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2012 DIGILAW 746 (PNJ)

Ved Parkash v. State of Haryana

2012-05-23

SATISH KUMAR MITTAL, T.P.S.MANN

body2012
JUDGMENT SATISH KUMAR MITTAL, J. This Letters Patent Appeal has been directed against the order dated 16.8.2011, passed by the learned Single Judge, whereby the writ petition (Civil Writ Petition No. 9305 of 1993) filed by Bansi Dhar (father of the appellant), challenging the orders dated 26.11.1986; (Annexure P-1), 12.3.1991; (Annexure P-3) and 22.9.1992 (Annexure P-5), passed by the Assistant Collector Ist Grade, Jhajjar; the Collector, Rohtak; and the Commissioner, Rohtak Division, Rohtak, respectively, has been dismissed. After hearing learned counsel for the appellant and going through the impugned order as well as the orders passed by the authorities under the Punjab Village Common Lands (Regulation) Act, 1961 (As applicable to Haryana) (hereinafter referred to as `the Act'), we do not find any merit in this appeal. The father of the appellant, claiming himself to be in possession of the land in question, which according to the revenue record was shamilat deh, filed a civil suit for permanent injunction restraining Gram Panchayat (respondent No.5 herein) from dispossessing him from the land in question. It is admitted position that father of the appellant never claimed ownership on the said land. His claim was based upon the alleged possession. In that suit, a preliminary objection was raised with regard to jurisdiction of the civil court to determine the issue as to whether the land in question was shamilat deh vesting in the Gram Panchayat or not. The civil court, after considering the preliminary objection and in view of Section 13 of the Act, which bars the jurisdiction of the civil court to determine such an issue, vide order dated 12.12.1981, returned the plaint to the father of the appellant to file it before the appropriate court having jurisdiction in the matter. The said order was challenged in appeal, but the appeal was also dismissed on 5.4.1982. Thereafter, the father of the appellant presented that suit before the Assistant Collector Ist Grade, Jhajjar. The Assistant Collector Ist Grade, vide order dated 26.11.1986 (Annexure P-1), dismissed the suit, while recording a finding of fact that father of the appellant had failed to prove his possession on the land in question. It was further held that there is no provision in the Act, under which an order of permanent injunction could be passed against the Gram Panchayat. It was further held that there is no provision in the Act, under which an order of permanent injunction could be passed against the Gram Panchayat. An observation was also made that the land in dispute vested in the Government, instead of the Gram Panchayat. Father of the appellant did not file any appeal. However, aggrieved against this observation, the Gram Panchayat filed an appeal before the Collector, Rohtak, who vide order dated 12.3.1991 (Annexure P-3) allowed the appeal and in view of the revenue record, i.e. jamabandi for the year 1931-32 as well as wajib-ul-urj, where the land in dispute was recorded as shamilat deh, held that the land in dispute was clearly falling under the definition of `shamilat deh', therefore, it vested in the Gram Panchayat. It was held that mere sanctioning of mutation in favour of the Government ipso facto does not mean that the land in question was not shamilat deh and vested in the State Government. Though the father of the appellant did not file appeal against the order of the Assistant Collector Ist Grade, but he had chosen to file revision before the Commissioner against the aforesaid order of the Collector, whereby the land in question was found as shamilat deh vesting in the Gram Panchayat. The Commissioner, Rohtak Division, Rohtak, vide order dated 22.9.1992 (Annexure P-5), dismissed the revision petition, while observing as under : “The second point raised by the learned counsel for the appellant is that this land does not fall within the ambit of shamilat deh and therefore, the Gram Panchayat has no locus-standi to evict the appellant therefrom. The learned Collector has in his well reasoned order clearly held that this land which originally was recorded as shamilat deh in the revenue record and had been temporarily taken over by the Govt. for setting up a brick kiln there reverted to shamlat deh according to the Sharat-wajib-ul-arz and that it was only due to lapse on the part of revenue and other authorities that the necessary mutation/ correction in the record in favour of the shamlat deh was not carried out. In any case, the fact remains that this land did belong to shamlat deh prior to partition and coming into force of the Punjab Village Common Lands Act, 1954 and therefore, vested in the Gram Panchayat. In any case, the fact remains that this land did belong to shamlat deh prior to partition and coming into force of the Punjab Village Common Lands Act, 1954 and therefore, vested in the Gram Panchayat. The appellant has absolutely no concern whatsoever with this land and has been held to be in unauthorised possession of the land by both the Revenue Officers below. I have no reason to up set these concurrent finding of fact which is borne out by the evidence on record. I, therefore, find no merit in this revision and consequently dismiss the same.” The aforesaid orders have been upheld by the learned Single Judge, while dismissing the writ petition filed by the father of the appellant, who died during the pendency of the writ petition and the appellant was impleaded as his legal representative. During the course of arguments, it has not been disputed that father of the appellant was neither the proprietor of the village nor was having any share in the shamilat deh. He was a displaced person from Pakistan. Undisputedly, in the revenue record, the land in question was recorded as shamilat deh. With the coming into force of the Punjab Village Common Lands (Regulation) Act, 1953 (hereinafter referred to as `the Act of 1953'), such land vested in the Gram Panchayat and subsequently, with the coming into force of the Act, such land absolutely vested in the Gram Panchayat. In view of this legal position, in our opinion, the Collector and the Commissioner have rightly held that the land in dispute vested in the Gram Panchayat, and mere wrong sanctioning of mutation in favour of the Government, does not make this land under the title of the State Government. The appellant is claiming this land on the basis of adverse possession, but he has failed to prove the cultivating possession of his father over the disputed land for more than 12 years on the day of coming into force of the Act of 1953, therefore, in view of Section 4 (3) (ii) of the Act, the disputed land will not divest from the ownership of the Gram Panchayat. Thus, we do not find any reason to interfere in the impugned order passed by the learned Single Judge. No merit. Dismissed.