Civil Writ Petition No. 15808 of 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 15808 of 2007 Date of Order: 13.05.2010 Rajinder Singh & others ....Petitioners Versus The State of Haryana and others ..Respondents CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. Vikram Singh,Advocate for the petitioners Mr. Ashok Jindal, Addl. A.G.,Haryana for respondents No.1 to 3. Mr. C.B.Goel, Advocate and Mr. Lokesh Sinhal, Advocate for respondent no.4. RAJIVE BHALLA, J (Oral). This order shall dispose of C.W.P.Nos. 15808, 16164, 16259, 16212, 16209, 16579 of 2007, 3212, 9742 of 2008 as they involve adjudication of similar questions of fact and law. For the sake of convenience, facts are being taken from CWP No.15808 of 2007. Prayer in this petition is for issuance of a writ in the nature of certiorari for setting aside the orders dated 31.05.2007 and 22.03.2007, passed by the Collector, Faridabad and the Assistant Collector Ist Grade, Palwal, respectively, directing the petitioners ejectment. Apart from impugning the correctness of these orders on Civil Writ Petition No. 15808 of 2007 -2- merits, counsel for the petitioners submits that as the land in dispute was created by river action, it is excluded from the definition of “Shamilat Deh”, by virtue of proviso (i) to Section 2(g) of the Act. It is contended that though the petitioners raised this question, before the Assistant Collector and the Collector, neither authority has recorded any finding, thereon. It is pointed out that in a similar case, relating to similar land, and against the same Gram Panchayat, the Assistant Collector has held that a question of title arises and is proceeding to decide this question. It is prayed that in view of these facts, it would be appropriate that the orders of ejectment are set aside and the Assistant Collector Ist Grade is directed to decide whether the land in dispute is “Shamilat Deh”. Counsel for the Gram Panchayat and counsel for the State of Haryana submit that the land in dispute vests in the Gram Panchayat as it is described as “Jumla Mushtarka Malkan” and reserved as “Charand” during consolidation with the consent of the proprietors. As Section 2(g) of the Act provides that land described as “Charand” shall be “Shamilat Deh”, it vests in the Gram Panchayat, no question of title arises for adjudication. Counsel for the State of Haryana has filed a villagewise list of “Burdgi Baramadgi” (land subject to or created by river action) in the Districts of Sonipat, Karnal, Palwal, Yamuna Nagar, Panipat, in court today, which is taken on record. I have heard counsel for the parties, perused the impugned orders and appraised the material on record. Proviso (i) to Section 2(g) of the Act reads as follows:- “2. (g) “Shamilat Deh” includes- Civil Writ Petition No. 15808 of 2007 -3- 1. XX XX XX 2. XX XX XX 3. XX XX XX 4. XX XX XX 5. XX XX XX 6. XX XX XX but does not include land which; (i) becomes or has become shamilat deh due to river action or has been reserved as shamilat in villages subject to river action except shamilat deh entered as pasture, pond or playground in the revenue records.” The first proviso to Section 2(g) clearly postulates that land created by river action does not vest in a Gram Panchayat. The proviso, however, provides that if this land is reserved, in the revenue records as pasture, pond or playground it shall fall within the definition of Shamilat Deh. The respondents, namely, the State of Haryana and the Gram Panchayat allege that the land in dispute is described as “Jumla Mushtarka Malkan” reserved for a pasture and, therefore, vests in the Gram Panchayat whereas the petitioners allege that in view of the nature of the land and the use of the word “Jumla Mushtarka Malkan” the land does not vest in the Gram Panchayat. A perusal of the orders passed by the Assistant Collector Ist Grade and the Collector, reveals that the petitioners raised a positive plea that as the land in dispute is subject to river action it Civil Writ Petition No. 15808 of 2007 -4- does not vest in the Gram Panchayat. The plea was neither considered nor decided. The Collector was, therefore, required to consider whether the land in dispute is “Shamilat Deh” created by river action or “Jumla Mushtarka Malkan” reserved for use as a grazing ground. It would be necessary to emphasise that Shamilat Deh which is created by river action does not vest in the Gram Panchayat except if it is recorded as pasture, pond or play ground. The land in the present case is not recorded as “Shamilat Deh” but as “Jumla Mushtarka Malkan”, a variety of land, created during consolidation by applying a pro-rata cut on the holdings of the proprietors. It is, therefore, apparent that there is a degree of ambiguity about the nature of the land its title and ownership. It is not denied by the respondents that the Assistant Collector Ist Grade is already seized of a similar dispute. The Assistant Collector Ist Grade should have, therefore, decided the question of title raised by the petitioners, namely, whether this land was subject to or created by river action. At this stage, it would be necessary to emphasise that the jurisdiction to determine whether land vests or does not vest in a Gram Panchayat falls to the sole and exclusive jurisdiction of the Assistant Collector Ist Grade, under Section 7(1) or of the Collector under Section 13-A of the Act. The proviso to Section 7(1) clearly postulates that if a prima facie question of title is raised and it appears to the Assistant Collector Ist Grade, on the basis of documents, that a question of title is really involved, he shall after holding that a question of title arises,proceed to first decide the question of title in accordance with Civil Writ Petition No. 15808 of 2007 -5- the procedure prescribed by the Code of Civil Procedure, 1908, for deciding a suit. As the Assistant Collector Ist Grade is already seized of a similar dispute he could not have treated the petitioners differently. As regards the challenge to the orders passed by the Assistant Collector Ist Grade and the Collector, on merits, suffice is to state that in case the land vests in the Gram Panchayat whether as “Shamilat Deh” or for management and control as “Jumla Mushtarka Malkan”, the petitioners have no right to remain in possession. If, however, the land in dispute does not vest in the Gram Panchayat these orders would necessarily be null and void. It is, therefore, apparent that the legality of the ejectment orders would depend upon the outcome of the question of title to be decided in accordance with law. As a consequence, the writ petition is disposed of with liberty to the petitioners to file an appropriate application under Section 13-A of the Act. In case, such an application is filed within two months from the receipt of a certified copy of this order, it shall be decided by the Collector, within six months. During the pendency of the application before the Collector, the orders of ejectment Annexure P-9 and Annexure P-10 shall remain in abeyance and status quo with respect to possession as it exists today shall be maintained by the parties. It would be necessary to clarify that in case the question of title is decided in favour of the Gram Panchayat, the impugned orders shall be deemed to have been affirmed and the writ petition dismissed. In case the question of title is decided in favour of the Civil Writ Petition No. 15808 of 2007 -6- petitioners, the impugned orders shall be deemed to be null and void and the writ petition shall be deemed to have been allowed. May 13, 2010 (RAJIVE BHALLA) nt JUDGE