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 2the 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 6Punjab 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