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2013 DIGILAW 390 (PNJ)

Muninder Kumar v. Collector, Panchkula

2013-03-25

Rajive Bhalla, Rekha Mittal

body2013
JUDGMENT Mr. Rajive Bhalla, J. (Oral):- The petitioner prays for issuance of a writ of certiorari quashing orders dated 31.7.2003 (Annexure P-2) and 21.10.2005 (Annexure P-3) passed by the Assistant Collector 1st Grade, Kalka and the Collector, Panchkula, respectively, dismissing his petition for eviction and the appeal. 2. Counsel for the petitioner submits that the petitioner filed a petition under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (as applicable to the State of Haryana) (hereinafter referred to as the “1961 Act”). The private respondents raised a plea that the land was sold or leased in perpetuity to them by the Gram Panchayat. The Assistant Collector dismissed the petition summarily without calling upon the private respondents to prove their title. The Collector has dismissed the appeal by committing the same error. Admittedly, the land, in dispute, is described as “Shamilat Deh” in the revenue record. The resolutions, passed by the Gram Panchayat on 17.6.1956 and 2.1.1959, were never acted upon or approved. The impugned orders, holding that the land does not vest in the Gram Panchayat merely because an earlier petition filed under Section 7 of the 1961 Act was dismissed, are illegal and void as they have been passed, without adopting the procedure prescribed for deciding a question of title. 3. Counsel for the private respondents submits that the land, in dispute, was allotted, by the Gram Panchayat, to non-proprietors for construction of houses, vide resolution dated 17.6.1956. The father of the private respondents deposited the amount demanded by the Gram Panchayat. The Gram Panchayat passed another resolution dated 2.1.1959, leasing out the land in perpetuity, to the private respondents. The authorities under the 1961 Act have, therefore, rightly held that land, in dispute, does not vest in the Gram Panchayat and, therefore, the petitioner has no right to file a petition under Section 7 of the 1961 Act, particularly as a similar petition was earlier dismissed. 4. We have heard counsel for the parties, perused the impugned orders and have no hesitation in allowing the writ petition and setting aside the impugned orders. 5. The land, in dispute, is, admittedly, recorded as “Shamilat Deh” in the relevant jamabandi. 4. We have heard counsel for the parties, perused the impugned orders and have no hesitation in allowing the writ petition and setting aside the impugned orders. 5. The land, in dispute, is, admittedly, recorded as “Shamilat Deh” in the relevant jamabandi. The private respondents by raising a plea that the land, in dispute, was sold to them by the Gram Panchayat and/or leased out to them in perpetuity, thereby raised a question of title, which they were required to prove and the Assistant Collector 1st Grade, was required to decide, in accordance with the procedure prescribed by the first proviso to Section 7 of the 1961 Act, which reads as follows:- “7. Power to put panchayat in possession of shamilat deh.—(1) XX XX XX Provided that if after receipt of the application and before the Panchayat is put in possession of the land or other immovable property in the shamilat deh, a question of right, title or interest in such land or property is raised by any person and a prima facie case is made out in support thereof, the Collector shall direct the person who has raised such question to submit his claim under section 11 and till the question is so determined, the application shall remain pending: Provided further that if the person, who has raised the question of right, title or interest, fails to submit his claim under section 11 within the time prescribed under that section, the Collector shall presume that no question of right, title or interest is involved and shall proceed further to put the panchayat in possession of the land or other immovable property in the shamilat deh.” 6. The Assistant Collector 1st Grade, however, decided the petition in a summary manner by simply holding that as a similar petition filed by the Gram Panchayat has already been dismissed, the present proceedings must also meet the same fate. The Assistant Collector 1st Grade, Kalka, as well as the Collector ignored that the private respondents have not proved the sale or the lease and summarily accepted the plea without adopting the procedure prescribed for deciding a question of title under the proviso to Rule 7 of the 1961 Act. The dismissal of an earlier petition, filed under Section 7 of the 1961 Act, would not operate as res judicata in proceedings for deciding a question of title. 7. The dismissal of an earlier petition, filed under Section 7 of the 1961 Act, would not operate as res judicata in proceedings for deciding a question of title. 7. In view of what has been held hereinabove, the writ petition is allowed, the impugned orders are set aside and the matter is remitted to the Assistant Collector 1st Grade, Kalka, to decide the petition under Section 7 of the 1961 Act, afresh, and in accordance with law, after adopting the procedure provided by the first proviso to Section 7 of the 1961 Act for deciding a question of title. 8. Parties are directed to appear before the Assistant Collector 1st Grade, Kalka, on 1.5.2013. --------0.B.S.0------------ —————————