Mangat Ram vs Gram Panchayat

Jasbir Singh, J.—This judgment will dispose of five writ petitions i.e. C.W.P. Nos. 9402, 8959, 9269, 9270, and 9271 of 2006 involving similar questions of facts and law. For reference, C.W.P. No. 9402 of 2006, Mangat Ram v. Gram Panchayat Pir Khera and others is being taken up. Petitioner was ordered to be ejected from the land measuring 17 kanals 19 marlas falling in Khasra No. 3//11 (6-16), 19 (3-16), 20 (7-7) situated in village Moranwali Tehsil Rania, District Sirsa by an order passed by Collector on 03.05.2002. His appeal was dismissed by the Commissioner on 09.03.2006. Above orders are under challenge in this writ petition.

As per facts on record, Gram Panchayat, claiming ownership and management of the land in dispute, filed an application under Sections 5 and 7 of the Haryana Public Premises and Land (Eviction and Rent Recovery) Act, 1972 (in short the Act'') seeking ejectment of the petitioner from the land in dispute. It was further stated by respondent No. 1-Gram Panchayat that since from the date consolidation took place in the village, Gram Panchayat had been managing the land in dispute. The petitioner entered into unauthorized occupation of the same and is continuing as such without payment of rent to the Gram Panchayat.

Upon notice, petitioner appeared and took up a stand that the land in dispute is the ownership of Jumla Mushtarka Malkan of the village and he being a right holder, as per his share, is in possession of the same for the last more than 40 years. It was stated that Gram Panchayat has no ownership/management on the land in dispute. Ample opportunity was given to both the parties to lead evidence. The Gram Panchayat placed on record part of consolidation scheme (Mark 1) showing that the ownership, management and control of the land in dispute was given to the Gram Panchayat at the time of consolidation proceedings. Copies of the jama bandies were also placed on record to show ownership of the Gram Panchayat. Petitioner also put on record copies of jama bandies and Khasra girdawaries to show his old possession in the land in dispute. The Collector allowed application of respondent No. 1 ordering ejectment of the petitioner on 03.05.2002. Relevant portion of the order reads thus:--

I have carefully heard the arguments of the Ld. Counsel for both the parties and have also carefully perused the evidence brought on record. As regards Ex. D- 5, the position of this case is totally different because as per Ex.-D-5, the respondent in that case had been in continuous cultivating possession since 1935-36 and was entitled to exemption u/s 4(3)(iii) of the Punjab Village Common Lands Act whereas, he is not entitled to such exemption in this case. The land in dispute is the ownership of the Gram Panchayat at present and the jamabandi to this effect is for the year 1934-35 Ex. P-2. The land in dispute earlier belonged to the Mushtarka Malkan and now as per the Sharat Wazib-ul-Araz prepared at the time of consolidation, the management and control of the land in dispute stands entrusted to the Gram Panchayat and it has also been clearly stipulated therein that the income derived from this land would be spent from the welfare of the village. As per the Sharat Wazib-ul-Araz, this land has been ear-marked for common purposes and the respondent is in unauthorized occupation thereof. In these circumstances, eviction of the respondent from the land in dispute is ordered and use and occupation charges from Kharif, 1995 till the date of the decision at the rate of Rs. 5000/- per Hectare per annum is imposed upon him.

Besides ordering ejectment of the petitioner, he was also directed to pay an amount of Rs. 5,000/- per hectare per annum from the Kharif 1995 towards mesne profits. Appeal was also dismissed by noting above said facts.

At the time of arguments, by making reference to copy of extract form Wazib-ul-Araj (part of consolidation scheme) which was brought on record as Mark 1, counsel for the petitioner stated that both the Courts below have gone wrong to say, by relying upon that document, that the Gram Panchayat has right of ownership and management of the land in dispute. It is stated that as per above document, Gram Panchayat''s land measuring 517 kanals and 2 marlas was shown in a separate khewat. Regarding land measuring 257 kanals 3 marlas, it was stated that it falls in Jumla Mushtarka Malkan and they had a right to get the same partitioned as and when they so desire; By making reference to jama bandis for the years 1939-40 (Annexure P-12), 1943-44 (Annexure P-13), 1951-52 (Annexure P-14) and 1956-57 (Annexure P-15), it is stated that possession of the petitioner over the land in dispute through his predecessors relates back to the year 1941-42. It was further stated that Jumla Mushtarka Malkan land to the extent of 106 kanals and 11 marlas was shown in the ownership of Jumla Mushtarka Malkan. To say so, reference was made to document Annexure P-16. By stating as above, a prayer has been made that orders under challenge be set aside. As agitated by the petitioner, the authorities were supposed to decide question of title first and then to proceed further to decide application filed by the Gram Panchayat for his ejectment.

To the contrary, by making reference to extract from consolidation scheme (Mark A) copy of jama bandi for the year 1994-95, it was stated by counsel for respondent No. 1 that the land was shown, at the relevant time, as ownership of Gram Panchayat. As such, orders passed by the authorities below need to be sustained.

After hearing counsel for the parties, this Court is of the opinion that the orders have been passed by the authorities below without any application of mind. The petitioner was prima facie in a position to prove that the question of title was involved in this case. That aspect was not looked at all by the authorities below and simply by placing reliance upon document (Mark A), copy of Wazib-ul-Araj, it was said that ownership and possession of the land in dispute vest in the Gram Panchayat. Document in question was perused which does not convey the finding given by both the authorities below. The relevant extract which was brought on record as Mark 1, upon which reliance has been placed by. both the Courts, reads thus:--

The total area of the Khewat of Panchayat Deh in this village is 517 kanals and 2 Marlas and out of this land, 103 Kanals and 17 Marlas of area is Banjar Qadim Charagh; 24 Kanals and 15 Marlas of area is Ghair Mumkin Grave Yard; 62 Kanals and 16 Marlas of area is Pond; 249 Kanals and 2 Marlas of area is in possession of Ghair Maurusies; an area of 76 Kanals and 12 Marlas is under common purposes and the rest of the area is the Bachat land of the Panchayat. The Ghair Maurusi occupants themselves manage the cultivation and bear expenses of the area in their possession and the cultivation of the rest of the area which is situated in villages Pirkhera and Khuyian Nepalpur, is managed and all expenses of cultivation are borne by the Panchayat Deh itself and spends the income therefrom on the development of the Village. The remaining area of 257 Kanals and 3 Marlas in the Khewat is Jumla Malkan Wa Digar Haqddran Arazi Hassab Rasad Raqba and out of this area, an area of 106 Kanals and 11 Marlas is the Bachat Land and the proprietors can get this land partitioned as and when they desire as per their shares. The remaining area is Ghair Mumkin watercourses and paths and is managed by the Panchayat itself.

It is coming out from the said document that Gram Panchayat''s land measuring 517 kanals and 2 marlas was shown in a separate khewat whereas land of Jumla Mushtarka Malkan measuring 257 kanals and 3 marlas was made a part of separate khewat. It was specifically stated that except 106 kanals and 11 marlas of land in the later khewat, rest of the land was being used for common purposes. It was also stated that the land which is not used for common purposes of the village, the right holders have a right to get it partitioned as and when they so desire. We are of the opinion that both the courts below have wrongly interpreted the terms and conditions of Wazib-ul-Arj, as referred to above. As per documentary evidence on record, the possession of the petitioner in the land in dispute starts from the year 1939-40. This aspect was also not noticed. It was also not noticed as to whether the land in dispute is a part of khewat which was allotted to the Gram Panchayat as its owner or it was a part of Jumla Mushtarka Malkan, khewat or not. No reference was made to the resolutions of allotment with which the land in dispute was allotted in the khewat of Jumla Mushtarka Malkan. There is nothing on record to show that this land was reserved for any specific common purpose. The decision on question of title was apparently involved in this case but that was not done and the proceedings were disposed of in a summary manner ordering ejectment of the petitioner. The finding was given in favour of the Gram Panchayat by mis-reading the provisions of conditions of Wazib-ul-Arj and also simply placing reliance upon one jama bandi in which Gram Panchayat was shown owner in the land in dispute. How that entry came into existence showing the Gram Panchayat as owner, this was also not looked into by the authorities below. Under the circumstances, we allow this writ petition. Orders under challenge are set aside. Matter is remitted back to the Collector to decide the question of title first, by giving an opportunity to produce evidence to both the parties. When taking any decision, reference be made to the conditions of provisions of Wazib-ul-Arj and resolutions of allotment which were made at the time of consolidation proceedings in the village. The necessary decision be taken after framing issues to decide question of title. The parties are directed to put in appearance before the Collector on 04.09.2013. The Collector shall decide the matter within six months thereafter. If it is found by the Collector that Gram Panchayat is owner of the land, he is directed to order ejectment of the petitioner forthwith.