High Court Punjab-Haryana High Court

Mange Ram vs The District Development And … on 23 October, 2008

Punjab-Haryana High Court
Mange Ram vs The District Development And … on 23 October, 2008
CWP No.17997 of 2008                      1



IN THE HIGH COURTOF PUNJAB AND HARYANA, CHANDIGARH.

                                              CWP No. 17997 of 2008
                                               Date of decision: 23.10.2008

Mange Ram
                                               ....Petitioner.

                          vs.

The District Development and Panchayat Officer and others.


                                               ..Respondents


CORAM:       HON'BLE MR.JUSTICE J.S.KHEHAR.
             HON'BLE MS.JUSTICE NIRMALJIT KAUR.

                              ---
Present:     Mr.Ajay Jain, Advocate, for the petitioner.
                         --

J.S.KHEHAR,J.

The controversy in the present case came to be initiated at the

hands of three residents of village Chamar Khera Tehsil Uklana District

Hisar, namely; Sukh Lal, Ram Kishan and Birbal. The aforesaid residents

of village Chamar Khera filed an application under section 7 of the Punjab

Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as

“the Act”) (as applicable to Haryana), seeking the eviction of Mange Ram

(the petitioner herein). The title of the aforesaid application reads as under:-

“Application under section 7 of the Punjab Village Common
Lands (Regulation) Act, 1961, for eviction of respondent No.1
from shamlat deh/chargah land adjoining the plots No.417,418,
426, 430 and 431 (towards village side which has been shown
with red colour with marks ABCDEFIC in rough site plan
attached with the application and at the end of gali No.425)
situated in village Chamar Khera Tehsil Uklana District Hisar
and imposing the penalty be for illegal use and occupation of
CWP No.17997 of 2008 2

the said land; on the basis of evidence both oral and
documentary of every kind.”

In furtherance of the aforesaid application,a notice was issued to Mange

Ram i.e. the petitioner herein by the District Development and Panchayat

Officer-cum-Assistant Collector Ist Grade, Hisar, on 27.8.2007 to appear

before him on 7.9.2007 and to show cause why an order of eviction be not

passed against him, as also as to why penalty at the rate of Rs. 10,000/- per

hectare per year be not imposed upon him.

In response to the aforesaid show cause notice, Mange Ram

appeared before the District Development and Panchayat Officer-cum-

Assistant Collector Ist Grade, Hisar, on 7.9.2007. On 7.9.2007 a copy of the

application filed by Sukh Lal, Ram Kishan and Birbal was furnished to him

by the Assistant Collector Ist Grade, Hisar. In his reply filed on 7.9.2007

itself, he denied that he was in unauthorised possession of the panchayat

land. He also asserted that the claim made against him was based on wrong

facts. He affirmed that he was in possession of land which he owned, and

that, he was not in possession of any land belonging to the Gram Panchayat.

He expressly invited the applicants Sukh Lal, Ram Kishan and Birbal to

get the plot of land demarcated by asserting that if he was found in

unauthorised possession of the land belonging to the Gram Panchayat he

would vacate the same.

In view of the stance adopted by the petitioner herein i.e.

Mange Ram, the Gram Panchayat had also been impleaded as party-

respondent in the application filed by Sukh Lal, Ram Kishan and Birbal.

The Gram Panchayat filed its reply to the aforesaid application before the

Assistant Collector Ist Grade, Hisar, on 3.10.2007, wherein the factual
CWP No.17997 of 2008 3

position asserted in the application to the effect that Mange Ram was in

unauthorised possession of land belonging to the Gram Panchayat was

acknowledged. Besides the aforesaid, the Gram Panchayat also required the

Assistant Collector Ist Grade, Hisar, to evict Mange Ram from the land in

question and to hand over the vacant possession of the land to the Gram

Panchayat.

In view of the express stance adopted by the petitioner herein

i.e. Mange Ram before the Assistant Collector Ist Grade, Hisar, an order

was passed on 1.4.2008 directing the Block Development and Panchayat

Officer,Uklana to demarcate the land and to submit a report after spot

inspection. In compliance with the aforesaid order, the Block Development

and Panchayat officer, Uklana, submitted a report dated 8.4.2008. Along

with the report, the Block Development and Panchayat Officer, Uklana,

attached a site plan depicting the unauthorised possession of Mange Ram

over the land measuring 1705 square yards.

After the aforesaid report dated 8.4.2008, was placed on the

record of the ejectment application filed by Sukh Lal,Ram kishan and

Birbal, the petitioner herein i.e., Mange Ram stopped participating in the

proceedings before the Assistant Collector Ist Grade, Hisar. He was

accordingly proceeded against ex parte. The Assistant Collector Ist Grade,

Hisar, by his order dated 11.4.2008, arrived at the conclusion that the

petitioner Mange Ram was in unauthorised possession of 1705 square

yards of land belonging to the Gram Panchayat. He was accordingly

directed to hand over possession thereof to the Gram Panchayat within a

period of ten days. In addition to the above, Mange Ram was required to

pay a penalty of Rs.10,000/- per hectare per year for his aforesaid
CWP No.17997 of 2008 4

unauthorised occupation of land belonging to the Gram Panchayat. He was

directed to deposit the aforesaid penalty in the account of the Gram

Panchayat within a period of 30 days, failing which the same would be

recovered as arrears of land revenue.

Dissatisfied with the order passed by the Assistant Collector Ist

Grade, Hisar, dated 11.4.2008, Mange Ram preferred an appeal before the

Collector, Hisar. The appeal preferred by Mange Ram was dismissed by the

Collector, Hisar on 29.7.2008.

Having failed before the Assistant Collector Ist Grade, Hisar,

as also before the Collector, Hisar, Mange Ram preferred a revision petition

before the Commissioner, Hisar Division, Hisar. The Commissioner, Hisar

Division, Hisar, in the first instance summoned the entire file of the case,

and thereafter, by an order dated 7.10.2008, concurred with the finding

recorded in the previous orders passed by the revenue authorities by arriving

at the conclusion that Mange Ram was in unauthorised possession of land

belonging to the Gram Panchayat. Accordingly, the revision petition filed

by Mange Ram was dismissed on 7.10.2008.

Through the instant writ petition the petitioner has impugned

the order passed by the Assistant Collector Ist Grade, Hisar, dated

11.4.2008, the order passed by the Collector, Hisar dated 29.7.2008, as also

the order passed by the Commissioner, Hisar Division, Hisar, dated

7.10.2008.

The first contention advanced by the learned counsel for the

petitioner is that the land in question is not shamilat deh, and as such, there

was no question of the revenue authorities ordering the eviction of the

petitioner therefrom. The case set up by the learned counsel for the
CWP No.17997 of 2008 5

petitioner is that the revenue authorities have described the land as “abadi

deh”, and as such, there was no question of eviction of the petitioner

therefrom. In this behalf, the vehement contention of the learned counsel for

the petitioner, is that land which is described as “abadi deh” is not “shamilat

deh”. In order to support his aforesaid contention, learned counsel for the

petitioner has placed reliance on a decision rendered by this Court in Gram

Panchayat v. Toti and others, 1973, PLJ 639.

We have considered the first contention advanced by the

learned counsel for the petitioner, as has been noticed in the foregoing

paragraph.

In order to ascertain as to whether the land allegedly in

possession of the petitioner was or was not “shamilat deh”, reference is

liable to be made to section 2(g) of the Act(as applicable to Haryana). The

same is accordingly being reproduced hereunder:-

“2.Definitions.– In this Act, unless the context otherwise
requires,–

             (a) to (f)    xxx         xxx          xxx             xxx
             (g)    "shamilat deh" includes-

(1) lands described in the revenue records as Shamilat
deh or Charand excluding abadi deh’
(2) shamilat tikkas;

(3) lands described in the revenue records as shamilat,
tarafs, pattis, 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;
(4) lands used or reserved for the benefit of village
community including streets, lanes, playgrounds,
schools, drinkings wells or ponds situated within the
sabha area as defined in clause (mmm) of section 3 the
CWP No.17997 of 2008 6

Punjab Gram Panchayat Act, 1952, excluding lands
reserved for the common purposes of a village under
section 18 of the East Punjab Holdings (Consolidation
and Prevention of Fragmentation) Act, 1948 (East Punjab
Act of 1948), the management and control whereof vests
in the State Government under section 23-A of the
aforesaid Act;

(4a) vacant land situate in abadi deh or gorah deh not
owned by any person;

(5) lands in any village described as banjar qadim and
used for common purposes of the village according to
revenue records;

but does not include land which–

(i) becomes or has become shamilat deh due to river
action or has been reserved as shamilat in villages subject
to river action except shamilat deh entered as pasture,
pond or playground in the revenue records;

(ii) has been allotted on quasi-permanent basis to a
displaced person;

(ii-a) was shamilat deh, but has been allotted to any
person by the Rehabilitation Department of the State
Government, after the commencement of this Act, but on
or before the 9th day of July 1985.

(iii) has been partitioned and brought under cultivation
by individual landholders before the 26th January, 1950;

(iv) having been acquired before the 26th January, 1950,
by a person by purchase or in exchange for proprietary
land from a co-sharer in the shamilat deh and is so
recording in the jamabandi or is supported by a valid
deed;

(v) is described in the revenue records as shamilat, taraf,
pattis, pannas, and thola and not used according to
revenue records for the benefit of the village community,
or a part thereof or for common purposes of the village.

CWP No.17997 of 2008 7

(vi) lies outside the abadi deh and was being used as
gitwar, bara, manure pit, house or for cottage indus5try,
immediately before the commencement of this Act;

(vii) Omitted by Haryana Act No.18 of 1995.

(viii) was shamilat deh, was assessed toland revenue and
has been in the individual cultivating possession of co-
sharers not being in excess of their respective shares in
such shamilat deh on or before the 26th January, 1950, or

(ix) is used as a place of worship or for purposes
subservient thereto;

(6) lands reserved for the common purposes of a village under
section 18 of the East Punjab Holdings (Consolidation and
Prevention of Fragmentation) Act, 1948 (East Punjab Act 50
of1948), the management and control whereof vests in the
Gram Panchayat under section 23-A of the aforesaid Act.
Explanation.- Lands entered in the column of ownership of
record of rights as “jumla Malkan Wa Digar Haqdaran Arazi
Hassab Rasad”, “Jumla Malkan” or “Mushtarka Malkan” shall
be shamilat deh within the meaning of this section;”.

Effort of the learned counsel for the petitioner to demonstrate that the land

in question should be deemed to be excluded from shamilat deh is based

on clause (1) of section 2(g) extracted hereinabove.

It is not possible for us to accept the aforesaid contention of

the learned counsel for the petitioner. In our view the land in question

would be deemed to be “shamilat deh” under clause (4a) of section 2(g) of

the Act which expressly mandates that vacant land situated in “abadi deh”

not owned by any person would be deemed to be shamilat deh. In the site

plan prepared by the Block Development and Panchayat Officer, Uklana,

enclosed with the report submitted by him in furtherance of the direction

issued by the Assistant Collector Ist Grade, Uklana, shows that the land
CWP No.17997 of 2008 8

under reference is vacant land reserved for “chargah” within “abadi deh”.

The vacant land in question measures 1705 square yards. Since the

petitioner has not been able to demonstrate ownership rights in respect of

the aforesaid land, we are of the view that the first contention advanced by

the learned counsel for the petitioner is wholly misconceived in view of the

clear mandate of clause (4a) of section 2(g) of the Act,

The second contention advanced by the learned counsel for the

petitioner was also to the same effect as the first contention. Relying upon

the site plan placed on the record of the writ petition as Annexure P12,

learned counsel for the petitioner invited this Court’s attention to the fact

that in the site plan prepared by the Gram Panchayat, the illegal possession

and construction of the petitioner in respect of the land belonging to the

Gram Panchayat was described as falling “within abadi deh of village

Chamar Khera”. On the basis of Annexure P12 also, it was the contention

of the learned counsel for the petitioner, that the land in question from

which petitioner’s eviction was sought cannot be treated as “shamilat deh”

and as such the application filed under section 7 of the Act, deserves to be

dismissed for this reason alone.

For the same reasons, as have been recorded by us while

disposing of the first contention of the learned counsel for the petitioner, we

find no merit in the second contention as well, since we have arrived at the

conclusion that the land under reference which was vacant land within the

“abadi deh”, and was not in the ownership of any one, the same was liable

to be treated as “shamilat deh”. An application under section 7 of the Act to

evict anyone in unauthorised possession thereof was, in our view,

permissible, from the land under reference.

CWP No.17997 of 2008 9

The third contention advanced by the learned counsel for the

petitioner, is that the petitioner is in possession of plots No.417, 418, 426

etc. situated in village Chamar Khera in the capacity of an owner and not as

an unauthorised occupant thereof, and as such, there is no question of the

authorities requiring him to vacate the aforesaid land under any

circumstances. In so far as the instant contention of the learned counsel for

the petitioner is concerned, reliance was placed on the reply to the notice

issued under rule 20 of the Punjab Village Common Lands (Regulation)

Rules, 1964 ( as applicable to Haryana),copy whereof was placed on the

record of the writ petition as Annexure P3.

The third contention advanced by the learned counsel for the

petitioner, in our view, is also wholly misconceived. In the application filed

under section 7 of the Act at the hands of Sukh Lal, Ram Kishan and Birbal,

the eviction of the petitioner was not sought from the place mentioned by

him in his reply Annexure P3. In fact the head-note of the application filed

by Sukh Lal, Ram Kishan and Birbal, which has been extracted

hereinabove, reveals that the petitioner’s eviction was sought from the land

shown in red colour marked as ABCDEFIC attached with the application.

The head-note also records that the land in question adjoins plot plot

Nos.417, 418, 426, 430 and 431. The statement of the petitioner in

depicting the ownership of the petitioner in respect of plot Nos.417, 418 and

426 etc. is, therefore, wholly misconceived as the petitioner’s eviction was

not being sought from the aforesaid plots. In view of the factual position

noticed hereinabove, we find no merit even in the third contention

advanced by the learned counsel for the petitioner.

The fourth contention advanced by the learned counsel for the
CWP No.17997 of 2008 10

petitioner was, that the land from which the petitioner’s eviction was sought

was wrongly depicted in the notice issued to the petitioner by the Assistant

Collector Ist Grade, Hisar, dated 27.8.2007 (Annexure P2). In this behalf,

the contention of the learned counsel for the petitioner is that the petitioner’s

eviction has been ordered from land which was not mentioned in the notice

issued to him and as such, there was no justification whatsoever for the

revenue authorities to pass the impugned orders.

Although the fourth contention advanced by the learned

counsel for the petitioner seems to be attractive on first blush, we are of the

view that the petitioner has very cleverly raised the instant plea so as to

defeat a fully justified claim raised against him seeking his eviction from

the land owned by the Gram Panchayat, of which he is in unauthorised

possession. The real question to be determined while adjudicating upon the

instant plea raised by the petitioner is; whether the petitioner was factually

aware about the dimensions and particulars of the land wherefrom his

eviction was sought in the application filed by Sukh Lal, Ram Kishan and

Birbal. This position becomes abudantly clear from the title of the aforesaid

application which has already been extracted hereinabove. The land over

which the petitioner was allegedly in unauthorised possession was depicted

in the site plan appended to the application filed under section 7 of the Act

by Sukh Lal, Ram Kishan and Birbal in red colour. The same was also

marked as ABCDFEIC. There could, therefore, be no confusion

whatsoever in so far as the land from which the eviction of the petitioner

was sought. The fact that the aforesaid application in which the land in the

unauthorised possession of the petitioner was sought, was demarcated,

during the course of the proceedings before the Assistant Collector Ist
CWP No.17997 of 2008 11

Grade, Hisar. Additionally, the defence of the petitioner stands noticed in

the following paragraph of the order passed by the Assistant Collector Ist

Grade, Hisar, dated 11.4.2008:-

” Respondent No.1 Mange Ram came present on
07.09.2007 and he was given copy of the application.
Respondent No.1 on that very day submitted his reply to the
notice under Rule 20 and got recorded his statement.
Respondent No.1 in his reply submitted that the present
application has been filed against him by stating wrong facts
and further submitted that he is not in unauthorised possession
of the panchayat land. Further that he is in possession of the
land owned by him and no notice was given to him regarding
the demarcation. He further submitted that Sukhlal etc. may get
the plot demarcated and notice be given to him, and if he is
found to be in unauthorised possession he would vacate the
same. Apart from this respondent No.1 in his evidence
submitted that the reply submitted by him be read as a part of
his evidence and he does not want to lead any other evidence
and accordingly close my evidence”.

It is, therefore, apparent that a copy of the application filed under section 7

of the Act by Sukh Lal, Ram Kishan and Birbal, was handed over to the

petitioner on 7.9.2007 when the petitioner appeared before the Assistant

Collector Ist Grade, Hisar. The petitioner chose not to file any reply thereto.

The land in question was also demarcated during the course of the

proceedings of eviction, without any protest at the hands of the petitioner.

The petitioner must therefore, be held blameworthy for his aforesaid lapse,

firstly, in not filing any reply to the ejectment application (wherein the land

was properly demarcated), and secondly, for not participating in the

proceedings being conducted against him. The Assistant Collector Ist
CWP No.17997 of 2008 12

Grade, Hisar, by his order dated 11.4.2008 directed the Block Development

and Panchayat Officer, Uklana to demarcate the land in question and to

submit his report after inspection. The report dated 7.4.2008 submitted by

the Block Development and Panchayat Officer, is available on the record of

this case as Annexure P4. The report expressly notices the unauthorised

possession of Mange Ram was over land reserved for “chargah”. The site

plan appended to the report of the Block Development and Panchayat

Officer clearly depicts that the land in question over which he was found to

be in unauthorised possession was the same as the one depicted in the

ejectment application filed under section 7 of the Act by Sukh Lal, Ram

Kishan and Birbal. Besides the aforesaid, three witnesses appeared before

the Assistant Collector Ist Grade on behalf of the applicants who had

preferred the ejectment application against Mange Ram. Their statements

were placed on the record of this case as Annexures C,D and E through civil

miscellaneous application No.20930-31 of 2008. In the statements of the

three witnesses who appeared on behalf of the applicants the land in

unauthorised possession of the petitioner was described as under:-

“…The land in dispute is adjoining plots No.417, 418, 426, 430
and 431 towards village site which has been shown in the
estimated site plan (Ex.A-1) with marks ABCDEFIC. This land
is at the end of Gali No.425 and the same is owned by Gram
Panchayat Chamar Khera. This place is used for the common
benefit and is the land of Shamilat Deh and Chargha, but …..”.

It is, therefore, not possible for us to accept that there was any confusion at

the hands of the petitioner in so far as the particulars of the land from which

his eviction was sought. The petitioner did not lead any evidence before the

Assistant Collector Ist Grade, Hisar, to repudiate the allegations levelled
CWP No.17997 of 2008 13

against him. The petitioner had himself made an offer that the applicants

should have the land demarcated, and that, if he is found to be in

unauthorised possession he would hand over vacant possession to the

Gram Panchayat. There is overwhelming evidence available on the record

of this case that the petitioner is in unauthorised possession of the land

depicted in the application filed by Sukh Lal, Ram Kishan and Birbal under

section 7 of the Act. In the absence of any confusion on the issue, we are of

the view that the instant plea raised by the petitioner is wholly

misconceived and is liable to be rejected.

It would be unfair on our part if while disposing of the fourth

contention advanced by the learned counsel for the petitioner, we do not

take into consideration the decision rendered by this Court in Albel Singh

V. Gram Panchayat of village Rampura, 1984 PLJ 88 relied upon by the

learned counsel for the petitioner. Reliance was placed on the factual

position noticed in paragraphs 3 and 4 of the aforesaid judgment, which are

being extracted hereunder:-

” It has been argued by the learned counsel for the
petitioner that in the notice, copy of which is appended as
Annexure P.2 to this writ petition, it was mentioned that the
petitioner had encroached upon an area of 50’x2′ of the public
street by constructing a chaunkari (slightly raised platform).
There is no mention in this notice regarding any encroachment
by the petitioner by building a Chhapar on any public
premises. He further contended that it has been admitted by the
Gram Panchayat in the written statement in para No.1 that the
Chaunkari in question has already been demolished. He argued
that the order of eviction regarding the Chhapar is wholly
without jurisdiction because this is not in consonance with
notice Annexure P2. The petitioner had not been given any
CWP No.17997 of 2008 14

opportunity to meet this case. He had not been required to
prove that he was not in unauthorised occupation of the land
over which the disputed Chhapar had been set up. The
averments in the return filed by the Gram Panchayat respondent
No.1 bear out the contention of the learned counsel. It has been
very candidly admitted therein that due to an oversight the
Collector did not include the encroachment made by the
petitioner by constructing a Chhapar on the Panchayat land in
the notice given to the petitioner.”

” It is thus established that the Collector had not issued a
notice to the petitioner that he was in unauthorised occupation
of the Panchayat land and had put up construction in the form
of a Chappar and he should vacate the same. The Collector
has, however, ordered the eviction of the petitioner from the
land and the removal of the Chhapar also. This is patently
illegal. The orders of the Collector and also the Commissioner
cannot be sustained. This writ petition is, therefore, allowed
and the orders of the Collector and the Commissioner dated
31.5.1976 and 26.10.1976 respectively are set aside. It shall,
however, be open to the respondents to proceed in the matter
regarding Chhapar, if so advised, in accordance with the
provisions of law. No costs.”

The pointed case projected by the petitioner in Albel Singh’s case (supra)

relied upon by the learned counsel for the petitioner was that the petitioner

therein was not given an opportunity to meet the case set up against him.

This is not so in so far as the present controversy is concerned. When the

petitioner Mange Ram appeared before the Assistant Collector Ist Grade,

Hisar on 7.9.2007, he was furnished with a copy of the application filed by

Sukh Lal, Ram Kishan and Birbal. On the first date when he appeared

before the Assistant Collector Ist Grade, Hisar, he became aware of the

particulars of the land from which his ejectment was being sought. During
CWP No.17997 of 2008 15

the course of proceedings before the Assistant Collector Ist Grade, Hisar,

the Block Development and Panchayat Officer, Uklana, was directed by the

Assistant Collector Ist Grade, Hisar, to demarcate the land from which the

petitioner’s ejectment was being sought and to submit a report. During the

course of the aforesaid demarcation, the Block Development and Panchayat

Officer, demarcated the land from which the petitioner’s eviction was being

sought in consonance with the application filed by Sukh Lal, Ram Kishan

and Birbal. Thereafter, three witnesses appeared on behalf of the applicants

namely Sukh Lal as AW1, Ram Kishan as AW2 and Roshan as AW3. All

the witnesses clearly described the particulars of the land from which the

petitioner’s eviction was sought. Therefore, well before the onus fell on the

shoulder of the petitioner to repudiate the claim of the applicants, he was

repeatedly made aware of the particulars of the land from which his

ejectment was sought. This is not a case wherein the petitioner can be

described as a person who has not been afforded an opportunity to meet the

case set up by the applicants. The petitioner himself chose not to file any

reply to the ejectment application filed by Sukh Lal, Ram Kishan and Birbal

(copy whereof was handed over to him on 7.9.2007). He also chose not to

lead any evidence to repudiate the evidence produced by the applicants. He

has also not contested or challenged the report submitted by the Block

Development and Panchayat Officer dated 7.4.2008. For all the aforesaid

reasons, we are of the view, that this is not a case which can be described as

one wherein the aggrieved party had not been afforded an opportunity to

meet the case set up against him. The petitioner is blameworthy for his own

lapses and must suffer for the consequences thereof.

No other contention besides those noticed in in the aforemen-
CWP No.17997 of 2008 16

tioned paragraphs, was advanced on behalf of the petitioner.

Having examined the issues advanced by the learned counsel

for the petitioner in their totality, we are satisfied that all the pleas raised on

behalf of the petitioner were frivolous. The petitioner who chose

unilaterally not to defend himself before the Assistant Collector Ist Grade

Hisar, despite having appeared before him in response to the notice issued

to him has continued to assail the ejectment order passed against him. This

is a typical case wherein an individual has tried to misuse the process of law

to defeat a valid and justifiable claim. In the peculiar facts and

circumstances of this case, we are satisfied that the instant writ petition

deserves to be dismissed with costs. The same is accordingly dismissed with

costs quantified at Rs.50,000/-. The petitioner is directed to deposit the

aforesaid costs with the Legal Services Authority, Haryana, within two

months from today. In case no such deposit is made within the time

stipulated hereinabove, the Registry shall re-list this case for motion

hearing, so as to enable this Court to recover the costs imposed upon the

petitioner.

Disposed of accordingly.

( J.S.Khehar)
Judge

(Nirmaljit Kaur)
Judge

October 23, 2008
rk
CWP No.17997 of 2008 17