Civil Writ Petition No.6376 of 2006 : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: January 07, 2009 Ladu Ram ...Petitioner VERSUS The Commissioner, Hisar Division, Hisar and others ...Respondents CORAM: HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.Amit Jain, Advocate, for the petitioner. Mr.Yashwinder Singh, AAG, Haryana, for respondent Nos.1 and 2. Mr.Ashwani Verma, Advocate, for respondent No.3. ***** RANJIT SINGH, J. This order will dispose of Civil Writ Petition Nos.6376 of 2006 (Ladu Ram v. The Commissioner, Hisar Division, Hisar & others), 6377 of 2006 (Brij Lal & another v. The Commissioner, Hisar Division, Hisar & others), 6378 of 2006 (Mangat alias Mangla v. The Civil Writ Petition No.6376 of 2006 : 2 : Commissioner, Hisar Division, Hisar & others), 6379 of 2006 (Rai Singh & others v. The Commissioner, Hisar Division, Hisar & others), 6716 of 2006 (Ram Karan & others v. The Commissioner, Hisar Division, Hisar & others), 8606 of 2006 (Ran Singh v. Commissioner, Hisar Division, Hisar & others) and 9026 of 2006 (Ram Singh v. Commissioner, Hisar Division, Hisar & others). The facts are being taken from CWP No.6376 of 2006. The petitioner claims that Khewat No.249, Khatauni No.353, Khasra No.21//10/2, 11, measuring 11 kanals 11 marlas in village Sarwarpur, Tehsil and District Fatehabad is a Jumla Mushtraka land. Reference is made to the entries, Annexure P-1, to show that in the ownership column, land in question is shown to be owned by Jumla Malkan Wa Digar Haqdaran Arazi Hasab Rasad Rakba Khewat. Gram Panchayat-respondent No.3 has initiated proceedings under Section 7(1) of Punjab Village Common Lands (Regulation) Act, 1961 (for short “the Act”) for ejectment of the petitioner. The petitioner filed reply to the application pleading that land in question is shamlat deh and it does not vest in Gram Panchayat. It is further pleaded that the same was not reserved for common purposes during consolidation. It is further pleaded that the petitioner had earlier filed Civil Writ Petition No.15669 of 1992 challenging the amendment in Haryana Act No.9 of 1992 and the amendment was struck down on 18.1.1995. However, the matter went to Supreme Court and was remanded back. Ultimately the Full Bench of this court again struck down the said amendment. It is, inter-alia, held as under:- Civil Writ Petition No.6376 of 2006 : 3 : “67. In so far as all other cases are concerned, same shall stand disposed of in light of law laid down by us. Resultantly, if the mutations might have come into being on the dint of Act No.9 of 1992 challenged herein in favour of the State or Gram Panchayat, the said mutations shall stand cancelled or set aside, leaving open for the Gram Panchayat to file an application for eviction under Section 7 or title suit under Section 13-A, as the case may be, if the lands are such which have since been earmarked for common purposes under the scheme and the proprietors are in unauthorised occupation and, the proprietors to file a title suit in case the lands are such which form part of Bachat land, having not been earmarked for any common purpose in the scheme of consolidation and yet the Gram Panchayat is ascertaining its title or is in possession thereof.” The effect of this order, according to the counsel for the petitioner, is that the mutation entries in favour of the State or Gram Panchayat in regard to possession automatically would stand set- aside. It is on this basis pleaded that the panchayat has no right in its favour to seek eviction of the petitioner from the land by moving an application under Section 7 of the Act. By referring to Section 7 of the Act and the proviso contained thereunder, the counsel urges that once a question of title is raised and is proved prima-facie on the basis of a document, then the Assistant Collector Ist Grade is required to record a finding to that effect and first decide the question of title in the manner as laid down Civil Writ Petition No.6376 of 2006 : 4 : in the Section. The procedure, which the Assistant Collector is then required to follow, is also given in the Section itself. Section 7 with 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 moto 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 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 the manner laid down hereinafter. Civil Writ Petition No.6376 of 2006 : 5 : (2)The Assistant Collector of the first grade shall by an order, in writing, require any person to pay a penalty, in respect of the land or other immovable property which was or has been in his wrongful or unauthorised possession, at a rate not less than five thousand rupees and not more than ten thousand rupees per hectare per annum, having regard to the benefit which could be derived from the land or other immovable property. If the penalty is not paid within the period of thirty days from the date of the order, the same shall be recoverable as arrears of land revenue. (3) The procedure for deciding the question of title under proviso to sub-section (1) shall be the same as laid down in the Code of Civil Procedure, 1908. (4) If any person refuses or fails to comply with the order of eviction passed under sub-section (1), within ten days of the date of such order, the Assistant Collector of the first grade may use such force, including police force, as may be necessary for putting the panchayat in possession. (5) Any person who is found in wrongful or unauthorised possession of the land or other immovable property in shamilat deh and is ordered to be ejected under sub- section(1), shall be punishable with imprisonment for a term which may extend to two years. The grievance raised in the petition is that once the petitioner had raised a question of title, the Assistant Collector Ist Civil Writ Petition No.6376 of 2006 : 6 : Grade could not have proceeded with the matter for ejectment, till such time he decided the question of title. The Assistant Collector Ist Grade, however, came to take a view that he has no jurisdiction to decide such application. The said order was taken in revision before the Commissioner, who has also declined to interfere without justification, as per the counsel. The limited prayer made in the writ petition is that Assistant Collector Ist Grade is required to decide the question of title as and when raised before it in terms of the procedure prescribed under Section 7 of the Act. Proviso to Section 7 would show that Assistant Collector Ist Grade is to decide the question of title if raised and as such, he is not justified in taking a view that he would have no jurisdiction to decide the said question. It would be appropriate to remand this case back to Assistant Collector Ist Grade, Fatehabad to consider if the petitioner has raised a question of title and to act in accordance with the provisions of the Statute. The Assistant Collector Ist Grade would decide the issue by granting proper opportunity to the parties concerned. The writ petitions are accordingly disposed of. January 07, 2009 ( RANJIT SINGH ) ramesh JUDGE