{"id":258257,"date":"2008-11-06T00:00:00","date_gmt":"2008-11-05T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/smt-asha-and-another-vs-collector-on-6-november-2008"},"modified":"2018-08-25T15:44:22","modified_gmt":"2018-08-25T10:14:22","slug":"smt-asha-and-another-vs-collector-on-6-november-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/smt-asha-and-another-vs-collector-on-6-november-2008","title":{"rendered":"Smt. Asha And Another vs Collector on 6 November, 2008"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Smt. Asha And Another vs Collector on 6 November, 2008<\/div>\n
             C.W.P No.19026 of 2008                       1\n\n\n             In the High Court of Punjab and Haryana, Chandigarh.\n\n\n                                           C.W.P No.19026 of 2008\n\n\n                                            Date of Decision: 6.11.2008\n\n\nSmt. Asha and another\n                                                   ....Petitioners.\n\n                  Versus\n\nCollector, Jhajjar and others\n                                                   ....Respondents.\n\n\nCoram:- Hon'ble Mr.Justice J.S. Khehar\n        Hon'ble Ms. Justice Nirmaljit Kaur\n\n\nPresent: Mr. Mahavir Sandhu, Advocate\n         for the petitioners.\n\n                     ...\n\nJ.S. Khehar, J.\n<\/pre>\n
1.           The controversy in the present writ petition relates to the<\/p>\n
initiation of action at the hands of the Gram Panchayat, Kaloi in Tehsil and<\/p>\n
District Jhajjar, for the ejectment of the petitioners from the land of the<\/p>\n
Gram Panchayat comprised in Khewat No.82, Khatauni No.287, Khasra<\/p>\n
Nos.882\/1 and 882\/3. For the aforesaid objective, the Gram Panchayat filed<\/p>\n
an application under Section 7 of the Punjab Village Common Lands<\/p>\n
(Regulation) Act, 1961 (hereinafter referred to as the Village Common<\/p>\n
Lands Act), on 4.5.2006 (Annexure P-1). Paragraphs 2 and 3 of the<\/p>\n
aforesaid application are relevant for the determination of the various issues<\/p>\n
canvassed at the hands of the learned counsel for the petitioners, and as<\/p>\n
such, are being extracted hereunder: —\n<\/p>\n
             C.W.P No.19026 of 2008                       2<\/span><\/p>\n
\n
            “2. That the respondents on the Southern-Western side of the<\/p>\n
            land comprised in Khasra No.882\/1 which has been shown in<\/p>\n
            the map in red colour as ABCD and by constructing a wall upto<\/p>\n
            plinth level on the land which has been shown in the said map<\/p>\n
            CDEF and in the rest marked land by putting barbed wire has<\/p>\n
            illegally occupied and they also want to extend their<\/p>\n
            possession. Whereas they had no right as per law to do so.<\/p>\n
            Copy of site plan is attached with this application.<\/p>\n<\/blockquote>\n
            3.   That the applicant has number of times asked the<\/p>\n
            respondents to remove their illegal possession from the land of<\/p>\n
            Gram Panchayat and they were also restrained not to further<\/p>\n
            illegally occupy the land. Earlier they averted the matter on<\/p>\n
            one pretext or the other and ultimately on 2.5.2006 they<\/p>\n
            completely denied to remove their illegal possession. On this<\/p>\n
            date cause of action accrued to the applicant.”<\/p>\n<\/blockquote>\n
A perusal of the averments made in paragraphs 2 and 3 of the application<\/p>\n
reveals, that it was expressly asserted at the hands of the Gram Panchayat,<\/p>\n
that the petitioners were in illegal occupation of the land marked as ABCD<\/p>\n
in the site plan attached to the application dated 4.5.2006, and further, that<\/p>\n
they had also constructed a wall up to the plinth level on the said land. The<\/p>\n
location of the foundation of the wall was shown in the site plan as CDEF<\/p>\n
and on the remaining portion on the land i.e. ABEF, the petitioners were<\/p>\n
alleged to have affixed a barbed wire so as to demarcate their possession.<\/p>\n
2.          As against the aforesaid assertions made by the Gram<\/p>\n
Panchayat in the application filed under Section 7 of the Village Common<\/p>\n
Lands Act, the response of the petitioners in the written statement filed
\n             C.W.P No.19026 of 2008                        3<\/span><\/p>\n
before the Assistant Collector, First Grade, Jhajjar, was that of complete<\/p>\n
denial. It was asserted on behalf of the petitioners, that they were not in<\/p>\n
unauthorized occupation of the land depicted in the application, as also, the<\/p>\n
site plan attached thereto. The petitioners did not specifically contradict the<\/p>\n
assertion made by the Gram Panchayat to the effect, that the petitioners had<\/p>\n
constructed a wall up to the plinth level (which was depicted in the site plan<\/p>\n
as CDEF). They also did not respond to the averments made in respect of<\/p>\n
the affixation of the barbed wire so as to demarcate the land in occupation<\/p>\n
of the petitioners. For an effective and complete determination of the<\/p>\n
controversy in hand, it would be proper to extract hereunder paragraphs 2<\/p>\n
and 3 of the written statement filed by the petitioners before the Assistant<\/p>\n
Collector, First Grade, Jhajjar. The same are, accordingly, being extracted<\/p>\n
hereunder: —\n<\/p>\n
            “2. That the contents of para No.2 are wrong and hence<\/p>\n
            denied. It is however, further submitted that the respondents<\/p>\n
            have not illegally occupied any land of the Gram Panchayat.<\/p>\n
            The land in dispute is not the part of Khasra No.882\/1. The site<\/p>\n
            plan attached by the applicant along with the application is<\/p>\n
            wrong. The site plan of the spot shall be produced by the<\/p>\n
            respondents at the time of evidence.\n<\/p><\/blockquote>\n
            3. That the contents of para No.3 are wrong and hence denied.<\/p>\n
            The respondents have not made any illegal possession.”<\/p>\n<\/blockquote>\n
The Assistant Collector, First Grade, Jhajjar, by his order dated 30.11.2007<\/p>\n
(Annexure P-4) allowed the ejectment application filed by the Gram<\/p>\n
Panchayat. While ordering the eviction of the petitioners from the land in<\/p>\n
question, the Assistant Collector, First Grade, Jhajjar, also directed the
\n             C.W.P No.19026 of 2008                       4<\/span><\/p>\n
Gram Panchayat to take possession of the land under reference within one<\/p>\n
month.\n<\/p>\n
3.          Dissatisfied with the order passed by the Assistant Collector,<\/p>\n
First Grade, Jhajjar, dated 30.11.2007, the petitioners preferred an appeal<\/p>\n
before the Collector, Jhajjar. The appeal preferred by the petitioners, was<\/p>\n
dismissed by the Collector, Jhajjar, vide an order dated 22.9.2008.<\/p>\n
4.          The petitioners have approached this Court so as to impugn the<\/p>\n
order passed by the Assistant Collector, First Grade, Jhajjar, dated<\/p>\n
30.11.2007, as also, the appellate order passed by the Collector, Jhajjar,<\/p>\n
dated 22.9.2008.\n<\/p>\n
5.          Before this Court, the claim of the petitioners is based on a<\/p>\n
factual matrix which is totally different from the one adopted by the<\/p>\n
petitioners in their written statement filed before the Assistant Collector,<\/p>\n
First Grade, Jhajjar. Before this Court, it has been asserted by the<\/p>\n
petitioners that the land in respect of which the application for ejectment<\/p>\n
was filed by the Gram Panchayat, is outside the village “abadi deh”, but<\/p>\n
within the “phirni” thereof. It is the contention of the learned counsel for<\/p>\n
the petitioners, that the petitioners have built “pucca” residential house<\/p>\n
since the time of their forefathers, and that, they have been residing therein<\/p>\n
with their families. It is asserted, that the petitioners have no other<\/p>\n
residential house in the village except the house in question. Additionally,<\/p>\n
it is stated that the other inhabitants of the village had constructed houses<\/p>\n
adjoining to the house of the petitioners. It is also asserted by the<\/p>\n
petitioners, that some part of the land in question comprised of open space<\/p>\n
which the petitioners have been using as their courtyard, whereas over some<\/p>\n
part of it, the petitioners have constructed a cattle shed for tethering their
\n              C.W.P No.19026 of 2008                          5<\/span><\/p>\n
cattle. It is also the case of the petitioners, that a portion of the land is being<\/p>\n
used by the petitioners for storing agriculture implements, fuel wood,<\/p>\n
manure pit, Bitoras and fodder etc.<\/p>\n
6.           In addition to the factual position relating to the user of the<\/p>\n
land, as well as, constructions made by the petitioners thereon, it is the<\/p>\n
vehement contention of the petitioners, that the litigation under reference<\/p>\n
came to be initiated as a consequence of a political vendetta. In this behalf,<\/p>\n
it is pointed out, that some civil and criminal litigation is pending between<\/p>\n
the petitioners and the Sarpanch of the Gram Panchayat of the village, and it<\/p>\n
is on account of the inimical attitude of the Sarpanch, that the instant action<\/p>\n
has been initiated by the Gram Panchayat against the petitioners.<\/p>\n
7.           It is also the assertion at the hands of the learned counsel for<\/p>\n
the petitioners, that the petitioners are inhabitants and proprietors of the<\/p>\n
village and are owners in possession of the land in question, and that, they<\/p>\n
had every right to construct residential quarters for themselves over the suit<\/p>\n
land. In this behalf, it is pointed out that the petitioners had in fact<\/p>\n
constructed their residential house on the land in question since the time of<\/p>\n
their forefathers, and that, they had been residing therein ever since.<\/p>\n
8.           During the course of the hearing of the instant writ petition, the<\/p>\n
first contention of the learned counsel for the petitioners, was on the basis of<\/p>\n
the assertions made by them in paragraph 5 hereinabove. It is, therefore,<\/p>\n
submitted that having occupied the land in question from the time of their<\/p>\n
forefathers, their possessory right over the land is protected under the<\/p>\n
mandate of the Village Common Lands Act. It is not a matter of dispute,<\/p>\n
that even an unauthorized occupant over the Shamlat land has been vested<\/p>\n
with possessory rights under Section 4 of the Village Common Lands
\n              C.W.P No.19026 of 2008                       6<\/span><\/p>\n
Act, if he came into occupation of the land prior to 26.1.1950. Although, it<\/p>\n
has been repeatedly reiterated that the petitioners have been in possession of<\/p>\n
the suit land since the time of their forefathers, no authentic evidence has<\/p>\n
been brought to our notice on the basis whereof a clear finding can be<\/p>\n
recorded, that the petitioners came into possession of the suit land and<\/p>\n
commenced to use the same for their residence by effecting construction<\/p>\n
thereon prior to 26.1.1950. In fact, a conclusion contrary to the aforesaid<\/p>\n
can clearly be drawn on the basis of the pleadings filed by the petitioners<\/p>\n
before the Assistant Collector, First Grade, Jhajjar. From the aforesaid<\/p>\n
pleadings (paragraphs 2 and 3 thereof, as have been extracted hereinabove),<\/p>\n
it clearly emerges that there is no construction on the land in question and<\/p>\n
the construction of a wall on a part thereof is only up to the plinth level i.e.<\/p>\n
to the level of the foundation. It is, therefore, not possible for us to accept<\/p>\n
the continuous possession of the petitioners over the suit land from a date<\/p>\n
prior to 26.1.1950. For the reasons recorded hereinabove, we find no merit<\/p>\n
in the first contention advanced by the learned counsel for the petitioners.<\/p>\n
9.           The second contention advanced by the learned counsel for the<\/p>\n
petitioners, is based on the averments made in paragraph 6 hereinabove. It<\/p>\n
is the vehement contention of the learned counsel for the petitioners, that<\/p>\n
the litigation initiated by the Gram Panchayat against the petitioners, is<\/p>\n
based on political vendetta and is, as such, frivolous. To state the least, the<\/p>\n
instant contention advanced by the learned counsel for the petitioners, is<\/p>\n
wholly misconceived. The petitioners have not impleaded the particular<\/p>\n
individual on account of whom they have alleged political vendetta nor have<\/p>\n
the petitioners placed on the record of this case details of civil or criminal<\/p>\n
litigation pending between the petitioners and the Sarpanch. If allegations
\n                C.W.P No.19026 of 2008                    7<\/span><\/p>\n
of malafide were to be levelled against the Sarpanch by the petitioners, they<\/p>\n
ought to have impleaded the Sarpanch as a party respondent so as to enable<\/p>\n
him to repudiate the assertions made by the petitioners. This has not been<\/p>\n
done. In view of the above, we are satisfied that the allegation of political<\/p>\n
vendetta raised at the hands of the petitioners, is wholly misconceived.<\/p>\n
Additionally, we are of the view that such allegations cannot have any effect<\/p>\n
on the litigation initiated under Section 7 of the Village Common Lands<\/p>\n
Act. If the land in question is Shamlat deh and a party is in unauthorized<\/p>\n
possession thereon, the party in question is liable to be evicted therefrom<\/p>\n
irrespective of personal relationship between the party and the person(s)<\/p>\n
who initiate the litigation. For the reasons recorded hereinabove, we find no<\/p>\n
merit in the second contention advanced by the learned counsel for the<\/p>\n
petitioners.\n<\/p>\n
10.            The third contention advanced by the learned counsel for the<\/p>\n
petitioners, is based on the factual position narrated in paragraph 7<\/p>\n
hereinabove. The petitioners claim to be the proprietors of the land in<\/p>\n
question. In other words, the petitioners claim title over the suit land.<\/p>\n
During the course of hearing, it was the vehement contention of the learned<\/p>\n
counsel for the petitioners, that an onerous responsibility rested on the<\/p>\n
shoulders of the Gram Panchayat to establish its title over the land in<\/p>\n
question. In this behalf, it is pointed out that the Gram Panchayat did not<\/p>\n
lead any evidence to establish its ownership on the land in question. In the<\/p>\n
absence of proof that the Gram Panchayat was the owner of the land in<\/p>\n
question, an ejectment application, according to the learned counsel for the<\/p>\n
petitioners, cannot proceed against an occupant of a piece of land.<\/p>\n
11.            We have considered the third contention advanced by the
\n             C.W.P No.19026 of 2008                       8<\/span><\/p>\n
learned counsel for the petitioners and find no merit therein. Our instant<\/p>\n
conclusion is based on the mandate of Section 7(1) of the Village Common<\/p>\n
Lands Act. The same is being extracted hereunder: —\n<\/p>\n
            “7. Power to Put Panchayat in possession of certain lands:-(1).<\/p>\n
            An Assistant Collector of the first grade having jurisdiction in<\/p>\n
            the village may, either suo moto or on an application made to<\/p>\n
            him by a Panchayat or an inhabitant of the village or the Block<\/p>\n
            Development and Panchayat Officer or Social Education and<\/p>\n
            Panchayat Officer, or any other Officer authorised by the Block<\/p>\n
            Development and Panchayat Officer, after making such<\/p>\n
            summary enquiry as he may deem fit and in accordance with<\/p>\n
            such procedure as may be prescribed, eject any person who is<\/p>\n
            in wrongful or unauthorised possession of the land or other<\/p>\n
            immovable property in the Shamlat deh of that village which<\/p>\n
            vests or is deemed to have been vested in the Panchayat under<\/p>\n
            this Act and put the panchayat in possession thereof and for so<\/p>\n
            doing the Assistant Collector of the first grade may exercise the<\/p>\n
            powers of a revenue court in relation to the execution of a<\/p>\n
            decree for possession of land under the Punjab Tenancy<\/p>\n
            Act,1887.\n<\/p><\/blockquote>\n
            Provided that if in any such proceedings the question of title is<\/p>\n
            raised and proved prima-facie on the basis of documents that<\/p>\n
            the question of title is really involved, the Assistant Collector<\/p>\n
            of the first grade shall record a finding to that effect and first<\/p>\n
            decide the question of title in the manner laid down<\/p>\n
            hereinafter.”\n<\/p><\/blockquote>\n
              C.W.P No.19026 of 2008                        9<\/span><\/p>\n
\n<\/blockquote>\n
A perusal of the proviso to Section 7(1) of the Village Common Lands Act<\/p>\n
reveals, that in case a person in occupation of land raises a question of title<\/p>\n
and prima facie establishes the same on the basis of documents, the<\/p>\n
Assistant Collector in question would, in the first instance, adjudicate upon<\/p>\n
the issue of title. In so far as the issue in hand is concerned, the petitioners<\/p>\n
have not placed any material on the record of this case so as to demonstrate<\/p>\n
their title over the land in question on the basis of any document. On a<\/p>\n
query from the Court, learned counsel for the petitioners conceded that no<\/p>\n
such document so as to establish prima facie proof of title, was produced by<\/p>\n
the petitioners before the concerned Assistant Collector. On the basis of the<\/p>\n
mandate of proviso to Section 7(1) of the Village Common Lands Act, we<\/p>\n
are satisfied that the first onus rests on the shoulders of the person against<\/p>\n
whom an application under Section 7 of the Village Common Lands Act, is<\/p>\n
filed. He has to establish his ownership over the land in question on the<\/p>\n
basis of documentary authentication or in the alternative, he may establish<\/p>\n
that the land in question is not Shamlat deh under the management and<\/p>\n
control of the Gram Panchayat. Only if, a person against whom an<\/p>\n
application under Section 7 of the Village Common Lands Act has been<\/p>\n
filed, makes out a prima facie case on the issue of title, as has been noticed<\/p>\n
hereinabove, the onus shall shift on the respective parties. In case,<\/p>\n
documents are placed on the record of the case to show the title of the<\/p>\n
person in possession then the onus shall rest on the Gram Panchayat to<\/p>\n
prove otherwise. Whereas if documents are placed on the record of the case<\/p>\n
to show that the land is not Shamlat deh then the onus would rest on the<\/p>\n
Gram Panchayat to establish, that it is so. Since in the instant case, the<\/p>\n
petitioners did not take the first step required, namely, they did not place
\n              C.W.P No.19026 of 2008                      10<\/span><\/p>\n
any document for the consideration of the Assistant Collector, First Grade,<\/p>\n
Jhajjar, so as to establish prima facie the ownership of the petitioners over<\/p>\n
the suit land, or that the land in question was not Shamlat deh, the instant<\/p>\n
submission made at the hands of the petitioners, is clearly misconceived.<\/p>\n
Accordingly, we find no merit in the third contention advanced by the<\/p>\n
learned counsel for the petitioners.\n<\/p>\n
12.          The fourth and the last contention advanced by the learned<\/p>\n
counsel for the petitioners can be stated to be connected to the third<\/p>\n
contention dealt with hereinabove. The last contention advanced by the<\/p>\n
learned counsel for the petitioners, was based on clause (vi) of the<\/p>\n
excluding clauses in the definition of the term “Shamlat deh” under Section<\/p>\n
2(g) of the Village Common Lands Act. In this behalf, the contention of<\/p>\n
the learned counsel for the petitioners, was that in case lands situated<\/p>\n
outside the “abadi deh” are being used as “gitwar”, “bara”, “manure pit”, or<\/p>\n
house for cottage industry, immediately before the commencement of the<\/p>\n
Village Common Lands Act, the same will not be deemed to be Shamlat<\/p>\n
deh. In order to substantiate his aforesaid contention, learned counsel for<\/p>\n
the petitioners, has placed reliance on the decision rendered by this Court in<\/p>\n
Jagir Singh Vs. Gram Panchayat Village Mirazpur and others, 1989<\/p>\n
PLJ 494.\n<\/p>\n
13.          We have considered the fourth and the last contention advanced<\/p>\n
by the learned counsel for the petitioners and find no merit therein. In their<\/p>\n
written statement, the petitioners did not contest the claim of the Gram<\/p>\n
Panchayat on the basis of their occupation of the land in question, as has<\/p>\n
now been projected by the petitioners. In fact, the petitioners did not even<\/p>\n
raise the plea that the land in question is outside the “abadi deh” of the
\n             C.W.P No.19026 of 2008                        11<\/span><\/p>\n
village. In the absence of any such plea at the hands of the petitioners<\/p>\n
before the Assistant Collector, First Grade, Jhajjar, it is not possible for us<\/p>\n
to entertain the instant plea which is a mixed question of fact and law at the<\/p>\n
present juncture. As such, we are of the view that the instant plea raised<\/p>\n
before us is of no consequence.\n<\/p>\n
14.         We are of the view that the petitioners have misused the<\/p>\n
process of law so as to retain their unauthorized possession over the suit<\/p>\n
land. The stance adopted by the petitioners when they contested the claim<\/p>\n
made by the Gram Panchayat under Section 7 of the Village Common Lands<\/p>\n
Act so as to seek the ejectment of the petitioners, is apparent from<\/p>\n
paragraphs 2 and 3 of the written statement filed by the petitioners before<\/p>\n
the Assistant Collector, First Grade, Jhajjar. All the pleas that have been<\/p>\n
raised by the petitioners hereinabove, are clearly contrary to the stance<\/p>\n
adopted by the petitioners before the Assistant Collector, First Grade,<\/p>\n
Jhajjar. There is now a vigorous tendency at the hands of the litigants to<\/p>\n
raise whatever pleas come to their mind, even if the pleas are false to their<\/p>\n
knowledge. All the pleas raised by the petitioners before this Court during<\/p>\n
the course of the hearing of the present writ petition, were misconceived<\/p>\n
and contrary to the stance adopted by the petitioners in their written<\/p>\n
statement while contesting the claim raised by the Gram Panchayat under<\/p>\n
Section 7 of the Village Common Lands Act. In the present circumstances,<\/p>\n
we consider it just and appropriate to dismiss the instant writ petition with<\/p>\n
costs. Accordingly, the instant writ petition is dismissed with costs<\/p>\n
quantified at Rs.25,000\/-.\n<\/p>\n
15.         The aforesaid costs shall be deposited by the petitioners with<\/p>\n
the Legal Services Authority, Haryana, within one month from today and a
\n               C.W.P No.19026 of 2008                      12<\/span><\/p>\n
receipt thereof shall be placed on the record of the instant case. In case, no<\/p>\n
such receipt is placed on the record of this case within the time stipulated<\/p>\n
hereinabove, the Registry shall re-list this case for motion hearing for the<\/p>\n
recovery of costs.\n<\/p>\n
16.           Writ petition stands disposed of in the aforesaid terms.<\/p>\n
                                                    ( J.S. Khehar )
\n                                                           Judge<\/p>\n
                                                    ( Nirmaljit Kaur )
\n                                                               Judge.\n<\/p>\n
06.11.2008
\n        sk.<\/p>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Smt. Asha And Another vs Collector on 6 November, 2008 C.W.P No.19026 of 2008 1 In the High Court of Punjab and Haryana, Chandigarh. C.W.P No.19026 of 2008 Date of Decision: 6.11.2008 Smt. Asha and another ….Petitioners. Versus Collector, Jhajjar and others ….Respondents. Coram:- Hon’ble Mr.Justice J.S. Khehar Hon’ble Ms. Justice Nirmaljit […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,28],"tags":[],"class_list":["post-258257","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nSmt. 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