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2004 DIGILAW 609 (PNJ)

Gulzar Singh v. Joint Director, Panchayats, Punjab, Chandigarh

2004-05-24

G.S.SINGHVI

body2004
JUDGMENT G.S. Singhvi, J. - These petitions are directed against orders dated 30.9.1982 and 9.11.1984 passed by District Development and Panchayat Officer, Kapurthala (respondent No. 2) and Joint Director, Panchayats, Punjab [exercising the powers of the Commissioner under Punjab Village Common Lands (Regulation) Act, 1961] (respondent No. 1). 2. For the sake of convenience, I have noticed the facts from C.W.P. No. 2736 of 1985. 3. The petitioner is in cultivating possession of land comprised in khasra No. 13//10 min (5-0), 11(4-0) measuring 9 kanals situated in village Jhugian Gulam. Tehsil and District Kapurthala since Rabi, 1975. According to him, this parcel of land was owned by Muslims, who migrated to Pakistan at the time of partition. Thereafter, the land vested in the Custodian under Act No. 14 of 1947 which was, later on, replaced by Administration of Evacuee Property Act, 1950 (for short, the 1950 Act). During consolidation operations, whole of the evacuee land whether of shamlat category or otherwise was formulated in Kuraha of the Custodian. This was depicted in the copy of Wajibul-arz appended with Misal Haqiat of the consolidation proceedings of the year 1959-60, the relevant portion of which is extracted below :- "S.No. Particulars of land Details of Land A. Shamlat Deh its cultivation and management : details of its income property. The land allottees and other right holders of the village do not have any right over the Shamlat land because the Shamlat land is evacuee. Therefore, the Shamlat is in possession of the Custodian. And neither the allottees nor other right holders have any right to claim its partition. Thus, its management would be done under instructions of the Government." 4. In April, 1961, surplus evacuee agricultural land which had vested in the Custodian under the 1950 Act was transferred to the State Government by way of "Package Deal". The latter framed rules for disposal thereof and also issued press notes during 1962 onwards for transfer of rights on the occupants of the rural agricultural land. 5. The petitioner has averred that he had applied for transfer of land in his favour, but no action was taken by the concerned authority. The latter framed rules for disposal thereof and also issued press notes during 1962 onwards for transfer of rights on the occupants of the rural agricultural land. 5. The petitioner has averred that he had applied for transfer of land in his favour, but no action was taken by the concerned authority. In 1981, Gram Panchayat, Jhugian Gulam filed an application under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (for short, the 1961 Act) for his eviction from the land in question by claiming that he was in unauthorised occupation thereof. On notice, the petitioner filed reply and raised the following points :- (1) That the land in dispute was Custodian land. (2) That the petition filed by the Gram Panchayat is not maintainable because the land in dispute had never vested in it. (3) That the Gram Panchayat has no locus standi to file the petition. (4) That the mutation sanctioned against the Gram Panchayat is against the law and Rules. (5) That the Panchayat was not in authorised possession/occupation of the land in dispute. (6) That the Gram Panchayat could not ask for any rent as it had no right to claim therefor. (7) Being Custodian land, allotment of land was made to allottees including Diwan Singh son of Tehal Singh. 6. However, without considering any of the points raised by the petitioner, respondent No. 2 allowed the application filed by respondent No. 3 vide order dated 30.9.1982 (Annexure P2/A). The appeal filed against that order was dismissed by respondent No. 1 vide order dated 9.11.1984 (Annexure P3/A). 7. Similar orders of eviction were passed against the other petitioners and appeals filed by them were dismissed by respondent No. 1 vide common order dated 9.11.1984. 8. The petitioners have challenged the impugned orders on the following grounds :- (i) Respondent No. 2 did not have the jurisdiction to entertain and decide the applications filed by respondent No. 3 under Section 7 of the 1961 Act because the evacuee property which vested in the Custodian did not form part of shamlat deh and respondent No. 3 did not have any claim over it. (ii) The orders of eviction passed by respondent No. 2 are vitiated by an error of law apparent on the face of the record because he did not consider any of the objections raised by them in reply to the applications filed by respondent No. 3. (iii) Respondent Nos. 1 and 2 ignored the vital documentary evidence i.e. Wajibul-arz appended with Misal Haqiat for the year 1959-60 in which the entire property was shown as vested in the Custodian. (iv) Respondent No. 2 could not have decided the issue of title under Section 7 of the 1961 Act. 9. Shri Amit Mehta, counsel for the petitioners reiterated the grounds taken in the writ petitions and argued that the orders of eviction passed by respondent No. 2 should be declared illegal and quashed because he did not have the jurisdiction to entertain the applications filed by respondent No. 3 under Section 7 of the Act. Shri Mehta emphasized that the property occupied by the petitioners formed part of the evacuee land which vested in the Custodian and respondent No. 3 did not have the locus standi to seek their eviction. He pointed out that after the transfer of the rural agricultural evacuee land to the State Government, no notification was issued for vesting thereof in the Gram Panchayats and argued that respondent No. 3 could have not suo motu assumed ownership of the disputed land. He further argued that the failure of respondent Nos. 1 and 2 to consider the documentary evidence produced by the petitioners in the form of Wajibul-arz appended with Misal Haqiat has resulted in manifest injustice and, therefore, a writ in the nature of certiorari may be issued for quashing the impugned orders. 10. Learned counsel for the respondents supported the impugned orders and argued that the Court may not entertain the prayer of the petitioners because the finding recorded by respondent Nos. 1 and 2 on the issue of their unauthorised occupation of public land is a pure finding of fact based on proper evaluation of evidence produced by the parties. 11. I have thoughtfully considered the respective arguments and carefully perused the record. 1 and 2 on the issue of their unauthorised occupation of public land is a pure finding of fact based on proper evaluation of evidence produced by the parties. 11. I have thoughtfully considered the respective arguments and carefully perused the record. The parameters for exercise of jurisdiction by the High Court under Article 226 of the Constitution of India in cases involving challenge to the award passed by the Labour Court/Industrial Tribunal and orders passed by other judicial and quasi-judicial bodies were well defined. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior Courts or Tribunals. A writ can also be issued where in exercise of jurisdiction conferred on it, the Court or the Tribunal acts illegally or improperly i.e. it decides a question without giving an opportunity to be heard to the party affected by the order or where the procedure adopted by it is opposed to the principles of natural justice. However, it must be remembered that the jurisdiction of the High Court to issue a writ of certiorari is a supervisory jurisdiction and not appellate one. This necessarily means that the finding of fact reached by the inferior Court or Tribunal, as a result of the appreciation of evidence, cannot be reopened or questioned in writ proceedings except when the judgment, order or award suffers from an error of law apparent on the face of the record. This is the abstract statement of law, but the vexed question is as to what is an error of law apparent on the face of the record and in what circumstances a finding of fact recorded by an inferior Court or Tribunal or a quasi-judicial authority can be corrected. Broadly speaking, an error of law is one which can be discovered on a bare reading of the judgment, order or award under challenge along with the documents which have been relied upon by the inferior Court, Tribunal or quasi-judicial authority. An error, the discovery of which is possible only after a detailed scrutiny of the evidence produced by the parties and lengthy debate at the bar cannot be regarded as an error of law for the purpose of a writ of certiorari. An error, the discovery of which is possible only after a detailed scrutiny of the evidence produced by the parties and lengthy debate at the bar cannot be regarded as an error of law for the purpose of a writ of certiorari. A finding of fact recorded by an inferior Court or Tribunal can be corrected only if it is shown that in recording the said finding the Court or the Tribunal had erroneously refused to admit admissible and material evidence or had erroneously admitted inadmissible evidence and the same has influenced the impugned finding. Similarly, a finding of fact based on no evidence would be regarded as an error of law which can be corrected by a writ of certiorari. However, sufficiency or adequacy of the evidence relied upon by the inferior Court or Tribunal or the quasi-judicial authority cannot be gone into by the High Court while considering the prayer for issue of a writ of certiorari. Likewise, the mere possibility of forming a different opinion on re-appreciation of evidence produced by the parties is not sufficient for issue of a writ of certiorari - Syed Yakoob v. K.S. Radhakrishnan and others, AIR 1964 S.C. 477; Shaikh Mahammad Umarsaheb v. Kadalaskar Hasham Karimsab and others, AIR 1970 S.C. 61; Jitendra Singh Rathor v. Shri Baidyanath Ayurved Bhawan Ltd. and another, AIR 1984 SC 976; R.S. Saini v. State of Punjab and others, JT 1999(6) SC 507 and Mohd. Shahnawaz Akhtar & Anr. v. 1st ADJ Varanasi & Ors., JT 2002(8) SC 69. 12. I shall now consider whether or not the impugned orders are vitiated by an error of law apparent on the face of the record and are liable to be quashed on that ground. A reading of order dated 30.9.1982 (Annexure P2/A in C.W.P. No. 2736 of 1985) shows that after making a brief reference to the averments contained in the application filed on behalf of respondent No. 3, written- statement filed by the petitioner and arguments of their counsel, respondent No. 2 allowed the application by presuming that the burden to prove that he was not in unauthorised possession of the land in dispute was on the petitioner which he had failed to discharge. This is clearly borne out from the following extract of that order :- "I have heard arguments of both the parties and examined the record and evidence produced by the parties. This is clearly borne out from the following extract of that order :- "I have heard arguments of both the parties and examined the record and evidence produced by the parties. I have reached the conclusion that the respondent is in unauthorised possession of the land in dispute and the second party has failed to produce any proof that the land in dispute is an acquired evacuee property. I, Gurinder Singh, Collector (Panchayat Lands), Kapurthala, order ejectment of Shri Gulzar son of Bhagta resident of Jhugian Gulam from the land comprising of Khasra No. 13//10 min (5-0), 11(4-0), situated in village Jhugian Gulam, Tehsil and District Kapurthala because this land is of the Panchayat. After implementation the file be consigned to the record room." 13. Respondent No. 1 dismissed the appeals by a cryptic order without dealing with any of the points raised by the petitioners. He too thought that the burden to prove the negative was on the petitioners and they had failed to prove that they were legally entitled to occupy the land in dispute. This is evident from para 4 of the appellate order, which is reproduced below :- "I have heard both the parties at length and have gone through the relevant record. That the argument advanced by the learned counsel for the appellant has no force that the land in dispute was an evacuee property. He has not been able to produce any proof either before the lower court or in this Court which could prove that this land is evacuee property. The Jamabandi for the year 1978-79 shows that this land is entered in the Column of ownership as Shamlat Deh and in the name of cultivation in column No. 9 the appellant is depicted as cultivator Bawaja Najaij Kashat. From this it is proved that the land in dispute is of the Gram Panchayat and the appellant is in unauthorised possession of the same." 14. In my view, the approach adopted by respondent Nos. 2 and 1 suffers from a fundamental defect in-as-much as, they failed to apply the basic principle that the burden to prove its ownership of the land in dispute and unauthorised possession thereof by the petitioners was on respondent No. 3 and the petitioners could not have been called upon to prove the negative. 2 and 1 suffers from a fundamental defect in-as-much as, they failed to apply the basic principle that the burden to prove its ownership of the land in dispute and unauthorised possession thereof by the petitioners was on respondent No. 3 and the petitioners could not have been called upon to prove the negative. On its part, respondent No. 3 did not produce any evidence except the Jamabandi of the year 1978-79 to prove its ownership and the alleged unauthorised encroachment by the petitioners. Respondent No. 1 relied on the Jamabandi of the year 1978-79 and held that respondent No. 3 was the owner of the land. However, he did not go into the basic issue that at the time of partition, the land had vested in the Custodian and the same was never transferred to the Gram Panchayat. Thus, no evidence was available before the official respondents to prove that the land in dispute had vested in the Gram Panchayat entitling it to file applications under Section 7 of the 1961 Act. In my opinion, the stray entry recorded in the Jamabandi of 1978-79 was not sufficient to prove the ownership of the Gram Panchayat unless it could be shown that the property, which had vested in the Custodian, was transferred to it. That apart, it has not been explained as to why respondent Nos. 2 and 1 ignored the entry recorded in Wajibul-arz appended with Misal Haqiat prepared at the time of consolidation. Non-consideration of this vital piece of evidence has resulted in mis-carriage of justice. Therefore, the impugned orders call for interference under Article 226 of the Constitution of India. For the reasons mentioned above, the writ petitions are allowed. The impugned orders are declared illegal and quashed. However, it is made clear that this order of the Court shall not entitle the petitioners to claim ownership of the land in their possession and the competent authority shall be free to secure their eviction by adopting appropriate legal measures. Petitions allowed.