Gharsi vs The Collector, Narnaul and Others

M.R. Agnihotri, J

This petition under Articles 226 and 227 of the Constitution of India has been filed by Gharsi son of Tulla, resident of village Mohabatpur Bhungarka, Tehsil Narnaul, District Mohindergarh, in the State of Haryana, praying for the quashing of the order dated 31st March, 1978, Annexure P.1, passed by the Assistant Collector Ist Grade, Narnaul, Respondent No. 2 and the order dated 26th June, 1979, passed by the Collector, Narnaul, Respondent No. 1 Annexure P.2 in appeal. Vide aforesaid orders, the Petitioner has been ordered to be ejected from the land in dispute and a penalty of Rs. 9600/- has been imposed at the rate of Rs. 600/- per acre for the use and occupation of the land in dispute.

According to the Petitioner land bearing Killa Nos. 16/19/2 (4-2, 21(8-7), 77(7-7) and 37/3/1 (5-16) totalling 25 Kanalas 12 Maria is the part of the revenue estate of village Mohabatpur Bhungarka, Tehsil Narnaul, District Mohindergarh and is described as Shamiat deh in the revenue record. The Petitioner claimed to be in cultivating possession of the aforesaid land in dispute as co-sharers of the ancestors of the Petitioner along with one Mata Din, son of Tulla, Respondent No 4, for the last 50 years. The Petitioner''s case is that he and his real brother had been in cultivating possession of the land in dispute for the last about half century and as such the land stands excluded from the definiton of Shamiat deh'' as provided in Section 2(g) of the Punjab Village Common Lands (Regulation) Act, 196! (for short ''the Act''). However, the Block Development and Panchayat Officer, Nangal Chaudhary moved an application u/s 7 of the Act for the ejectment of the Petitioner and his further Mata Din, Respondent No 4 from the land in dispute. In those proceedings a number of documents were produced before the learned Assistant Collector relating to the land in dispute in the form of Jamabandis, Maps, excerpts from the revenue records etc However, the learned Assistant Collector by his order dated 31st March, 1978 ordered the ejectment of the Petitioner and that of his brother Mata Din from the disputed land. A penalty of Rs. 9000/- was also imposed on the Petitioner @ of Rs 600/- per acre for the use and occupation of the land in dispute for a period of 5 years. Against the aforesaid order passed by the Assistant Collector the Petitioner went up in appeal before the Collector, Narnaul, who vide his order dated 26th June, 1979 dismissed the appeal and affirmed the order of the learned Assistant Collector The present writ petition was filed on 18th September, 1979 challenging the aforesaid two orders. On 15th November, 1979 the Motion Bench admitted the writ petition and allowed the Petitioner to continue in occupation of the land in dispute.

3 During the pendeney of the writ petition, the Punjab Village Common Lands (Regulation) Act, 1961 as applicable to the State of Haryana was amended by the Haryana Act No. 2 of 1981. Sections 13-A and 13 B were inserted in the Act providing the remedy of a suit before the Assistant Collector, an appeal before the Collector and a revision before the Commissioner. It was provided in Section 13-A that any person claiming right, title or interest in any land or other immovable property, vested or deemed to have, vested in the Pancnayat under this Act, may within a period of five years from the date of commencement of the amending Act file a suit for adjudication as to whether the land in dispute or immovable property vest in a Panchayat. Such a suit can be filed in the court of the Assistant Collector Ist Grade having the jurisdiction in the area where such land or other immovable property is situate. Sub-section (2) of this section provides that the procedure for deciding the suits filed under Sub-section (1) shall be the same as laid down in the Code of Civil Procedure. Since the writ petition was filed in the year 1979 and the amendment came into force in 1981, obviously, there was no question of the Petitioner availing the remedy of adjudication u/s 13-A of the Act. However the fact remains that without considering and properly appreciating the documentary evidence produced before the Assistant Collector, it was neither possible nor safe for him to give a finding one way or the other, as to whether the Petitioner and his brother Mata Din, Respondent No. 4 were in actual physical possession of the land in dispute or not for the purpose of Section 2(g) of the Act Such a finding could only be arrived at by proper adjudication u/s 13-A of the Act by considering the rival claims of the parties after appraising the overwhelming documentary evidence on the record. This, having not been done both the impugned orders Annexures P. 1 and P.2 are set aside.

As the Petitioner had approached this Court in 1979 and since then has been pursuing his cause with due diligence and the amendment to the Act has come during the pendency of these proceedings, the period of limitation prescribed in Section 13-A of the Act for approaching the'' Court of Assistant Collector under that section deserves to be extended.

Accordingly, the Petitioner, if so advised, may avail the remedy provided u/s 13-A of the Act for the proper adjudication by presenting a suit before the Asssistant Collector Ist Grade concerned for adjudication within a period of three months from today. The Assistant Collector is directed to go into the dispute u/s 13-A of the Act on merits, and decide the same on the basis of the material produced before him With these directions the writ Petition is allowed with no order as to costs.