Santa Singh vs Asstt.Collector, Ist Grade Kurukshetra & Anr

S.S. Kang, J.

Santa Singh has filed this writ petition under Articles 226/227 of the Constitution of India for the issuance of a writ certiorari quashing the proceedings initiated by the respondents against him under section 7 of the Punjab Village Common Lands (Regulation) Act, 1961, (for short `the 1961 Act'').

Briefly stated the case of the petitioner, as given in the petition, is that one Sansar Chand, a proprietor of village Pehowa, Tehsil Guhla, District Kurukshetra, held a share in the land which was shamilat deh as perceived by the Punjab Village Common Lands (Regulation) Act, 1953. It has been in his individual cultivating possession much before 26th January, 1950. In view of the provisions of subsection (5) of section 2(g) of the 1961 Act. it does not fall within the definition of shamilat deh and has not come to vest in the Gram Panchayat of the village. Out of this land, Sansar Chand transferred land measuring 27 Kanals and 16 Marlas by way of perpetual lease deed dated 29th August, 1962, in favour of the petitioner with effect from Kharif 1962. The petitioner has been in cultivating possession of this land even since then. He has spent huge sums of money in levelling and improving this land. That sometimes in May/June, 1976, the petitioner learnt that respondent No. 2 had threatened to evict the petitioner from the land under his cultivation on the ground that he was in unauthorised occupation thereof. No notice, as required by rule 20 of the Punjab Village Common Lands (Regulation) Rules, 1964 (`Rules'' for short) had been issued to the petitioner specifying the grounds on which the petitioner may have been treated as unauthorised occupant of the land in dispute. On coming to know about this fact the petitioner got the records of the case inspected and learnt that Block Development and Panchayat Officer, Thanesar, respondent No. 2, had moved an application before the Assistant Collector lst Grade, Kurukshetra, respondent No. 1, for ordering the eviction of the petitioner under section 7 of the Act from the land in dispute. The petitioner appeared before respondent No. 1 and filed an application stating inter alia that the application under section 7 of the Act was incomplete and did not disclose from which date and in what manner the petitioner was in unauthorised occupation of the land in dispute. He further explained that he had taken this land along with some other land on perpetual lease from Sh. Sansar Chand in the year 1962 and was in possession thereof since then. The petitioner, therefore, could not be termed to be in an unauthorised occupation. The petitioner has further averred that after recording the statement of respondent No. 2 in support of the application for eviction he has not allowed the petitioner any opportunity to substantiate his claim. Apprehending his eviction the petitioner filed this writ petition.

The Motion Bench stayed the dispossession of the petitioner.

The respondents have filed written statement by way of an affidavit of Shri Bihari Singh, Block Development and Panchayat Officer, Thanesar, in which it has been admitted that an application under section 7 of the Act for ejectment of the petitioner has been filed. A notice under rule 20 of the Rules was issued to the petitioner. He filed written statement on 17th July, 1976. So thereafter the case was adjourned to different dates for evidence and is still pending before respondent No. 1. It was asserted that the land, in dispute is shamilat deh and belongs to the Gram Panchayat.

The position of law regarding the procedure to be adopted in cases under section 7 of the Act has been crystalised, during the pendency of this writ petition. It has been held by a Division Bench in Tara Chand and Fateh Singh v. Gram Panchayat and Gram Sabha of Village Atail and others, 1979 P.L.J. 1 that the proceedings under section 7 of the Act for eviction of persons in unauthorised possession of shamilat land are of a summary nature. Section 7 of the Act presupposes that land about which the application for ejectment had been made is shamilat answering the description given in the Act. The Assistant Collector being a Tribunal of very limited jurisdiction cannot enter into inquiry whether land is shamilat or not. The question of title cannot be subjected to summary procedure under section 7 of the Act. The Assistant Collector has first to decide the question of title under sections 13A and 13B of the Act before proceeding to decide the questions raised in the application under section 7 of the Act thereof. For determination of this question detailed procedure has been given in this judgment. This view has been reiterated by another Division Bench judgment in Dharam Pal and others v. State of Haryana and others, 1982 P.L.J. 369 : 1984 RRR 510.

Mr. U.S. Sahni, the learned counsel for the petitioner, argued that though from the tenor of the written statement it is clear that the petitioner had raised a question of title before respondent No. 1, it has not been specifically so stated. He has specifically stated in the petition that the land in dispute belonged to Sansar Chand who was a shareholder in the shamilat land without payment of any compensation and was in his cultivation possession long before 26th January, 1950. This fact is seriously contested by the respondents in the written statements filed in this Court. In view of this controversy regarding title it was incumbent upon respondent No. 1 to first decide as to whether the land in dispute was shamilat of not. He has not proceeded in that direction. In this situation, Mr. Sahni has stated that the Assistant Collector should be directed to decide the case in accordance with procedure prescribed by the Act and specially in the light of the decisions of this Court in Tara Chand''s case and Dharam Pal''s case (supra). There is a merit in this contention. Since the question of title has been raised regarding the land, in dispute, respondent No. 1 is duty bound to decide the same in accordance with principles enunciated is the abovementioned decisions.

This writ petition is allowed and respondent No. 1, is directed to decide the case in accordance with procedure pointed in Tara Singh''s case (supra) and other observations made therein.

In order to do justice between the parties, Mr. Sahni is allowed, as prayed by him, to amend the reply filed by the petitioner before respondent No. 1, to raise this issue and all other issues available to him. Respondent No. 1 will decide the case afresh in accordance with law and observations made in this judgment expeditiously.