Soran vs State of Haryana and others

Mahesh Grover, J.—The petitioner has filed the present petition under Articles 226/227 of the Constitution of India for issuance of a writ in the nature of certiorari quashing orders dated 30.7.2004 (Annexure P7), 22.11.2004 (Annexure P8) and 21.9.2005 (Annexure P9) passed by Assistant Collector 1st Grade, Kurukshetra (respondent No. 4); the Collector Kurukshetra (respondent No. 3) and the Commissioner, Ambala Division, Ambala (respondent No. 2), respectively.

The facts of the case are that the petitioner is stated to be the proprietor of village Bishan Garh (Darra Khurd), District Kurukshetra and, therefore, he is shareholder in the Shamlat Bachat land of the village. According to him, the land in question is situated in the revenue estate of village Bishangarh (Dara Khurd), District Kurukshetra and it has been in possession of his forefathers since the year 191819 because it is recorded in the column of ownership in the jamabandi for that year as "shamlat deh hasab rasab Zare khewatt", whereas in the column of cultivation, the name of his grandfather has been recorded a Gair Marusian. He has averred that in the column of rent, the land in question has been recorded "Lagan Nadarad Bawajah Taswar Malkiati". Even in the jamabandis for the years 196768 and 197273, the father of the petitioner has been recorded to be in possession of the land in question and in the jamabandi for the year 200203, he and his father have been shown to be in possession as share holders and the ownership of "shamlat deb hasab rasad zare khewat" has been recorded. The petitioner has pleaded that during the consolidation in the village, the land in question was not as assigned for any common purpose and was never utilised for common purpose as defined in Section 2(bb) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (for short, ''the 1948 Act''). In brief, his contention is that the land is not shamlat deh and it continued to belong to the proprietors of the village and continued to be in their possession. In 1992, the State of Haryana amended the Punjab Village Common Lands (Regulation) Act, 1961 (for brevity, ''the 1961 Act'') and by virtue of the amendment, the land in question was included in the definition of ''shamlat deh''.

The petitioner has asserted that the amendment made in the 1961 Act became the subject matter of challenge before the High Court and the Full Bench of the High Court in Jai Singh v. State of Haryana, 1995(1) RRR 623 (P&H) : (19951)109 P.L.R. 614 (F.B.), struck down the amending provisions as being violative of Articles 31A and 14 of the Constitution of India. The matter then went up in Petition for Special Leave to Appeal before the Supreme Court [Reported as State of Haryana v. Jai Singh, 2001(1) RCR(Civil) 579 (SC) : (19991)121 P.L.R. 322 (S.C.) Editor] and it was remanded back for fresh decision. The Full Bench of this court reheard the matter and delivered the decision on 13.3.2003 (reported as (20032)134 P.L.R. 658) and it was held that the land which has been contributed by the proprietor on the basis of pro rata cut on their holdings imposed during the consolidation proceedings and had not been earmarked in the Consolidation Scheme shall not vest in the Gram Panchayat and the State Government on the dint of subsection (6) of the Section 2(g) and the explanation appended thereto or any other provisions of the 1961 Act or 1949 Act.

A petition under Section 7 of the 1961 Act was filed by respondent No. 5 against the petitioner seeking his ejectment from the land in question. The petitioner took up the plea that the land is not shamlat deh and does not vest in the Gram Panchayat and since the question of title was involved, therefore, before the proceedings under Section 7 could be adjudicated upon, it was incumbent upon Assistant Collector, 1st Grade, Kurukshetra (respondent No. 4) to decide the question of title.

Respondent No. 4 accepted the application moved by respondent No. 5 and ordered the eviction of the petitioner vide order Annexure P7. Thereafter, the petitioner filed appeal before respondent No. 3 who dismissed the same vide his order Annexure P8. Revision filed by the petitioner was dismissed by respondent No. 2 vide order Annexure P9.

Feeling aggrieved by orders Annexures P7 to P9, the petitioner has approached this Court for quashing of the same by contending that the land in question never vested in the Gram Panchayat and was not shamlat deh as it had never been reserved for any common purpose and rather, it was Bachat land and the proprietor of the village being shareholders are in possession of the same.

Respondent Nos. 1 to 4 and respondent No. 5 have filed written statement and have asserted that the land in question belongs to the Gram Panchayat and the petitioner was an unauthorised occupant of the same which is chahi in nature and can be leased out for the benefit of the village panchayat as it is a productive land.

We have heard learned counsel for the parties.

A perusal of tile jamabandis placed on the record shows that the land in question has been recorded as shamlat deh. Nothing was produced before the revenue authorities and even before this Court to suggest that the land is not shamlat. In view of the concurrent findings recorded by the all the three revenue authorities and the fact that there is no evidence on record which can persuade us to come to a different conclusion, we hold that there is no ground to interfere with the impugned orders in exercise of writ jurisdiction.

Learned counsel for the respondents have submitted that the land in dispute, according to the jamabandies, has been recorded as Gair Mumkin Johar which is about 20 feet deep and the petitioner does not have any relation or concern with the same. We find force in the submission of the learned counsel for the respondents. The revenue authorities have recorded concurrent finding to this effect and the petitioner has not been able to show anything contrary.

Shri Arvind Singh, learned counsel for the petitioner submitted that once the question of title had been raised, then it was incumbent upon respondent No. 4 to decide the same and then adjudicate upon the petition moved under Section 7. He further submitted that the revenue authorities had no jurisdiction to comment upon the ownership while deciding a petition under Section 7.

We do not agree with the contention of the learned counsel for the petitioner as in every case where the person is alleged to be in unauthorised occupation, the natural defence of such person is likely to be that he is owner of the land. In this manner, any proceeding initiated under Section 7 of the 1961 Act is likely to be defeated if such an argument is to be accepted. To ascertain the factum as to whether the person is unathorised occupant or not, the Assistant Collector will necessarily have to examine the records which may include the record of ownership as well. This would be a natural corollary to the proceedings under Section 7 of the 1961 Act if one were to determine the unauthorised possession of a person.

Whenever the question of title is sought to be raised, then the person, who so wishes, is free, to raise under Section 13 of the 1961 Act, but it cannot be said that by merely raising a plea of title, the proceedings under Section 7 can be defeated. No Court can determine the factum of unauthorised possession without examining the necessary record which can throw light on the rights of a person, who has entered the property in dispute.

For the reasons stated above, we do not find any ground to interfere with the impugned orders and, therefore, the writ petition is dismissed.