In the High Court of Punjab and Haryana at Chandigarh ...... C.W.P. No.17453 of 2006 ..... Date of decision:22.10.2009 Joginder Singh and another .....Petitioners v. State of Haryana and others .....Respondents .... Present: Mr. Sukhvinder Singh Chatrath, Advocate for the petitioners. Mr. Vivek Lamba, Assistant Advocate General, Haryana for respondents No.1 to 3. Mr. Ashwani Verma, Advocate for respondent No.4. ..... S.S. Saron, J. The Gram Panchayat, Village Sadhanwas, Tehsil Tohana, District Fatehabad (respondent No.4) filed an application under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (as applicable in Haryana) (`1961 Act' – for short) seeking eviction of the petitioners from the land measuring 52 Kanals 11 Marlas comprised in Rectangle No.11, Khasra Nos.5/2 and 6/1; Rectangle No.12, Khasra Nos.1, 9, 10, 11, 12 and 13 as per Jamabandi for the year 1995-96. It was alleged that the petitioners were in illegal occupation of the land and they had no right over it. The Gram Panchayat (respondent No.4) had asked them to vacate the land but they refused to do so. On notice, the petitioners appeared and submitted that the petition was not maintainable; besides, the petitioners have been in possession of the land for more than 12 years without any interruption. It was also submitted that the land in dispute was that of the `Mushtarka C.W.P. No.17453 of 2006 [2] Malkan' to which the Panchayat had no claim. Therefore, there being dispute regarding question of title the petition was liable to be converted into a regular suit in terms of Section 13-A of the Act. The Assistant Collector Ist Grade, Tohana vide order dated 10.6.2003 (Annexure-P.1) accepted the petition of the Gram Panchayat Sadhanwas (respondent No.4) and ordered ejectment of the petitioners from the land measuring 52 Kanals 11 Marlas. Moreover, penalty of Rs.4,000/- per acre per year was imposed. The petitioners aggrieved against the said order filed an appeal before the District Collector, Fatehabad who vide order dated 25.3.2004 (Annexure- P.2) dismissed the same. The petitioners then filed a revision petition before the Commissioner, Hisar Division, Hisar who vide order dated 28.3.2006 (Annexure-P.3) dismissed the revision petition. Aggrieved against the same the petitioners have filed the present petition under Articles 226/227 of the Constitution of India seeking quashing of the order dated 10.6.2003 (Annexure-P.1) passed by the Assistant Collector Ist Grade, Tohana, the order dated 25.3.2004 (Annexure-P.2) passed by the District Collector, Fatehabad and the order dated 23.8.2006 (Annexure-P.3) passed by the Commissioner, Hisar Division, Hisar. A further prayer has been made to declare the petitioners owners of the land in dispute. Learned counsel for the petitioners has submitted that the land measuring 52 Kanals 11 Marlas, the eviction of which is sought, is in fact the land of `Jumla Malkan'. He has submitted in Court the copies of the Jamabandis for the years 1975-76, 1985-86, 1990-91, 1995-96, 2000-01 and 2005-06. Besides, he has submitted the copies of the Khasra Girdawri for the period from Kharif 1986 to Rabi 1991 and from Kharif 2006 to Rabi 2009. The same are taken on record. It is submitted that the land of the C.W.P. No.17453 of 2006 [3] `Jumla Malkan' does not vest in the Gram Panchayat and the land has been entered as `Shamilat Deh' in the Jamabandi for the year 1995-96 in view of the Act No.9 of 1992 passed by the Haryana State. The said Act, it is submitted, was subject matter of consideration by a Full Bench of this Court in the case of Jai Singh and others v. State of Haryana, (2003-2) PLR 658 in which directions had been issued for cancellation of the mutations that were sanctioned on the basis of Act No.9 of 1992. In response, learned counsel appearing for respondent No.4 Gram Panchayat has submitted that the land measuring 52 Kanals 11 Marlas in fact vested in the Gram Panchayat as it was reserved for common purposes. Besides, the petitioners had failed to prove their ownership in respect of the land even though they had submitted on record the sale deed dated 30.5.1973 (Annexure-P.7) and 30.1.1986 (Annexure-P.8). However, they have failed to prove their right of ownership to the land. I have given my thoughtful consideration to the matter and with the assistance of the learned counsel appearing for the parties gone through the records of the case. The Gram Panchayat, Sadhanwas (respondent No.4) filed a petition seeking eviction of the petitioners from the land measuring 52 Kanals 11 Marlas under Section 7 of the 1961 Act. Section 7(1) and (3) of the 1961 Act 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 C.W.P. No.17453 of 2006 [4] 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 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. (2) xx xx xx xx xx (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.” A perusal of the above shows that an Assistant Collector of the first grade having jurisdiction in the village after making 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 C.W.P. No.17453 of 2006 [5] or is deemed to have vested in the panchayat under the 1961 Act and put the panchayat in possession thereof. In terms of the proviso if in any such proceedings a 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 hereinafter. In terms of sub-section (3) of Section 7 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. In respect of the land in question, the Jamabandis for the years 1975-76, 1985-86 and 1990-91 the ownership of the land is recorded as that of `Jumla Malkan Wa Digar Haqdaran Hasab Rasad Arazi Khewat'. The State of Haryana issued notification dated 11.2.1992 and amended the 1961 Act by way of the Punjab Village Common Lands (Regulation) Haryana Amendment Act, 1991 Act No.9 of 1992 which received the assent of the President of India on 14.1.1992. In terms of the amended Act, sub-clause (6) was added after sub-clause (5) to Section 2 (g) of the 1961 Act and an explanation was also appended to the said sub-clause (6). The same reads as follows:- “2(g)(6) Lands reserved for the common purposes of a village under Section 18 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (East Punjab Act 50 of 1948), the management and control whereof vests in the Gram Panchayat under Section 23-A of the aforesaid Act. Explanation: - Lands entered in the column of ownership of record of rights as ‘Jumla Malkan Wa Digar Haqdaran Arazi C.W.P. No.17453 of 2006 [6] Hasab Rasad’, shall be shamilat deh within the meaning of this section.” Section 2 (g) of the 1961 Act defines `Shamilat deh'. Sub-clauses (1) to (6) relate to those lands which are included in the definition of `Shamilat Deh' and sub-clauses (i) to (ix) are those lands which are not included in `Shamilat Deh'. In terms of the above sub-clause (6) to Section 2 (g) of the Act land reserved for common purposes of a village under Section 18 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (`1948 Act' – for short) the management and control whereof vests in the Gram Panchayat under Section 23-A of the 1948 Act is to be included in the definition of `Shamilat Deh'. The explanation to sub-clause (6) of Section 2 (g) envisages that the lands entered in the column of ownership of record of rights as `Jumla Malkan Wa Digar Haqdaran Hasab Rasad Arazi Khewat' shall be `Shamilat Deh' within the meaning of the said section. The effect of inserting sub-clause (6) to Section 2 (g) of the 1961 Act was considered by a Full Bench of this Court in Jai Singh's case (supra). It was concluded as follows:- “62. In view of the discussion made above, we hold that:- i) sub-section (6) of Section 2(g) of the Punjab Village Common Lands (Regulation) Act, 1961 and the explanation appended thereto, is only an elucidation of the existing provisions of the said Act read with provisions contained in the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948; ii) the un-amended provisions of the Act of 1961 and, in particular, Section 2(g)(1) read with Sections 18 and 23-A of C.W.P. No.17453 of 2006 [7] the Act of 1948 and Rule 16(ii) of the Rules of 1949 cover all such lands which have been specifically earmarked in a consolidation scheme prepared under Section 14 read with Rules 5 and 7 and confirmed under Section 20, which has been implemented under the provisions of Section 24 and no other lands; iii) the lands which have been contributed by the proprietors on the basis of pro-rata cut on their holdings imposed during the consolidation proceedings and which have not been earmarked for any common purpose in the consolidation scheme prepared under Section 14 read with Rules 5 and 7 and entered in the column of ownership as Jumla Mustarka Malkan Wa Digar Haqdaran Hasab Rasad Arazi Khewat and in the column of possession with the proprietors, shall not vest with the Gram Panchayat or the State Government, as the case may be, on the dint of sub-section (6) of Section 2 (g) and the explanation appended thereto or any other provisions of the Act of 1961 or the Act of 1948; iv) all such lands, which have been, as per the consolidation scheme, reserved for common purposes, whether utilized or not, shall vest with the State Government or the Gram Panchayat, as the case may be, even though in the column of ownership the entries may be `Jumla Mustarka Malkans Wa Digar Haqdaran Hasab Rasad Arazi Khewat etc.” It is, therefore, evident that sub-clause (6) to section 2 (g) of the 1961 Act and the explanation appended thereto, it was held, was only an C.W.P. No.17453 of 2006 [8] elucidation of the existing provisions of the Act read with the provisions contained in the 1948 Act. Therefore, it was only the land which was reserved in the consolidation scheme for common purposes whether utilized or not which was to vest in the State Government or the Gram Panchayat as the case may be. However, the revenue authorities had changed by way of mutation, ownership of land of the `Jumla Mushtarka Malkan' in favour of State Government or the Gram Panchayat irrespective of the fact as to whether the said lands were reserved or used as per the consolidation scheme for common purposes and were so shown in the revenue record. The land of `Jumla Mushtarka Malkans Wa Digar Haqdaran Hasab Rasad Arazi Khewat' etc. which in consolidation scheme were not reserved or used for common purposes were invariably entered in favour of the Gram Panchayat. For such land which was not reserved for common purposes pursuant to a scheme prepared under the 1948 Act are not to vest in the Gram Panchayat. Therefore, in respect of the such land it was ordered by the Full Bench in Jai Singh's case (supra) that where mutation might have come into being on the dint of Act No.9 of 1992 in favour of the State Government or the Gram Panchayat, the said mutation shall stand cancelled or set aside leaving it open for the Gram Panchayat to file an application for eviction under Section 7 or title suit under Section 13-A of the 1961 Act as the case may be. On the basis of the revenue record placed on record herein nothing has been shown that the land was reserved for common purposes. As such, on the filing of application by the petitioners a prima facie case on the basis of document show that the question of title was really involved. Therefore, in terms of Section 7 of the 1961 Act it was incumbent upon the C.W.P. No.17453 of 2006 [9] Assistant Collector of the first Grade to record a finding to that effect and first decide the question of title in the manner laid down in the 1961 Act or try the case as a title suit under Section 13-A of the 1961 Act. This exercise indeed has not been carried out by the authorities under the 1961 Act. As such the matter is liable to be remitted to the Assistant Collector to decide the question of title on the basis of documents and material on record. It is to be determined by the Assistant Collector Ist Grade as to whether the land which is recorded in the name of `Jumla Mushtarka Malkans Wa Digar Haqdaran Hasab Rasad Arazi Khewat' belongs to the proprietors of the village or was reserved or used for common purposes as per the Consolidation Scheme and as such vests in the Gram Panchayat. The same is to be decided on the basis of evidence and material produced on record and the provisions of the Act as also the judgment of the Full Bench of this Court in Jai Singh's case (supra). In view of the above, the writ petition is allowed and the order dated 10.6.2003 (Annexure-P.1) passed by the learned Assistant Collector Ist Grade, Tohana, the order dated 25.3.2004 (Annexure-P.2) passed by the District Collector, Fatehabad and the order dated 23.8.2006 (Annexure-P.3) passed by the Commissioner, Hisar Division, Hisar are set aside and the case is remanded to the Assistant Collector Ist Grade, Tohana for deciding the matter afresh after hearing the parties and providing them opportunity to lead evidence as also by framing necessary issues. The parties shall appear before the Assistant Collector Ist Grade, Tohana on 22.12.2009. October 22, 2009. (S.S. Saron) Judge *hsp* C.W.P. No.17453 of 2006 [10] NOTE: Whether to be referred to the Reporter or not:Yes