Charan Singh vs The Joint Director Panchayats and Others

R.L. Anand, J.—Charan Singh and Maghar Singh have filed the present writ petition under Article 226 of the Constitution of India and has prayed for the issuance of a writ of certiorari against the respondents for quashing of the impugned orders passed by respondents 1 and 2 vide which it was ordered for the ejectment of the petitioner from the land in question u/s 7(1) of the Punjab Village Common Lands (Regulations) Act, 1961 from Khasra No. 375 Min. measuring 2 bighas 0 biswas.

The case set-up by the petitioners is that they purchased the land from Smt. Ishar Kaur widow of Hazura Singh comprised in khasra No. 375 Min. Measuring 2 bighas along with some other land vide registered sale deed dated 11.2.1974. The total land purchased was about 2 bighas and 2 biswas for a consideration of Rs. 25,000/-. They obtained possession of the land from Smt. Ishar Kaur and they were in possession of the same till 1974. The petitioner obtained notice from Assistant Collector 1st Grade, Nabha to the effect that the land comprised in Khasra No. 375 Min. measuring 2 bighas situated in village Kansoha Khurd belonged to the panchayat. This notice was issued u/s 7(2) of the Punjab Village Common Lands (Regulations) Act, 1961. The petitioners contested this notice and submitted that the land in dispute did not fall within the definition of shamilat deh and that the Collector had no jurisdiction to try the proceedings. It was also pleaded that the land in dispute along with other land was purchased from Smt. Ishar Kaur and the petitioners are the owners of the same. During the course of the proceedings the petitioners even produced a copy of the order dated 4.1.1965 informing the Assistant Collector 1st Grade that previously similar notice to Hazura Singh son of Bishna husband of Smt. Ishar Kaur was given and it was held by the Assistant Collector 1st Grade that the land in dispute did not fall within the definition of shamilat deh and was therefore, exempted from the provisions of the Act. Inspite of the earlier orders dated 4.1.1965 the orders Annexures P-3 was passed without giving any reasons and it was ordered for the eviction of the petitioner from the disputed land. Thereafter, the petitioners filed an appeal before the respondent No. 2. Respondent No. 1 though took notice of the order dated 4.1.1965 but held in wrongful manner that the said order is not binding upon the Gram Panchayat as it was not a party before the Assistant Collector 1st Grade. Now the challenge has been given in this writ petition to Annexure P-3 and Annexure P-4, on the ground that the land in question was purchased by the petitioners from Smt. Ishar Kaur and the orders Annexures P.3 and P.4 could not be passed in view of the orders dated 4.1.1965 Annexure P.2. If the Gram Panchayat wants to avoid the orders Annexure P-2, it has the right to do so by taking appropriate proceedings u/s 10 of the Act. With the passing of the orders Annexures P-3 and P-4, respondents No. 1 and 2 acted in an illegal manner and as such both the impugned orders Annexures P-3 and P-4 are without jurisdiction.

Notice of the writ petition was given to the respondents. No formal reply to the writ petition has been filed but contest has been given to the writ petition by respondents 1 and 2.

I have heard Shri Sarjit Singh, Sr. Advocate, on behalf of the petitioners and Shri P.S. Chhinna, Sr. DAG (P), on behalf of the respondents 1 and 2. No body has given appearance on behalf of respondent No. 3.

The learned counsel for the petitioners submitted that orders Annexures P-3 and P-4 cannot sustain in view of orders Annexure P-2. There is force in the argument raised by the learned counsel for the petitioners. A perusal of Annexure P-2 would show that on 18.4.1964 the proceedings u/s 7(1) of the Punjab Village Common Lands (Regulation) Act, 1961 were initiated and a notice was served upon Hazura Singh son of Bishna. Said Hazura Singh contested the claim of the State by filing reply and denied his liability to be ejected from the land in question. On perusal of Khasra Girdwaris, Jamabandi Bandobast and Khatauni Istemal, the Assistant Collector Ist Grade, Nabha was satisfied that Shri Hazura Singh was in continuous possession of this land for more than 12 years. Therefore, according to the provisions of the Act, it was held that the land in dispute was exempted from the operation of the Punjab Village Common Lands (Regulation) Act and finally it was ordered that respondent Hazura Singh could not be evicted from the land in dispute. This order was never set aside either in appeal or revision or in any writ petition. In the light of this order, the orders Annexure P-3 could not be passed. Otherwise also, this order is a cryptic one and it has not been discussed how the orders Annexure P-2 was wrong or without jurisdiction. The Collector, Nabha while passing the orders simply stated that from the perusal of the record it had been found that the land in question belongs to Gram Panchayat. This Court is also of the opinion that the orders as contained in Annexure P-4, cannot be sustained. While passing this order, the Joint Director, Panchayat, Punjab, exercising the powers of Commissioner had advanced very uncogent and unconvincing reasons for the ignoring of the orders Annexure P-2 dated 4.1.1965 on the plea that this order did not bind the panchayat as the copy of the order did not indicate that Gram Panchayat was a party. Annexure P-4 were sustained as the learned Commissioner failed to take notice of the fact that earlier the proceedings u/s 7(1) of the Punjab Village Common Lands (Regulation) Act, could not be initiated either at the instance of the State itself or at the instance of the Gram Panchayat. A perusal of the order Annexure P-2 would show that the State itself proceeded u/s 7 of the Act against Hazura Singh, husband of Smt. Ishar Kaur and after perusing the entire evidence, the Assistant Collector II Grade came to the conclusion that the land did not belong to the Gram Panchayat. In the presence of orders Annexure P-2, the orders Annexures P-3 and P-4 could not be passed by the Collector or by the Commissioner.

The learned counsel for the petitioners submits that in case the Gram Panchayat has any right, title or interest, in the land in dispute it can still apply u/s 11 of the Act for the adjudication of its right, if any. This proposition of law has been fairly conceded by the learned counsel Shri P.S. Chhinna. Section 11 was amended by Punjab Act No. 25 of 1993 and the amending provisions reads that "If any person or a Panchayat claiming right, title or interest in any land vested or deemed to have been vested in a panchayat under this Act or claiming that any land has not so vested in panchayat may submit to the Collector within such time as may be prescribed, a statement of his claim in writing and signed and verified in the prescribed manner and the Collector shall have the jurisdiction to decide such claim in such manner as may be prescribed." If respondent No. 3 Panchayat, even after passing of the order Annexure P-2 still feels that the land in question belongs to it, it may approach u/s 11 before the competent authority but so far as the passing of the orders as contained in Annexures P-3 and P-4 are concerned they are liable to be quashed in view of the orders Annexure P-2 when a declaration had been given by the competent authority that the land in question did not belong to the Gram Panchayat as it did not constitute a shamilat deh.

Resultantly, the writ petition succeeds. The orders dated 19.11.1979 Annexure P-3 and orders dated 7.8.1980 Annexure P-4 are hereby quashed and now it is held that is pursuance of these orders, the present petitioners shall not be liable to be ejected from the land in dispute. It will be, however, open for respondent No. 3 to proceed u/s 11 of the Act, before the competent authority in accordance with the law. There shall be no order as to costs.