IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No. 8999 of 2009 DATE OF DECISION : 31.10.2011 Tarsem Singh .... PETITIONER Versus Director Rural Development and Panchayat (Punjab) Exercising the powers of Commissioner, and others ..... RESPONDENTS CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE PARAMJEET SINGH Present: Mr. Naresh Prabhakar, Advocate, for the petitioner. Mr. Manohar Lall, Addl. A.G., Punjab, ` for respondents No.1 and 2. Mr. Nakul Sharma, Advocate, for respondent No.3. * * * SATISH KUMAR MITTAL, J. Petitioner Tarsem Singh son of Sadhu Singh has filed the instant writ petition under Articles 226/227 of the Constitution of India for quashing the order dated 7.6.2006 (Annexure P-3) passed by the Collector, Kapurthala, whereby on an application under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as `the Act') filed by Gram Panchayat (respondent No.3) through its Sarpanch Smt. Surjit Kaur, the petitioner and his father Sadhu Singh were ordered to CWP No. 8999 of 2009 -2- be ejected from the lands, measuring 26 kanalas 4 marlas and 47 kanals 8 marlas, respectively; as well as the order dated 1.4.2009 (Annexure P-6), passed by the Commissioner, whereby the appeal filed by the petitioner against the said order has been dismissed. The petitioner has challenged both the aforesaid orders, primarily on three grounds; (i) that the petitioner had raised the question of title before the Collector, and he was bound to decide the said question after framing the issues and recording a finding on the issue of question of title, but in the present case, the Collector did not follow the said procedure and passed the eviction order against the petitioner and his father, in a summary manner; (ii) that though the petition was filed by respondent No.3 – Gram Panchayat through its Sarpanch Smt. Surjit Kaur, but the resolution passed by the Gram Panchayat authorising her to file the eviction petition under Section 7 of the Act was not placed on record and was not proved, therefore, the order passed by the Collector on an application filed by the Gram Panchayat was totally illegal and without jurisdiction; and (iii) that the impugned orders passed by the authorities under the Act are non-speaking and the land in dispute does not fall under the definition of shamilat deh. After hearing learned counsel for the parties and going through the impugned orders, we do not find any substance in either of the contentions raised by learned counsel for the petitioner. The proviso to Section 7 of the Act provides that if after receipt of the application under Section 7(1) and before the Panchayat is put in CWP No. 8999 of 2009 -3- possession of the land, a question of right, title or interest in such land is raised by any person, and a prima facie case is made out in support thereof, the Collector shall direct the person who has raised such question to submit his claim under Section 11 of the Act and till the question is so determined, the application shall remain pending. In the present case, though in reply to the application under Section 7 of the Act, filed by the Gram Panchayat, vaguely it has been stated that the land in dispute is not shamilat deh and does not vest in the Gram Panchayat, but primarily the petitioner claimed that the land in dispute was banjar and the petitioner and his father have made the same cultivable and thereafter are continuously in possession of the same for the last 25 years. However, it has been admitted that in the revenue record the land in dispute has been recorded as shamilat deh hasab rasad khewat. It was not the case of the petitioner and his father that they are proprietors of the village and are in cultivating possession of the land in dispute on or before 26.1.1950, and their possession does not exceed to their share in the shamilat deh. In view of these averments, since the petitioner could not make out a prima facie case, the Collector appears to have not directed him to raise the question of title by filing the title suit under Section 11 of the Act. Even otherwise, the petitioner was at liberty to file the title suit which he did not file. Therefore, the contention of the petitioner that once he had raised the question of title, the Collector was bound to decide the same after framing the issues and recording a finding on the issue of question of title, is not tenable. Since the CWP No. 8999 of 2009 -4- petitioner has failed to prove the prima facie case of question of title, the Collector has followed the procedure for eviction of the petitioner from the land in dispute as prescribed under Section 7 of the Act. Thus, we do not find any substance in the first contention raised by the learned counsel for the petitioner. As far as second contention is concerned, the ejectment application has been filed by the Gram Panchayat through its Sarpanch. In the ejectment application, a clear averment has been made that the then Sarpanch Smt. Surjit Kaur was duly authorised by the Gram Panchayat to file the ejectment application by passing a resolution dated 23.5.2003. When the case was taken up for evidence, by that time new Panchayat came into existence and Shri Sukhwinder Singh, new Sarpanch appeared before the Collector for making statement in favour of the Gram Panchayat. Merely because he did not bring the original proceeding register of the Gram Panchayat and had stated that the copy of the resolution placed on record is a simple copy, it cannot be inferred that no such resolution was passed by the Gram Panchayat authorising the earlier Sarpanch to file the ejectment application. It is admitted fact that the ejectment application was filed in the name of the Gram Panchayat through its Sarpanch Smt. Surjit Kaur. The learned counsel for the petitioner is trying to take benefit of the statement made by the subsequent Sarpanch before the Collector that he has not brought the record of the Panchayat. In support of his contention, learned counsel has relied upon a decision of this Court in Rochan Singh and CWP No. 8999 of 2009 -5- another Versus Joint Director Panchayats, Panchayat and others 2004 LAR 260. After considering the submissions made by learned counsel for the parties and going through the order of the Collector, we do not find any substance in this contention of learned counsel. Section 7(1) of the Act provides that an application under Section 7 can be made by a Panchayat or an officer duly authorised in this behalf by the State Government by a general or special order. In the present case, the ejectment application was filed by the Gram Panchayat through its Sarpanch. A clear averment was made in the application that the then Sarpanch Smt. Surjit Kaur was duly authorised by the Gram Panchayat to file the ejectment application by passing a resolution dated 23.5.2003. The photo-copy of the resolution has also been placed on record. Merely because the subsequent Sarpanch, while appearing before the Collector, had stated that he has not brought the original copy of the resolution and cannot say whether the photo-copy is attested or not, it cannot be inferred that the earlier Sarpanch was not authorised to file the ejectment application. In Rochan Singh's case (supra), the facts were entirely different. In that case the ejectment application was filed by a person , who was neither the office bearer of the Gram Panchayat nor he had been authorised by the Gram Panchayat to file the application on behalf of the Gram Panchayat. In these facts, it was observed by the learned Single Judge that the ejectment application filed by such person, who has failed to produce any evidence to establish his locus standi, was not maintainable. These are not the facts in the present case. Even otherwise, CWP No. 8999 of 2009 -6- Section 16(1)(f) of the Punjab Panchayati Raj Act, 1994 provides that the Sarpanch shall exercise such powers, perform such functions and discharge such duties as may be exercised, performed or discharged by the Gram Panchayat under this Act or the rules made thereunder. It is the duty of the Gram Panchayat to protect all the lands vesting in it and to get evicted the unauthorised occupant of the Gram Panchayat land. Section 20 of the said Act further provides that the Sarpanch can also be suspended or removed if he is guilty of misconduct in the discharge of his duties. Sarpanch is not an ordinary resident of the village. He is directly elected by the Gram Sabha. In the present case, the ejectment application under Section 7 of the Act was filed by the Sarpanch in the name of the Gram Panchayat by making a clear averment in the application that she has been authorised by the Gram Panchayat to file the ejectment application. Such application cannot be rejected merely on the ground that the original copy of the resolution has not been annexed with the ejectment application. In our opinion, the Sarpanch of the Gram Panchayat is fully empowered as per Section 16 of the Punjab Panchayati Raj Act to exercise all the powers, perform such functions and discharge such duties as may be exercised, performed or discharged by the Gram Panchayat under this Act or the rules made thereunder, and is fully competent to maintain the ejectment application under Section 7 of the Act. Therefore, we do not find any force in the submission of the learned counsel for the petitioner. The last submission made by the learned counsel for the CWP No. 8999 of 2009 -7- petitioner that the land in dispute does not fall under the definition of shamilat deh and does not vest in the Gram Panchayat, cannot be accepted. In the revenue record, the land in dispute has been described as shamilat deh hasab rasad khewat. In our opinion, such land vests in the Gram Panchayat if it is not covered by any of the exceptions provided under Section 2(g)(5)of the Act. The petitioner is not the proprietor of the village. He is not claiming that being proprietor in the shamilat deh land he was in individual cultivating possession on or before 26.1.1950 and his possession is not exceeding his share in the shamilat deh. His case is that he is in possession of the land for the last 25 years and has not taken the land on lease, therefore, he is the owner of the land. Merely on the basis of such possession, which is not prior to 26.1.1950 in the capacity of a proprietor of the shamilat, the petitioner cannot claim that the land in dispute does not fall under the definition of shamilat deh and does not vest in the Gram Panchayat. His claim neither falls under exception (iii) nor exception (v) of Section 2 (g) (5) of the Act. Therefore, we do not find any illegality in the impugned orders passed by the authorities under the Act evicting the petitioner from the land in dispute which vests in the Gram Panchayat. Dismissed. ( SATISH KUMAR MITTAL ) JUDGE October 31, 2011 ( PARAMJEET SINGH ) ndj JUDGE