IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 5869 of 1992 (O&M) Date of decision: 30.7.2009 Ram Kishan ….. Petitioner Versus State of Haryana and Others ….. Respondents Present : Mr. V.B. Aggarwal, Advocate for the petitioner. Mr. Sudhir Makkar, Sr. DAG, Haryana for respondents No.1 to 3. Mr. R.S. Mamli, Advocate for respondent No.4. **** S.S. SARON, J. The Civil Writ petition has been filed by the petitioner Ram Kishan son of Kura Ram seeking quashing of the order dated 5.8.1991 (Annexure P3) passed by the Assistant Collector Ist Grade, Kurukshetra (respondent No.3) and the order dated 23.1.1992 (Annexure P5) passed by the Collector, Kurukshetra (respondent No.2) and for dismissing the application (Annexure P2) filed by the Gram Panchayat Dhanora Jattan (respondent No.4). A further prayer has been made for declaring the amended provisions of Section 2 (g), (4), (6) proviso to Section 13-B and Section 7 of the Punjab Village Common Lands (Regulation) Haryana Amendment Act, 1991 (Haryana Act No. 9 of 1992) to be ultra vires and unconstitutional and of no adverse affects on the rights of the petitioner. Learned counsel appearing for the petitioner during the course of hearing submits that his prayer for declaring the amended CWP No. 5869 of 1992 (O&M) -2- provisions of Act No. 9 of 1992, no longer survives as some of the provisions of the said Amendment Act have already been considered and adjudicated upon by a Full Bench of this Court in Jai Singh v. State of Haryana, (2003-2) PLR 658. He, however, prays that the impugned orders dated 5.8.1991 (Annexure P3) passed by the Assistant Collector Ist Grade, Kurukshetra (respondent No.3) and the order dated 23.1.1992 (Annexure P5) passed by the Collector, Kurukshetra (respondent No.2) are liable to be set aside and quashed. According to the petitioner during the consolidation of holdings a big chunk of land measuring 153 Acres was reserved for common purposes of Village Dhanora Jattan out of which some land including the land in dispute was reserved for ‘Charand’ for grazing cattle of the village by its inhabitants. The said land is recorded in the revenue records as ‘Shamlat Deh’. The ‘Charand’ in fact was a jungle which was used for grazing cattle. The Gram Panchayat Dhanora Jattan (respondent No.4) had leased out the land in dispute out of the ‘Charand’/jungle to the petitioner. The petitioner, it is claimed, made the ‘Charand’ i.e. the jungle cultivable by spending a huge amount in thousands about two decades back. The petitioner in respect of the disputed land has been recorded in the revenue records as ‘Gair Marusi’ and the said entry has been continuing till date. Consequently the possession of the petitioner on the land has also been continuing. The Gram Panchayat village Dhanora Jattan, Tehsil Thanesar, District Kurukshetra (respondent No.4) filed an application dated 11.9.1989 (Annexure P2) under Section 7 (2) of the Punjab Village Common Lands (Regulation), Act 1961 (as applicable in Haryana) (“Act” CWP No. 5869 of 1992 (O&M) -3- – for short) seeking eviction of Molu Ram son of Bakhtawar. It was submitted in the said application (Annexure P2) that the Gram Panchayat Dhanora Jattan (respondent No.4) was the absolute owner of Shamlat land measuring 41 kanals 14 marlas comprised in Khewat No. 426, Khatauni No.697; Khasra Nos. 14//16 (5-0); 15// 16(4-14), 17 (8-0), 18 (8-0), 19 (8-0) and 20 (8-0) as per Jamabandi for the year 1984-85 (Annexure P1). It was alleged that the said land was given on lease by the Gram Panchayat Dhanora Jattan (respondent No.4) to Molu Ram- respondent in the application (Annexure P2). The lease period had expired, however, Molu Ram was still cultivating the land and he was not paying the lease amount. Therefore, he was in unauthorized possession of the Panchayat land and the Panchayat had been suffering heavy loss due to the unauthorized possession of Molu Ram-respondent in the application (Annexure P2). It was, therefore, prayed that an order of immediate ejectment of Molu Ram-respondent in the application (Annexure P2) from the land in dispute and to deliver possession of the same to the Panchayat (respondent No.4) be passed; besides, the Panchayat be awarded compensation at the rate of Rs.5000/-per hectare per year by way of imposing fine upon the said Molu Ram for un- authorized cultivation of ‘Shamlat’ land of the Panchayat. In written reply filed on 2.3.1990 to the application (Annexure P2) of the Gram Panchayat (respondent No.4), the petitioner, took a number of preliminary objections, besides, filed reply on merits. The learned Assistant Collector Ist Grade, Kurukshetra (respondent No.3), it is alleged by the petitioner, without affording any opportunity to the petitioner to adduce evidence on record decided the CWP No. 5869 of 1992 (O&M) -4- ejectment application vide order dated 5.8.1991 (Annexure P3) and directed the petitioner to deposit the lease money with an increase of 15% every year from the years 1982-83 to 1990-91 as per details given therein against receipt with the Panchayat (respondent No.4) or in the Court by 15.6.1991 and if he failed to do so, the Panchayat would have a right to receive penalty at the rate of Rs.1000/- per acre for the period from the years 1982-83 to 1990-91 and the respondent before the Assistant Collector i.e. the present petitioner shall be deemed to have been evicted. A copy of the impugned order dated 5.8.1991, duly translated, is attached as Annexure P3. It is submitted that the Assistant Collector Ist Grade (respondent No.3) did not pass an ejectment order rather directed the petitioner to deposit the lease money, which was determined by him with 15% increase per year from the year 1982-83 till date considering the facts and circumstances of the case. The Gram Panchayat (respondent No. 4), it is submitted, was fully satisfied with the order passed by the Assistant Collector Ist Grade and accepted the lease money from the petitioner from the year 1982-83 till date i.e. even for the year 1991-92 against receipt issued by the Panchayat (respondent No.4). It is submitted that the petitioner had sown Rabi crop after deposit of the lease money. The Gram Panchayat (respondent No.4), it is submitted, allowed the order dated 5.8.1991 (Annexure P3) passed by the Assistant Collector Ist Grade to become final between the parties. However, the Gram Panchayat (respondent No.4) after expiry of the period of limitation for filing an appeal against the order dated 5.8.1991 (Annexure P3), filed an appeal on 9.11.1991 though it was estopped from doing so by its own act and conduct particularly when it had accepted the lease money from the CWP No. 5869 of 1992 (O&M) -5- petitioner. The appeal was filed by the Gram Panchayat (respondent No.4) before the Collector (respondent No.2) after more than three months of the order dated 5.8.1991 (Annexue P-3) passed by the Assistant Collector Ist Grade (respondent No.3). The appeal was filed along with an application (Annexure P4) seeking condonation of delay in its filing. The application for condonation of delay, according to the petitioner, was without any cause. The petitioner on receipt of notice filed reply on 3.1.1992 to the said application (Annexure P4) seeking condonation of delay in filing the appeal. The Collector, Kurukshetra (respondent No.2) vide order dated 23.1.1992 (Annexure P5) upheld the decision dated 5.8.1991 (Annexure P3) of the Assistant Collector Ist Grade (respondent No.3). While dismissing the appeal of the Gram Panchayat (respondent No.4), the Collector, Kurukshetra (respondent No.2) vide order dated 23.1.1992 (Annexure P5) directed it to auction the land in dispute after Rabi crop. Aggrieved against the same, the petitioner has filed the present petition. On notice of motion, reply has been filed by the Gram Panchayat (respondent No.4). It is stated that on expiry of the lease which was till the year 1981-82, the petitioner became unauthorized occupant of the land in dispute. The learned Assistant Collector Ist Grade (respondent No.3) and the Collector (respondent No.2) have only ordered ejectment of the petitioner from the land in dispute upon which the petitioner in any case has got no right to remain in possession and no right of the petitioner has been infringed. It is also submitted that the Assistant Collector Ist Grade (respondent No.3) vide order dated 5.8.1991 (Annexure P3) had ordered payment of the penal rent for the period upto CWP No. 5869 of 1992 (O&M) -6- 1991-92 for which the petitioner was in unauthorized occupation and the Collector (respondent No.2) had only clarified the said order which the petitioner had allowed to become final. As such, the petitioner is now estopped from challenging the said order by invoking the extra-ordinary writ jurisdiction of this Court. It is further submitted that the petitioner has concealed material facts from this Court and has not come with clean hands. The averments regarding the land in dispute being reserved as ‘Charand’ for grazing cattle by the inhabitants of the village out of big chunk of land measuring 153 acres are admitted. It is, however, submitted that the petitioner was a lessee and after expiry of the lease period, his lease rights do not subsist. The petitioner has no right to remain in possession of the land in dispute. It is further submitted that the Assistant Collector Ist Grade (respondent No.3) at the time of passing the order dated 5.8.1991 (Annexure P3) awarded full opportunity to the petitioner to lead evidence and produce documents in support of his claim. The petitioner, however, failed to justify his right. The order dated 5.8.1991 (Annexure P3) passed by the Assistant Collector Ist Grade (respondent No.3), it is submitted, is legal and is liable to be sustained. In fact the petitioner himself admitted before the Assistant Collector Ist Grade (respondent No.3) that he was in unauthorized occupation of the land in dispute. The Assistant Collector Ist Grade (respondent No.3) had directed the petitioner to pay penal rent for the period he remained in unauthorized occupation. The petitioner, therefore, has got no right to remain in possession. The penal rent for the period from 1982-83 to 1991-92 was accepted by the Gram Panchayat (respondent No.4) in accordance with the order dated 5.8.1991 (Annexure P3). The filing of CWP No. 5869 of 1992 (O&M) -7- an appeal before the Collector (respondent No.2) against the order dated 5.8.1991 (Annexure P3) along with an application for condonation of delay is admitted. As regards delay in filing the appeal, it is submitted that the Assistant Collector Ist Grade (respondent No.3) at the time of pronouncement of the order had ordered ejectment of the petitioner with immediate effect. However, on receiving its copy, the order (Annexure P3) was not clear to the Gram Panchayat (respondent No.4). Therefore, Gram Panchayat (respondent No.4) decided to file an appeal. The reasons given in the application for seeking condonation of delay in filing the appeal were good and sufficient reasons. The Collector (respondent No.2), it is stated, has only clarified the concluding para of order dated 5.8.1991 (Annexure P3) and dismissed the appeal. The application for condonation of delay it is submitted was considered and decided on merit. The Collector (respondent No.2) has upheld the decision of the Assistant Collector Ist Grade (respondent No.3), but it has clarified the concluding para of the order (Annexure P3) passed by the Assistant Collector Ist Grade (respondent No.3). The orders dated 5.8.1991 (Annexure P3) and 23.1.1992 (Annexure P5) passed by the Assistant Collector Ist Grade (respondent No.3) and the Collector, Kurukshetra (respondent No.2), it is stated, are legal and valid. While issuing notice of motion on 15.5.1992, dispossession of the petitioner was stayed meanwhile. On 17.9.1992, the case was adjourned to await the decision of CWP No.5877 of 1992 and the stay was ordered to continue. CWP No.5877 of 1992 has since been decided in terms of the order passed by the Full Bench in Jai Singh’s case (Supra). It is after the decision in the said case that the Gram Panchayat filed C.M. CWP No. 5869 of 1992 (O&M) -8- application No.7137 of 2009 for early hearing of the case. Notice was issued in the case to the counsel for the petitioner who has stated that he has no objection to the hearing of the writ petition. Learned counsel appearing for the petitioner during the course of hearing has submitted that the petitioner has already died. However, an order may be passed as the provisions of Order 22 Rule 3(2) of the Code of Civil Procedure (CPC-for short) (as amended by the High Court) envisage that where within the time limited by law no application is made under sub-Rule (1), the suit shall not abate as against the deceased plaintiff and the judgment may be pronounced notwithstanding his death which shall have the same effect as if it has been pronounced before the death took place, and the contract between the deceased and the pleader in that event shall continue to subsist. The provisions of CPC are applicable to writ petitions in terms of Rule 32 of the Writ Jurisdiction (Punjab and Haryana) Rules 1976 as contained in Volume 5, Chapter 4, Part F of the Punjab and Haryana High Court Rules and Orders (Practice and Procedure). Rule 32 of the aforesaid rules provides for application of CPC and it is provided therein that in all matters for which no provision is made by the said rules, the provisions of CPC shall apply mutatis mutandis, insofar as they are not inconsistent with the said rules. Therefore, whosoever may the LR or the successor-in-interest of the petitioner shall be bound by the order passed in the present petition. Learned counsel for the petitioner has further contended that the petitioner is recorded as ‘gair marusi’ in the revenue records for more than two decades and he is continuing in possession since then which is evident from the revenue records. Therefore, being a ‘gair marusi’ tenant CWP No. 5869 of 1992 (O&M) -9- he cannot be said to be in unauthorized occupation of the land and the authorities below have erred in holding him to be in unauthorized occupation. Besides, in the revenue records, the land in dispute is recorded as ‘charand’. The land in dispute being part of ‘charand’ is ‘Shamlat Deh’ and the provisions of the Act are inapplicable and the petitioner at the most can be evicted from the land in dispute under the Punjab Security of Land Tenures Common Lands (Regulations) Act; besides, can at the most be evicted by initiating proceedings under the Punjab Tenancy Act. Before filing the ejectment application, it is submitted that the petitioner was not served any notice by the Gram Panchayat Dhanora Jattan (respondent No.4) under Rules 19 and 20 of the Rules framed under the Act which is mandatory and is required to be served in the interest of justice. The petitioner made the land which was jungle cultivable by spending substantial amount. Thereafter, by paying the lease money, he is entitled to continue in possession of the land. Learned counsel appearing for the Gram Panchayat Dhanora Jattan (respondent No.4) has submitted that appeals were filed by the Gram Panchayat (respondent No.4) against a similar order (Annexure P3) which was passed against the petitioner Ram Kishan son of Kura Ram. The Collector, Kurukshetra (respondent No.2) vide order dated 23.1.1992 (Annexure P5) allowed the appeal of the Gram Panchayat Dhanora Jattan (respondent No.4). It was observed that lease money up to the year 1990- 91 had been paid to the Gram Panchayat Dhanora Jattan (respondent No.4) by all and that Molu Ram and Ajaib Singh had paid the lease money up to the year 1991-92. In this way, the order under appeal had already been complied with and now it would be improper to set aside the CWP No. 5869 of 1992 (O&M) -10- said order (Annexure P3). Consequently, the appeals were dismissed with the direction that immediately after harvesting the Rabi Crop, which was standing in the land in dispute, the Gram Panchayat Dhanora Jattan (respondent No.4) would conduct an open auction in presence of the District Development and Panchayat Officer, Kurukshetra and the remaining amount for the year 1991-92 was ordered to be recovered from the occupants in accordance with the lease from those who had not paid the same. I have given my thoughtful consideration to the matter. The admitted position between the parties is that the land in dispute is ‘Charand’. The order dated 5.8.1991 (Annexure P3) refers to one Molu Ram. The same, however, relates to the petitioner Ram Kishan son of Kura Ram as he is in occupation of the land measuring 41 kanals 14 marlas. It appears that similar orders had been passed in several cases as the petitioner Ram Kishan and appeals were filed by the Gram Panchayat Dhanora Jattan (respondent No.4) against the same. The appeals were disposed of by the Collector, Kurukshetra (respondent No.2) being similar cases vide order dated 23.1.1992 (Annexure P5). Case No.19/D.C.-2/91-92 mentioned in the said order relates to Ram Kishan son of Kura Ram of village Dhanora Jattan, Tehsil Thanesar, District Kurukshetra i.e. it relates to the petitioner. The Collector, Kurukshetra (respondent No.2) in his order dated 23.1.1992 (Annexure P5) considered the appeals filed by Gram Panchayat Dhanora Jattan (respondent No.4) against several occupants including the petitioner Ram Kishan. It was noticed that the Gram Panchayat (respondent No.4) was the owner of the land in dispute which was given on lease to the respondents in the said CWP No. 5869 of 1992 (O&M) -11- appeals. After expiry of the lease period, their possession had become unauthorized. The occupants were asked to deliver the possession but they refused to do so. Ultimately ejectment petitions were filed. The Court below issued show cause notices to the occupants. The spot was inspected and statements of Mam Chand son of Shamela Ram resident of Dhanora Jattan was recorded. It was stated by him that the land was in his cultivating possession and he had paid the lease upto the year 1982 and thereafter also he was ready to pay. He was cultivating the land. The statement of Balram, Sarpanch was also recorded at the spot who stated that the respondent was in unauthorized possession since the year 1983 and therefore, ejectment be ordered and possession be delivered to the Gram Panchayat (respondent No.4). Besides, penalty may be imposed. It was observed by the Collector (respondent No.2) that the Court below had disposed of all the appeals on 21.12.1990. It was observed by the Court below, that is, the Assistant Collector Ist Grade that the respondent (now petitioner) had not paid the lease money after 1982 to the Panchayat and he was in unauthorized cultivating possession of the land in dispute since 1982, which he had also admitted in his statement. Therefore, it had been ordered that the respondent (now petitioner) should deposit the lease money amounting to Rs.7727/- at the rate of Rs.200/- per acre with an increase of 15% every year from the year 1982-83 to 1990-91 with the Panchayat in the village against receipt upto 15.6.1991 for deposit the amount in the Court of Assistant Collector Ist Grade (respondent No.3). If he failed to do so, the Panchayat (respondent No.4) would have right to recover the penalty amounting to Rs.10,000/- at the rate of Rs.1000/- per acre per year from 1982-83 to 1990-91 from the respondent (now CWP No. 5869 of 1992 (O&M) -12- petitioner) and the respondent (now petitioner) shall be deemed to have been evicted from the land in dispute. In appeal before the Collector, Kurukshetra (respondent No.2) delay in filing the appeal was condoned and after considering the contentions raised by the parties and perusing the record, it was observed that in all the cases, the lease money had been paid to the Gram Panchayat (respondent No.4) till the year 1990-91. Molu Ram and Ajaib Singh had paid the amount till 1991-92. In this manner, the order under appeal had already been complied with. Therefore, it was observed that it would be not proper to set aside the said order. Consequently, all the appeals were dismissed with the direction that immediately after harvesting the Rabi crop which was standing in the land in dispute, the Gram Panchayat (respondent No.4) should conduct an open auction in the presence of the District Development and Panchayat Officer, Kurukshetra and the remaining amount for the year 1991-92 be recovered from the respondents in the appeals before the Collector in accordance with Rules who had not paid the same. In the present petition it is not in dispute that the land is ‘Charand’ land which is ‘Shamlat Deh’. Section 2 (g) of the Act defines ‘Shamlat Deh’ and Section 2 (g) (1) of the Act envisages that ‘Shamlat Deh’ “includes land described in the revenue records as shamilat or charand including abadi deh”. Therefore, ‘charand’ is inclusive of the definition of ‘Shamlat Deh’. The said position is admitted between the parties. The land in dispute being ‘Charand’ and part of ‘Shamlat Deh’ in terms of Section 4 of the Act vests with the Panchayat which provides for vesting of rights in Panchayat and non-proprietors. It is provided therein that notwithstanding anything to the contrary contained in any other law CWP No. 5869 of 1992 (O&M) -13- for the time being in force or in any agreement, instrument, custom or usage or any decree or order of any court or other authority, all rights, title and interests whatever in the land, which is included in the ‘shamlat deh’ of any village and which has not vested in a Panchayat under the shamlat law shall, at the commencement of this Act, vest in Panchayat constituted for such village, and where no such Panchayat has been constituted for such village, vest in the Panchayat on such date as a Panchayat having jurisdiction over that village is constituted. Therefore, once the land is ‘shamlat deh’ and vests in the Panchayat the contention of the learned counsel for the petitioner that he cannot be evicted under the provisions of the Act and can at the most be evicted under the Punjab Security of Land Tenures Common Lands (Regulations) Act or the Punjab Tenancy Act is devoid of any merit as it is the provisions of the Act which would apply after the period of lease had expired. The petitioner was initially given the land which is ‘Charand’ on lease and he has been in occupation of the same. The Assistant Collector 1st Grade in terms of Section 7 of the Act has the power to put the Panchayat in possession of certain lands. Section 7 (1) of the Act and its proviso reads 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 motu 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 enquiry as he may deem fit and in accordance with such procedure CWP No. 5869 of 1992 (O&M) -14- 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