Shingara Singh vs Collector, Kurukshetra

N.K. Kapoor, J.—This judgment shall dispose of Civil Writ Petition Nos. 2148 to 2150 of 1980 and 5562 to 5564 of 1982 as common question of law has been raised in these set of petitions. Facts have been taken from CWP No. 2148 of 1980 and reference has also been made to the averments in CWP No. 5564 of 1982 as some additional documents were placed on record by the petitioner in support of his contention raised in the said petition.

The petitioner challenged the order of Collector dated May 27, 1980, Annexure P1, whereby the appeal filed by him against the order of Assistant Collector Ist Grade passed under Section 7(2) of the Punjab Village Common Lands (Regulation) Act, 1961 (for short "the Act") was dismissed thereby affirming the order of eviction from the land in dispute and the imposition of penalty at the rate of Rs. 1500/ per hectare for a period of three years in all amounting to Rs. 12,710/.

The case of the petitioner is that some 22 years ago he was settled in Patti Kisna Mauza Thana, tehsil Guhla, with the consent of the owners of the Patti who had granted him (as well as other petitioners in the connected writ petition. The right of exclusive possession in respect of land measuring 56 Kanals 11 Marlas. Accordingly, the petitioner occupied the land and took suitable measures to develop this barren and unculturable land for agricultural purposes. This grant was for indefinite period. It has further been alleged that during all these 22 years the petitioner/petitioners have been carrying on extensive levelling operations, developments and clearance of jungles. They have built residential arcade for themselves. Not only this, they have installed tubewell and their houses are provided with electric fitting. In fact, according to the petitioner, various structures were set up by him and his like form residential colony. It is the case of the petitioner that the land owned by Patti Kisana had remained in cultivating possession earlier with the proprietors and now with the petitioner and that at no time the same was put for any common purpose or benefit of the village community. This has been so recorded in revenue papers. With a view to resist the claim of the gram panchayat in petition filed by it under Section 7(2) of the Act, the petitioner challenged the right of the gram panchayat to initiate the proceedings. It was also alleged that the disputed land does not vest in the gram panchayat and is, in fact, owned by Patti Kisana. The Assistant Collector after carefully examining the evidence led by the parties in support of their respective contentions came to the conclusion that the land is owned by gram panchayat which fact is also established as per copy of jamabandi Exhibit A1. The Assistant Collector also held that as per Section 2(g)(3) of the Act, even land of Shamilat patti and tholas vests in the gram panchayat. As regards the plea of the petitioner that he was in occupation of the land as a lessee was found without substance as no proof was adduced by the petitioner with regard to payment of any lease money to the owners of Shamilat Patti. On the other hand, entries in revenue record clearly mentioned his possession without payment of rent unlawful possession (zabardasti). Accordingly, the Assistant Collector passed an order of eviction and imposed a penalty at the rate of Rs. 1500/ per hectare for a period of three years i.e. for an amount of Rs. 12,710/ vide order dated 10.6.1979. The appellate authority too examined the matter in all it entirety but found no substance in the appeal and subsequently dismissed the appeal thus upholding the order of the Assistant Collector vide order dated 27.5.1980. The present challenge to these two orders annexures. P1 and P2 is on the following grounds : (i) The land has been described as shamilat patti kisana as per jamabandi for the year 197172 and so the same does not come within the ambit of definition of shamilat deh as the same is not being put for the benefit of the village community nor any part of it is being used for common purposes of the village. (ii) that the Collector and Assistant Collector could not order for eviction of land under kothas, tubewell and passage leading to kothas and tubewell in view of Section 2 (5)(vi) of the Act; (iii) Imposition of penalty is illegal. The order is vague as it is not clear how three years period is to be calculated; (iv) That the Collector as well as Assistant Collector could not order ejectment of the petitioner on the ground of applicability of Rule 19(b) of the Village Common Lands (Regulations) Rules, 1964 (for short "the Rules"). Even otherwise, the petitioner had not hold the land under the tenancy of panchayat either before or after 1976, the date of record of ownership of the panchayat per mutation dated August 27, 1970, and so Rule 19(b) does not cover the point in controversy; (iv) The Collector erred in law in permitting the respondent Gram Panchayat to produce some evidence to prove some payment of rent in the year 196566. Collector''s order permitting gram panchayat to adduce these documents is against the rules of natural justice as the petitioner had no right of rebutting. The petitioner challenged the finding of the courts with regard to the factum of rent paid in the year 1965. In the alternative, the petitioner claimed compensation for clearance, development and establishment of tubewell etc.

The gram panchayat by way of written statement controverted the various averments made by the petitioner. The case set up by gram panchayat is that the land in dispute is owned by gram panchayat and was leased out to the petitioner who consequently paid lease money for some time as well but started defaulting thereafter thus leading the gram panchayat to seek his eviction and claimed damages for wrongful occupation. It was also asserted that the land was recorded as ''charand'' in the revenue record i.e. jamabandi for the year 197172 and was being put to common purposes of the village and so the same stood vested in the gram panchayat on the coming into force of Punjab Village Common Lands (Regulations) Act, 1961. The gram panchayat also resisted the claim set up by the petitioner for exclusion of the land in terms of Section 2(5)(iv) of the Act on the ground that there is no evidence on record that the alleged structure existed before the commencement of this Act. Since no question of title arose on the pleadings of the parties, the Assistant Collector Ist Grade had jurisdiction to decide the matter in terms of Section 7(2) of the Act and pass appropriate order as he deems fit. This way the order passed by the Assistant Collector Ist Grade and affirmed in appeal by the Collector are perfectly legal and just and so prayed that the writ petition be ordered to be dismissed with costs.

The first submission of the learned counsel for the petitioner is that the land as per revenue record is ''shamilat patti kisana Hasab Rasad khewat'' in copy of jamabandi for the year 196162 Annexure P4 (document attached with CWP No. 5564 of 1982) which entry has been repeated in copy of jamabandi or the year 196667, Annexure P5, and 197172, Annexure P6. Consequently, in view of sanction of mutation in favour of gram panchayat, instead of name of ''shamilat patti kisana'' in the column of ownership gram panchayat is recorded in jamabandi for the year 197677, Annexure P7. Relying upon is documentary evidence, it was contended by the counsel that both the authorities have erred in holding that the same comes within the ambit of ''shamilat deh'' and this way gram panchayat can initiate proceedings in terms of Section 7 of the Act. According to counsel, Section 2(g) as it originally existed i.e. before the amendment of the Act vide Haryana Act No. 43 of 1971, ''Charan'' did not come within the purview of ''shamilat deh'' and this way since the petitioner''s possession is earlier to the inclusion of this category of land i.e. ''charand'' also within the definition of shamilat deh, earlier possession of the petitioner could not be termed as unauthorised nor such amendment in the definition of shamilat deh would give any right to the gram panchayat to initiate proceedings against the petitioner terming him to be an authorised occupant. According to the counsel, even otherwise, there is no evidence on record to prove that such land i.e. land described in the revenue records as shamilat tarafs, patties, pannas and tholas etc. were being used, according to revenue record, for the benefit of village community or part thereof or for common purposes of the village.

The documents referred to by the learned counsel for the petitioner do not advance the case of the petitioner in any manner. A bare perusal of the entries contained in Annexure P4 jamabandi for the year 196162, clearly recorded in column No. 5 Charand and under column No. 8 it is recorded as banjar qadim charagah (i.e. for grazing). Subsequent jamabandi for the year 196667, Annexure P5 record it as Charand but shown in possession of Ghasita Singh s/o Nand Singh as tenant at will. Under rent column, it is recorded as ''without rent forcible occupant'' which entry has been repeated in the jamabandi for the year 197172, Annexure P6. The relevant provisions which are under consideration are hereunder reproduced :

"2(g) ''shamilat deh'' includes

(1) lands described in the revenue record as shamilat Deh (or Charand in Hr.) excluding abadi deh;

(2) ........

(3) lands described in the revenue records as shamilat tarafs, patties, pannas and tholas and used according to revenue records for the benefit of the village community or a part thereof or for common purpose of the village;

No doubt, Charand has been included in Section 2(g)(1) vide Haryana Act No. 43 of 1971, yet it cannot be lost sight of that even without this amendment land described in the revenue record as shamilat tarafs, patties, pannas and tholas and used according to revenue records for the benefit of the village community or a part thereof or for common purposes of the village, were included within the definition of Shamilat deh even before this amendment as per Section 2(g) (3) of the Act. All that this category has to satisfy was whether as per revenue record the same was being put for the benefit of village community or for the common purposes of the village. For this entries under column No. 5 and 8 are indeed material. It has also been recorded as Charand and being used as Charagah (grazing) and so the land will also come within the ambit of shamilat deh. This way the gram panchayat had the right to seek possession of the land under Section 7 of the Act even before Haryana Amendment Act No. 43 of 1971. It is next contended by the counsel that the petitioner had raised the question of title before the Assistant Collector Ist Grade. As per provisions of Section 7 of the Act then in operation, Assistant Collector Ist Grade had no jurisdiction to determine the title so raised and was duty bound to refer the matter to be determined by a competent authority under Section 13A of the Act land this was the order passed by the Assistant Collector 1st grade is non est. Basis of the petitioner''s assertion is that according to him the and is dispute was given on lease by the owners of patti kisana. Assistant Collector Ist Grade examined this aspect on the basis of the documentary evidence but found no merit; except for more verbal assertion of the petitioner that a question of title is raised. The petitioner in support of his contention did not lead any documentary evidence to prove that the land in dispute was leased out to him by properties the of the patti kisana. None of the proprietors were examined by the petitioner. The Court on its own examined this contention on the basis of revenue record and come to the conclusion that the petitioner''s possession over the land in dispute is unauthorised i.e. without payment of rent and without any right. The revenue record recorded the petitioner to be an unauthorised occupant whereas the land came within the ambit of shamilat deh and so the court came to the conclusion that no question of title arose on the facts of the present case. Except for mere verbal assertion that the land in dipute was given to the petitioner on lease by the proprietors of patti kisana, no other evidence was led by the petitioner before the Assistant Collector Ist Grade and thus the Assistant Collector Ist Grade rightly decided the application under Section 7 of the Act. Even before this Court, the documents placed on record (copies of jamabandi from 196162 onwards) do not prima facie make a case for determination of question of title as it is clear that the land is recorded as ''Charand'' in the revenue papers and was being put to common purposes of the village i.e. for grazing before the same came to be occupied by the petitioner. Not only this petitioner is recorded to be an unauthorised occupant without payment of rent. In fact, on perusal of the reply filed by the petitioner it becomes clear that no such question was raised challenging the title of the gram panchayat in respect of the suit land. The petitioner has taken contradictory pleas in the present writ petition. He has tried to assail the correctness of the impugned orders of the authorities firstly on the ground that the land does not come within the ambit of shamilat deh and in the alternative has paid claim on the ground that the lease in his favour is for unlimited purpose and thus his possession over the land in dispute cannot be termed as unauthorised unless the lease is terminated or it is proved that there is infringement of any of the terms of the lease deed. Thus, it would be appropriate to examine his contention with regard to the alleged lease also. For this, the petitioner referred to copy of the resolution dated 20.7.1963 in CWP No. 5564 of 1982 and contended that the lease is for an unlimited purpose. Since the same has not been terminated under Section 10A of the Act, the impugned orders passed by the authorities are fully vitiated. Annexure P10 is copy of the resolution of gram panchayat Thana dated 20.7.1963. Vide this resolution No. 4, gram panchayat decided to auction Patti Shamlat Deh Charand measuring about 35 acres 2 kanals 15 marlas and approved the bid in favour of Waryam Singh s/o Dargah Singh, Partap Singh s/o Teja Singh, Ghasita Singh s/o Nand Singh and Shingara Singh s/o Achhar Singh. It was decided to lease out the land at the rate of Rs. 28.50 per acre per annum. In addition thereto, the lessee was to pay betterment charges and other taxes. Rishal Singh Sarpanch was authorised to complete the formalities of the transaction.

Except for this resolution, no other documents i.e. execution of the lease deed has been brought on record; perhaps for the reason that no such lease deed was executed between the parties. Even it we take that the petitioner was put in possession pursuant to lease deed, though denied by the petitioner in his reply to the application under Section 7 of the Act as well as his contention before the Court of Collector, no proof has been adduced by the petitioner that during these years he had been paying the lease amount as per resolution dated 20.7.1963. One cannot lose sight of the fact that as per Rule 6 of the Punjab Village Common Lands (Regulation) Rules 1963 (for short "the Rules"), land under plough cannot be leased for a period exceeding two years whereas the land not under plough and infested with trees, bushes etc can be given for a period upto five years. Examining the resolution in the light of Rule 6 of the Rules, at best the petitioner could lay his legitimate claim for a period of five years from 20.7.1963 and thereafter was to surrender his possession to the gram panchayat. Rule 19 of the rule deals with unauthorised occupation of shamilat deh. As per this rule, a person is deemed to be in unauthorised possession of land in shamilat deh : (a) where he has, whether before or after the commencement of the Act, entered into possession thereof otherwise than under and in pursuance of any allotment, lease or grant by the panchayat; or (b) where he being an allottee, lessee or grantee, has by reason of the determination or cancellation of his allotment lease or grant in accordance with the terms in the behalf, therein contained, ceased whether before or after the commencement of the Act, to be entitled to occupy or hold such land in shamilat deh; or (c) ...... For purposes of clause (a) a person shall not, merely by reason of the fact that he has paid any rent he deemed to have entered into possession as allottee, lessee or grantee. Admittedly, there is no averment that during all these years any lease money was paid by the petitioner. Construing this way also, there clear proof of the infringement of resolution dated 20.7.1963 thus making the petitioner as an unauthorised occupant. The judgment relied upon by the counsel in case reported as Tele and others v. Gram Panchayat of village Katwal and others, 1974 P.L.J. 57 and CWP No. 1479 of 1979 decided on 6.9.1979 also do not help the petitioner in any manner. As per facts in Tale''s case (supra), the petitioners were in cultivating possession of the land in dispute who were inducted as tenants at will by one Bawa Kehri Nath to a Dohlidar. There was some litigation between this Dohlidar and the gram panchayat which impelled the gram panchayat to eject the petitioners from the land in dispute. In the civil suit, it was alleged that the Dohli tenure of Bawa Kehri Nath had come to an end and this way the possession of the petitioners was illegal and unlawful. The petitioners resisted the claim of the gram panchayat and ultimately they persuaded the gram panchayat to treat them as tenants at will. It is in these circumstances that the court held that possession of the petitioners was tenant at will who had not contravened any of the terms of the lease and on these premises it was held that the petitioners possession cannot be termed as unauthorised under Rule 19 of the Rules. It was also held that the gram panchayat could not unilaterally terminate the tenancy just before the time the crop was ready for harvesting. As examined earlier, the case of the petitioner consistently had been that he was inducted as a lessee over the land in dispute by the owners of patti kisana which claim has been found by the authorities below without any merit. Even on persual of the revenue record placed on record by the petitioner in CWP No. 5564 of 1982, the same does not advance the case of the petitioner in any manner. In fact, the revenue entries clearly belie all the assertions made by the petitioner that the land does not vest in shamilat deh and is the property of patti kisana or that the possession of the petitioner is as a lessee. The last submission of the counsel is with regard to the imposition of penalty i.e. ordering him to pay at the rate of Rs. 1500/ per hectare for three years. As per Section 7(2) of the Act as applicable to the State of Haryana, Assistant Collector Ist Grade has been given power to impose penalty in respect of land and other immovable property which is proved to be in wrongful or unauthorised possession of a person. The penalty imposed in view of holding of the petitioner, 56 Kanals 17 Marlas, is quite reasonable and the same does not call for any interference. Even the contention of the counsel that the petitioner could not be ordered to be evicted from the structure raised over the part of the land in dispute for his residence is too without any merit. Though there is no clear proof on record as to when such structure was raised over a portion of the land is dispute, all the same even if it be taken that the same was raised soon after the property was leased out i.e. some time in the year 196365, such a structure would not come within the exclusion or Section 2(5)(vi) of the Act as the same excludes the land under gitwar, bara manure pit, a house or for cottage Industry if in existence before the commencement of this Act which came into force on May 4, 1961. Petitioner/petitioners have remained in possession of Gram Panchayat land over a number of years almost 30 years and that too without payment of any rent. Gram Panchayat for reasons best know did not initiate steps to recover possession or ever ''mesne profits'' for use and occupation till 1979 when proceedings were initiated for eviction of petitioner under Section 7 of the Act. No proof is on record that any payment during all these years have been made or any amount deposited before or after initiation of proceedings by the petitioner/petitioners. The impugned orders of Assistant Collector Ist Grade and Collector under the Act are legal and just and do not call for interference under writ jurisdiction. Hence, all these writ petitions are dismissed. No costs.