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2005 DIGILAW 197 (PNJ)

Malkiat Singh v. District Collector

2005-02-04

N.K.SUD, SATISH KUMAR MITTAL

body2005
Judgment Satish Kumar Mittal, J. 1. In this writ petition filed under Articles 226/227 of the Constitution of India, the petitioner has challenged the order dated 27.11,2002 passed by the Assistant Collector 1st Grade, Tohana on an application filed by the Gram Panchayat under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as the Act) ordering the ejectment of the petitioner from the land in question; and the order dated 18.9.2003, passed by the Collector on the appeal filed by the petitioner upholding the aforesaid order of the Assistant Collector, 1st Grade. 2. The brief facts of the case are that on 9.1.2001, an application under Section 7 of the Act was filed by the respondent-Gram Panchayat for ejectment of the petitioner from the land measuring 1 Kanal 0 Maria from Khasra No. 110//5/3, which is part of a playground of the school of the village. It was alleged that as per Jamabandi for the year 1995-96, the aforesaid Khasra number vests in the Gram Panchayat being Shamlat Deh and the petitioner has illegally occupied 1 Kanal 0 Maria of land out of the afore-said Khasra number. 3. Notice of the said application was issued to the petitioner. Despite due service through registered post, the petitioner did not appear. He was proceeded ex parte and the case was fixed for evidence. Some evidence was recorded but when the case was fixed for argument on 8.5.2002, the petitioner appeared before the Assistant Collector, 1st Grade and filed an application for setting aside the ex parte proceedings. The said application was allowed on payment of costs and the petitioner was permitted to file written statement. Thereafter, the petitioner filed written statement in which he has taken the stand that he had never occupied the disputed land and the allegation levelled against him that he is in illegal possession of Khasra No. 110//5/3 are absolutely false. The land is lying vacant and the same is not in illegal possession of the petitioner. It has also been stated that he had never used the land in question and, therefore, no penalty can be imposed upon him. After filing of the written statement, the Law Officer of the Gram Panchayat submitted that his earlier statement may be read into evidence. Thereafter, the petitioner was given opportunity to lead the evidence. It has also been stated that he had never used the land in question and, therefore, no penalty can be imposed upon him. After filing of the written statement, the Law Officer of the Gram Panchayat submitted that his earlier statement may be read into evidence. Thereafter, the petitioner was given opportunity to lead the evidence. His statement was recorded in which he had taken the stand that Khasra No. 110/5/3 is a bachat land and it does not vest in the Gram Panchayat. While referring to the Jamabandi for the year 1961-62, which he has produced as Ex.D1. he stated that the land in dispute is possessed by Jumla Malkhan Digar Hakdasan Araji Hasab Rasad and the same does not vest in the Gram Panchayat but wrongly in the Jamabandi for the year 2000-2001, it was shown to be owned by the Gram Panchayat. The aforesaid stand taken by the petitioner in his statement was contrary to the written statement filed by him. 4. The Assistant Collector, 1st Grade, Tohana, after hearing the arguments of both the parties and considering the evidence led, came to the conclusion that the land comprising in Khasra No. 110//5/3 vests in the Gram Panchayat and the petitioner has illegally encroached upon an area of 1 Kanal 0 Marla in land from the afore-said Khasra number. 5. The afore-said order was confirmed in appeal by the Collector, Fatehabad Vide order dated 18.9.2003. 6. The counsel for the petitioner raised three-fold submissions. Firstly, that the land in dispute i.e. Khasra No. 110//5/3 does not vest in the Gram, Panchayat, It belonged to the proprietors and it has been recorded in the revenue record as Jumla Malkan Digar Hakdasan Araji Hasab Rasad. Therefore, no ejectment order could have been passed against the petitioner even if he was found to be in possession of an area of 1 Kanal 0 Maria of the said Khasra number. Secondly, counsel submitted that the petitioner was not given proper opportunity to cross-examine the witness of the Panchayat which was recorded before setting aside the ex parte proceedings. Thirdly, he submitted that in this case no demarcation was being got conducted by the Assistant Collector 1st Grade before holding that the petitioner was in illegal possession of 1 Kanal 0 Maria land out of Khasra No. 110//5/3. 7. Thirdly, he submitted that in this case no demarcation was being got conducted by the Assistant Collector 1st Grade before holding that the petitioner was in illegal possession of 1 Kanal 0 Maria land out of Khasra No. 110//5/3. 7. After hearing the counsel for the petitioner and perusing the impugned orders and other documents annexed with this petition, we do not find any merit in this petition. The petitioner has placed on record a copy of the Jamabandi for the year 1961-62. In the said Jamabandi, land measuring 1 Kanal 0 Maria out of Khasra No. 110//5/3 has been recorded under the ownership of Jumla Malkan Digar Haqdaran Arazi Hasab Rasad Kabza under the cultivating possession of Maqbuja Mushtarka Malkan. In column No. 8 of the said Jamabandi, this Khasra number has been recorded as Gair Mumkin School. It is the case of the Gram Panchayat that the afore-said land was reserved during the consolidation after imposing pro-rata cut and as per the revenue record, the land is being used for the common purpose i.e. for school of the village. Such kind of land falls under the definition of Shamlat Deh as defined under Section 2(g) of the Act as has been so held by the Full Bench of this Court in Jai Singh v. State of Haryana, (2003-2)134 P.L.R. 658 (F.B.). The Appellate Authority has Specifically considered this aspect of the matter and has come to the conclusion that the land in dispute vests in the Grain Panchayat as the same was being used for common purpose of the village though it was reserved during the consolidation and has been recorded as Jumla Mushtarka Malkan Land. 8. We do not find any illegality or infirmity in the afore-said finding. Even otherwise, in the written statement, the petitioner did not take any stand before the Assistant Collector, 1st Grade that the land does not vest in the Gram Panchayat. His only stand was that he had not encroached upon any portion of the said land and the allegations against him regarding illegal possession were false. 9. The second contention of the petitioner is that he was not given fair opportunity to establish his claim by the Assistant Collector 1st Grade. In this regard, his contention is that he was not permitted to cross-examine the Law Officer, who was examined before setting aside of the exparte proceedings. 9. The second contention of the petitioner is that he was not given fair opportunity to establish his claim by the Assistant Collector 1st Grade. In this regard, his contention is that he was not permitted to cross-examine the Law Officer, who was examined before setting aside of the exparte proceedings. We do not find any substance in this contention of the counsel for the petitioner also. In this case, after setting aside the exparte proceeding, the petitioner was not only permitted to file written statement but he was also permitted to lead evidence in support of his claim. Actually, he appeared and made the statement and also produced on record certain documents. He never asked or made any application for cross-examination of the Law Officer of the Gram Panchayat whose statements were recorded earlier nor any such point was raised before the authorities. The proceedings under Section 7 of the Act are the summary proceedings. The technicalities of the Evidence Act are not applicable. We are satisfied that the petitioner was given full opportunity to plead his case before the Assistant Collector, Ist Grade. 10. As far as the third contention of the petitioner is concerned, the same is also without any merit. In the written statement, the petitioner has taken a specific stand that he is not in possession of any portion of Khasra No. 110//5/3 and the allegations levelled against him are false. By the impugned orders, the petitioner has only been ordered to be ejected from the area measuring 1 Kanal 0 Maria out of Khasra No. 110//5/3. It was not the case of the petitioner that he was in possession of the disputed portion of the land which is owned by him. He never took such stand nor he led any evidence that the disputed area is part of his owned property. In view of such stand, there was no need for demarcation of the land particularly when the petitioner did not raise any dispute about the possession of Khasra No. 110//5/3. From the order of the Collector, it appeals that the Collector himself has inspected the site in question with the consent of both the parties. In view of such stand, there was no need for demarcation of the land particularly when the petitioner did not raise any dispute about the possession of Khasra No. 110//5/3. From the order of the Collector, it appeals that the Collector himself has inspected the site in question with the consent of both the parties. During the said inspection, it was found that the land in dispute, which was adjoining the house of the petitioner, was illegally encroached upon by him by opening the doors of his house towards the said land and he had illegally erected the boundary wall on the said land. We are satisfied that there is no illegality in the impugned orders and the petitioner was rightly ordered to be ejected from the land in dispute. In view of the aforesaid, there is no merit in this petition. Dismissed.