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2013 DIGILAW 1683 (PNJ)

Naval Kumar v. State of Punjab

2013-12-13

AUGUSTINE GEORGE MASIH, SANJAY KISHAN KAUL

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JUDGMENT : Sanjay Kishan Kaul, J. The present writ petition, styled as a Public Interest Litigation, has been filed by the petitioners alleging that fraudulent transactions are taking place through the land Mafia with the assistance of the Tehsildar, Mukerian, District Hoshiarpur, whereby the land of the Municipal Council, Mukerian/respondent No.4 is being sold away by inter sale transactions by the private parties. The petitioners have prayed for production of record and for issuance of appropriate directions qua the shamlat land, which is stated to be forming part of the sale deeds and so initiation of appropriate proceedings for removing encroachments qua the land which now vests with the Municipal Council, Mukerian. 2. The petitioners had impleaded private respondents No.7, 8 and 10 to 12 as the land is stated to have been sold by respondent No.7 to respondent Nos.8, 10 to 12. Subsequently, respondent Nos.13 to 49 were impleaded, as the sale deeds were not confined to only the originally impleaded private respondents, but also affected other private respondents as it transpired that a larger number of sale deeds were executed. These sale deeds are stated to be of the period 1981 to 1996 qua the impleaded private respondents, but the sale deeds qua the originally impleaded private respondents are of 7.11.2008. 3. The pleadings have been filed by the parties and suffice to say that the stand of the authorities now before us is that the land in question, for both the originally impleaded private respondents and subsequently impleaded private respondents, vests with the Municipal Council, Mukerian/respondent No.4 as Shamlat Deh land. The last affidavit affirmed by the Sub-Divisional Magistrate, Mukerian, District Hoshiarpur dated 22.11.2013 on behalf of the first three respondents states that the land in question comprises in Khasra No.140 measuring 60 Kanals 5 Marlas and is situated in village Tikhowal, Hadbast No.262, Tehsil Mukerian, District Hoshiarpur and is recorded as Shamlat Deh Hasab Hissa Jaddi in the ownership column No.4 of the current Jamabandi for the year 2007-08. The deponent claims to have verified the ownership of the land by physically checking relevant entries pertaining to the said khasra number in the earlier Jamabandis starting from 1918-19 and the land is stated to have been described throughout as Shamlat Deh Hasab Hissa Jaddi. The deponent claims to have verified the ownership of the land by physically checking relevant entries pertaining to the said khasra number in the earlier Jamabandis starting from 1918-19 and the land is stated to have been described throughout as Shamlat Deh Hasab Hissa Jaddi. Since the area falls within the limits of the Municipal Council, Mukerian, it is the stand of the said deponent that the land vests with the said Municipal Council. 4. The second aspect dealt with in the aforesaid affidavit is that respondent No.6, the Tehsildar, Mukerian, whose affidavit seeks to favour the stand of the originally impleaded private respondents, was proceeded against departmentally for causing financial loss to the Municipal Council by wrongly registering two sale deeds in their favour. On enquiry, since the land indeed belongs to Municipal Council, punishment of 1/3rd cut in the pension of respondent No.6 has been imposed as the said respondent had retired by then. 5. The third aspect affirmed is that the report of the Tehsildarcum- Sub Registrar, Mukerian dated 3.10.2013 verifies that the disputed land is not in possession of any private person but is in the possession of the Municipal Council, Mukerian and no construction has taken place on the said land. The prayer is that the disputed registered sale deeds may be set aside. 6. The stand of the Municipal Council is also that the land vests with it and some endeavour for encroachment was made, against which action has been taken. Not only that, the claim of the Municipal Council is that shops have been and are being constructed on the land in question by it. 7. Learned Senior Counsel for the originally impleaded private respondents No.8, 10 to 12 vehemently opposes the petition alleging that it is only an endeavour at calling into questioning the title of the said respondents and that too belatedly. The petition is contended to be an abuse of process of Court, which is liable to be dismissed with costs. 8. Insofar as the merits of the controversy is concerned, it is submitted that there is a selected challenge qua the originally impleaded private respondents, but such a challenge has not been laid qua the subsequently impleaded private respondents. 9. The second limb of the submission is on the merits of the controversy. 8. Insofar as the merits of the controversy is concerned, it is submitted that there is a selected challenge qua the originally impleaded private respondents, but such a challenge has not been laid qua the subsequently impleaded private respondents. 9. The second limb of the submission is on the merits of the controversy. In this behalf, learned counsel seeks to rely upon the Jamabandies to contend that the predecessors-in-interest of these respondents have been recorded as joint owners of the land. His principal contention is that by merely alleging the land to be Shamlat Deh Hasab Hissa Jaddi, it cannot be concluded that the same would vest with the Municipal Council. Learned counsel has referred to the order dated 2.9.2013 passed in Civil Writ Petition No.314 of 2001, Suraj Bhan and others v. State of Haryana and others, which is a reference order by the Division Bench to a Larger Bench. The issue pertains to the common land of a Gram Panchayat, i.e., Shamlat Deh and Jumla Mushtarka Malkan and a distinction is carved out on that basis. It has been observed in the said order that the Shamlat Deh land came to vest in the Gram Panchayat in view of the provisions of the Punjab Village Common Lands (Regulation) Act, 1961, whereas Jumla Mushtarka Malkan is land created during consolidation after applying pro-rata cut with only its management and control vested in the Gram Panchayat. The reference order emanates from the controversy whether the land which is Jumla Mushtarka Malkan also vests with the Municipal Council without compensation. In this context, learned Senior Counsel submits that there was, in fact, no Panchayat earlier in which the land could have vested being Shamlat Deh Hasab Hissa Jaddi (a position which is disputed by the Government Authorities/respondents). 10. Learned counsel also seeks to draw strength from a judgment passed by the Civil Court Annexure R10/1, which is inter se private parties qua land measuring 13 Kanals 8 Marlas, situated in the same Khasra number 140 min, where observations have been made that nothing has been placed on record to show that the land vested in the Municipal Committee, Cantonment Board etc. and that the land cannot be snatched from the private parties on the basis of the Punjab Government Circular dated 30.4.1976. The two mutations in question were rejected (Annexure R-10/2). 11. and that the land cannot be snatched from the private parties on the basis of the Punjab Government Circular dated 30.4.1976. The two mutations in question were rejected (Annexure R-10/2). 11. On the other hand, learned counsels for the petitioners, Municipal Council and the Government Authorities contend that the Municipal Council was not made a party to the aforesaid proceedings and, thus, findings inter se private parties based on the material brought before the Civil Judge cannot be the basis of an adverse finding qua the title of the Municipal Council, apart from the fact that it was an ex-parte judgment, more so in a case where one side even did not adduce evidence. On the other hand, they rely upon a decision of another Civil Court Annexure R5/2, which is between certain private parties claiming right in the land in the same area against the Municipal Council where the suit was dismissed. 12. On a conspectus of the matter aforesaid, we are of the view that serious disputed questions of facts arise for consideration, which certainly cannot be finally adjudicated upon in the present proceedings as evidence is required to be led. Suffice to say that we cannot cancel the sale deeds in favour of the private respondents in the present proceedings and if an action is to be taken, it is for the Government Authorities to do so in accordance with law. However, there is a serious dispute about the original ownership of the land. Two opposite stands have been set out aforesaid. It is only post proceedings that the rights of the parties can be determined. 13. The Municipal Council claims to be in control of the land for the time being and the prayer, in fact, is that the status quo order passed by this Court on 1.12.2008 is coming into the way of a final picture emerging qua the rights of the respective parties in appropriate civil/revenue proceedings. 14. We are, however, of the view that the action of the petitioners in bringing to the notice of this Court the issue arising from the land in question can certainly not be said to be a motivated or malafide action. In fact, in a sense, it awakened the Municipal Council about its alleged rights to the land in question. We use the word "alleged" because such rights are disputed by the private respondents. In fact, in a sense, it awakened the Municipal Council about its alleged rights to the land in question. We use the word "alleged" because such rights are disputed by the private respondents. An enquiry carried out by the departmental authorities also seeks to suggest that the action of registration of sale deeds whether earlier or subsequently in favour of the originally impleaded private respondents is questionable and they have taken departmental action. 15. We are, thus, of the view that no further directions in this Public Interest Litigation are required and the parties must be relegated to the civil/revenue proceedings for whatever may be deemed as an appropriate action to establish and protect their respective rights qua the land in question.