IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 21766 of 2011 Date of Decision: November 23, 2011 Makhtul Singh and others. …Petitioners Versus The Commissioner, Ambala Division, Ambala and others. …Respondents CORAM: HON’BLE MR. JUSTICE SATISH KUMAR MITTAL, HON’BLE MR. JUSTICE PARAMJEET SINGH. Present: Mr. R.S. Mittal, Senior Advocate with Mr. S.K. Tripathi, Advocate, for the petitioners. Paramjeet Singh, J. Present petition has been filed by the petitioners under Articles 226/227 of the Constitution of India for quashing of order dated 10.08.2011 (Annexure P/7) passed by the Collector, Kurukshetra, whereby he had set aside order dated 17.01.2011 (Annexure P/6) passed by the Assistant Collector Ist Grade, vide which the application under Section 7(2) of the Punjab Village Common Lands (Regulation) Act, 1961 (applicable to Haryana) (hereinafter referred to as the Act), filed by Molu Ram (Respondent No.4) has been dismissed and for quashing of order dated 27.09.2011 (Annexure P/10) passed by the Commissioner under the Act. The brief facts of the present case are that the petitioners and their ancestors were allottees of land measuring 378 acres 4 Kanals and 2 Marlas situated in the revenue estate of CWP No. 21766 of 2011 Village Karah Sahab, Tehsil Pehowa, District Kurukshetra. The names of the predecessors-in-interest of the petitioners figure in the jamabandi for the year 1956-57. They settled in Village Karah Sahab as allottees after the Government was unable to accommodate them in District Amritsar, after the partition of the country in 1947. The petitioners have averred that there were large chunks of jungle land in the area of Village of Karah Sahab, which have been made cultivable by them in order to “Grow More Food” under the scheme of the Government of India. At the relevant time, the shamlat lands were not cultivated by the proprietors of the village because of the adverse weather conditions and the area being barren was infested with poisonous reptiles and wild animals. The predecessors-in-interest were offered the land by the State of Punjab to make it cultivable and use for cultivation. The offer was that in case they will be able to make it cultivable, they will never be evicted. In fact, there are three big chunks of disputed land measuring 817 kanals 15 marlas, 1298 kanals 10 marlas and 911 kanals 17 marlas totalling 3028 kanals and 2 marlas i.e. 378 acres, 4 kanals and 2 marlas as per the jamabandi for the year 1956-57. The lease was in existence in the names of the predecessors-in-interest of the petitioners on the payment of Rs.4.13 annas per acre per annum and at the rate of Rs.5/- per acre per annum as cultivators. It is important to note here that the nature of the land is “Sailab, Banjar Kadim and Gair Mumkin”. The petitioners and their predecessors-in-interest had been paying rent as Gair Marusi till the crop of Rabi 1975. The case of the petitioners is that no 2 CWP No. 21766 of 2011 pattanama has ever been executed. If, at all, such pattanama has been executed, it must be with the Panchayat. It is also averred by the petitioners that earlier Gram Panchayat filed application for eviction as per the provisions of Shamlat Act. Initially, in the said application, order of eviction was passed against the petitioners and their predecessors-in-interest. They approached this Court by way of C.W.P. No. 1707 of 1979, the same was disposed of on 14.11.1979 (Annexure P/1) and the relevant part of the order is as under:- “In the face of the above situation, we for all the reasons recorded in Dhara Singh’s case (supra) quash the impugned orders, Annexure P.1 and P.3 in this case and allow the petitions. This, however, would not preclude the Gram Panchayat from initiating any fresh proceedings for the eviction of the petitioners in accordance with law. We make no order as to costs”. Again, order of eviction was passed against the petitioners. Ultimately, the petitioners and their predecessors-in- interest approached this Court by way of CWP No. 9785 of 1993 and order of eviction was set aside by the Division Bench of this Court vide order dated 05.04.1994 (Annexure P/5). The operative part of the order (Annexure P/5) is as under:- “Admittedly there is no written instrument of lease. The alleged lease was created by the State government before coming into force of the Punjab Village Common Lands (Regulation) Act, 1961 and framing of Rules 3 CWP No. 21766 of 2011 thereunder particularly relating to those governing lease granted by the Gram Panchayat. It has been held in the various decisions to which reference has already been made that the petitioners are in possession as lessees and the lease in their favour has not been determined according to law. This finding has become final between the parties. If the Gram Panchayat wants to proceed for the eviction of the petitioners, it is necessary for them:- (a) to ascertain the terms of the lease granted by the State Government. (b) to ascertain whether the State Government was competent to grant lease in respect of the land vesting in the Gram Panchayat; and (c) to determine the lease in accordance with law before applying for ejectment of petitioners under Section 7 of the Punjab Village Common Lands (Regulation) Act. Unless the Gram Panchayat takes action as spelt out above, the decisions rendered by this Court will continue to operate as res judicata and it will not be possible for the authorities under the Punjab Village Common Lands (Regulation) Act to evict the petitioners. The present petition is accordingly disposed of with the above observations making it clear that it is open to the Gram Panchayat to determine the lease according to law land then take further appropriate action in accordance 4 CWP No. 21766 of 2011 with the provisions of the Punjab Village Common Lands (Regulation) Act, 1961.” In pursuance to the earlier orders of this Court passed in various writ petitions, no action was taken by the Gram Panchayat and one Molu Ram (respondent No.4 herein) a resident of the village, filed C.W.P. No. 16665 of 2007 in this Court, which was decided on 27.02.2009 and directed the Deputy Commissioner to take a decision regarding the following three points:- “(a) to ascertain the terms of the lease granted by the State Government. (b) to ascertain whether the State Government was competent to grant lease in respect of the land vesting in the Gram Panchayat; and (c) to determine the lease in accordance with law before applying for ejectment of petitioners under Section 7 of the Punjab Village Common Lands (Regulation) Act 1961”. In pursuance to the above directions issued by this Court, the Deputy Commissioner carried out the investigation and submitted his report dated 12.06.2009 wherein it was held that the petitioners (respondents therein) are in unauthorized possession of the panchayati land and they are continuously in unauthorized occupation of the land since the times of their forefather. As a result of which, the other residents of the village have been suffering great loss, therefore, the petitioners should be evicted and the possession be got delivered to the panchayat. After the report of the Deputy Commissioner, Molu Ram (respondent 5 CWP No. 21766 of 2011 No.4) filed a petition under Section 7 of the Act for ejectment of the petitioners which was dismissed by the Assistant Collector First Grade vide order dated 17.01.2011 (Annexure P/6). Against this, the Gram Panchayat and Molu Ram (Respondent No.4) filed appeal before the Collector, who accepted the appeal of the Gram Panchayat and Molu Ram and ordered the ejectment of the petitioners. Thereafter, the petitioners preferred revision before the Commissioner. The revision also stands dismissed by the Commissioner vide order dated 27.09.2011 (Annexure P/10). Hence, this writ petition. We have heard learned counsel for the petitioners and perused the record. The basic contention of the petitioners is that they are allottees and have been cultivating the land and had been paying rent @ 4.13 Annas and Rs.5/- per acre per annum. Admittedly, they had paid rent upto 1975-76. So far as this is concerned, the finding had already been recorded up to this Court in all the writ petitions is that the status of the petitioners over the land was as lessees. The petitioners have referred to the Jamabandi for the year 1953-54 (Annexure P/2) wherein the ownership of the land has been described as “Shamlat Deh Hasab Rasad Jar Khewat” and the kind of land has been mentioned as “Charand” and the nature of land has been mentioned as “Charand, Banjar Qadim and Gair Mumkin”. In the jamabandi for the year 1956-57 (Annexure P/3), the name of the Gram Panchayat appears as owner and the nature of the land is the same. Similar is the position shown in the jamabandi for the year 1975-76 (Annexure P/4). There is no evidence on record brought by the petitioners 6 CWP No. 21766 of 2011 that they had ever paid any rent after 1975-76. As such, for non- payment of rent, the petitioners had become unauthorized occupants of the land and are liable to be evicted under Section 7 of the Act. In view of the admitted position with regard to the ownership of the land and the nature of the land and rent paid by the petitioners upto 1975-76, it is very much clear that they had not paid rent thereafter, possession of the petitioners is illegal. In the year 1978, the revenue Patwari appears to have made reports dated 24.10.1978 to 26.10.1978, whereby entry of change of lagan has been made and the possession continued to be the same. It is a known how this change in the column of rent of the jamabandi has come into being. There is no evidence on record that such entry was affected by way of order of competent revenue authority or of the Civil Court, nor in the khasra girdawari note has been made why this entry is being changed. This clearly indicates that the changed entries are unauthorized can be ignored. After the order in CWP No. 16665 of 2007, the Deputy Commissioner enquired and thereafter, application under Section 7 of the Act has been filed, which was dismissed by the Assistant Collector First Grade. The Collector has specifically referred to the order passed in CWP No. 10148 of 2009 – Joginder Singh versus Deputy Commisisoner, Kurukshetra, decided on 17.07.2009 by this Court. The relevant part of the order is as under:- “….for the foregoing reasons, there is no merit in this petition and the same is accordingly dismissed. However, the authorities under the Act shall decide the ejectment petition that may be filed on the basis of 7 CWP No. 21766 of 2011 evidence and material produced before it uninfluenced by the observations made herein or in the order dated 12.6.2009 (Annexure-P.8) passed by the Deputy Commissioner, Kurukshetra.” Against the said order, LPA No. 864 of 2010 – Joginder Singh vs. Deputy Commissioner, Kurukshetra, was filed which was dismissed on 26.07.2010 and the following order was passed by this Court:- “In view of above situation, once the petitioners have allowed the orders passed by this Court in the cases of Anup Singh (supra) and Molu Ram (supra) to become final, it is not open for the petitioners to allege that the earlier orders passed would constitute res judicata between the parties. The Collector Kurukshetra vide the impugned orders has given a firm finding that no lease was ever executed in favour of the petitioners. It was so said when the petitioners, despite opportunity given, failed to produce copy of the lease deed. It was also noticed that no such entry, regarding lease, exists in the revenue records. It was also stated that as per the provisions of the Act, the gram Panchayat cannot lease out its land for the period of 20 years what to talk of an unlimited period. Before this Court also, when we asked counsel for the petitioners to produce any document showing that lease deed was ever executed in favour of the petitioners, he failed to do so. By looking at the revenue records, the Collector has further rightly held 8 CWP No. 21766 of 2011 that possession of the petitioners in the land in dispute is not continuous. It has also come on record that the petitioners had not paid any rent for the last more than 20 years. It appears that in the past, somebody in the gram Panchayat was conniving with the petitioners and allowed the findings to come that petitioners are the perpetual lessees. The facts become clear when in Molu Ram’s case (supra), the Deputy Commissioner Kurukshetra was directed to look into the entire matter threadbare and pass an order, after hearing both the parties so that this prolonged litigation can be put to an end. The Deputy Commissioner has perused the matter from all angles and then ordered that the petitioners be ejected from the land in dispute. We are of the opinion that the order passed is in consonance with the directions issued by this Court in Molu Ram’s case (supra) and also is based on record. No case is made out for interference. Dismissed.” In view of the order passed by this Court in various writ petitions dispute between the parties regarding patta has been decided. It has been held by this Court that no lease was created in favour of the respondent. The directions issued in CWP No. 9785 of 1993 decided on 5.4.1994 has been considered in C.W.P. No. 16665 of 2007 - Molu Ram vs. State of Haryana. The Deputy Commissioner was directed to enquire into matter. The Assistant Collector First Grade did not consider those orders, 9 CWP No. 21766 of 2011 rather, directed the Gram Panchayat to comply with the directions passed in CWP No. 9785of 1993 decided on 05.04.1994and to proceed further. There is no written lease in favour of the petitioners and they are relying upon the entry made in the revenue record with regard to pattanama, as such, they claimed themselves to be pattaydars. Although, the findings are to the effect that there is no proof of pattanama. In view of the aforesaid position, we are of the definite view that the impugned orders have been passed by the authorities on the appreciation of the evidence on record specifically the documentary evidence i.e. jamabandies and earlier orders of this Court. The petitioners had not paid any rent, as such, are unauthorized occupants and had rightly been ordered to be evicted. We affirm the findings of fact recorded by the Collector and the Commissioner. In view of the above, the present writ petition is devoid of merit. Dismissed in limine. (PARAMJEET SINGH) JUDGE November 23, 2011 (SATISH KUMAR MITTAL) vkd JUDGE 10