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2017 DIGILAW 1461 (PNJ)

Dharmpal v. Collector, Jhajjar

2017-07-18

SUDHIR MITTAL, SURYA KANT

body2017
JUDGMENT : SURYA KANT, J. 1. This order shall dispose of two writ petitions bearing CWP Nos. 3599 and 14411 of 2015 as the common questions of facts and law are involved therein. 2. The controversy pertains to the land comprising Rectangle No.42, Khasra No.6, 15/1, Rectangle No.43 Khasra Nos.10/1, 10/2 and 11/1, situated within the revenue estate of Village Mundsa, Tehsil Matanhail, District Jhajjar. 3. The Gram Panchayat of the Village filed an eviction petition against the petitioners claiming that the land in dispute was reserved for 'common purposes' at the time of consolidation and consequently the 'management' and 'control' of such land vests in Gram Panchayat. After previous round of litigation, wherein at one point of time, the claim of the Gram Panchayat was rejected, the Assistant Collector, Ist Grade, Jhajjar eventually accepted the petition vide order dated 19.2.2014 and ordered eviction of the petitioners on the ground that as per the revenue record, the land is under the ownership of Gram Panchayat and part of it was recorded as 'Banjar Kadim' which vests in the Gram Panchayat. The aggrieved petitioners preferred appeal which has been dismissed by the Deputy Commissioner-cum-Appellate Authority, Jhajjar vide order dated 20.1.2015. 4. It may be mentioned here that the defence plea taken by the petitioners before the Assistant Collector as well as before this Court is that the land is Jumla Mustarka Malkan, namely; the land was earlier owned by the proprietors of the village and was put into a common pool by applying the prorata cut and that since it was neither reserved nor utilized for any 'common purpose' in the Consolidation Scheme or subsequent thereto, such land does not vest in the Gram Panchayat. They also pleaded that they are in individual exclusive possession of the land and have constructed their houses on a part thereof. 5. We have heard learned counsel for the parties and perused the records. 6. It may be true that eviction proceedings under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 are summary in nature, nevertheless, the Assistant Collector Ist Grade/Collector are obligated to determine prima facie whether or not the land is Shamlat Deh and vests in Gram Panchayat. 6. It may be true that eviction proceedings under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 are summary in nature, nevertheless, the Assistant Collector Ist Grade/Collector are obligated to determine prima facie whether or not the land is Shamlat Deh and vests in Gram Panchayat. The jurisdiction to pass an order of eviction can be exercised only in respect of the land which is either owned by the Gram Panchayat or its 'management' and 'control' vests in the Gram Panchayat. 7. Though the Assistant Collector Ist Grade has observed that the land in question is owned by the Gram Panchayat and part of it has been recorded as 'Banjar Kadim' but unfortunately there is no reference to the revenue record to substantiate such conclusion. The Collector, Jhajjar while deciding the appeal has also not discussed the revenue record or the nature of the land. 8. Both the parties though have now placed on record some revenue record but having regard to the fact that the Authorities below are required to discuss the entries in the revenue record and then determine the nature and apparent ownership of the land, it is not expedient for this Court to express any views in relation to those entries. Suffice it to say that even in the summary eviction proceedings, the authorities are required to determine:- (i) Whether the above-stated Khasra numbers are 'Jumla Mustarka Malkan' or 'Shamlat Deh'? (ii) If so, whether such land or its management and control vests in the Gram Panchayat? (iii) If not, whether the petitioners are in individual and exclusive possession of these Khasra numbers and if so since when? (iv) What is the legal effect of such possession, if any? 9. The above-stated four questions can be answered by the Authorities only after referring to specific jamabandies, consolidation scheme, mutations or any other revenue record. 10. For the reasons aforestated and with a view to ensure early disposal of the matter as the parties are litigating for a long, we allow this writ petition in part; set aside the order dated 20.1.2015 (Annexure P-8) passed by Collector, Jhajjar, in exercise of his appellate powers and direct the said appellate Authority to decide the appeal afresh after making specific reference to the revenue record, stated above. The appellate Authority, for better appreciation of the conclusion to be drawn by it, shall formulate the suggested issues and discuss the revenue entries in relation thereto while deciding the appeal. 11. The parties are directed to appear before the Collector, Jhajjar, on 1.8.2017. 12. The appellate Authority shall decide the appeal within a period of 3 months from the date of appearance. Till the appeal is decided, both the parties shall maintain status-quo. In other words, the petitioners shall not raise any further construction but their dispossession shall remain stayed.