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2012 DIGILAW 1448 (PNJ)

Gram Panchayat, Mohri v. Rajpal

2012-10-11

M.JEYAPAUL

body2012
JUDGMENT Mr. M. Jeyapaul, J.: - CM No. 11111-C of 2012, CM No. 11085-C of 2012 and CM No. 11110-C of 2012: 1. Vide order dated 21.7.2003, this Court deferred the hearing of Regular Second Appeals No. 2660 of 2002, 2691 of 2002 and 2692 of 2002 till the judgment in the writ petition challenging the vires of Act 13 of 1996 was pronounced by the Court. Inasmuch as Civil Writ Petition No. 4816 of 1996 was disposed of on 7.4.2010, these appeals were revived for hearing. Accordingly, all the three applications filed in these three RSAs are allowed. RSA No. 2660 of 2002, RSA No. 2691 of 2002 and RSA No. 2692 of 2002: 2. All these three appeals have arisen out of the same set of facts. Very same relief has been sought for by the respondents. Same set of defence has been set up by the appellant. Similar issues have arisen for determination. Therefore, this Court has taken up all the three appeals together for common disposal. 3. Appellant-Gram Panchayat, Mohri, Block Radaur, Tehsil Jagadhri, District Yamunanagar, suffered a decree for delivery of possession before both the Courts below. Hence, the present second appeals by the Gram Panchayat. 4. The suit properties described in all these three suits were part of Shamlat Deh before enforcement of the Punjab Village Common Lands Act, 1961 (hereinafter referred to as the 1961 Act). The Muslim proprietors hailing from the village concerned also had a share in the Khewat of Shamlat Deh. However, after enforcement of the said Act, the above lands were mutated in favour of the Gram Panchayat. 5. On 15.5.1973, this Court held in the case titled Gram Sabha and Gram Panchayat Daba versus The Chief Settlement Commissioner and others that the share of the evacuees (muslim proprietors who migrated to Pakistan) in the Shamlat land of village vested in the Custodian by virtue of Sections 7 and 8 of the Administration of Evacuee Property Act,1950. Thus, the share of the evacuees (muslim proprietors who migrated to Pakistan) in khasra No. 66 fell to the share of the Custodian. The plaintiffs purchased the suit properties by participating in the auction held by the Government of India on 23.5.1985 and paid part of the sale consideration. Warrants of possession were issued to the plaintiffs and thereupon, they were put in possession of the land as on 12.7.1985. The plaintiffs purchased the suit properties by participating in the auction held by the Government of India on 23.5.1985 and paid part of the sale consideration. Warrants of possession were issued to the plaintiffs and thereupon, they were put in possession of the land as on 12.7.1985. The entries in the khasra girdawaries also stood changed in their names. 6. On 9.7.1985, the Hon’ble Supreme Court of India held in the case of Gram Panchayat of village Jamalpur v. Malwinder Singh and others (1985) 3 Supreme Court cases 661 that the provisions of the 1961 Act shall have precedence over the provisions of the Administration of Evacuee Property Act,1950 and as a result of which, the Shamlat land shall vest in the Gram Panchayat, irrespective of the fact as to whether the same was owned by the Muslim proprietors or Hindu proprietors. 7. On the basis of the above judgment rendered by the Hon’ble Supreme Court, the Collector, Kurukshetra, issued a letter on 24.11.1985 to the Revenue Authorities to re-mutate the Shamlat land in the name of Panchayat concerned. Resultantly, mutation No. 1131 was sanctioned on 24.11.1985 in favour of Gram Panchyat. Thereafter, the defendant who is the appellant herein, succeeded in evicting the plaintiffs from the suit properties. 8. The State of Haryana made an amendment in the definition of “Shamlat land” given in Section 2(g) of the 1961 Act. By virtue of the amendment, an exception was inserted which inter-alia provides that Shamlat Deh shall not include land which has been allotted on quasi-permit basis to displaced person or transferred to any person by sale or by any other mode after the commencement of the Act but on or before 19.7.1995. It has been provided further in Section 3 of the Act ibid that the Gram Panchayat shall have no right, title or interest in such land after the Amendment Act 8 of 1995. 9. The validity of Amendment Act 8 of 1995 was put to challenge before this Court in Gram Panchayat of village Kum-Kalan v. State of Punjab and others, [2010(2) Law Herald (P&H) (DB) 1341] : (2010) 3 RCR(Civil) 729 wherein it has been categorically held that the Amendment Act 8 of 1995 was valid and therefore, the same was not liable to be quashed, as contended by the Gram Panchayat. 10. 10. In the above factual scenario, learned counsel appearing for the appellant-Gram Panchayat as well as the learned counsel appearing for the respondent-plaintiffs would submit that these appeals do not survive for consideration. 11. Plaintiffs have purchased the properties in an open auction held by the Government of India on 23.3.1985. The above auction was held prior to 9.7.1985 which was the date on which the judgment in Malwinder Singh’s case (supra) was pronounced by the Hon’ble Supreme Court. The Amendment Act 8 of 1995 was introduced by the State of Haryana in Section 2(g) of the 1961 Act pursuant to the above decision exempting transfers made prior to the cut off date-9.7.1985. The plaintiffs in these three suits purchased respective suit properties which were Shamlat lands on 23.3.1985 itself. In other words, they have purchased the suit properties prior to the above cut off date viz. 9.7.1985. The Government of India had delivered possession of the suit properties to the respective plaintiffs immediately after the auction that was held on 23.3.1985. The plaintiffs had been dispossessed from the properties they purchased from the Government of India, after the decision of the Hon’ble Supreme Court in Malwinder Singh’s case (supra) on 9.7.1985. 12. Both the Courts below have rightly held that the defendants were not owners of the suit properties as claimed by them and the Government of India has rightly auctioned the properties. As there had been dispossession pursuant to the judgment of the Hon’ble Supreme Court in Malwinder Singh’s case (supra) and the amendment introduced by the State of Haryana by Amendment Act 8 of 1995 has saved the transfers made prior to 9.7.1985, the plaintiffs are the rightful owners of the suit properties. Therefore, they are entitled to recovery of possession. 13. Learned counsel appearing for the Gram Panchayat-appellant, has conceded the above position. 14. Therefore, I do not find any merit in all the three appeals. As far as RSA No. 2660 of 2002 is concerned, though the first appellate Court has dismissed the first appeal preferred by the Gram Panchayat on the point of limitation, I find that on merits also, the Gram Panchayat does not have a case. 15. In view of the above, RSA Nos. 2660 of 2002, 2691 of 2002 and 2692 of 2002 stand dismissed. There shall be no order as to costs.