Diwan Singh vs Collector and Others

Amarjeet Chaudhry, J.—This judgment of mine will dispose of Civil Writ Petition Nos. 3822, 3735, 4164, 3838, 3823, 3945 and 4234 of 1988 as they arise out of the common orders passed by the authorities below The facts of the case have been picked up from Civil Writ Petition No. 3822 of 1988.

Respondent No. 3 Gram Panchayat filed an eviction application u/s 7(2) of the Punjab Village Common Land (Regulation) Act, 1961 (hereinafter referred to as the ''Act'') before the Assistant Collector 1st Grade, Guhla on the ground that the petitioner in the writ petition is an unauthorised possession of the land in dispute and that the same is owned by the Panchayat. The case of the petitioner in the written statement is that he is proprietor of the village and is a co-sharer in the joint khewat and hence the application is not maintainable. It is further the case of the petitioner that the suit land with some other land was left by the proprietors at the time of consolidation for common purposes of the proprietory body and, therefore, the Panchayat has no right to file the eviction application. It has been found by the authorities below that the land in dispute is Charand and, therefore, shamlat deh. The authorities below imposed a penalty of Rs. 2,540/- per hectare per annum upon the petitioner.

Mr. Arun Jain, learned counsel for the petitioner, has vehementely argued that the question of title was raised in the written statement and, therefore, until and unless the question of title was decided by the authorities below, they had no jurisdiction to order the eviction of the petitioner. On merits, it has been argued that the land in dispute is not in an unauthorised possession of the petitioner and that it is owned by the entire proprietory body of the village. It is further argued that the authorities below have committed an error in imposing a penalty of Rs 2,540/ per hectare per annum upon the petitioner. On the other hand, the learned counsel for the respondents has argued that the land in dispute is described to be shamlat deh in the revenue record, that is, in the jamabandi etc etc. According to the counsel for the respondents, the question of title was not raised in the written statement and, therefore, the authorities under the Act have acted within jurisdiction in passing the order of eviction. On the point of penalty, it has been argued that the same has been done under the relevant provisions of the Act and, therefore, no interference is called for by this Court.

After hearing the learned counsei for the parties and after giving my thoughtful consideration to the entire matter, I am of the view that without going into the detailed arguments addressed by the counsel at the bar, this writ petition deserves to be accepted on the short ground that the authorities below in view of the pleas raised in the written statement must determine the question of title in the first instance. Before applying the relevant provisions of law, the exact pleas raised by the petitioner before the learned Assistant Collector 1st Grade need be noticed The exact pleas taken in the written statement are as follow :

"(i) _ _ _ _

(2) That the respondent is proprietor of the village and is co-sharer in the joint Khewat and hence the present application is not maintainable. Respondent is in possession in his own right.

(3) That the suit land with some other land was left by the proprietor at the time of consolidation for common purposes of the proprietory body and the applicant has no right to eject the respondent.

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In the above mentioned pleas, the petitioners has definitely raised the question of title and he has clearly stated that he is proprietor of the village and is co-sharer in the joint khewat and, therefore, the petition for eviction is not maintainable. Not only this, the petitioner has described his possession in his own right. The suit land has been described to have been left at the time of consolidation by the proprietors for common purposes of the proprietory body. The petitioner was under no legal obligation to deny the ownership of the Gram Panchayat is so many words and vesting of the ownership in him. Once he is stating that he is proprietor of the village and co-sharer in the joint knew it. the question of title in my view, stands raised in the written statement. The proposition of law laid down by the Division Beach of this Court in Tara Chand and Fateh Singh v. Gram Panchayat and Gram Sabha and Ors.,1, is clear that once the question of title is raised, the Assistant Collector would either convert himself into a Tribunal u/s 13-B of the Act or ask the parties raising the question of title to move an appropriate petition u/s 13-B of the Act and keep the proceedings u/s 7(2) in advance till the final determination of question of title u/s 13 B. This very proposition of law has been followed in the two latest judgments rendered by M. R. Agnihotri, J. reported as Nar Singh v. State of Haryana,2, and Bawa Lachhman Dass and Anr. v. Collector Kurukshetra,3, in view of the mandator provisions of law contained in Section 13-B of the Act and the law laid down in Nar Singh''s case (supra) and Bawa Lachhman Dass and Anr.''s case (supra), this Court is of the considered view that the Assistant Collector has committed gross legal error in passing the order of eviction against the Petitioner. This Court does not propose to go into other questions raised as the same may amount to an expression of opinion on the merits of the case.

In view of the foregoing discussion, all the writ petitions are allowed with no order as to costs. The Assistant Collector is directed to convert the written statement filed by the petitioner as suit u/s 13-B of the Act.

The parties through their counsel are directed to appear before the Assistant Collector on 17.7. 1990 However, since long time has elapsed when the eviction proceedings were initiated. it would be apt to order the expeditious disposal of the matter The Assistant Collector it directed to take all possible steps to expedite the conclusion of the cases and the same may preferably be decided within a period of six months from 17.7.1990.