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2011 DIGILAW 423 (PNJ)

Ram Kumar v. State of Haryana

2011-02-02

M.JEYAPAUL, SATISH KUMAR MITTAL

body2011
JUDGMENT Mr. Satish Kumar Mittal, J.: (Oral) - This Letters Patent Appeal has been directed against the order dated September 07, 2010, passed by the learned Single Judge, whereby the writ petition (CWP No. 15932 of 2010), filed by the appellants, challenging the orders dated 17.5.1999; 31.10.2000; and 21.9.2005, passed by the Assistant Collector Ist Class, Pehowa; the Collector, Kurukshetra; and the Commissioner, Ambala Division, Ambala Cantt, respectively, has been dismissed, on the ground that the said petition was filed after five years of the passing of order, as well as on the ground that earlier also, the appellants filed a petition (CWP No. 18426 of 2009) challenging the aforesaid orders, which was dismissed as withdrawn with liberty to the appellants to make a representation before the authorities below. 2. We have heard learned counsel for the parties. 3. Undisputedly, in this case, one Harbel Singh, an inhabitant of village Shahpur, filed an application under Section 7 (2) of the Punjab Village Common Lands (Regulation) Act, 1961, for eviction of the appellants from portion of the land comprised in khasra No. 39/2, which is gair mumkin johar, meant for common use of the inhabitants of the village. Vide order dated 17.5.1999, Assistant Collector Ist Grade, Pehowa, after recording a finding of fact that according to the Jamabandi for the year 1993-94, the said khasra number is gair mumkin johar and vests in the Gram Panchayat, observed that the appellants have illegally encroached upon the portion of the said johar and raised construction thereon. The said finding of fact, recorded by the Assistant Collector Ist Grade, was upheld by the Collector, Kurukshetra as well as the Commissioner, Ambala Division, Ambala Cantt, vide orders dated 31.10.2000 and 21.9.2005, respectively. It is further undisputed position that those orders were challenged by the appellants by filing Civil Writ Petition No. 18426 of 2009, which was dismissed as withdrawn on 2.12.2009, with liberty to the appellants to make a representation before the authorities, with regard to purchase of the disputed land. The representation dated 14.12.2009, made by the appellants, is still pending. In spite of that, the appellants filed second petition (CWP No. 15932 of 2010), which has been dismissed by the learned Single Judge, against which the present appeal has been filed. 4. The representation dated 14.12.2009, made by the appellants, is still pending. In spite of that, the appellants filed second petition (CWP No. 15932 of 2010), which has been dismissed by the learned Single Judge, against which the present appeal has been filed. 4. Learned counsel for the appellants, while referring to the Haryana Government Policy dated 16.10.2000; the notification dated 1.8.2001 and the subsequent notification dated 23.1.2009, whereby the Punjab Village Common Lands (Regulation) Rules, 1964, were amended, argued that under the aforesaid Policy and the Rules, the appellants are entitled to purchase the land, which was found in their unauthorised and illegal possession, therefore, according to the learned counsel, the learned Single Judge has wrongly dismissed the writ petition filed by the appellants, and he should have directed the concerned authority to decide the representation, filed by them to purchase the disputed portion of the johar. 5. On the other hand, learned counsel for respondent No.6 argued that even under the aforesaid Policy and the amended Punjab Village Common Lands (Regulation) Rules, 1964, the appellants cannot be permitted to purchase the land, on which they were found in illegal and unauthorised occupation, because as per the Policy and the aforesaid amended Rules, only uncultivable shamilat land could be transferred to the unauthorised occupants, which is not meant for any common use of inhabitants of the village. Since the appellants have unauthorisedly occupied the gair mumkin johar, which is meant for use of common purposes of inhabitants of the village, therefore, no portion of the said johar can be transferred to the appellants, even though long ago, they had raised construction on that portion. 6. After considering the submissions, made by learned counsel for the parties, we are of the opinion that the learned Single Judge has rightly dismissed the writ petition. The learned Single Judge was not required to direct the concerned authority to decide the representation, made by the appellants. In our view, the appellants, who have been found in illegal and unauthorised occupation of the part of gair mumkin johar, cannot be allowed to purchase the same, on which they have raised construction. The learned Single Judge was not required to direct the concerned authority to decide the representation, made by the appellants. In our view, the appellants, who have been found in illegal and unauthorised occupation of the part of gair mumkin johar, cannot be allowed to purchase the same, on which they have raised construction. Under the aforesaid Policy and the Rules, only unauthorised occupants of uncultivable shamilat deh land can get the land transferred in their favour, but if the land is used for any common purpose of the inhabitants of the village, the same cannot be transferred at all, to any unauthorised occupant. 7. During the course of arguments, learned counsel for the appellants has relied upon the Single Bench decision of this Court in the case of Mukhtiara v. Collector, Kurukshetra, 1995 (3) PLR 264. We are of the opinion that after the amendments by the aforesaid notifications, whereby it has been made clear that only uncultivable shamilat deh land can be transferred and not the land, which is used for the common purpose of the inhabitants of the village, this judgment cannot be taken into consideration. No merit. Dismissed. ---------------