Harbans Singh vs State of Haryana

M.S. Liberhan, J. (Oral)

Our this judgment shall also dispose of CWP Nos. 12711, 12712, 12714, 12715, 13020 of 1990 and 695 of 1992 as common questions of law and facts are involved in all these writ petitions.

The short question raised by learned counsel for the petitioners is that question of title which does arise in the facts and circumstances of the case and raised by the petitioner has not been determined by the authorities below.

The skeletal facts necessary to determine the question raised by learned counsel for the petitioner are that there was 4340 bighas 10 Biswas of land in the village and according to the amended provisions, 25% of the land could be reserved for common purposes in the village. The land in dispute is conceded to be 1670 bighas which is much more than 25% as provided by the Act. Apart from this, prima facie it has been proved on the record by documentary evidence that the land in dispute was `Banjar Qadim'' before 1950 and it was brought under cultivation after 26.1.1950 and is in possession of the proprietors in proportion to their shares. Consequently, in terms of definition of Shamlat Deh provided in the Act, the land in dispute does not form part of Shamlat Deh and does not vest in the Panchayat, hence the Panchayat cannot raise the question of title.

In view of the finding returned by the authorities below on the facts cited above, which are not even disputed remotely concededly, it cannot be said that question of title does not arise. In view of the amended provision of Section 7 of the Punjab Village Common Lands (Regulation) Act, 1992 where petitioner has been able to prove prima facie that the question of title is involved by documentary evidence, it is incumbent duty of the authorities below to determine the title qua the land in dispute.

The observations of the authorities below that the application for ejectment under Section 7 cannot be converted into a suit to determine the title cannot be sustained. Even on the relevant date provisions of Section 13A was very much applicable. Be that as it is as the law stands today, respondentauthorities are bound to determine the question of title before passing an order of ejectment against the petitioners. The finding returned by the authorities below that question of title cannot be determined cannot be sustained in view of the observations made above.

Thus, in the totality of the facts and circumstances of the case the impugned orders Annexures P7 and P8 cannot be sustained and the same are hereby quashed. The case is remanded back to the Assistant Collector Ist Grade, Kurukshetra to determine the question of title qua the land in dispute after affording opportunity of hearing of the parties concerned. The parties through their counsel are directed to appear before the authority below, on March 12, 1996. The writ petition stands allowed, however, with no order as to costs.