In the High Court of Punjab and Haryana at Chandigarh C.W.P. No.17660 of 2009 ..... Date of decision:18.11.2009 Balbir Singh .....Petitioner v. State of Haryana and others .....Respondents Present: Mr. Vikram Punia, Advocate for the petitioner. ..... S.S. Saron, J. The petitioner Balbir Singh by way of present petition under Articles 226/227 of the Constitution of India seeks quashing of the order dated 07.11.2007 (Annexure P-3) passed by the Assistant Collector Ist Grade, Sonepat (respondent No.4), the order dated 23.07.2008 (Annexure P- 4) passed by the Collector, Sonepat (respondent No.3) and the order dated 02.01.2009 (Annexure P-5) passed by the Commissioner, Rohtak Division, Rohtak (respondent No.2) alleging the same to have been passed by overlooking and ignoring the mandatory provisions regarding deciding the question of title under the Punjab Village Common Lands (Regulation) Act, 1961 (as applicable in the State of Haryana) (Act-for short) and without going through the records of the case. As such the said orders, it is stated are illegal, arbitrary, without jurisdiction and un-constitutional. The petitioner, it is stated, is 75 years old and is a resident of C.W.P. No.17660 of 2009 [2] village Chatiya Aulia, Tehsil and District Sonepat. The subject matter of the present petition forms part of Khewat No.137 which stood entered as; ‘Shamlat Deh Hasab Rasad Rakba Khewat’ in the column of ownership and the name of the father of the petitioner namely Harkesh Singh stood entered in the column of cultivation along with others in their capacities as proprietors. A reference has been made to the Jamabandi (Record of Rights) for the year 1944-45 (Annexure P-1) in this regard. The consolidation proceedings in village Chatiya Aulia were conducted in the year 1956. The above said land falling in Khewat No.137 was changed into new numbers depicted as Rectangle No.24, Killa Nos.4/1, 7/4 and 7/2 total measuring 5 kanals 12 marlas. The entry in the column of ownership and cultivation qua this land was changed in favour of Gram Panchayat. The ‘Misal Haqiat’ of the year 1956 (Annexure P-2) wherein this is so recorded has been placed on record. It is submitted that in terms of two separate petitions instituted against the petitioner Balbir Singh by Bhagat Singh (respondent No.6) and the other by the Gram Panchayat, Chatia Aulia (respondent No.5) the petitioner along with one Chander Bhan was sought to be evicted from the disputed land comprised in Rectangle No.24, Killa Nos.4/1 (2-1), 7/2 (1-10) and 7/4 (2-1) total measuring 5 kanals 12 marlas under Section 7 of the Act. The petition filed by Gram Panchayat, Chatia Aulia (respondent No.5) was allowed by the Assistant Collector Ist Grade, Sonepat (respondent No.3) by a consolidated order dated 7.11.2007 (Annexure-P.3) passed in both the applications. The petitioner consequently stood ejected from the specific portion of the disputed land of Rectangle No.24, Killa No.4/East 17, West 17, South 11 and North 11 i.e. (17 x 11) measuring 1 kanal 1 marla and C.W.P. No.17660 of 2009 [3] Rectangle No.24, Killa No.7/4 area measuring 2 kanals 1 marla and ‘Gair Mumkin Kotha’ (room) over Killa No.7/2 area measuring 1 kanal 10 marlas by cultivating fodder and wheat crop on it along with one Chander Bhan. The petitioner thereafter instituted two separate appeals against the consolidated order dated 07.11.2007 (Annexure P3) passed by the Assistant Collector Ist Grade (respondent No.3) in the Court of Collector (respondent No.4), which has been dismissed vide order dated 23.7.2008 (Annexure-P.4) on the basis of the Jamabandi entries of the year 1999-2000 and the demarcation report dated 23.03.2006. It was held that the appellant (now petitioner) had been unable to prove that before 1950, the land had been partitioned and the appellant was not in possession of more land than his share in the shamlat land. The revision petition against the order of the Collector (respondent No.4) filed by the petitioner has been dismissed by the Commissioner, Rohtak Division, Rohtak (respondent No.2) vide order dated 2.1.2009 (Annexure-P.5). Aggrieved against the same the petitioner has filed the present petition seeking quashing of the impugned orders dated 7.11.2007 (Annexure-P.3), 23.7.2008 (Annexure-P.4) and 2.1.2009 (Annexure-P.5) passed by the Assistant Collector Ist Grade, Sonepat (respondent No.4), the Collector, Sonepat (respondent No.3) and the Commissioner, Rohtak Division, Rohtak (respondent No.2) respectively. Learned counsel for the petitioner has contended that the order evicting the petitioner from the land measuring 5 Kanals 12 Marlas has been passed in a summary manner and without considering the question of title that had been raised by the petitioner. It is submitted that in terms of the proviso to Section 7(1) of the Act once a question of title is raised, the same C.W.P. No.17660 of 2009 [4] is liable to be determined by the Assistant Collector Ist Grade in accordance with the provisions of the Act. The same having not been considered, the impugned orders, it is submitted, are vitiated and are liable to be set aside and quashed. I have given my thoughtful consideration to the contentions of the learned counsel for the petitioner and perused the record. 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 authorized by the Block Development and Panchayat Officer, after making such summary inquiry as he may deem fit and in accordance with such procedure as may be prescribed, eject any person who is in wrongful or unauthorized 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 C.W.P. No.17660 of 2009 [5] 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.” (Emphasis added) In terms of the proviso to Section 7(1) of the Act it is envisaged that if in any proceedings under Section 7(1), 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 is to record a finding to that effect and first decide the question of title in the manner laid down in Section 7. Therefore, it is not on the mere raising of a question of title or making an averment that a question of title is involved that the Assistant Collector Ist Grade is to record a finding in that regard. In fact it is to be proved prima facie on the basis of documents that a question of title is really involved. The petitioner has placed on record the Jamabandi for the year 1944-45 (Annexure-P.1) and also the Jamabandi for the year 1956 (Annexure-P.2) which is the `missal haqiat' also, that is, the first Jamabandi after consolidation proceedings. The same mentions the old Khasra numbers and the new Khasra numbers that have been carved out after consolidation proceedings. A perusal of the Jamabandi (Misl Haqiat) for the year 1956 (Annexure-P.2) shows the khasra numbers as have been noticed and mentioned above. The possession of the said khasra numbers is claimed by the Gram Panchayat (respondent No.5). The old Khasra numbers of the same are mentioned as Khasra Nos.2613/2392 Min, 2613/2392 Min., 1168 C.W.P. No.17660 of 2009 [6] and 1167. The said land is recorded as `Panchayat Deh' in the column of ownership and in the column of cultivation it is recorded as `Makbuja Panchayat Deh' in respect of land comprised in old khara Nos.2613/2392 Min and 2613/2392 Min. Now Rectangle No.24, Killa Nos.4/1 (2-1) and 7/4 (2-1) have been carved out. However, insofar as land comprised in old khara Nos.1168 and 1167 and now new Killa No.7/2 (1-10) is concerned, it is recorded in possession of Amar Dass son of Khem Chand son of Ram Singh resident of Deh as `Gair Marusi’. The petitioner is not in any manner shown to be connected with said Amar Dass son of Khem Chand who is recorded in possession as ‘Gair Marusi’ in old Killa Nos.1168 and 1167 new Rectangle No.24, Killa no.7/2 (1-10). In the Jamabandi for the year 1944-45 (Annexure-P.1) the old khasra numbers are different from those mentioned in the Jamabandi (Misal Haqiat) for the year 1956 (Annexure-P.2). The learned counsel for the petitioner has, however, contended that in fact the land in Jamabandi for the year 1944-45 (Annexure-P.1) is the same as that mentioned in the Jamabandi for the year 1956 (Annexure P-2), inasmuch as, Khewat No.137 is mentioned in the Jamabandi (Misal Haqiat) for the year 1944-45 (Annexure P-1), which is reflected as the old Killa number in the jamabandi for the year 1956 (Annexure P-2). However, in my view, the old Khasra numbers being of different land of which possession is claimed, the said Jamabandi for the year 1944-45 (Annexure-P.1) is of no significance and no reliance can be placed on the same. Even if an old khewat number is mentioned in a subsequent Jamabandi, the same would not mean that it relates to the same land. In a khewat there may be many khasra numbers or Killa numbers. C.W.P. No.17660 of 2009 [7] The identity of the land is to be determined on the basis of khasra numbers or Killa numbers. It is not shown as to how the land mentioned in the Jamabandi for the year 1944-45 (Annexure-P.1) is relevant or connected with land that is claimed by the Gram Panchayat Chatia Aulia (respondent No.5). Therefore, it is only the Jamabandi (Misal Haqiat) for the year 1956 (Annexure-P.2), which can be said to be of some relevance. A perusal of the same even otherwise shows that the land in Killa No.4/1 (2-1) is recorded as `Banjar Qadim’ being `Charand’; in respect of Killa No.7/4 (2-1) it is recorded as `Chahi Charand’ and in respet of Killa No.7/2 (1-10) it is recorded as `Chahi Banjar Charand’ due to change of possession. The land being mentioned as `Charand’ would mean that it is being used for grazing cattle for common purposes. The petitioner has, therefore, not been able to even prima facie show as to whether he is in possession of the land or has any foundation of right, title or interest in the said land as mentioned in the Jamabandi (Misal Haqiat) for the year 1956 (Annexure-P.2). As such, the petitioner has failed to prove prima facie on the basis of any documents that a question of title is really involved, which is the requirement in terms of the proviso to Section 7(1) of the Act. Therefore, the grievance of the petitioner that a question of title was raised and has not been decided is devoid of any merit. Consequently, there is no merit in this petition and the same is accordingly dismissed. November 18, 2009. (S.S. Saron) Judge *hsp*/amit NOTE: Whether to be referred to the Reporter or not:Yes/No