Gram Panchayat Nalini vs State of Punjab

S.S. Sodhi, A.C.J.

The matter here concerns ejectment of persons in possession of Shamilat den land under the Punjab Village Common Land (Regulation) Act, 1961 (hereinafter called the Act).

It was the case of the appellant Gram Panchayat that the land, in question, was shamilat deh and the respondents were in illegal possession thereof. At application under section 7 of the Act, was consequently filed by the Gram Panchayat seeking the ejectment. The plea of the respondents in defence being that they were owners in possession of this land since prior to January 26, 1950 and their possession was thus protected under clause (ii) of subsection (3) of section 4 of the Act. The Collector by his order of May 21, 1982, held in favour of the respondents and consequently dismissed the application of the Gram Panchayat. This was, however, reversed in appeal by the Joint Director Panchayats, Punjab (exercising the powers of the Commissioner), by an order passed by him on November 28, 1986. It is this order which came to be challenged in this Court in writ proceedings. The learned single Judge set it aside holding that the respondents'' possession stood established from 1947 onwards and the impugned order of the Commissioner of November 28, 1986, was consequently quashed and the earlier order of Collector of May 21, 1982 restored. It is correctness of this judgment that is now questioned in this Letters Patent Appeal.

A reading of the impugned judgment would show that in the first instance, the learned single Judge held that the appeal against the order of the Collector had not been filed by an authorised person. To appreciate this finding, it deserves note that the proceedings under Section 7 of the Act, were intimated on the application of the Gram Panchayat. Once the Collector decided the matter in favour of the respondents, no further action was taken by it. It was on that account that the Social Education and Panchayat Officer stepped in and preferred an appeal on behalf of the Gram Panchayat against the order of the Collector of May 21, 1982. This, it was held, he was not authorised to do. It appears that the attention of the learned Single Judge was not drawn to the notification issued by the President of India on April 11, 1980, under subsection (1) of section 7 of the Act, whereby, for the purposes of the said subsection, all Social Education and Panchayat Officers were specifically authorised with immediate effect. In the context of this notification, there can be no escape from the conclusion that the appeal had indeed been filed by a person authorised to do so.

Confronted with this situation, counsel for the respondents did make a halfhearted attempt, to contend that as the Social Education and Panchayat Officer does not find mention in section 7(2) of the Act which deals with appeals, he could not be treated one authorised to file an appeal. This contention on the face of it, wholly untenable. As has of been, said, an appeal is but a continuation of the original proceedings. If the Social Education and Panchayat Officer can initiate proceedings, there is nothing in the language of Section 7(2) of the Act, to bar an appeal by him in such proceedings. It follows, therefore, that the Social Education and Panchayat Officer was competent and authorised to file an appeal.

Next, the learned Single Judge also proceeded to take a contrary view on facts than that of the Commissioner with regard to the date from which the respondents had been in cultivating possession of the land. The Commissioner had held them to be in cultivating possession since 1955. The learned Single Judge came to the conclusion that they had been in possession since 1947 and they, therefore, came within the ambit of clause (ii) of subsection (3) of Section 4 of the Act.

It is well settled that the findings of fact founded upon the material on record as arrived at by the competent authority, are not to be lightly interfered with in writ proceedings. Further, it deserves note that the protection of clause (ii) of subsection (3) or Section 4 of the Act is available to one who is in cultivating possession of the land before the stipulated date and not to one who is merely in possession. The Legislature, in its wisdom, has made a clear distinction in this behalf between ''mere possession'' and ''cultivating possession''. A reference to the material on record, no doubt, shows that the name of the respondent figures in the cultivation column in the jamabandis for the years 194748 to 195556. What weighed with the Commissioner was that in the Khasra girdawaris for the relevant period, the land was described as banjar qadim. If, indeed, the respondents were in cultivating possession, this land could not have been so described and it was on this count that he held that their cultivating possession started from 1955. This finding of fact did not warrant any interference in writ proceedings. This being so, the possession of the respondents was clearly not such as could render them immune from proceedings for ejectment under Section 7 of the Act.

The judgment of the learned Single Judge is accordingly hereby set aside and the order of the Commissioner of November 28, 1986, is consequently restored. This appeal is thus accepted with costs Counsel''s fee Rs. 1,000/ (one set only).