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2004 DIGILAW 493 (PNJ)

Bhan Singh v. State of Haryana

2004-04-28

G.S.SINGHVI

body2004
JUDGMENT G.S. Singhvi, J. - This is a petition for quashing penalty part of order dated 23.3.1985 (Annexure P.1) passed by Assistant Collector Ist Grade, Hissar (respondent No. 1) and order dated 14.5.1985 (Annexure P.2) passed by Collector, Hissar (respondent No. 2) respectively under the Punjab Village Common Lands (Regulation) Act, 1961 (for short, the Act). 2. A perusal of the averments contained in the writ petition, which have remained uncontroverted due to non-filing of the written statement by the respondents show that Gram Panchayat, Charnaund, Tehsil and District Hissar (respondent No. 3) filed an application under Section 7 of the Act for eviction of the petitioners from land measuring 127 kanals 10 marlas on the ground that they were in unauthorised occupation thereof. Respondent No. 3 also prayed for imposition of penalty on the petitioners. 3. On notice, the petitioners filed reply to contest the application. After considering the pleadings and evidence of the parties and hearing their counsel/representative, respondent No. 3 passed order Annexure P.1 vide which he directed the eviction of the petitioners and also imposed penalty at the rate of Rs. 2000/- per hectare per year by invoking the provisions of Section 7(2) of the Act. The operative part of order Annexure P.1 reads as under :- "Hence it is ordered that the respondents be ejected from the land in dispute and they are directed to vacate the land in dispute within ten days and deliver the possession to the Gram Panchayat failing which, the possession would be got delivered with the use of police force. As regards the imposition of penalty under Section 7(2), it is ordered that a penalty of Rs. 12,750/- is imposed on the respondents at the rate of 2,000/- er hectare per year and it is directed that the penalty should be paid to the Gram Panchayat within 30 days." 4. The appeal filed by the petitioners was dismissed by respondent No. 1 vide order Annexure P.2. Paragraph 4 of that order reads as under :- "I have heard at length the arguments advanced on behalf of both the parties and have carefully gone through the facts on the record and thereafter I have come to the conclusion that there is no doubt that the land in dispute belongs to the Gram Panchayat. Paragraph 4 of that order reads as under :- "I have heard at length the arguments advanced on behalf of both the parties and have carefully gone through the facts on the record and thereafter I have come to the conclusion that there is no doubt that the land in dispute belongs to the Gram Panchayat. It is also proved from the record of the Gram Panchayat that the Panchayat had never given the land to the appellants as tenants. Rather this land has been being given on lease. In these circumstances, the entries in the Jamabandi cannot be considered to be correct and in this manner the presumption of truth attached to them stands contradicted. The appellants have also not proved as to how they became tenants under the Panchayat. If the Panchayat had entered into any such agreement, they should have been produced. Hence finding no infirmity in the order of the Court below, I dismiss the appeal." 5. The petitioners have challenged the penalty part of order Annexure P.1 on the ground that the same is vitiated due to non-compliance of Section 7(2) of the Act. 6. I have heard Shri Jaswant Jain, learned counsel for the petitioners and Shri Rajbir Sehrawat, learned Senior Deputy Advocate General, Haryana appearing for respondent Nos. 1 to 3 and 5. Section 7(2) of the Act on which reliance has been placed by the petitioners in support of their assertion that the penalty part of order Annexure P.1 is ultra-vires to the said provision reads as under :- "The Assistant Collector of the first grade may, 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 six hundred rupees and more than two thousand and five hundred 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." 7. 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." 7. Shri Jaswant Jain argued that before an order of penalty can be passed under Section 7(2), it is bounden duty of the Assistant Collector to determine the benefit which the unauthorised occupant could have derived from the land or other immovable property and in the absence of such determination, the order of penalty is liable to be declared nullity. He then referred to order Annexure P.1 to show that respondent No. 2 imposed penalty at the rate of Rs. 2,000/- per hectare per annum without considering as to what benefit the petitioners could have derived from the land in their occupation and argued that penalty imposed by respondent No. 2 is liable to be quashed. He assailed order Annexure P.2 by arguing that respondent No. 1 failed to consider the important point raised by the petitioners about non-compliance of Section 7(2) of the Act. 8. Shri Rajbir Seharawat, learned Senior Deputy Advocate General submitted that he is not in a position to argue the case because he does not have the brief. He further submitted that the real contestant is respondent No. 2, but no one has appeared on its behalf. In my opinion, learned counsel for the petitioners is right in contending that order Annexure P.1 is vitiated due to violation of Section 7(2) of the Act and is liable to be quashed on that ground. A reading of that order makes it clear that after coming to the conclusion that the petitioners were in unauthorised occupation of the land of Gram Panchayat and were liable to be evicted, respondent No. 2 imposed penalty on them without examining the issue whether they had derived any benefit from the land in question. Unfortunately, the appellate authority also committed the same error and dismissed the appeal by a rather cryptic order without recording the conclusion that the petitioners had derived benefit from the land in their possession. For the reasons mentioned above, the writ petition is allowed. Order Annexure P.1 is quashed to the extent of imposition of penalty on the petitioners. Order Annexure P.2 vide which respondent No. 1 confirmed the penalty imposed by respondent No. 2 is also quashed. The parties are left to bear their own costs. Petition allowed.