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2023 DIGILAW 2789 (PNJ)

Harbhajan Singh v. State of Punjab

2023-09-15

KULDEEP TIWARI, SURESHWAR THAKUR

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JUDGMENT Mr. Kuldeep Tiwari, J. The petitioner, through the instant writ petition, has invoked the superintending jurisdiction of this Court, as envisaged under Article 227 of the Constitution of India, thereby, claiming the relief for setting aside of the order dated 14.01.2022 (Annexure P-12), where through, the respondent No.2 made an affirmative order upon the statutory appeal, as preferred at the instance of the Gram Panchayat concerned, against the order dated 28.02.2013 (Annexure P-9). 2. The further relief, as craved in the instant writ petition, relates to upholding of the order dated 28.02.2013 (Annexure P-9), for thereby declaring the petitioner as owner of the petition land, i.e. 30 Kanals 16 Marlas, comprised in Rect. No.8, Killa No.2 (8-0), 3 (8-0), 4 (7-8), 7 (7-8), situated at Village Sarai, District Gurdaspur. 3. The primary ground, as canvassed by the petitioner for procuring the relief(s) (supra), emerges from the exclusionary clause of "shamlat deh", as carried in Section 2(g)(viii) of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as the 'Act of 1961'). By placing reliance upon the exclusionary clause (supra), the petitioner has expounded claim for his being declared the lawful owner of the petition land, as he and his predecessor-in-interest have purportedly been in individual cultivating possession of the petition land, but not in excess of their respective share(s), prior to 26.01.1950. 4. However, before adverting to evince any opinion on the merits of the present writ petition, it would be significant to first succinctly record hereinafter the factual backdrop of the present case. Factual Backdrop 5. Initially, the Gram Panchayat concerned instituted a petition under Section 7 of the Act of 1961, before the learned Collector concerned, thereby, seeking eviction of the predecessor-in-interest of the petitioner from the disputed land. The Gram Panchayat concerned gained success in its endeavour for eviction of the predecessor-in-interest of the petitioner and thereafter, the eviction orders attained finality up to this Court, as the concurrently made eviction orders were assailed before this Court, through institution of CWP-459-1986. When the petitioners, in the writ petition (supra), were faced with its dismissal, resultantly leave was asked from this Court for withdrawal of the writ petition (supra). When the petitioners, in the writ petition (supra), were faced with its dismissal, resultantly leave was asked from this Court for withdrawal of the writ petition (supra). Accordingly, after affirming the orders impugned in the writ petition (supra), it was ordered to be dismissed as withdrawn, vide order dated 29.02.2012, however, liberty was reserved to the petitioners therein to avail the remedy under Section 11 of the Act of 1961, for adjudication of any question of title, which may arise there. The relevant extract of the order dated 29.02.2012 is reproduced as under:- "After addressing arguments for some time and when faced with the dismissal of the writ petitions, counsel for the petitioners states that as a credible question of title arises, the writ petitions may be dismissed as withdrawn with liberty to the petitioners to file a petition, under Section 11 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as the 'Act') for adjudication of the question of title. In view of the statement made by counsel for the petitioners, the impugned orders are affirmed, the writ petitions are dismissed as withdrawn with liberty to the petitioners to approach the Collector, under Section 11 of the Act for adjudication of any question of title that may arise for adjudication. The dispossession of the petitioners shall remain stayed for a period of two months from today." 6. On the strength of the liberty (supra), the petitioner filed a declaratory suit before the learned Collector concerned, on the premise, that he is the successor-in-interest of one Mangtu, who was, w.e.f. 1940, seized with the cultivating possession of the petition land, which was initially recorded as "Banjar Qadim" in the relevant revenue record(s) and was thereafter made cultivable by the predecessor-in-interest of the petitioner, by investing his hard earned money and labour. It was further asserted that said Mangtu, who is predecessor-in-interest of the petitioner, was a proprietor of the village concerned and was having share in the "shamlat deh" land. During consolidation operations, the right of said Mangtu was recognized by the consolidation authority concerned and accordingly, he was assigned new khasra numbers in lieu of the old khasra numbers, which fell under his possession. To establish his claim, the petitioner placed on record certain documents, such as Khatoni Ishtemal, Naksha Haqdarwar, Khatoni Paimaish and Jamabandis for the year 1940 and on wards. 7. To establish his claim, the petitioner placed on record certain documents, such as Khatoni Ishtemal, Naksha Haqdarwar, Khatoni Paimaish and Jamabandis for the year 1940 and on wards. 7. The learned Collector concerned, through an order made on 28.02.2013 (Annexure P-9), decreed the suit (supra) and declared the petitioner to be the owner of the petition land. The decreeing of the suit (supra) caused pain to the Gram Panchayat concerned, who however, instead of availing the statutory remedy of appeal, straightaway approached this Court through instituting CWP-14248-2020. The consequence of sidetracking the statutory remedy of appeal was that, vide order dated 11.09.2020, the writ petition (supra) was ordered to be dismissed as withdrawn, however, with liberty to motion the appellate authority concerned, under the appropriate provisions of the Act of 1961. 8. Accordingly, the Gram Panchayat concerned preferred a statutory appeal before the learned Commissioner concerned against the order dated 28.02.2013, who after setting aside the impugned order, allowed the appeal, vide order dated 14.01.2022. The order (supra) of the learned Commissioner concerned, which proved favourable to the Gram Panchayat and adversarial to the present petitioner, has driven the petitioner to institute the instant writ petition. Submissions Of Learned Counsel For Petitioner 9. The learned counsel for the petitioner has heavily relied upon the Jamabandi for the year 1944-1945 to contend that the predecessor-in-interest of the petitioner, i.e. one Mangtu, has been recorded therein to be holding possession of the petition land. He has also drawn attention of this Court towards Jamabandi for the year 1955-1956, wherein, the names of successor(s)-in-interest of said Mangtu have been reflected in the column of cultivation, while an entry in favour of Panchayat is reflected in the column of ownership. He further contends that the Naksha Haqdarwar cogently establishes that the petitioner is in possession of the petition land, in accordance with his share, being a proprietor of the revenue estate concerned, and, that during consolidation operations, the consolidation officer concerned allotted him new khasra numbers in lieu of the old khasra numbers, which fell under his possession. 10. The further argument, as built up by the learned counsel for the petitioner, relates to the unfair and biased conduct of the Gram Panchayat concerned, as despite loosing the right of ownership in three other applications, no appeal was preferred by the Gram Panchayat concerned against such orders. 10. The further argument, as built up by the learned counsel for the petitioner, relates to the unfair and biased conduct of the Gram Panchayat concerned, as despite loosing the right of ownership in three other applications, no appeal was preferred by the Gram Panchayat concerned against such orders. The reason assigned for such biased ness and malafide approach pertains to political rivalry with the petitioner, and, nexus between the present Sarpanch and the applicants in those three applications. Submissions Of Learned Counsel For Respondents 11. Per contra, the learned counsels appearing for the respondents have submitted that the petitioner has no concern whatsoever with the petition land. The present writ petition forms the second round of litigation, as the concurrent eviction orders secured against the petitioner, at the instance of the Gram Panchayat concerned, were assailed before this Court and ultimately attained finality. Since in the said eviction proceedings, the petitioner never raised any question of title, therefore the petitioner cannot file a fresh petition under Section 11 of the Act of 1961 for adjudication of any title dispute. The petitioner had indeed abandoned his claim (supra) in the earlier launched proceedings, which consequently bars the petitioner to now institute the present motion for grant of the asked for declaration. 12. Furthermore, the learned counsels for the respondents have also drawn attention of this Court towards the nature of the petition land, which has been recorded in the relevant revenue records as "Banjar Qadim", "Gair Mumkin Chappar" (Pond), and, "Sailab Chamb" (Flooded land), to argue that the petition land was never arable or cultivable, therefore, there does not arise any eventuality that the predecessor-in- interest of the petitioner was in cultivating possession of the petition land prior to 1950. Analysis 13. With the able assistance of the learned counsels appearing for the contesting parties, we have made a meticulous survey of the order(s) passed by the authorities below as well as the revenue record(s), as enclosed with the present petition. Since the relief qua grant of ownership rights, over the petition land, in favour of the petitioner is founded upon the petition land being falling within the exclusionary clause of "shamlat deh", as comprised in Section 2(g)(viii) of the Act of 1961, therefore, it is deemed imperative to extract the provisions (supra). Section 2(g)(viii) of the Act of 1961 is reproduced hereunder. "2. Section 2(g)(viii) of the Act of 1961 is reproduced hereunder. "2. Definitions.- In this Act, unless the context otherwise requires,-- xx xx xx (g) "shamilat deh" includes-- xx xx xx but does not include land which-- xx xx xx (viii) was shamilat deh, was assessed to land revenue and has been in the individual cultivating possession of co-sharers not being in excess of their respective shares in such shamilat deh on or before the 26th January, 1950, or xx xx xx" 14. To bring a case within the four corners of the exclusionary clause of "shamlat deh" (supra), it becomes obligatory upon the claimant concerned to establish that the "shamlat deh" land was assessed to land revenue, and, the person claiming right over such land was holding its individual cultivating possession, but not in excess of his share, on or before 26.01.1950. 15. A perusal of the Jamabandi for the year 1944-45, relating to the petition land, make revelations that in the column of ownership, "shamlat deh" is recorded and in the column of cultivation, "Makbuja Malkan" is recorded. The nature of a major portion of the petition land, in the Jamabandi (supra), is recorded as "G.M. Chamb" (Flooded land), while some portion is recorded as "Banjar Qadim" and "G.M. Chappar" (Pond). Therefore, in the Jamabandi (supra), there is nothing even remotely suggestive that the predecessor-in-interest of the petitioner had ever assumed cultivating possession of the petition land, rather it depicts the existence of entries (supra) in the "column of cultivation" and in the "column of nature of land" to negate the claim of the petitioner. 16. The entries recorded in the Jamabandi (supra) lead us to draw an inference that the reliance placed upon the Jamabandi (supra), by the learned counsel for the petitioner, is a highly misplaced reliance, as it rather favours the respondents, because the entries (supra) tantamount to the petition land being "shamlat deh" and therefore, by virtue of "shamlat law", the petition land vests in the Gram Panchayat concerned. Also, upon enactment of the Act of 1961, the petition land apparently came to fall within the ambit of the inclusionary clause of "shamlat deh", as carried in Section 2(g) of the Act of 1961, which consequently renders it being vested in the Gram Panchayat concerned, by dint of the provisions of Sections 3 and 4 of the Act of 1961. 17. 17. Now, insofar as the Jamabandi pertaining to the year 1955- 1956 is concerned, though therein the name of predecessor(s)-in-interest of the petitioner is recorded in the "column of cultivation", but, in the capacity of a "Gair Dakhildar" (Non occupant tenant). Furthermore, the Jamabandi (supra) also makes it evident that the Gram Panchayat is the owner of the petition land, since an entry in its favour is recorded in the "column of ownership", and, it is also obvious that in the column relating to "nature of land", an entry of "Banjar Qadim" is displayed. It is no longer res integra that a non-occupant tenant cannot acquire the status and rights of Marusi and claim ownership. Therefore, as a corollary of the above, it can be safely concluded that the petitioner cannot acquire the status and right of Marusi and consequently claim ownership. The above conclusion gathers support from a judgment passed by this Court, in CWP No.20563 of 2008, titled "Jaleb Khan and others v. Commissioner, Gurgaon Division, Gurugaon and others" decided on 20.7.2009, wherein it has been held as under:- "After giving my thoughtful consideration to the contentions of the learned counsel for the petitioners and perusing the record, I find no merit in the same. The Gram Panchayat, Agon (respondent No.3) filed a petition under Section 7 of the Act seeking eviction of the petitioners. As per Jamabandis for the years 1962-63, 1967-68 and 1997-98 (Annexures P-7, P-8 and P9) respectively the ownership of the land in question is recorded in the name of Gram Panchayat. In the column of cultivation, Kallu son of Kale Khan son of Chhota Khan is recorded as 'Gair Marusi' in the three afore-referred Jamabandis. Therefore, the predecessor-in-interest of the petitioners having been recorded as 'Gair Marusi' he cannot possibly acquire the status and rights of 'Marusi' (occupancy tenant) as contended by the learned counsel for the petitioners. The fact that the petitioners acquired rights of ownership being an occupancy tenant is clearly misconceived." 18. Furthermore, though the learned counsel for the petitioner contends that since the predecessor-in-interest of the petitioner was in individual cultivating possession of the petition land, prior to 1950, therefore, within the ambit of the exclusionary clause (supra), the petition land is saved from its vestment in the Gram Panchayat concerned. Furthermore, though the learned counsel for the petitioner contends that since the predecessor-in-interest of the petitioner was in individual cultivating possession of the petition land, prior to 1950, therefore, within the ambit of the exclusionary clause (supra), the petition land is saved from its vestment in the Gram Panchayat concerned. However, the above made argument calls for its being rejected, as the petitioner holds nothing in his favour indicative of his individual cultivating possession over the petition land, prior to 26.01.1950 and therefore, he cannot claim the exclusion of the petition land from the sphere of "shamlat deh", as defined under Section 2(g) of the Act of 1961. 19. The further reason for making the above conclusion emerges from the factum, that in the column pertaining to "nature of land", as carried in both the Jamabandis (supra), the petition land is described as "Banjar Qadim" [A land is described as "Banjar Qadim", in the records of rights, if the same remained fallow for a successive period of eight harvests]. Apparently, in the face of the above entry of "Banjar Qadim", as exits in both the Jamabandis (supra), a conclusion erupts that the petition land was unamenable for cultivation and was never brought under cultivation uptill 1956. Therefore, the entry (supra) goes on to belie the stand of the petitioner that he, or, his forefathers had been in continuous individual cultivating possession of the petition land prior to 1950. Nonetheless, the possession, if any, of the predecessor-in-interest of the petitioner over the "Banjar Qadim" land, was not independent cultivating possession, especially when the nature imparted to the petition land, in the revenue record (supra), makes it unnameable for cultivation. 20. The learned counsel for the petitioner has also relied upon the order dated 28.02.2013 (Annexure P-9), as passed by the learned Collector concerned, whereby, the petitioner was declared as owner in possession of the petition land. However, despite minutely scrutinizing the order (supra), we do not find assignment of any cogent reason for grant of the claimed declaratory relief. In the order (supra), the learned Collector concerned has merely narrated the facts of the case and thereafter, has recorded his conclusion in favour of the present petitioner. The lack of recording of cogent reasons in any order, for drawing any conclusion, renders the same to be termed as a totally non-speaking order. In the order (supra), the learned Collector concerned has merely narrated the facts of the case and thereafter, has recorded his conclusion in favour of the present petitioner. The lack of recording of cogent reasons in any order, for drawing any conclusion, renders the same to be termed as a totally non-speaking order. Therefore, the order (supra), which is indeed a non-speaking order, is unsustainable in the eyes of law and it has rightly been interfered with and reversed by the learned appellate authority concerned. Final Order 21. The sum and substance of the hereinabove made analysis is that this Court finds no illegality or infirmity in the order impugned in the present writ petition. Therefore, the writ petition is dismissed and the impugned order is maintained and affirmed. However, we deem it appropriate to direct the B.D.P.O. concerned to examine all the three orders, which were passed against the Gram Panchayat concerned and as find mentioned in paragraph 10 (supra) and thereafter, to take an appropriate decision with regard to assailing such orders in appropriate motion(s), before the appropriate forum/court.