Research › Search › Judgment

Punjab High Court · body

2011 DIGILAW 1992 (PNJ)

Ishwari Parshad v. State of Haryana

2011-11-07

SATISH KUMAR MITTAL

body2011
JUDGMENT SATISH KUMAR MITTAL, J. (Oral) - The petitioner has filed the instant petition under Articles 226/227 of the Constitution of India for quashing the order dated 29.11.2010 (Annexure P-13), passed by the Assistant Collector Ist Grade, Palwal, dismissing the application filed by the petitioner seeking dismissal of the petition filed by respondents No.3 to 5 under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (As Applicable to Haryana) (hereinafter referred to as `the Act') for eviction of the petitioner from the land in question. 2. It is the case of the petitioner that the land/property in question is an urban property, situated in city Palwal, and it is owned by the Trust, therefore, the Assistant Collector Ist Grade has no jurisdiction to try the petition filed by respondents No.3 to 5 under Section 7 of the Act. According to the petitioner, in the jamabandis for the year 1986-87, 199192, 1996-97 and 2001-02, the land in question has been recorded to be under the ownership of `Piau Sohan Lal Wali', which is a private trust, and in possession of the petitioner, who is sole trustee of the land in question, after the death of Smt. Manna. 3. On 27.4.2010, respondents No.3 to 5 filed a petition under Section 7 of the Act in the Court of Assistant Collector Ist Grade, Palwal, praying for eviction of the petitioner from the land in question, alleging that the disputed land is under the ownership of `Piau Sohan Lal Wali', which is a public Piau, and possession of the petitioner on the same is illegal and unauthorised, therefore, he be ordered to be evicted from the same. In the petition itself, it was mentioned that as per the revenue record, the land/property in question is situated in Mauja Palwal, District Palwal. 4. The petitioner filed reply to the petition. The petitioner also filed an application stating that the aforesaid petition under Section 7 of the Act is not maintainable before the Assistant Collector Ist Grade, because the property in question is a private property and is also situated within the urban area, therefore, the provisions of the Act are not applicable. Vide order dated 29.11.2010, the said application was dismissed by the Assistant Collector Ist Grade, Palwal. The said order has been challenged in this petition. 5. Vide order dated 29.11.2010, the said application was dismissed by the Assistant Collector Ist Grade, Palwal. The said order has been challenged in this petition. 5. During the course of hearing, on 25.1.2011, the Assistant Collector Ist Grade, Palwal, was directed to file an affidavit as to under what legal circumstances in the present case the Village Common Lands Act has been invoked, though the property in dispute is an urban property. In response to the said interim order, the Assistant Collector Ist Grade, Palwal, filed affidavit dated 20.5.2011, stating therein that the property in question is situated within the revenue estate of village Shamshabad Mauja Palwal, which is outside the municipal limits, and in village Shamshabad, there is a Panchayat, therefore, the Village Common Lands Act has been invoked. 6. It has not been disputed that in the revenue record, i.e. jamabandis for the year 1986-87, 1991-92, 1996-97 and 2001-02, the land in dispute has been shown to be situated in Mauja Palwal, Tehsil Palwal, District Faridabad (Now District Palwal). 7. In the written statement, filed on behalf of respondents No.3 to 5, it has been admitted that the land in question is situated in village Palwal under the ownership of `Piau Sohan Lal Wali', which according to the respondents is a public property and does not belong to any individual. It has been stated that the property in question is a public property which is meant for the use of public at large, therefore, the Assistant Collector has the jurisdiction under the Act to entertain the petition for eviction of the petitioner. 8. We have heard learned counsel for the parties and gone through the impugned order as well as the revenue record, annexed with the petition. 9. As per the revenue record, i.e. jamabandi for the year 1986-87 (Annexure P-5), the land/property in dispute is situated in Village Palwal, which is a District headquarter. In the column of ownership, `Piau Sohan Lal Wali Malak residents of village Zer Ahatmam Ishwari Parshad (petitioner) s/o Hariya @ Shiv Charan r/o village' has been recorded. In the column of cultivation, it is recorded `Self cultivation'. The issue in this case is whether the property in question is owned by a trust and is private property of the trust, or whether it is public property, and whether such issue can be determined by the Assistant Collector under the Act. In the column of cultivation, it is recorded `Self cultivation'. The issue in this case is whether the property in question is owned by a trust and is private property of the trust, or whether it is public property, and whether such issue can be determined by the Assistant Collector under the Act. It is admitted position that the land/property in question is situated in village Palwal, which is admittedly an urban area. Merely on the basis of the affidavit of the Assistant Collector Ist Grade, Palwal, which is contrary to the revenue record, it cannot be said that the property in dispute is situated within the revenue estate of village Shamshabad and is owned by the Gram Panchayat of village Shamshabad. In the eviction application, it is not the case of respondents No.3 to 5 at all that the land in dispute is Shamilat Deh and vests in the Gram Panchayat. Their stand is that it is a public property, which is being used by public at large, and the petitioner is in unauthorised possession of the same, therefore, his illegal possession be removed in public interest. It is also admitted position that in the revenue record, the land in question is not recorded in the name of the Gram Panchayat. There is no issue as to whether the disputed property falls under the definition of Shamilat Deh and is owned by the Gram Panchayat, therefore, the petition under Section 7 of the Punjab Village Common Lands Act is not maintainable. When respondents No.3 to 5 themselves are claiming the property in dispute to be a public property and possession of the petitioner as illegal and unauthorised, their remedy lies to move under the Haryana Public Premises and Land (Eviction and Rent Recovery) Act, 1972 (hereinafter referred to as `the Public Premises Act'), and not under the Punjab Village Common Lands (Regulation) Act, 1961 (As Applicable to Haryana). The Collector under the Public Premises Act has also the jurisdiction to decide as to whether a particular property is public property for the purpose of evicting a person in unauthorised possession. 10. The Collector under the Public Premises Act has also the jurisdiction to decide as to whether a particular property is public property for the purpose of evicting a person in unauthorised possession. 10. During the course of hearing, when learned counsel for respondents No.3 to 5 could not dispute the jamabandis and the other documents available on record, showing the property in question as urban property and themselves claimed it to be a public property, he stated that respondents No.3 to 5 be permitted to file eviction petition before the competent authority under the Public Premises Act. 11. In view of the aforesaid factual and legal position as well as the stand taken by learned counsel for respondents No.3 to 5, this writ petition is allowed. The impugned order dated 29.11.2010 is set aside and the application filed by the petitioner before the Assistant Collector Ist Grade, Palwal, in the petition under Section 7 of the Act, filed by respondents No.3 to 5, is allowed, with liberty to respondents No.3 to 5 to file eviction petition against the petitioner before the Collector under the provisions of the Public Premises Act.