C.W.P No.9015 of 2002 :1: In the High Court of Punjab and Haryana, Chandigarh. C.W.P No.9015 of 2002 Date of Decision: .11.2008 Hari Singh and others ....Petitioner. Versus Gram Panchayat, Raipur Khurd and others ....Respondents. Coram:- Hon'ble Mr.Justice J.S. Khehar Hon'ble Ms. Justice Nirmaljit Kaur Present: Mr. J.C. Verma, Sr. Advocate with Ms. Meenakshi Verma, Advocate for the petitioners. Mr. V.K. Sharma Advocate for the respondents. ... J.S. Khehar, J. Raghubir Singh, the then Sarpanch of the Gram Panchayat, Village Raipur Khurd, in the Union Territory, Chandigarh, filed a petition under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as the Village Common Lands Act), on 25.1.1984 before the Assistant Collector, Ist Grade, Chandigarh, seeking appropriate directions for restraining Hari Singh, Amar Singh and Bhag Singh (sons of Kabul Singh), Sarup Singh and Piara Singh (sons of Jyoti Ram) and Shiv Ram (son of Swaran), residents of village Raipur Khurd, from filling up the village pond, and for encroaching upon the same. It was C.W.P No.9015 of 2002 :2: alleged in the aforesaid petition, that the pond site was reserved for common use for the village community. On the same day itself i.e. on 25.1.1984, the Assistant Collector, Ist Grade, Chandigarh, inter–alia, passed the following order:- “Presented today by B.D.P.O. along with E.O. Panchayat Samiti and Sarpanch Panchayat. Issue notice to both parties for appearance on 14th February. Ad interim stay meanwhile evicting the respondents to stop filling work forthwith.” It is apparent from the documents enclosed with the instant writ petition, that on 25.1.1984, the Sub Divisional Magistrate, Chandigarh, directed the Station House Officer, Police Station, Sector-26, Chandigarh, to stop filling work from being carried out, and also, to help the Gram Panchayat, Village Raipur Khurd, in erecting a fence around the pond area. The Station House Officer, Police Station East, Chandigarh, submitted a report of compliance dated 25.1.1984, inter-alia, noticing the fact that the pond area near the land of Bhag Singh, had been fenced and the possession thereof had been handed over to Raghubir Singh, Sarpanch. The petitioners herein filed a reply (dated 22.3.1984, Annexure P-2) to the petition filed by the Gram Panchayat, Village Raipur Khurd, on 25.1.1984 (Annexure P-1). In their reply, the petitioners asserted that they were owners of the land in dispute being in possession thereof since times immemorial. It was also asserted that the petition filed by the Gram Panchayat, Village Raipur Khurd, on 25.1.1984 (Annexure P-1) was not maintainable because the Gram Panchayat, Village Raipur Khurd, had not passed any resolution for filing any such petition. In the reply filed on behalf of the petitioners, it was also asserted that there was no pond C.W.P No.9015 of 2002 :3: reflected in the record, or even on the spot, and that, the Gram Panchayat, Village Raipur Khurd, had procured orders passed by the Assistant Collector, Ist Grade, Chandigarh, by mis-stating the facts. In their reply, the petitioners additionally mentioned that they had filed a civil suit before the Sub Judge, Ist Class, Chandigarh, wherein the Sub Judge, Ist Class, Chandigarh, had passed an order of “status quo”, and as such, further proceedings in the matter deserved to be stayed, through an interim direction. The Gram Panchayat, Village Raipur Khurd, filed an application on the subject matter noticed hereinabove, on 26.6.1991 (Annexure P-3), requesting the Assistant Collector, Ist Grade, Chandigarh, to re-commence the proceedings on the petition filed by the Gram Panchayat, Village Raipur Khurd, under Section 7 of the Village Common Lands Act. In the instant application filed by the Gram Panchayat, Village Raipur Khurd, it was explicitly and expressly asserted, that the petitioners were in unauthorised and illegal possession of the land in question, and that, the respondents had raised construction over the same during the pendency of the proceedings before the civil Court. It was, accordingly, prayed that the petition filed by the Gram Panchayat, Village Raipur Khurd, on 25.1.1984 (Annexure P-1) be accepted and the Gram Panchayat, Village Raipur Khurd, be put into possession of the area of the pond which vested in the Gram Panchayat. It would be interesting to mention, that in the aforesaid application, the Gram Panchayat, Village Raipur Khurd, expressly referred to an entry in the wazib-ul-urj of the Jamabandi for the year 1954- 55, showing a pond on the northern side of the village, adjacent to the house of the petitioners within abadi deh which was reserved for the benefit of the C.W.P No.9015 of 2002 :4: village community. It is also pertinent to notice that in paragraph 2 of the aforesaid application dated 26.6.1991 (Annexure P-3), the Gram Panchayat, Village Raipur Khurd, had expressly recorded that it had enclosed a site plan along with the petition filed under Section 7 of the Village Common Lands Act, depicting the land over which the petitioners herein had effected encroachments. The petitioners herein filed a reply to the aforesaid application dated 26.6.1991 (Annexure P-3) on 22.1.1993 (Annexure P-4). In the instant reply, a clear reference was made to the various interim orders passed during the course of the civil suit filed by the petitioners herein whereby the Gram Panchayat, Village Raipur Khurd, was restrained from obstructing the petitioners. The factual position asserted by the petitioners in their earlier reply dated 22.3.1984 (Annexure P-2) was reiterated. On 3.9.1999, more than 15 years after the Gram Panchayat, Village Raipur Khurd, had initiated proceedings under Section 7 of the Village Common Lands Act, the petitioners herein filed a petition under Section 11 of the Village Common Lands Act, for declaring the petitioners as owners in possession of the land in question by asserting, that the said land was being used by the petitioners for tethering cattle, storing cow dung and keeping their tractors and trolleys since times immemorial. The Assistant Collector, Ist Grade, Chandigarh, collectively disposed of the petition filed by the petitioners under Section 11 of the Village Common Lands Act, as also, the petition filed by the Gram Panchayat, Village Raipur Khurd, under Section 7 of the Village Common Lands Act, by an order dated 7.2.2001. By the aforesaid order, the Assistant Collector, Ist Grade, Chandigarh, concluded that the petitioners had C.W.P No.9015 of 2002 :5: “miserably failed to prove their title over the pond site”. Insofar as the claim of the Gram Panchayat, Village Raipur Khurd, is concerned, the same was allowed by holding that the Gram Panchayat was entitled to the possession of the village pond. Dissatisfied with the order passed by the Assistant Collector, Ist Grade, Chandigarh, dated 7.2.2001 (Annexure P-8), the petitioners herein, preferred an appeal before the Home Secretary of the Union Territory, Chandigarh, exercising the powers of the Commissioner under the provisions of the Village Common Lands Act, on 28.2.2001 (Annexure P- 9). The aforesaid appeal, however, came to be dismissed by the Commissioner on 8.5.2002. Through the instant writ petition, the petitioners have impugned the orders dated 7.2.2001 (Annexure P-8) and 8.5.2002 (Annexure P-10). The first contention advanced by the learned counsel for the petitioners, was purely technical. It was the vehement contention of the learned counsel for the petitioners, that during the course of the proceedings initiated under Section 7 of the Village Common Lands Act, in case of a dispute on the issue of title, the controversy in respect of title raised under Section 11 of the Village Common Lands Act has to be settled first, and only thereupon, the issue pertaining to ejectment raised under Section 7 of the Village Common Lands Act, can be dealt with. In fact, it is the vehement contention of the learned counsel for the petitioners, that till the issue of title is settled, proceedings on the issue of eviction have to be stayed. On the instant proposition, learned counsel for the petitioners, has placed reliance on two judgements rendered by this Court, namely, Raj Kumar Vs. Karan Devi, 1983 PLJ 521 and Ram Chander Vs. State of C.W.P No.9015 of 2002 :6: Haryana, 1984 PLJ 76. Reliance has also been placed in Chattar Singh Vs. Collector, Hissar, 1995 PLJ 376, so as to assert that in a petition filed under Section 7 of the Village Common Lands Act, the concerned authority has no jurisdiction to decided the issue of title. Based on the aforesaid judicial precedents, learned counsel for the petitioners invited the attention of this Court to the impugned order dated 7.2.2001 (Annexure P-8) passed by the Assistant Collector, Ist Grade, Chandigarh, wherein he had decided the issue of title raised by the petitioners in a petition filed under Section 11 of the Village Common Lands Act, as well as, the issue of ejectment filed by the Gram Panchayat under Section 7 of the Village Common Lands Act, by a common order. Principally, there can be no doubt that a petition for ejectment filed under Section 7 of the Village Common Lands Act cannot be disposed of in case an issue of title is raised wherein the person in possession, either claims ownership rights for himself or assails the claim of ownership of the person/authority who has initiated ejectment proceedings. Needless to mention that the aforesaid procedure is imperative as it would be wrongful for eviction proceedings to be conducted against the owner of the property itself, or in the alternative, to allow ejectment proceedings at the hands of a person/authority who has no claim over the property. But the aforesaid general principles of law would be in-applicable to the facts and circumstances of the instant case. In this behalf, it would be necessary to extract a relevant portion of the impugned order dated 7.2.2001 (Annexure P-8), which reads as under:- “The application U/s 11 of the Punjab Village Common Lands Act, 1961, was then filed by the applicants on 3.9.1999 and it C.W.P No.9015 of 2002 :7: was stressed that this application U/s 11 of the Act should be decided first. Since there was a direction by the Hon’ble High Court to decide the application filed U/s 7 of the Act within a period of 2 months, it was decided with the consent of the parties to dispose of the two applications by a single order, first deciding the application U/s 11. The parties also agreed that evidence recorded in the application U/s 11 be also read in application U/s 7 of the Act…..” In view of the factual position noticed in the order extracted hereinabove, we are of the considered view, that the instant technical objection could not have been raised by the petitioners specially when the petitioners had agreed before the Assistant Collector, Ist Grade, Chandigarh, that the petitions filed under Sections 7 and 11 of the Village Common Lands Act, would be taken up collectively and further that evidence in respect of the aforesaid two petitions should also be recorded jointly. Thus viewed, the passing of a common order at the hands of the Assistant Collector, Ist Grade, Chandigarh, in connection with the two petitions filed under Section 7 and 11, respectively, of the Village Common Lands Act, cannot be held to be improper in any manner, whatsoever. The basic principle has been adhered to, namely, an order of eviction was recorded, only after the issue of ownership had been settled. It cannot be stated that the issue of ownership was still pending when the order of eviction was passed. In view of the above, we find no merit in the first contention advanced by the learned counsel for the petitioners. The second contention advanced by the learned counsel for the petitioners is also technical. It is the vehement contention of the learned C.W.P No.9015 of 2002 :8: counsel for the petitioners, that the Gram Panchayat, Village Raipur Khurd, had not passed any resolution when Raghubir Singh, Sarpanch of the Gram Panchayat, Village Raipur Khurd, filed the first petition under Section 7 of the Village Common Lands Act, on 25.1.1984. It is, therefore, the vehement contention of the learned counsel for the petitioners, that the petition filed by Raghubir Singh, in the name of the Gram Panchayat, Village Raipur Khurd, ought not have been entertained by the Assistant Collector, Ist Grade, Chandigarh. In so far as the instant issue is concerned, the same was also raised before the Assistant Collector, Ist Grade, Chandigarh. In the impugned order dated 7.2.2001 (Annexure P-8), the Assistant Collector, Ist Grade, Chandigarh, observed as under:- “…I have carefully gone through the resolution dated 24.1.1984 and 25.1.1984. The resolution dated 25.1.1984 has been objected to on the ground that there is over-writing on the date and there is addition of lines regarding purchase of wires and angle iron. So far as this objection is concerned, it is true that there is over-writing on the date specifically over-writing on the digit 5 and it appears that this date has been changed to 25.1.1984. But so far as resolution dated 24.1.1984 is concerned, this resolution is sufficient for filing the case in the Court of Assistant Collector, Ist Grade. From the overall reading of the contents of this resolution, even though it is not specifically written that it has been resolved that a case U/s 7 may be filed in the Court of the Assistant Collector, Ist Grade and that Shri Raghubir Singh, Sarpanch is authorised to file this case, it is clearly mentioned in the resolution that it was passed C.W.P No.9015 of 2002 :9: that copy of the resolution be sent to the Assistant Collector, Ist Grade, who may be requested to prevent Bhag Singh, Amar Singh and Piara Singh etc. from encroaching upon the pond. In the last line of the resolution it was passed that Raghubir Singh, Sarpanch was given the authority to take action. A reading of these lines clearly imply that this resolution was sufficient for filing an application under the Act and Shri Raghubir Singh, Sarpanch was duly authorised for the same.” In view of the aforesaid factual position expressed by the Assistant Collector, Ist Grade, Chandigarh, he rejected the second submission, as has been noticed in the foregoing paragraph. In so far as the factual position depicted in the extract reproduced hereinabove is concerned, learned counsel for the petitioners has not assailed the same. Having not contested the aforesaid factual position, it is apparent that a resolution of the Gram Panchayat had been passed on 24.1.1984 i.e. before the petition under Section 7 of the Village Common Lands Act, was filed by Raghubir Singh, Sarpanch, on 25.1.1984 (Annexure P-1). In view of the above, we find no merit in the second contention advanced by the learned counsel for the petitioners. The third contention advanced by the learned counsel for the petitioners, is also of a technical nature. It is submitted by the learned counsel for the petitioners, that the competent authority to adjudicate upon a petition filed under Section 7 of the Village Common Lands Act, is the Collector, whereas the controversy in the present case had been adjudicated upon by a subordinate officer, namely, the Assistant Collector, Ist Grade. It is, therefore, the contention of the learned counsel for the petitioners, that C.W.P No.9015 of 2002 :10: the impugned order dated 7.2.2001 (Annexure P-8) was wholly beyond jurisdiction of the authority which decided the same, and as such, is liable to be set aside. The third issue canvassed by the learned counsel for the petitioners was agitated before the Assistant Collector, Ist Grade, Chandigarh, as well. While disposing of the same, the Assistant Collector, Ist Grade, Chandigarh, had noticed that when the Village Common Lands Act was introduced in the first instance, the authority to adjudicate upon a dispute under Section 7 of the Village Common Lands Act, rested with the Assistant Collector, Ist Grade. It is the instant provision which was adopted by the Union Territory, Chandigarh. Subsequently the State of Punjab introduced an amendment in the Village Common Lands Act in 1976 vide which the words “Assistant Collector, Ist Grade” were replaced by the word “Collector” in Section 7 of the Village Common Lands Act. It was also noticed in the impugned order dated 7.2.2001, that the amendment introduced in the State of Punjab in the year 1976, was not adopted by the Union Territory, Chandigarh. Learned counsel for the petitioners having not refuted the aforesaid factual/legal position, we are of the view that the instant submission advanced by the learned counsel for the petitioners, has been advanced only for the sake of arguments. Since the Union Territory, Chandigarh, adopted the Village Common Lands Act as it was originally introduced in the year 1961, without having adopted the amendments thereto, Section 7 of the aforesaid Act as it originally stood, must only be deemed to be applicable to the Union Territory, Chandigarh. It is not a matter of dispute that as per Section 7 of the Village Common Lands Act, as it originally stood, the authority to adjudicate upon a matter canvassed C.W.P No.9015 of 2002 :11: under Section 7 of the Village Common Lands Act, rested in the hands of the Assistant Collector, Ist Grade. Since the Assistant Collector, Ist Grade, Chandigarh, had adjudicated upon the controversy in the present case, we are satisfied that he was fully competent to deal with the matter. The fourth contention of the learned counsel for the petitioners, was that the land in possession of the petitioners, is not actually the village pond. In this behalf, it is also the contention of the learned counsel for the petitioners, that there is no pond in village Raipur Khurd, and therefore, the question of the petitioners having encroached the same, does not arise at all. In so far as the fourth contention advanced by the learned counsel for the petitioners is concerned, learned counsel for respondent No.3 invited the Court's attention to the wazib-ul-urj of the Jamabandi for the year 1916-17, as also, the wazib-ul-urj of the Jamabandi for the year 1954-55. Copies of the wazib-ul-urj, referred to above, have been placed on the record of this case as Annexure P-10/A, collectively. The wazib-ul-urj of the Jamabandi for the year 1954-55 depicts an entry which is relevant to the present controversy. An extract from the wazib-ul-urj of the Jamabandi for the year 1954-55, is being reproduced hereunder:- “No. Sumar Matalkq Rewaj Rewaj 6. Rewaj Matika Chdeo- There is no river, Nullah Talabo Nehro or other or Panchki in our village. Natural resources. There is one pond which is used for cattles and other necessities of village. No Ab Bashi is done therein.” The vernacular version of the aforesaid extract has been noticed in the order passed by the Assistant Collector, Ist Grade, Chandigarh, dated 7.2.2001. C.W.P No.9015 of 2002 :12: The same is also being extracted hereunder:- “Hamare Gaon Mein Koi Dadee-Nala ya Pachakki Nahin Hai. Sir Aek Johar Hai jo Waste Ab Noshi Muweshian Aur Zaruruiyat Deh Ke Kaam Aata Hai. Is Se Koi Aabpashi Nahin Hoti.” It is apparent that the entry in the wazib-ul-urj of the Jamabandi for the year 1954-55 when translated in English means “there is no rivulet, drain or water mill in our village. There is only one pond which is used for watering of cattle heads and needs of the abadi deh. It is not used for irrigation purposes.” It is, therefore, apparent that there was a reference to a village pond in the revenue records of village Raipur Khurd pertaining to a period well before the dispute between the parties. The impugned order also notices, that Hari Singh, one of the petitioners herein, during the course of his cross-examination, had himself acknowledged that the pond site was deeper than the normal land. He had further acknowledged in his statement, that water at the pond site did not collect over the entire site but stagnated at some points. In the impugned order dated 7.2.2001, the Assistant Collector, Ist Grade, Chandigarh, also noticed that the counsel appearing for the petitioners herein, had himself admitted that “long time back there might be stagnation of water over the site in dispute which might have been put to use by the village community for watering their cattle head.” In the aforesaid view of the matter, there can hardly be any doubt about the assertion made by the Gram Panchayat, Village Raipur Khurd, to the effect, that the land in possession and occupation of the petitioners, was a part of the village pond, which stood depicted in the wazib-ul-urj of the Jamabandi for the year 1954-55, was fully justified. At this juncture, it also needs to be C.W.P No.9015 of 2002 :13: noticed that in the application filed by the Gram Panchayat, Village Raipur Khurd, dated 26.6.1991 (Annexure P-3), the respondent - Gram Panchayat had not only enclosed the site plan but also had made a categoric reference to the aforesaid wazib-ul-urj so as to assert, that the land in question is in unauthorised possession of the petitioners, and the user thereof for common purposes has been expressed in the revenue records. Since learned counsel for the petitioners herein has not assailed the genuineness of the entry in the wazib-ul-urj, extracted hereinabove, as also, the fact that there was a similar entry in the wazib-ul-urj of the Jamabandi for the year 1916-17 (as has been noticed in the impugned order dated 7.2.2001 passed by the Assistant Collector, Ist Grade, Chandigarh), there can be no doubt, whatsoever, that the petitioners are in possession of the land described as pond in the revenue records pertaining to village Raipur Khurd. Details in respect of the encroachments made by the petitioners emerge from the fifth submission advanced on behalf of the petitioners, noticed in the following paragraph. In view of the express entry in the wazib-ul-urj of the Jamabandi for the year 1916-17, as also, 1954-55, we find no merit in the instant contention advanced by the learned counsel for the petitioners. The fifth contention advanced by the learned counsel for the petitioners, is based on the statement of Kanwar Suresh. The reference made to the statement of Kanwar Suresh in the impugned order dated 7.2.2001 (Annexure P-8) has been brought to our notice. The same are being extracted hereunder:- “…Kanwar Suresh, S.O. of the Block Development and Panchayat Office (PW-VI) has stated that he was working in the Department since 1987. Plan Ex.PW-VI was prepared by C.W.P No.9015 of 2002 :14: the former S.O. Didar Singh Rana and he identified his signatures. During his cross-examination he stated that Didar Singh Rana, S.O. had gone on deputation in May 1987 and he had joined in the place in October 1987. Plan Ex.PW-VI/I was prepared in 1984 but he was not aware the manner in which this plan was prepared. K.L. Sharma, S.D.O., PW-VII has stated that plan Ex.PW-VI was prepared under his charge by the then S.O. Didar Singh Rana. The plan was prepared in 1984 in the village Raipur Khurd. He further stated that the plan Ex.PW- VIII/I was prepared by him depicts the encroachments in the year 1975, 1984, 1994 and 1999. This plan was submitted in the High Court in the case Hari Singh Vs. Chandigarh Administration, as Annexure R-IV/3. In the year 1984, the pond was situated within the red line. During his cross- examination, he has stated that he used to visit Raipur Khurd every month and can tell after perusing the record, the month during which he visited the village Raipur Khurd in the year 1975. He visited Raipur Khurd during the construction of the school which was completed in 1979 but was not able to tell the area of the school. From 1982 upto 1988 Didar Singh Rana was S.O. Incharge of village Raipur Khurd. He did not know about the village in 1988. Map Ex.PW.VIII/I was prepared with the help of his staff…” Referring to the aforesaid, learned counsel for the petitioners vehemently contends, that if it is taken as correct that the site plan was prepared in the year 1984 and the plan Ex.PW-VI was the plan of the village pond, it is C.W.P No.9015