Chatar Singh vs The Collector and Others

T.H.B. Chalapathi, J.—This writ petition is filed for the issuance: of a writ of certiorari to quash the orders of the Assistant Collector First Grade, Hansi, dated January 23, 1981, as confirmed by the Collector Hissar, dated June 9, 1981.

In the year 1974, the Gram Panchayat-respondent No. 3 in this writ petition filed an application for ejectment of the petitioners u/s 7 of the Punjab Village Common Lands (Regulation) Act, 1961, on the ground that the land in possession of the petitioners in Khewat No. 284/269 Khatauni No. 547/448 measuring 149 Kanals 18 Marias was Shamlat Deh, and therefore, vested in the Gram Panchayat. The application was allowed by the Assistant Collector, First Grade, Hansi, and the same was confirmed by the Collector, Hisar. Subsequently, the Gram Panchayat sought to take possession of the land in dispute. At that stage, the petitioners filed an application u/s 13-A of the Act as amended by the Punjab Village Common Lands (Regulation) Act, 1981, under which any person claiming right or title in any land can file a suit for adjudication of his right in the land and for a declaration that the land does not vest in the Panchayat under the Act. The said suit filed by the petitioners in the Court of Assistant Collector was dismissed by the Assistant Collector First Grade by his order dated January 23, 1981. The same was confirmed by the Collector vide his order dated June 9, 19.81. The Assistant Collector and the Collector took the view that since the orders u/s 7 of the Act had become final, the suit u/s 13-A of the Act was not maintainable and, therefore, there could not be any suit for adjudication of rights of the parties and reopening of the orders u/s 7. Accordingly, the Assistant Collector directed the continuance of the execution filed by the Gram Panchayat. As already observed this order was confirmed by the Collector vide Annexure P-3 dated June 9, 1981. Aggrieved by the said orders, the petitioners have filed this writ petition to quash the same.

There is no doubt that Sections 13-A and 13-B, were introduced by way of an amendment in the State of Haryana by the Punjab Village Common Lands (Regulation) Haryana Amendment Act. After the amendment, Section 13-A reads as follows :-

"Any person or in the case of a Panchayat, or its Gram Sachiv, the concerned Block Development and Panchayat Officer, Social Education and Panchayat Officer or other officer duly authorised by the State Government in this behalf claimed right, title or interest in any land or other immovable property, vested or deemed to have vested in the Panchayat under this Act may within a period of two years from the date of commencement of the Punjab Village Common Lands (Regulation) Haryana Amendment Act, 1980 file a suit for adjudication whether such land or other immovable property is Shamiat Deh or not or whether any land or other immovable properly or any right, title or interest therein vests or does not vest in Panchayat under this Act, in the Court of the Assistant Collector of the First Grade having jurisdiction in the area wherein such land or other immovable property is situate".

Thus, it is clear that the present suit filed by the petitioners in the Court of Assistant Collector First Grade had been filed within two years from the commencement of the Amended Act as the same was filed on December 26, 1980. Therefore, it is necessary for the Assistant Collector to decide the right claimed by the petitioners as against the Gram Panchayat. Assistant Collector cannot decide the question of title in a proceeding u/s 7 of the Act. Before passing the order u/s 7 of the Act, it is deemed that the land is Shamiat Deh. It is not within purview of the Assistant Collector to determine whether the land is Shamiat Deh or not. Such a proceeding involving the right/title of the third party can only be taken u/s 13-B of tire Amended Act. Therefore, it cannot be said that the decision u/s 7 operates as a bar to the filing of the suit u/s 13-B. It is further pertinent to note that Section 13-A as amended for the first time gives a right to a person to establish his right before the Assistant Collector within two years from the date of the commencement of the Haryana Amendment Act. The right of suit u/s 13-A was not available when the order u/s 7 was passed. I am, therefore, not able to agree with the Assistant Collector and the Collector that the suit u/s 13-A is not maintainable because of the conclusion of the proceedings initiated u/s 7 of the Act. The rights of the parties have to be determined as per the law on the date of the institution of the suit. No doubt, Section 13-A stands omitted by the Haryana Amendment Act, 1992, but is does not effect the merits of the case. By way of amendment in 1992, the earlier proviso which was introduced in 1981 was amended by the Act of 1992. The amended proviso to Section 7 which has been introduced by way of Haryana Amendment Act in 1992 reads as follows :-

"Provided that if in any such proceedings the question of title is raised and proved prima facie on the basis of documents that the question of title is really involved the Assistant Collector First Grade shall record a finding to that effect and first decide the question of title."

Proviso which stands amended in 1981 is as follows :-

Provided that, if in any proceedings, the question of title is raised the Assistant Collector of the first grade, shall first decide the question of title u/s 13-A".

Thus, the effect of all the amendments really go to show that whenever the title of Gram Panchayat is disputed, it is for the Assistant Collector to decide either u/s 13-A of the Amended Act of 1981 or under the proviso to Section 7 as amended in 1992. In either case, the Assistant Collector is to determine the question of title. It is an admitted fact that prior to 1991, there was no such remedy open to a person to file a suit. Such right was confirmed to file a suit u/s 13-A within two years from the date of the commencement of the Haryana Act. The same has been now incorporated as proviso to Section 7. It is, therefore, clear that the Assistant Collector continues to have jurisdiction to decide the question of title even now. I, therefore, set aside the impugned orders of the Assistant Collector dated January 23, 1981, Annexure P-1 and of the Collector dated June 9, 1981, Annexure P-3 and remand the matter to the Assistant Collector First Grade, Hansi, District Hisar to decide the case u/s 13-A of the Punjab Village Common Lands (Regulation) Act, 1961, as amended in the Haryana State in 1981. There will be no order as to costs. The petitioner is continuing to be in possession from the date of filing of the writ petition till now. His possession is to be maintained till the disposal of the suit filed u/s 13-A of the Act.