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2013 DIGILAW 1039 (PNJ)

Zenith Realtech Pvt. Ltd. v. State of Haryana

2013-08-13

G.S.Sandhawalia, Jasbir Singh

body2013
JUDGMENT Mr. G.S. Sandhawalia, J.:- The present judgment shall dispose of three writ petitions i.e. CWP Nos. 2930, 7103 and 18218 of 2012 since issues are common in all the three cases. The facts are being taken from CWP No. 2930 of 2012, Zenith Realtech Pvt. Ltd. vs. State of Haryana and others. 2. The challenge in the present writ petition is to order dated 04.08.2011 (Annexure P-13), which has been issued on behalf of the Commissioner, Gurgaon Division, Gurgaon (respondent no. 2), directing the Revenue Authorities to act upon order dated 23.07.1992 and the subsequent Mutation No. 1090 dated 27.08.2011 sanctioned on the basis of the said directions whereby, the land in dispute has been shown to be Gram Panchayat Deh land. Further prayer made is for restoring Mutation Nos. 515 and 543 dated 22.12.2004 wherein, the Consolidation Authorities and Revenue Authorities had held the proprietors to be owners in possession and accordingly not to dispossess the petitioner and to allot land as prescribed in the Hakdarwar and in the Land Pass Book. 3. The short question that arises in these set of writ petitions is basically as to whether order dated 23.07.1992 passed by respondent no. 2 wherein, he had allowed the revision of the respondent no. 7-Gram Panchayat and held that the land vests in the Gram Panchayat has become final or not. 4. The pleadings of the petitioner would go on to show that 16 proprietors of village Nainwal had filed a suit under Section 13A of the Punjab Village Common Lands (Regulation) Act, 1961 (as applicable to Haryana) (for short ‘the Act’) claiming title in the land and taking the plea that the land measuring 1252 bighas and 4 biswas was wrongly shown as Panchayat Deh on 28.04.1982. It was pleaded that mutation of transfer of ownership has wrongly been done without intimating the said persons and the land had been shown as Gram Panchayat Deh. The possession was stated to be of the proprietors, though the area was described as “Banjar Qadim” and much of the land was “Gair Mumkin Pahar” or “Gair Mumkin Nala”. It was further pleaded that the land in dispute was never used for common purposes and the defendant-Gram Panchayat had no link or concern with it. Accordingly, the entry of 14.04.1982 in the revenue record was challenged. It was further pleaded that the land in dispute was never used for common purposes and the defendant-Gram Panchayat had no link or concern with it. Accordingly, the entry of 14.04.1982 in the revenue record was challenged. The Assistant Collector came to the conclusion that the plaintiffs have succeeded in proving issue no. 1 in their favour regarding the vesting of the land and decreed the claim of the right holders. As per the pleadings, it is alleged that during the pendency of the proceedings before the Assistant Collector, notification under Land Acquisition Act, 1894 had been issued for acquiring land measuring 370 acres 5 kanals and 15 marlas and an award was pronounced on 22.06.1985 and compensation was paid to the proprietors of the land. A revision was filed against the order dated 03.03.1987 (Annexure P-1) by the Gram Panchayat and respondent no. 2 allowed the same on 23.07.1992 (Annexure P-3) by holding that the land vested in the Gram Panchayat on the basis of the Sharat Wazibul Arz. The right holders filed CWP No. 15619 of 1992 challenging the order of respondent no. 2. The said writ petition was disposed of on 13.03.2003 by the Full Bench of this Court alongwith the bunch of cases pertaining to CWP No. 5877 of 1992 decided on the same date titled as Jai Singh and others vs. State of Haryana. Thereafter, on 22.12.1994, Mutation Nos. 515 and 543 were entered in favour of the right holders allegedly on the basis of the orders passed by the Full Bench and in pursuance to the orders passed in CWP No. 15619 of 1992. The petitioner purchased 58 bighas, 12 biswas and 1 biswani from M/s. Spring Farms Pvt. Ltd. vide registered sale deed on 25.06.2009 (Annexure P-7) and on the basis of the said sale deed, mutation was entered on 10.07.2009 in their favour. It was further pleaded that thereafter consolidation proceedings under The East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 had been notified on 16.09.2009 and no Shamilat Deh land was mentioned and Shamilat Deh Raqba had been duly mutated in favour of the proprietors. The petitioner’s name was shown in the scheme of consolidation and it is rightly so recognized and it was issued Land Pass Book by the Department of Consolidation. The petitioner’s name was shown in the scheme of consolidation and it is rightly so recognized and it was issued Land Pass Book by the Department of Consolidation. Thereafter, the impugned order dated 04.08.2011 was passed wherein, it was directed that effect be given to order dated 23.07.1992 and in pursuance of the same, Mutation No. 1090 was sanctioned in favour of the Panchayat Deh, which is now the subject matter of challenge. 5. Counsel for the petitioner has vehemently contended that the order of the Commissioner dated 23.07.1992 (Annexure P-3) was a non-speaking order and based upon the Amendment Act No. 9 of 1992 and the Full Bench of this Court, in Jai Singh’s case (supra), has set aside the mutations on the basis of 1992 amendment and, therefore, the right and title could not be changed by way of mutation. It was accordingly pleaded that by necessary implication, the order of the Commissioner was deemed to have been annulled. It is also submitted that the petitioner was never heard before the orders were passed and its rights were affected and the change in mutation was violative of the principles of natural justice. 6. State, on the other hand, alongwith the Gram Panchayat, defended the order and submitted that order dated 23.07.1992 had never been set aside and had become final inter se the parties and the Gram Panchayat had been held to be the owner of the land in dispute which was vesting in it and, therefore, the mutations dated 22.12.2004 and 10.07.2009 did not confer any right in favour of the petitioner, who was the subsequent purchaser. 7. After hearing counsel for the parties, we are of the opinion that there is no dispute regarding the finality of the issue of title. Respondent no. 2 had allowed the revision of the Gram Panchayat and held as under:- “4. After hearing both the parties and going through the documents I have reached to the conclusion that the rulings produced by Law Officer of Panchayat has force and as per the amendment dated 11.2.92 in the Act, the Proviso has been deleted and Jumla Malkan Land has been considered in Panchayat. On this basis I have reached to the conclusion that Sub-Sections (1) to (5) of the Section 2(G) are independent in itself. Proviso is applicable only to Sub-Section (5) because semi-column is attached with Sub-Section (5). On this basis I have reached to the conclusion that Sub-Sections (1) to (5) of the Section 2(G) are independent in itself. Proviso is applicable only to Sub-Section (5) because semi-column is attached with Sub-Section (5). Apart in the amendment dated 11.2.92, wherein the said Proviso has been deleted, and it is also written that Proviso of 2G(5) is being deleted. Thus, in the present case, there is no doubt and it is also clear from Sharat Wazibul Arz that the disputed land is being used for public purpose. The decision of Asstt. Collector I Grade is neither issue wise, nor the suit is valued by the Respondents. On this basis also the order of Asstt. Collector 1st Grade is not as per the rules. On the above arguments I understand that Respondents have no relation with the mutation of the Disputed Land which has been sanctioned, and this Land seems vested in the Gram Panchayat. Under these circumstances this Revision is accepted. The Order of Asstt. Collector 1st Grade dated 3.3.87 is set aside. Order pronounced.” 8. The said order was challenged in CWP No. 15619 of 1992 and copy of the writ petition has also been annexed as Annexure P-4 though, in that, the order of the Commissioner is mentioned as 14.07.1992. The prayer, apart from the challenge to that order, was also for declaring Act No. 9 of the 1992 Act by which sub clause (6) of Section 2(g) had been added. The Full Bench on 13.03.2003, decided the said dispute by holding as under:- “62. The prayer, apart from the challenge to that order, was also for declaring Act No. 9 of the 1992 Act by which sub clause (6) of Section 2(g) had been added. The Full Bench on 13.03.2003, decided the said dispute by holding as under:- “62. In view of the discussion made above, we hold that:- i) Sub-section (6) of Section 2(g) of the Punjab Village Common Lands (Regulation) Act, 1961 and the explanation appended thereto, is only an elucidation of the existing provisions of the said Act read with provisions contained in the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948; ii) the un-amended provisions of the Act of 1961 and, in particular, Section 2(g)(1) read with Sections 18 and 23-A of the Act of 1948 and Rule 16(ii) of the Rules of 1949 cover all such lands which have been specifically earmarked in a consolidation scheme prepared under Section 14 read with Rules 5 and 7 and confirmed under Section 20, which has been implemented under the provisions of Section 24 and no other lands; iii) the lands which have been contributed by the proprietors on the basis of pro-rata cut on their holdings imposed during the consolidation proceedings and which have not been earmarked for any common purpose in the consolidation scheme prepared under Section 14 read with Rules 5 and 7 and entered in the column of ownership as Jumla. Mustarka Malkan Wa Digar Haqdaran Hasab Rasad Arazi Khewat and in the column of possession with the proprietors, shall not vest with the Gram Panchayat or the State Government, as the case may be, on the dint of Subsection (6) of Section 2(g) and the explanation appended thereto or any other provisions of the Act of 1961 or the Act of 1948; iv) all such lands, which have been, as per the consolidation scheme, reserved for common purposes, whether utilised or not, shall vest with the State Government or the Gram Panchayat, as the case may be, even though in the column of ownership the entries may be Jumla Mustarka Malkans Wa Digar Haqdaran Hasab Rasad Arazi Khewat etc.” 9. Thereafter, examining the relief which was to be given to the writ petitioners, it was held that where orders of eviction have been been passed, those cases will have to be examined on merits in light of the law laid down and had to be separated from the bunch and listed separately. Regarding where mutations had been entered on the basis of Act No. 9 of 1992 Act, the said mutations were held to be cancelled and set aside and liberty was given to the Gram Panchayats to file applications for eviction or file title suits under Sections 7 and 13 of the Act respectively. The operative part reads as under:- “65. Coming now as to what relief can be given in the present bunch of cases, we may first mention that we had asked the learned counsel for the parties to give a list of writ petitions wherein, before filing the petition, orders of eviction had since been passed by the authorities constituted under the Act of 1961 as also a list of cases where vires of Act, were straight away challenged by way of writ petitions. We have received two lists from the Advocate General, Haryana, of the writ petitions where petitioners came straightaway challenging the vires of the amending Act, whereas counsel for the petitioners have supplied no list to us nor have they informed the Court that the lists given by the office of the Advocate General, Haryana contain incorrect particulars. The two lists given by the Advocate General, Haryana, are taken on record. It would transpire from reading of the said lists that only cases mentioned at Sr. Nos. 76, 86, 87, 101, 106, 112, 119, 126, 127, 138, 148, 176, 185, 188, 192, 199, 201, 205, 206, 207, 226, 255, 277, 280, 286, 287, 289, 290, 312, 317 to 321, 323, 324, 329 to 337, 344, 361, 368, 381, 402 in the one list and cases mentioned at Sr. Nos. 1 to 49 of the others, are such in which orders have been passed by the authorities constituted under the Act of 1961 and, therefore, naturally, while challenging the vires of the Act, prayer is also to set aside the said orders. These cases have naturally to be examined on merits in light of law laid down in this case. They shall, thus, be separated from the present bunch and listed for hearing separately. These cases have naturally to be examined on merits in light of law laid down in this case. They shall, thus, be separated from the present bunch and listed for hearing separately. 66. Insofar as all other cases are concerned, same shall stand disposed of in light of law laid down by us. Resultantly, if the mutations might have come into being on the dint of Act No. 9 of 1992 challenged herein in favour of the State or Gram Panchayat, the said mutations shall stand cancelled or set aside, leaving open for the Gram Panchayat to file an application for eviction under Section 7 or title suit under Section 13-A, as the case may be, if the lands are such which have since been earmarked for common purposes under the scheme and the proprietors are in unauthorised occupation and, the proprietors to file a title suit in case the lands are such which form part of Bachat land, having not been earmarked for any common purpose in the scheme of consolidation and yet the Gram Panchayat is asserting its title or is in possession thereof.” 10. In the present case, an order deciding the issue of title had already been passed in favour of the Gram Panchayat. Counsel for the right holders did not get the said case separated and decided on the merits regarding the order of the Commissioner holding the Gram Panchayat to be owner but got them disposed of since the vires had also been challenged. The order reads as under:- “For orders see CWP No. 5877 of 1992” 11. Thus, from above sequence of events, it would be clear that the issue whereby the Commissioner had decided in favour of the Gram Panchayat became final and the right holders never agitated against the same on merits. However, on 22.12.2004, Mutation Nos. 515 and 543 were wrongly entered in favour of the right holders on the strength of the above orders without any basis since the directions were very clear that in cases where the question of title had been decided, the writ petition had to be decided on merits. However, on 22.12.2004, Mutation Nos. 515 and 543 were wrongly entered in favour of the right holders on the strength of the above orders without any basis since the directions were very clear that in cases where the question of title had been decided, the writ petition had to be decided on merits. In the case in hand, issue of ownership had already been decided in favour of the Gram Panchayat vide order dated 23.07.1992 and thus, there was no occasion for the mutation to be entered in favour of the right holders, which was wrongly done by the Revenue Authorities. In the case before the Assistant Collector, the challenge by the right holders was to the mutation number which had already been entered on 14.04.1982, much prior to the amendment made in 1992 Act which was the subject matter before the Full Bench. This would be clear from the reading of the order of the Assistant Collector dated 03.03.1987 which was initially set aside. Thus, merely because a wrong entry had been mutated in favour of the right holders, would not give them any right to contend that subsequently they had a right in the land and even the Consolidation Authorities had shown a share in their favour. 12. The petitioner is a subsequent purchaser from M/s. Spring Farms Pvt. Ltd. on the strength of sale deed dated 25.06.2009 and once its vendor did not himself have any proper title, the question of it being a bona fide purchaser on the strength of the mutations made on 22.12.2004 would not arise. 13. Keeping in view this factual matrix, we have proceeded to decide the issue rather than remanding the matter back on the issue of the rights of the petitioner being violated on account of the violation of principles of natural justice while passing the order dated 04.08.2011 and the subsequent Mutation No. 1090 in favour of the Gram Panchayat on 27.08.2011. Counsel for the petitioner was not able to demonstrate in any manner as to how it had any right to the land in view of the fact that the litigation had already been decided against the right holders and the order dated 23.07.1992 had never been set aside wherein, it had been held that the land vested in the Gram Panchayat. 14. Accordingly, no case is made out for interference and the writ petition is dismissed. --------0.B.S.0------------