Bachna alias Bachan Singh vs State of Haryana

S.S. Kang, J.

At issue in this writ petition under Articles 226/227 of the Constitution of India is the legality and validity of orders dated 28th July, 1977, of Assistant Collector, Naraingarh, ordering the ejectment of the petitioners from the land, in dispute, and imposition of a fine and order dated 8th August, 1978, of Collector, Ambala, dismissing the appeal (Annexure P.5) of the petitioners against orders of the Assistant Collector, Naraingarh (Annexure P2).

Briefly stated the facts of the case are that Ishar Singh, respondent No.5 filed an application dated 9th April, 1974, in the Court of the Assistant Collector 1st Grade, Naraingarh, for ejectment of the petitioners under section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as ''the Act'') from the land, in dispute, alleging that the land was shamilat deh as defined in section 2(g) of the Act.

Petitioners contested the application and pleaded that the land, in dispute, did not fall within the purview of definition of ''shamilat deh'', as given in the Act and the same did not vest in the Panchayat and that they and their predecessorsininterest were in possession of the land from times immemorial, as cosharers of the village and the Assistant Collector had no jurisdiction to entertain and decide the application. The Assistant Collector held that the land, in dispute, was abadi deh and in accordance with the provisions of subclause (4a) of section 2(g) of the Act it vested in the Panchayat. He further observed that cremation grounds are situated in Khasra Nos.43 and 44 which adjoin the land and they are accessible through a path running through the land in dispute. He, therefore, ordered petitioners'' ejectment. The appeal filed by the petitioner failed and was dismissed by the Collector, as mentioned earlier.

Shri S.K. Goel, the learned counsel for the petitioners, has contended that the land, in dispute, does not answer the description of ''shamilat deh'', as given in section 2(g). Clause (1) of this subsection specifically excludes abadi deh from the definition of Shamilat deh, even if such a land is described as shamilat deh in the revenue records. Shri Goel further argued that no doubt under subclause (4a) of section 2(g) of the Act, a vacant land situated in abadi deh or gora deh not owned by any person had been included in the definition of shamilat deh by Haryana Act XXIII of 1973 w.e.f. 23/6/1973, but the land, in dispute, was not shown in the revenue records to be res nullius. In the jamabandi, it was shown to be the property of the rightholders. He further contended that clause (4a), ibid, had been deleted by recent amendment in the Act, which was introduced by Act No.II of 1981 in the principal Act. Since the writ petition was pending when clause (4a) was deleted, now the position is that abadi deh is no more included in the definition of `shamilat deh''. So, the petitioners'' ejectment cannot be ordered from the land, in dispute.

There is a merit in this contention. The Assistant Collector and the Collector have ordered the ejectment of the petitioners solely on the ground that the land, in dispute, was vacant land situated in the abadi deh and was not owned by anybody and was thus shamilat deh, as defined by clause (4a) of section 2(g) of the Act. Since clause (4a) has been deleted in 1981, it is no more on the statutebook. The definition of ''shamilat deh'' as given in section 2(g) and extent today specifically and explicitly excludes abadi deh from the pale of shamilat deh. The Motion Bench had stayed the dispossession of the petitioners and they still continue to be in possession of the land, in dispute. During the pendency of the writ petition, there has been a change in the law. According to the law now applicable, the abadi deh does not form part of shamilat deh. So, the ejectment of occupants of abadi deh cannot be ordered under section 7 of the Act.

It is wellsettled that the change in law during the pendency of the proceedings, can be taken into account. Reference in this connection may be made to two decisions of the Final Court in Gummalapura Taggina Matada Kotturuswami v. Setra Veerayya and others, AIR 1959 S.C. 577 and Amarjit Kaur v. Pritam Singh and others, 1974 PLJ 406. It was also held by the Supreme Court that events subsequent to the passing of the impugned order can be taken into account by the Superior Court, deciding the revision petition. (See Pasupuleti Venkateswarlu v. The Motor & General Traders, AIR 1975 S.C. 1409).

Mr Bhoop Singh, the learned counsel for the respondent No.4, contended that the land, in dispute, is not abadi deh. It is a street and by virtue of clause (4) of section 2(g) it is included in the definition of the shamilat deh. It is apparent from a perusal of the said plan produced by the petitioner before me that the path to Khasra Nos. 43 and 44, wherein are situated the cremation grounds, passes through the southern tip of the land, in dispute, but that path seems to be about 20 feet wide. To that extent the land in possession of the petitioners squarely falls within the definition of shamilat deh and the petitioners cannot assail the orders of the Authorities below to that extent, but the land, in dispute, is more than 10 kanals in area. The whole of it cannot be termed to be a path or lane.

Consequently, this writ petition is allowed and the impugned orders (Annexures P.2 and P.5) are set aside, subject to the modification that the petitioners have been rightly ordered to be evicted from the southern tip of the land, in dispute (20 ft. in width connecting Khasra Nos.43 and 44, in which cremation grounds are situated). This part of the land vests in the Gram Panchayat and the residents of the village are entitled to use. No costs.