Research › Search › Judgment

Punjab High Court · body

2003 DIGILAW 1699 (PNJ)

Mohinder Singh v. State Of Punjab

2003-12-20

ASHUTOSH MOHUNTA, V.K.BALI

body2003
Judgment V.K.Bali, J. 1. Mohinder Singh and three others, through present petition filed by them under Article 226 of the Constitution of India, seek issuance of writ in the nature of certiorari so as to quash orders, Annexure P3 and P4, dated 24.4.1998 and 9.11.2001, passed by the Collector and Commissioner, respectively, whereby the petitioners herein were ordered to be evicted in the proceedings initiated against them under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as the Act of 1961). Order Annexure P3, passed by the Collector has since been confirmed vide order, Annexure P4, by the Commissioner. In furtherance to setting aside of orders, Annexure P3 and P4, the petitioners further pray that they may be conferred ownership rights of the land, subject matter of dispute, which it is stated, is in their possession for the last more that 40 years. 2. Brief facts giving rise to the present writ as projected in the petition reveal that village Lakhowal Kalan, Tehsil Samrala, Ludhiana, was inhabited by the Muslims alone before the partition of the country. The Muslims residing in the village migrated to Pakistan at the time of partition and the entire land of the village, be it owned by the proprietors or the Shamlat Deh, became as evacuee property by operation of law. The said land, thus, vested in the Custodian and subsequently came to be acquired by the Central Government by virtue of operation of law under various enactments. The vesting took place under the various Ordinance passed by the State of Punjab and finally under the provisions of the Administration of Evacuee Property Act, 1950 (hereinafter referred to as the Act of 1950). Under the provisions of the Act of 1950, all interests of the Muslims evacuees in the land and the property left behind by them, which had become evacuee property, vested in the Central Government. Subsequently, the Displaced Persons (Compensation & Rehabilitation) Act, 1954 (hereinafter referred to as the Act of 1954), came into existence and in accordance with the said Act also, the Central Government became the owner of the evacuee property. Surplus evacuee property left after satisfying the claim of the displaced persons/claimants, was taken over by the State Government as per letter dated 1.4.1961. Surplus evacuee property left after satisfying the claim of the displaced persons/claimants, was taken over by the State Government as per letter dated 1.4.1961. There was vast tract of uncultivable and banjar land in the village and on the refusal of the Gram Panchayat to make the said land fit for cultivation, same was allotted to the landless Harijans including the petitioners under Section 5 of the East Punjab Utilization of Land Act, 1949 (hereinafter referred to as the Act of 1949). Petitioner No. 1 was allotted land measuring 39 kanals 12 marlas and possession whereof was given at the spot. Similarly, father of petitioners 2 to 4 was allotted land measuring 32 kanals. The land was Banjar Kadim and part of it was jungle and was lying vacant and unused since long. Although the land was not fit or cultivation, yet petitioner No. 1 and father of petitioners 2 to 4 by the dint of their hard work and by spending lot of time, energy and money, made the same cultivable and subsequently, by spending all their savings, constructed a residential house for themselves and their families on a small portion of the land. At the time of allotment, it is the case of the petitioners, they were told by the Government that after the expiry of lease period, they will be conferred proprietary rights. They were as such in possession of the land in question for the last more than 40 years continuously without any interference from on anybody. It is then pleaded that conflict regarding the custody, management and disposal of evacuee agricultural land in Shamlat Deh arose after the enactment of the Punjab Village Common Lands (Regulation) Act, 1954 and 61. According to these Acts, all rights and interests in Shamlat Deh, whether evacuee or otherwise, were to vest in the Panchayat having jurisdiction. This dispute was finally settled by a decision recorded by a Division Bench of this Court in Gram Sabha and Gram Panchayat Daba v. Chief Settlement Commissioner, 1973 P.L.J. 398. As per this decision, the Panchayat cannot legally claim its ownership only on the basis of wrong and illegal entry in its favour of the Jamabandi made subsequently. This dispute was finally settled by a decision recorded by a Division Bench of this Court in Gram Sabha and Gram Panchayat Daba v. Chief Settlement Commissioner, 1973 P.L.J. 398. As per this decision, the Panchayat cannot legally claim its ownership only on the basis of wrong and illegal entry in its favour of the Jamabandi made subsequently. Later, the Government under the provisions of Punjab Package Deal Properties (Disposal) Act, 1976, issued executive instructions/press notes for allotment/transfer of the land to the occupants/landless persons and as such the petitioners had been allotted the land in question. Further to provide disposal of the properties taken over by the Punjab Government in package deal and the matters connected therewith, the State Government enacted the Act of 1976, under which valuable right was given to the persons like the petitioners to own the evacuee land which had been leased by the Punjab Government. It is pleaded that a Division Bench of this Court in Bishen Singh and Ors. v. Chief Settlement Commissioner and Ors., 1973 P.L.J. 183, has held that the persons covered by the press note have an enforceable legal right and the press note gives the policy decision of the State Government and the persons, who continued to be in possession of the property and improved the same, can certainly call upon the State Government to carry out the undertaking given by it and it is not open to the State Government to discriminate between one member of the particular category and the other. On 21.4.1971, the then Deputy Commissioner, as the Administrative Head of the District ordered all the Tehsildars that in future no Shamlat Deh should be leased out and after getting possession from the allottees/lessees, the matter should be reported to him. In compliance of the order aforesaid, the Tehsildars issued notices to the lessees/allottees for handing-over the possession of the lands, like the land in question, to the Gram Panchayats. Said notice was challenged by way Civil Writ Petition bearing No. 2280 of 1971 (Hans Raj and Ors. v. The State and Ors.) and this Court, while issuing notice of the writ petition, granted stay of dispossession and finally allowed the same. It is then pleaded that the said petition pertained to the land in village Kakhowal Kalan only. Said notice was challenged by way Civil Writ Petition bearing No. 2280 of 1971 (Hans Raj and Ors. v. The State and Ors.) and this Court, while issuing notice of the writ petition, granted stay of dispossession and finally allowed the same. It is then pleaded that the said petition pertained to the land in village Kakhowal Kalan only. On 9.2.1982, Gram Panchayat, the fourth respondent herein, filed petition under Section 7 of the Act of 1961 against petitioner No. 1. Same was dismissed for non-prosecution on 19.4.1983. The same very respondent once over again filed petition under Section 7 of the Act of 1961 for eviction against the petitioners, which too was dismissed on 20.5.1992, as the Gram Panchayat failed to produce any evidence/witness. The matter with regard to eviction of the petitioners by the dint of these two orders, it is then pleaded, had attained finality. Despite that, the Gram Panchayat filed a third petition under Section 7 of the Act of 1961 itself, which was contested by the petitioners, but the same was allowed vide order, Annexure P3, dated 24.8.1998 by the Collector. Feeling aggrieved, the petitioners filed appeal, which has since been dismissed vide order, Annexure P4, dated 9.11.2001, by learned Commissioner. It is then pleaded that in the meanwhile, the Village Common Lands Act was amended by the Punjab Village Common Lands (Regulation) Amendment Act, 1995 (hereinafter referred to as the Amended Act of 1995). By virtue of the provisions of the Amended Act of 1995, in Clause (g) of Section 2 of the Village Common Lands Act after Sub-clause (ii), Sub- Clause (ii-a) was inserted. In light of the said provision, the land in question cannot be termed as Shamlat Deh and accordingly, the Gram Panchayat, the fourth respondent herein, could not legally claim ownership and eviction of the petitioners from the land in question. It is then pleaded that this Court vide its judgment passed in Civil Writ Petition No. 3207 of 1982, while dealing with the similar case as that of the petitioners, has held that any transfer made after the commencement of the Village Common Lands Act till July 9, 1985, would cease to be Shamlat Deh and as such, the Gram Panchayat cannot claim any right in the said land and accordingly, the said writ petition was allowed. All these matters, it is the case of the petitioners, were ignored while passing the order of eviction against them. It is then pleaded that the petitioners filed a suit for permanent injunction against the fourth respondent for restraining it from interfering in the peaceful possession of the petitioners over the land in question, on the ground that they have become owners in possession. Initially, temporary injunction was granted but the same was vacated, subsequently. The petitioners had filed appeal against the order declining to grant of ad interim stay. The Gram Panchayat too had filed suit for permanent injunction against the petitioners after the order of eviction had been passed against them for harvesting the wheat crops and learned trial Court restrained the petitioners from harvesting the wheat crops. Gram Panchayat, through the Block Development and Panchayat Officer, lodged an false FIR under Section 379 of the Indian Penal Code against the petitioners for the alleged theft of the crops, which had admittedly been sown by the petitioners. Gram Panchayat with the help of police force, however, illegally and forcibly removed the wheat crops of the petitioners from the land in question. 3. Pursuant to the notice of motion, that was issued by this Court, respondent No. 4 has filed reply and cause of the petitioners has seriously been disputed. In the preliminary objections filed on its behalf, it has, interalia, been pleaded that the petitioners obtained stay from this Court by concealing material facts. The Gram Panchayat has taken the possession of the property in dispute in due course of law after passing of the impugned orders, by getting the orders from the competent authority. The land thereafter was auctioned on 22.4.2002 by the Gram Panchayat after giving due publication of its intention to auction the land in dispute. Moreover, possession of the land in dispute has been handed-over to the lessees under the covenant of the lease deed dated 22.5.2002 (Copies of auction notice and lease deed are enclosed as Annexure R4/1 and R4/2 with the reply). Moreover, possession of the land in dispute has been handed-over to the lessees under the covenant of the lease deed dated 22.5.2002 (Copies of auction notice and lease deed are enclosed as Annexure R4/1 and R4/2 with the reply). It is then pleaded that on one hand, the petitioners are claiming themselves to be the lessees under the Gram Panchayat and on the other hand, they are taking the plea of adverse possession, as would be clear from perusal of para No. 18(j) of the writ petition as also Annexure P5, i.e., the petition filed by the petitioners under Section 11 of the Act of 1961. Tenants/lessees cannot claim title against the true owners on the basis of adverse possession. It is then pleaded that the petitioners in the present writ have prayed for issuance of writ in the nature of mandamus declaring them to be owners of the land in dispute whereas on the other hand, they have already availed alternative remedy by filing title suit under Section 11 of the Act of 1961. 4. On merits, it is the case of the respondent Gram Panchayat that the land in dispute vests in it by operation of law. The assertions made by the petitioners that the whole village was, inhabited by Muslims has been denied. It has been pleaded that only the land belonging to the Muslims became evacuee property and not the Shamlat land nor the land in dispute. It is denied that the land in dispute was ever allotted to the petitioners. The Gram Panchayat became the owner of the land in dispute and it leased out the same to the petitioners. The petitioners after the expiry of lease did not hand over the possession of the land to the answering respondents. The fact that the land was leased by the Panchayat to the petitioners is sought to be established by the Jamabandi for the year 1996-1997 (Annexure R4/3). Entry in the Jamabandi shows the lease from 1961 to 1971. It is then pleaded that the petitioners have indulged in contradictory pleas by claiming on the one hand that they are lessees of the Gram Panchayat and on the other hand, they are projecting that the land in question was allotted to them by the Government. They, however, led no evidence to show that they were allotted the land by the Government. They, however, led no evidence to show that they were allotted the land by the Government. Gram Panchayat became the owner of the land in dispute in the year 1955 when mutation was sanctioned in its favour on the basis of order passed by the Punjab Government. This mutation was never challenged by the petitioners or any body else and had attained finality. The petitioners, in any case, came into possession of the property in dispute only as the lessees of the Gram Panchayat in the year 1961. The property in question was never declared as an evacuee property. Thus, it never came to be vested in the Central Government by any notification under Section 12 of the Act of 1954. Insofar as Civil Writ Petition bearing No. 2280 of 1971 is concerned, it is the case of the Gram Panchayat that this Court had given liberty to the authorities to proceed against the petitioners, in accordance with law, for eviction of the petitioners from the land in dispute. In the petition aforesaid, this Court quashed the letter written by the Deputy Commissioner by holding that the Deputy Commissioner is not empowered under the East Punjab Utilisation of Land Act, 1949. Rather vide this judgment, this Court has given liberty to the authorities under the Act to proceed against the petitioners, in accordance with law. Section 7 of the Act of 1961, it is the case of the Gram Panchayat, authorises the Gram Panchayat to initiate proceedings for eviction of the persons in unauthorised possession over Shamlat Deh. The other factual averments made in the petition, as referred to above, while making the pleadings in the written statement have also been denied. 5. Mr. Chopra, learned Senior counsel representing the petitioners, in support of this petition contends that the Village Common Lands Act was amended by the Punjab Village Common Lands (Regulation) Amendment Act, 1995. By virtue of the provisions of the Amended Act of 1995, in Clause (g) of Section 2 of the Village Common Land Act after Sub-clause (ii), the following sub-clause was inserted:- "(ii-a) was Shamlat Deh, but has been allotted on quasi permanent basis to a displaced person, or has been otherwise transferred to any person by sale or by any other manner whatsoever after the commencement of this Act, but on or before the 9th day of July, 1985." 6. It is argued that in light of the provisions contained in Sub-clause (ii-a), the land in question cannot be termed as Shamlat Deh and accordingly, the respondent-Gram Panchayat cannot legally claim ownership and eviction of the petitioners from the same. Learned counsel, in support of his argument, as mentioned above, relies upon a decision of this Court rendered in Civil Writ Petition No. 3207 of 1982 (Amar Chand and Anr. v. The Punjab State and Ors.) wherein, it has been held that any transfer made after the commencement of the Village Common Lands Act till July 9, 1985, would cease to be Shamlat Deh and as such, the Gram Panchayat cannot claim any right in the said land. In fact, when the matter came up for motion hearing before the Honble Bench, then seized of the matter, on 15.5.2002, notice of motion was issued on the contention of learned counsel, which was based upon the amendment made by Punjab Act 8 of 1995. Order dated 15.5.2002 reads as follows:- "Contends, inter alia, that it would be clear from the amendment made by Punjab Act 8 of the 1995 that a transfer in any manner whatsoever made on or before 9.7.1985 was protected and as the property had been leased to the petitioners much before that date, they were entitled to retain its possession. Notice of motion for October 7, 2002. In the meanwhile, dispossession of the petitioners shall remain stayed till the next date. Dasti order." 7. We have heard learned counsel representating the parties but are of the view that amendment made by Punjab Act 8 of 1995 by inserting Clause (ii-a) would in no way and manner advance the case of the petitioners. It is significant to mention that a pool of common land was formed by the proprietors of the village by imposing a pro-rata cut on their holdings. Before the partition of the country, if a village was inhabited by both the Hindus and Muslims, the proprietors, be it Hindus or Muslims, had contributed a part of their holdings as, they, as mentioned above, have formed a common pool. It is that land which vests in the Gram Panchayat to be used for common purposes. Before the partition of the country, if a village was inhabited by both the Hindus and Muslims, the proprietors, be it Hindus or Muslims, had contributed a part of their holdings as, they, as mentioned above, have formed a common pool. It is that land which vests in the Gram Panchayat to be used for common purposes. After the partition of the country in 1947, whereas, a Muslim migrated to Pakistan, his share, so contributed by him for common purposes, vested with the custodian which was meant to be allotted to the displaced persons. Who migrated from the area now forming part of Pakistan to India. There has been a long standing dispute between the Gram Panchayat on the one hand and the Government on the other with regard to the share contributed by a Muslim, who migrated to Pakistan, meant for common purposes. It is no doubt true that this Court in a Division Bench judgment in Gram Sabha and Gram Panchayat Dabas case (supra) held that such share would vest in the Central Government. Position of law remained as held by the Division Bench for a long time but this position of law was reversed by Honble Supreme Court in Gram Panchayat of Village Jamalpur v. Malwinder Singh and Ors., A.I.R. 1985 S.C 1394. This judgment was delivered by Honble Supreme Court on 9.7.1985. Meanwhile, hundreds and thousands displaced persons had been transferred such shares of Muslim proprietors which had vested with the Central Government. It is with a view to protect such transfers that Clause (ii-a) of the Amended Act of 1995, as reproduced above, was inserted. It is significant to mention that all such transfers or sales were protected which were made before the 9th day of July, 1985, i.e., the same day when Honble Supreme Court rendered the judgment in Gram Panchayat of village Jamalpurs case (supra). Once, the purpose for which this amendment was brought about by the Legislature is understood in its correct perspective, contention of learned counsel that the petitioners could not be evicted under the provisions of Section 7 of the Act of 1961, as the land had since been allotted to the petitioners before the 9th day of July, 1985, would pale into complete insignificance. Even otherwise, the word transfer mentioned in Clause (ii-a) would not mean leasing the land for a limited period. Even otherwise, the word transfer mentioned in Clause (ii-a) would not mean leasing the land for a limited period. The transfer has to be by a sale. Even though, the words by any other manner whatsoever have also been mentioned in Clause (ii-a) but the words by any other manner would be analogous to a sale. Therefore, whereas, a perpetual lease or a lease for a period of 99 years, which virtually means sale, may come within the sweep of Clause (ii-a), lease for a period of 10 years, as in the present case, would certainly not be covered by the said clause. The contention of learned counsel, based upon Clause (ii-a) of the Amended Act of 1995, is, thus repelled. 8. The whole case in view of the pleadings, it appears, has been based upon as if the land in dispute did not vest in the Gram Panchayat, was an evacuee property vested in the Central Government and the petitioners were allotted the same. The assertions made to the effect aforesaid are factually incorrect. It is way back in 1955 that the land was mutated in favour of the Gram Panchayat. It never vested in the Central Government under the provisions of the Act of 1954. No document at all has been brought on record that may show that the land ever vested in the Central Government or for that matter, was ever allotted to the petitioners. In fact, what is proved on the record is that the land was owned by the Gram Panchayat and was leased out by it only to the petitioners for a period of 10 years i.e. from 1961 to 1971. All the contentions raised on the premises that the land vested in the Central Government, being evacuee property, and was allotted to the petitioners, thus, need no further discussion. 9. The petitioners, it appears to us, have indulged in contradictory pleadings. Whenever it might suit them to plead that the land was continuous to be evacuee property, they have so pleaded and where ever it may appear to them that they may not be able to make out that the land vested in the Central Government being evacuee property, they have claimed title, be it on the basis of Clause (ii-a) of the Amended Act of 1995 or on the basis of adverse possession. As is clear from the pleadings made in the written statement, the petitioners have themselves filed title suit under Section 13 of the Act of 1961 claiming ownership of the property on the basis of adverse possession. 10. Insofar as, contention of learned counsel, based upon the eviction petition filed under Section 7 of the Act of 1961, being barred by the principle of res judicata, as earlier two such petitions were dismissed, is concerned, all that needs to be mentioned that the petitioners themselves plead that none of the two petitions filed earlier, was disposed of no merits. The admitted position, being as mentioned above, neither the provisions of Section 11 of the Code of Civil Procedure nor the general rule that no one can be vexed twice for the same cause of action, would apply to the facts of the present case. 11. In our considered view, the petitioners have held on to the possession of the land far after the expiry of the lease by involving the Gram Panchayat in multifarious litigations, based upon contradictory stands, knowing it fully well that they, being the lessees, cannot deny the title of their landlords, as per the provisions of Section 11 (g) of the Transfer of Property Act, 1882. This petition deserves to be dismissed with costs which, in the facts and circumstances of this case, we quantify at Rs. 5,000/-. The writ petition is, thus, accordingly, dismissed with costs at Rs. 5,000/-.