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2012 DIGILAW 1687 (PNJ)

Dalbir Singh v. State of Punjab

2012-12-03

AUGUSTINE GEORGE MASIH, RAJIVE BHALLA

body2012
JUDGMENT Mr. Rajive Bhalla, J.: - The petitioners pray for issuance of a writ of certiorari for setting aside orders dated 20.08.2002 and 21.10.2004, passed by the Collector-cum-District Development and Panchayat Officer, Amritsar and the Joint Development Commissioner (IRD) (exercising the powers of the ‘Commissioner’), ordering the petitioners’ eviction and dismissing their appeal, respectively. 2. Counsel for the petitioners submits that the land, in dispute, is “Jumla Mushtarka Malkan” and the father of petitioners no.1 to 3 are share holders. The land, in dispute, was created during consolidation proceedings by applying a pro rata cut on the holdings of proprietors and as it was not reserved for any common purpose, the father of petitioners no.1 to 3 remained in possession of the land, in dispute. It is further submitted that the Gram Panchayat filed an application for ejectment of the petitioners by invoking Sections 4 and 5 of the Punjab Public Premises Land (Eviction and Rent Recovery) Act, 1973 (hereinafter referred to as ‘the 1973 Act’). The application was contested by father of petitioners no. 1 to 3 and, ultimately, dismissed by the Collector, Amritsar, on 23.01.1979 by holding that the land, in dispute, belongs to share holders of the village and not to the Gram Panchayat. The Gram Panchayat did not file any appeal but on 24.01.2000, filed a fresh application under Sections 4 and 5 of the 1973 Act read along with the Punjab Gram Panchayat (Common Purposes) Lands Act, 1976 (hereinafter referred to as ‘the 1976 Act’) for eviction of the petitioners. The Collector disregarded dismissal of the earlier application and has held that as the Gram Panchayat is responsible for management and control of the land, in dispute, the petitioners, who are unauthorised occupants have to be evicted. The appeal filed by the petitioners has also been dismissed. Counsel for the petitioners further submits that order dated 23.01.1979, passed by the Collector, Amritsar, dismissing the earlier application filed by the Gram Panchayat, under Sections 4 and 5 of the 1973 Act, operates as resjudicata in the present application and, though, this plea was specifically raised, has not been considered much less referred to by the Collector or the appellate authority. It is further submitted that as the land, in dispute, is “Jumla Mushtarka Malkan” and was not reserved for any common purpose, it continues to vest in proprietors. 3. It is further submitted that as the land, in dispute, is “Jumla Mushtarka Malkan” and was not reserved for any common purpose, it continues to vest in proprietors. 3. Neither has any counsel put in appearance on behalf of the Gram Panchayat nor has any reply been filed. 4. The State of Punjab has, however, filed a reply on behalf of respondents no.1 to 3, averring therein that after the Commissioner dismissed the appeal, the petitioners filed a petition under Section 11 of the Punjab Village Common Lands (Regulation) Act, 1961(hereinafter referred to as ‘the 1961 Act’), claiming title of the land, in dispute. The District Development and Panchayat Officer, Jalandhar, camp at Amritsar, dismissed the petition, on 30.11.2007. An appeal filed by the petitioners was dismissed by the Director Rural Development and Panchayat, exercising power of the Commissioner, on 12.08.2009. Civil Writ Petition No.8332 of 2011 was dismissed, on 11.05.2011 and LPA No.2352 of 2011 was dismissed, on 27.08.2012. 5. We have heard counsel for the petitioners and perused the impugned orders. 6. The land, in dispute, is, admittedly, “Jumla Mushtarka Malkan”, i.e., land reserved during consolidation under Sections 18, and 23-A of the East Punjab Holdings(Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter referred to as the ‘Consolidation Act’) and Rule 16(ii) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949 (hereinafter referred to as the ‘Consolidation Rules’), for common purposes and vests in the Gram Panchayat for management and control. The Gram Panchayat is entitled to seek eviction of any person, who is in unauthorised possession of such land. The Gram Panchayat, initially, filed an application under Sections 4 and 5 of the 1973 Act, which was dismissed on 23.01.1979, by holding that the land is not “Shamilat” and the Gram Panchayat has no right over the land, in dispute. The Gram Panchayat, thereafter, filed a fresh application under Sections 4 and 5 of the 1976 Act. The petitioners, inter-alia, prayed for dismissal of the application on the ground that dismissal by the Collector of a similar application, on 23.01.1979, operates as resjudicata. 7. The Collector, has held that the land, in dispute, vests in the Gram Panchayat for management and control and has ordered the petitioners eviction. The respondents filed an appeal, which was dismissed by the Commissioner. 7. The Collector, has held that the land, in dispute, vests in the Gram Panchayat for management and control and has ordered the petitioners eviction. The respondents filed an appeal, which was dismissed by the Commissioner. The petitioners’ plea that order dated 23.01.1979 operates as resjudicata or estoppel may have been accepted but for the fact that the petitioners filed a petition under Section 11 of the 1961 Act, claiming ownership of the land, in dispute. The petition was dismissed by the District Development and Panchayat Officer exercising power of ‘Collector’, on 30.11.2007. An appeal filed by the petitioners was dismissed by the Director, Rural Development and Panchayats, exercising power of ‘Commissioner’, on 12.08.2009. A Civil Writ Petition No.8332 of 2011, impugning these orders, was dismissed on 11.05.2011. The petitioners filed LPA No.2352 of 2011 (Kulwant Singh and others vs. State of Punjab and others), which was dismissed on 27.08.2012. The operative part of the order, dismissing the LPA reads as follows:- “The land, in dispute, was admittedly created during consolidation by applying a pro-rata cut on the holdings of proprietors. It was, therefore, for the appellants to prove their plea that the land was not earmarked for any common purpose but this plea remains unsubstantiated for want of any evidence much less any document prepared during consolidation, showing the reservation of land for common purpose. Even otherwise, if land is recorded as Jumla Mushtarka Malkan, it gives rise to a presumption, though, rebuttable, that land was reserved for common purposes of the village panchayat and for other common purposes, in accordance with Rule 16(ii) of the East Punjab Holdings (Consolidation & Prevention of Fragmentation) Rules, 1949. The appellants have not produced any evidence to rebut this presumption. The writ petition was, therefore, rightly dismissed.” 8. The question of title having been decided in favour of the Gram Panchayat, the order passed by the Collector, in summary proceedings, under the 1973 Act, cannot operate as resjudicata. The petitioners have failed to prove any right, title or interest in the land, in dispute to enable us to hold that they are entitled to remain in possession. 9. In this view of the matter, we find no reason to interfere with the impugned orders. The writ petition is, consequently, dismissed. ---------0.B.S.0------------