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2013 DIGILAW 1130 (PNJ)

Gram Panchayat, Phaphrana v. Dhannu

2013-08-22

G.S.SANDHAWALIA, JASBIR SINGH

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JUDGMENT Jasbir Singh, Judge (Oral) It is stated by counsel for the parties that connected writ petitions viz. Civil Writ Petition Nos. 10053, 10056 and 10057 of 1993 be also put up for hearing today for disposal. Ordered accordingly. This order will dispose of seven writ petitions viz. Civil Writ Petition Nos. 10052 of 1993 titled as “Gram Panchayat, Phaphrana v. Dhannu and Others”, No. 10053 of 1993 titled as “Gram Panchayat, Phaphrana v. Lehna and Another”, No. 10054 of 1993 titled as “Gram Panchayat, Phaphrana v. Tara and Others”, No. 10055 of 1993 titled as “Gram Panchayat, Phaphrana v. Kabula and Another”, No. 10056 of 1993 titled as “Gram Panchayat, Phaphrana v. Soran and Others”, No.10057 of 1993 titled as “Gram Panchayat, Phaphrana v. Sube Singh and Others” and No.10058 of 1993 titled as “Gram Panchayat, Phaphrana v. Maha Singh and Others”. To dictate order, facts are being taken from Civil Writ Petition No. 10052 of 1993. This writ petition has been filed to lay challenge to an order dated 29.5.1990 (Annexure P2) vide which, appeal filed by respondents No.1 and 2 against order dated 14.8.1989 was allowed. We have heard counsel for the parties. As per facts on record, Gram Panchayat of village Phaphrana, Tehsil Assandh, District Panipat filed an application under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (in short “the Act”) with a prayer that the respondents No.1 & 2 be ejected from the land measuring 15 kanals 11 marlas, detail of which was given in heading of that application. After both the parties were afforded an opportunity to lead evidence, on noting entries made in the revenue record, the Assistant Collector 1st Grade, Karnal ordered ejectment of respondents No.1 and 2 from the land in dispute on 14.8.1989. Relevant portion of that order reads thus:- “I have heard the learned counsels for both the parties and have considered their arguments and have perused the record. I do not find any force in the arguments of the counsel for the respondents that the respondents are in possession of the land in dispute since long due to adverse possession. They are cultivating the land in dispute as owner and that the Gram Panchayat has no concern with the land in dispute. I do not find any force in the arguments of the counsel for the respondents that the respondents are in possession of the land in dispute since long due to adverse possession. They are cultivating the land in dispute as owner and that the Gram Panchayat has no concern with the land in dispute. The Patwari of the area produced as witness by the respondents admitted in his cross examination that the land in dispute is owned by Gram Panchayat and the respondents are in possession since Kharif, 1978. No such document has been produced on record which proves the possession of respondents since long and continuously. On the other hand, the submission of the counsel for the petitioner has force that the land in dispute is owned by Gram Panchayat as is shown in Jamabandi Ex.A2. According to Khasra Girdawari Ex.A3, the respondents are shown in possession since 1978. In view of the aforesaid circumstances the respondents have failed to prove that they are in possession of the land in dispute since long before the enforcement of Punjab Village Common Land and Regulation Act, 1961 and the same is continuing uninterrupted till date. Thus the respondents are dispossessed from the land in dispute and a penalty @ Rs.2000/-per hectare per year is imposed upon the respondents since 1978 which aggregates to Rs.17,105.” The above respondents were also directed to deposit the amount, as a penalty at the rate of 2,000 per hectare per year since from the year 1978 towards use and occupation of the land in dispute. The above respondents went in appeal which was allowed primarily by placing reliance upon an order passed by the Additional Director Consolidation of Holdings, Ambala on 25.9.1962. The said order is not on record. However, at the time of arguments, it was shown to us by counsel for the parties vide which some entries in the revenue record were ordered to be corrected upon an application was filed by the above respondents. Some land was ordered to be shown in possession of the private respondents as Gair Marusi. However, in the column of “Lagan”, it was shown as Billa Lagan Be-Wajah Nator. It is an admitted fact that there is nothing on record to show that possession of the above respondents was before 26.1.1950. Some land was ordered to be shown in possession of the private respondents as Gair Marusi. However, in the column of “Lagan”, it was shown as Billa Lagan Be-Wajah Nator. It is an admitted fact that there is nothing on record to show that possession of the above respondents was before 26.1.1950. It has also not been so said by the Appellate Authority when allowing an appeal vide the impugned order. By making reference to an order passed by the Additional Director Consolidation of Holdings, Ambala on 25.9.1962, it was said that possession of the above respondents over the land in dispute was not unauthorized. Their rights are akin to owner of the land, though admittedly they cannot be declared as such in terms of the provisions of the Act. We have gone through the order passed and on our specific query to counsel for the above respondents, he has failed to show any provision of the Act under which the impugned order can be sustained. Once it has come on record that the Gram Panchayat is owner of the property in dispute, person in possession can escape his ejectment only by bringing his case under any of of the exceptions carved out in Section 2(g)of the Act giving definition of Shamilat Deh land. The said provision reads thus:- “2(g) “Shamilat Deh” includes (1) to ( 4) XXX XXX XXX XXX XXX XX (5) lands in any village described as banjar qadim and used for common purposes of the village, according to revenue records; but does not include land which - (i) becomes or has become Shamilat deh due to river action or has been reserved as Shamilat in villages subject to river action except Shamilat deh entered as pasture, pond or playground in the revenue records; (ii) has been allotted on quasi-permanent basis to a displaced person; (ii-a) was Shamilat deh, but has been allotted to any person by the Rehabilitation Department of the State Government, after the commencement of this Act but on or before the 9th day of July, 1985. (iii) has been partitioned and brought under cultivation by individual landholders before the 26th January,1950; (iv) having been acquired before the 26th January, 1950, by a person by purchase or in exchange for proprietary land from a co-sharer in the Shamilat deh and is so recording in the jamabandi or is supported by a valid deed; (v) is described in the revenue records as Shamilat, taraf, pattis pannas and thola and not used according to revenue records for the benefit of the village community or a part thereof or for common purposes of the village; (vi) lies outside the abadi deh and was being used as gitwar, bara, manure pit, house or for cottage industry, immediately before the commencement of this Act. (vii) (-----) (viii) was Shamilat deh, was assessed to land revenue and has been in the individual cultivating possession of co-shares not being in excess of their respective shares in such Shamilat deh on or before the 26th January, 1950; or (ix) is used as a place of worship or for purposes, subservient thereto.” There is nothing on record to show that case of the respondents No.1 and 2 falls in any of the exceptions carved out in Clauses (i) to (ix) of the above said provision. It is only contention of counsel for the respondents that they were allotted land by the Additional Director Consolidation of Holdings, Ambala vide order dated 25.9.1962. The Courts below have not noticed effect of that order. That order is also not available on file of this Court. It was shown to us only at the time of arguments. Under the circumstances, we allow these writ petitions and order dated 29.5.1990 (Annexure P2) is quashed. The order, passed by the Assistant Collector 1st Grade, Karnal on 14.8.1989 stands restored. However, passing of this order shall not restrain respondents No.1 and 2 to get the question of title decided by invoking the provisions of Section 13A of the Act. Taking note of long possession of the petitioner, it is further ordered that in case any such application is filed within three weeks from today, the order dated 14.8.1989 (Annexure P1) ordering their ejectment shall be kept in abeyance. After filing of that application, the private respondents be at liberty to move an application for grant of an interim injunction.