Asu (Died) (Through) 11th Recn L.Rs vs The Collector and Others

T.H.B. Chalapathi, J.—This writ petition is filed challenging the order of the Assistant Collector 1st Grade, Kaithal dated 27.3.1980 as confirmed by the Collector, Kurukshetra in the order dated 28.10.1980.

The Gram Panchayat Quliani filed an application before the Assistant Collector 1st Grade, Kaithal u/s 7(1)(2) of the Punjab Village Common Lands (Regulation) Act, 1961 (for short ''the Act'') alleging that the petitioner has encroached upon the common land and he was liable to be evicted from the same. The said application was taken on file by the Assistant Collector 1st Grade, Kaithal. An order of eviction was passed on 22.11.1978. The petitioner filed an appeal challenging the said order and the matter was remanded by the Collector, Kurukshetra to the Assistant Collector 1st Grade, Kaithal with a direction to make spot inspection and then decide the matter. Thereafter, the Assistant Collector 1st Grade, Kaithal took up the matter, inspected the land and held that on 10 marlas of land, the petitioner constructed one pucca house in Khasra No. 113, as also there was boundary wall and hedges around the house. The Assistant Collector 1st Grade, Kaithal further directed that the land on which the house was constructed, may be assigned to the petitioner at the double of the rate of the market price and further directed the ejectment of the petitioner from the remaining land. The Collector, Kurukshetra in his order dated 28.10.1980 confumed the orders of Assistant Collector 1st Grade, Kaithal but modified the price, to be paid by the petitioner in respect of the land in his possession.

Aggrieved by the said orders, the petitioner preferred the above writ petition.

The learned counsel for the petitioner contended that the petitioner has been in possession of the land in question prior to 1976 and even assuming that the land is shamilat deh which is adjacent to his own abadi land and, therefore, the provisions of Section 2(g)(v)(vi) of the Punjab Village Common Lands (Regulation) Act, 1961 will apply and it has to be treated that the land under his occupation is not included in shamilat deh and he further contended that he raised the question of title and it is mandatory on the part of the Assistant Collector 1st Grade, Kaithal to decide the question of title in the first instance before passing the order of eviction. He also submitted that the petitioner is ready to pay the market price of the land in the occupation.

The order of Assistant Collector 1st Grade, Kaithal shows that the land in Kashsra No. 113 is the land of Gram Panchayat and in Jamabandi which is marked as Annexure Al, the Gram Panchayat was shown as the owner. Thus, there cannot be any doubt that the land in question belongs to the Gram Panchayat. The order of Assistant Collector also shows that the petitioner has constructed a pucca house and boundary wall in the Gram Panchayat land. The order also shows that the land in question is adjacent to the old house of the petitioner. Thus, the land under the occupation of the petitioner was adjacent to his old house. The total extent under the occupation of the petitioner is 10 Marias of land. u/s 2(g)(v)(vi) of the Act, if the shamilat deh lies outside the abadi deh and was being used as gitwar, bara, manure pit, a house or for cottage industry immediately before the commencement of the Act, it cannot be included in shamilat deh. Thus, the user of the land before the commencement of the Act, is the criteria to decide whether the land is to be included in shamilat deh or not after the commencement of the amended Act 2 of 1961. It can be seen from the order of the Assistant Collector that the petitioner was using the land by constructing a house and also by constructing a pucca com- pound yard. Under sub clause (c) of Section 2 of the Act, house includes a court yard whether walled or not. Therefore, it is clear that the petitioner has been in possession of the land even prior to 1976 by constructing a house and a compound wall. When the petitioner has been in possession of the land since more than 20 years, I do not think that this is a fit case where he should be ordered to be evicted from the land. It is not the case of the Gram Panchayat that it requires the land for any common purpose. In the circumstances of the case, I am of the opinion that the petitioner may be allowed to be continued in possession of the land by paying the present market price of the land to the Gram Panchayat and the Assistant Collector, Kaithal in directed to fix the present market price of the land within two months from the date of receipt of this order and intimate the same to the petitioner and the petitioner shall deposit the amount within two months thereafter, after receipt of the intimation. In case of failure to pay the market price as determined by the Assistant Collector 1st Grade, within the period as aforesaid the writ petition shall stand dis- missed automatically.

The Writ Petition disposed of accordingly. No costs.