondent No.3 (Gram Panchayat). He argued with vehemence that at no time, any authority was given to the appellant to enter in the land, in dispute. Appellant, forcibly occupied the land of the Gram Panchayat, which was being used as a 3 Letters Patent Appeal No.240 of 2008 charand by all inhabitants of the village. Merely because thereafter, some rent amount was accepted by the then Sarpanch, it does not make the appellant an authorized occupant of the land, in question. To buttress his arguments, counsel has placed reliance upon a Full Bench Judgment of this Court in Gram Panchayat village Haripura v. The Commissioneer, Ferozepur Division and others, 1989 PLJ 220 and also a judgment of the Hon’ble Supreme Court in Gram Panchayat village Haripura v. The Commissioneer, Ferozepur Division and anthes, (2006) 8 Supreme Court Cases 286. He prayed that appeal, having no substance, be dismissed. At the time of arguments, appellant was present in Court. On a question put to him, he very fairly admitted that the land in question was being used as charand, it adjoins his personal holding and he, without any authorization, started cultivating the same. He further stated that thereafter, he started paying rent to the Gram Panchayat. To decide controversy between the parties, it is necessary for this Court to analyze the facts, referred to in earlier part of this order in a systematic manner. The learned single Judge has non-suited the appellant by observing that vide Patanama (Ex.A-4), the appellant had taken the land, in dispute, on rent in the year 1982-83, for a period of one year. After expiry of that period, he had failed to vacate the land, as such, his possession was unauthorized, for which, ejectment has rightly been ordered. It was further opined that the appellant has failed to refer to any lease deed/ Patanama, executed by the Gram Panchayat in the year 1982-83 that would confer status of lessee/ tenant upon him and further that there is no evidence on record to support the appellant’s assertion of a subsisting tenancy. 4 Letters Patent Appeal No.240 of 2008 It is true that the Patanama (Ex.A-4) was executed in favour of one Prem son of Bicha in the year 1982-83. This fact has even been noticed by the Assistant Collector Ist Grade in his order dated 29.8.1984 (P- 1), wherein it has been said that land in dispute was leased out in favour of Prem, thereafter, on account of failure of the appellant to vacate the same, possession could not be delivered to him, in view of that the Gram Panchayat suffered a loss of Rs.2755/- for which the land was leased out. Before the appellate Court below and also in the writ petition, the appellant has no where stated that the Patanama (Ex.A-4) was not executed in his favour. In arguments, before the Assistant Collector Ist Grade, rather a different stand was taken by counsel for the appellant that the land was leased out in favour of the appellant in the year 1982-83. (This fact is apparent on reading of page 21 of the paper book). Perusal of judgment, under challenge, indicates that even at the time of arguments, in this Court, no argument was addressed with regard to Patanama (Ex.A-4). In view of that, it appears that the learned Single Judge has committed the above said inadvertent mistake. However, on account of above said fact, no benefit can be extended in favour of the appellant. Now, it is to be seen whether in view of admitted facts on record, any relief can be granted in favour of the appellant or not? In Punjab Village Common Lands (Regulation) Rules, 1964, as applicable in Haryana (in short the Rules), a complete procedure has been provided for leasing out the land owned by the Gram Panchayat. Rule 6 of the Rules reads thus:- “6. Leases to be by auction. (1) All leases of land in shamilat deh shall be by auction after making publicity in the manner laid down in sub-rule 10. All documents executed in this 5 Letters Patent Appeal No.240 of 2008 connection shall be signed by a Sarpanch or in his absence, by a panch performing the duties of Sarpanch and two other Panches of the Gram Panchayat. Provided that --- xxx xxxx xxxx xxxx (2) Lease of land in Shamilat Deh already under plough shall not be given for a period exceeding two years while that of land not under plough and infested with trees, bushes, etc. may be given for a period not exceeding five years to the highest bidder. The auction shall be subject to the approval of:- (a) the Panchayat Samiti – (i) Where the area does not exceed one hundred acres and the highest bid of the lease at the auction is less than the average lease rate of similar lands in the neighbourhod for the last five years; or (ii) where the area exceeds 100 acres, but does not 1000 acres; (b) omitted (c) the Government where the area exceeds 1000 acres: Provided that on the application of the lessee made before the expiry of the lease, the Panchayat may renew the lease for a period not exceeding two years at a time, if it considers that renewal of lease is in the interest of better cultivation and is satisfied that the lessee has made improvements by rendering such land fit for cultivation or has made improvements by digging a well or installing a 6 Letters Patent Appeal No.240 of 2008 pumping set or a tube-well or constructing a pucca structure on such land: Provided further that the annual rent of such land for which lease has been renewed shall be determined by the Collector or the officer appointed by him for the purpose on the basis of market rental value of similar lands in the neighborhood. (3) All lands near the abadi deh vested in the Panchayat and used for industrial purposes may be leased out for a period not exceeding ten years by auction in February every year. (3A) xxx xxx xxx (4) xxx xxx xxx (5) omitted (6) xxx xxx xxx (7) The lease of cultivable land in shamilat deh shall be auctioned for rent-in-cash ordinarily in the month of October, or November, to the maximum advantage of the inhabitants of the village and the annual lease money shall be paid as under:- (a) for the first year of the lease, one fourth of the annual rent shall be paid by the bidder on the spot and the remaining three-fourth, before the possession of the land is delivered to him: xxx xxx xxx xxx (b) for the remaining years of lease, if any, the annual rent shall be paid in advance in February every year. 7 Letters Patent Appeal No.240 of 2008 (8) In every case of lease, a lease deed shall be duly executed by the lessee, and the lessee shall surrender to the Panchayat possession of the land leased to him, if he defaults in the payment of rent subject to the provisions of the Punjab Tenancy Act, 1887. (9) xxx xxx xxx (10) (1) The publicity to lease auction programme shall be given fifteen days before the date of auction, by specifying the description of land, the date, time and place fixed for the auction of lease:-- (a) through any local vernacular newspapers and where the auction of stone quarries, bajri or other minor mineral etc. is to be held, also through and English newspaper. (b) by pasting a copy of the auction notice on an outer door of the Panchayatghar, village Patwar Khana officer of Panchayat Samiti land at some other conspicuous places of the Shamilat Deh or of the estate in which the Shamilat Deh is situated; and (c) by beat of drum within the Sabha. (2) The terms and conditions of auction shall be announced at the time of auction. (11) (i) The auction of lease of any land in shamilat deh vested in the Panchayat shall be conducted in the presence, and under the supervision of the Block Development and Panchayat Officer, and in case of his inability, an Extension Officer of the Block. 8 Letters Patent Appeal No.240 of 2008 (ii) A copy of every auction notice shall be sent to the Block Development and Panchayat Officer concerned fifteen days before the date of auction. (iii) The Block Development and Panchayat Officer or the Extension Officer, as the case may be, shall present himself at every auction in respect of which a notice is sent to him under clause(ii).” Rule 6-A of the Rules, provides that lease can be by way of allotment. Rule 7 provides that Gram Panchayat’s land can be leased out to the collective farming Cooperative Societies under conditions, as laid down in the above said Rules. Rule 7-A of the Rules envisages that any lease granted or made without adopting proper procedure shall be deemed to be detrimental to the interest of the Gram Panchayat, if it adversely affects any of the development schemes of the Gram Panchayat or resulted or is likely to result in a loss to the Gram Panchayat or if it is a benami transaction. Minute reading of provisions of Rule 6 indicates that Shamilat land can be leased out only through auction, if under plough, it can be leased out only for a period of two years and if not under plough, it can be leased out for a period of five years subject to approval by the Panchayat Samiti and the government if the area exceeds 1000 acres. There also exists provision for renewal of the lease on request made, if Gram Panchayat considers that it will be in its interest. This provision further provides that land situated near the abadi deh, being used for industrial purposes, can be leased out for a period, not exceeding ten years. For some specified industrial purposes, subject to approval of the State Government, the Gram Panchayat is competent to lease out the land for a period of 20 years. This rule clearly envisages that lease of cultivable land shall be for rent in cash, 9 Letters Patent Appeal No.240 of 2008 procedure as to how rent amount is to be paid is also envisaged in this provision. Rule 6 also provides for execution of a lease deed, to be executed by a lessee, who is supposed to surrender possession, to the Gram Panchayat, on expiry of the lease period. It is also provided that every auction shall be made after giving public notice in news papers or pasting a copy of the auction notice on outer door of the Panchayat Ghar and other places in the village. In view of above said provision, there is no doubt that without adopting proper procedure, as envisaged under the Rules, nobody can get land of the Gram Panchayat on lease. Admittedly, in this case, no such procedure was ever adopted. After unauthorizedly ploughing charand, merely because appellant had deposited some amount with the Gram Panchayat, this Court feels that it would not confer title of lessee upon him. In the Rules also, it is provided as such. Rule 19 of the Rules described the situation in which possession of an individual shall be deemed to be unauthorized. It reads thus:- “19. Unauthorised occupation of Shamilat Deh.- For purposes of Section 7 of the Act, a person shall be deemed to be in unauthorized occupation of any land in shamilat deh- (a) where he has, whether before or after the commencement of the Act entered into possession thereof otherwise than under and in pursuance of any allotment, lease or grant by the Panchayat; 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 terms in that behalf, therein contained, ceased whether before or after the 10 Letters Patent Appeal No.240 of 2008 commencement of the Act, to be entitled to occupy or hold such land in shamilat deh; or (c) where any person authorized to occupy any land in shamilat deh has whether before or after the commencement of the Act- ((i) sub-let in contravention of the terms of allotment, lease or grant without the permission of the Panchayat or of any other authority competent to permit such sub-letting, the whole or any part of such land in shamilat deh; or (ii) otherwise acted in contravention of any of the terms express or implied, under which he is authorized to occupy such land in shamilat deh; Explanation—For 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, lease or grantee.” When we apply provision of Rule 19 of the Rules, to the facts of the present case, it comes out that possession of the appellant over the land, in dispute, was unauthorized. Admittedly, the appellant had not entered the land in dispute, in pursuance of any allotment, lease or grant made by the Gram Panchayat. This land was never put to auction as per provision of Rule 6 and no lease deed was ever executed in his favour. Similar provision, existing in the State of Punjab, governing lease etc. of the Shamilat deh, came up for consideration before a Full bench of this Court in the case of Gram Panchayat village Haripura(supra), wherein it was observed as under:- “Rule 6 afore-referred to has also other facets which have to be taken note of. Sub-rule (1) thereof provides that all leases of 11 Letters Patent Appeal No.240 of 2008 land in shamilat deh shall be by auction, after making publicity in the manner laid down in sub- rule (10). All documents executed in this connection shall be signed by a Sarpanch or in his absence by the Naib Sarpanch or in the absence of both by a Panch performing the duties of the Sarpanch and two other Panches authorised for the purpose by the Gram Panchayat. It is obvious therefrom that the creation of a lease and that too, by public auction has to be authenticated and documented by three persons named therein. It is not a one-man show. Obviously, this rule has been enacted to protect the interests of the Panchayat, and seemingly in order to undo the vast corruption resorted to by some of the Sarpanches of the Panchayats in passing over the panchayat properties to their favourites and others by underhand means in causing loss to the revenue of the Panchayat, which is meant to be spent for the welfare of the rural population. So, a lease in contravention of rule 6 is no lease in the eye of law and obviously the Panchayat can, in such circumstances, resort to the provisions of section 4 of the Act, seeking eviction of the supposed lessee who comes on the scene without a valid title under sub-rule (1) of rule 6. But here, as has been spelled out earlier, we do not want to enter into this controversy as to whether the lease could be granted orally or under a writing, for, in our view, it is sub-clause (b) of section 3 of the Act which will be applicable to the case of the contesting respondents. Thereunder a person shall be deemed to be in unauthorized occupation of any public premises where he 12 Letters Patent Appeal No.240 of 2008 being an allottee, lessee or grantee, has, by reason of the determination or cancellation of his allotment, lease or grant in accordance with the terms in that behalf contained, ceased, whether before or after the commencement of this Act, to be entitled to occupy or hold such public premises. As go the pleadings of the Panchayat, the Panchayat had put to auction the areas involved for lease but the contesting respondents sitting thereon had refused to vacate the areas in favour of the new lessees. Compelled, in these circumstances, if the Panchayat had accepted advance rent in cash from the contesting respondents, that by itself would not take the contesting respondents out of the purview of sections 3, 4 and 7 of the Act, for the leases in their favour had been determined in accordance with the terms of that lease, even though the lease was oral and not reduced to writing. The contesting respondents ceased to be entitled to get or hold the public premises after the efflux of one agricultural year from the payment of lease money last made for the purpose consciously to the Panchayat and to none other.” View expressed by a Bench of this Court was upheld by the Hon’ble Supreme Court in another case of that very Gram Panchayat in Gram Panchayat village Haripura v. The Commissioneer, Ferozepur Division and anthes, (2006) 8 Supreme Court Cases 286. In the above said case, Gram Panchayat had filed an application under Sections 4 and 7 of the Public Premises and Land (Eviction and Rent Recovery) Act, 1973 against the respondents therein, for their ejectment from the land owned by the Gram Panchayat. Prayer was also made to impose penalty for use and 13 Letters Patent Appeal No.240 of 2008 occupation of the land in question. Collector decided in favour of the Gram Panchayat. Respondent – occupant went in appeal. The Commissioner, by taking note of jamabandis wherein occupant was shown as gair marusi @ Rs.64/- per killa per annum, set aside order passed by the Collector, holding that there exists relationship of landlord and tenant. Gram Panchayat failed in the writ petition and went in appeal. Their Lordships of the Hon’ble Supreme Court in the judgment, referred to above, examined the relevant statutory provisions and concurring with the judgment of the Full Bench, referred to above, observed as under:- “Therefore, the Full Bench took the view that because some rent had been paid that would not make a tenant ipso facto a lessee. A particular method has been prescribed that how lease to be executed as per Rule 6. Therefore, in this view of the matter, we are of opinion that unless proper lease is granted in the manner provided in rule 6 of the Rules till that time simply because someone has paid rent that would not entitle him to claim as a tenant. In the absence of statutory provisions and rules thereunder, it is difficult to accept that since the rent had been deposited with the Gram Panchayat that would make them tenants. Thus, the conclusion drawn by the Commissioner, Firozepur Division and affirmed by the Division Bench of the High Court cannot be sustained. We are unable to understand the reasoning of the Division Bench to ignore the Full Bench judgment on the ground that in the aforesaid case the lease was granted year to year basis. The question is not the grant of lease on year to year basis. The question is whether the Gram Panchayat has recognized the 14 Letters Patent Appeal No.240 of 2008 contesting respondent as a tenant or not. Simply someone has paid or deposited the rent with the Gram Panchayat voluntarily after unauthorisedly occupying the Gram Panchayat land, he would not be