IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
CWP No. 19718 of 2009
Date of Decision:- December 04, 2013
Singha Ram ............PETITIONER(S)
Versus.
State of Punjab and others ...........RESPONDENT(S)
CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH
HON'BLE MR. JUSTICE G.S. SANDHAWALIA
Present:- Mr. R.K. Garg, Advocate,
for the petitioner.
Mr. B.S. Cheema, DAG, Punjab.
Mr. C.L. Premy, Advocate,
for respondent no. 3.
JASBIR SINGH, J. (Oral)
This judgment shall dispose of 17 writ petitions i.e. CWP Nos. 19704, 19598, 19599, 19663, 19667, 19697, 19699, 19701, 19717, 19718, 19815, 19818, 19885, 19886, 19890 of 2009 and 2706 and 2682 of 2010, as common questions of facts and law are involved in all the writ petitions. For dictating order, CWP No. 19718 of 2009, Singha Ram vs. State of Punjab and others is being taken up.
Taking note of grabbing village Shamilat Deh land by the high and mighty with muscle power/money power, the Hon'ble Supreme Court in Jagpal Singh and others vs. State of Punjab and others, 2011 (2) LAR 187 has observed as under:-
"5. What we have witnessed since Independence, however, is that in large parts of the country this common village land has been grabbed by unscrupulous persons using muscle power, money power or political clout, and in many States now there is not an inch of such land left for the common use of the people of the village, though it may exist on paper. People with power and pelf operating in villages all over India systematically encroached upon communal lands and put them to uses totally inconsistent with its original character, for personal aggrandizement at the cost of the village community. This was done with active connivance of the State authorities and local powerful vested interests and goondas."
The present case is also an example of the high handedness, with which, land reserved for common purposes of the village i.e. a village pond, was grabbed by the petitioner raising construction thereupon.
As per facts on record, Gram Panchayat-respondent no. 3 erroneously filed an application under Section 11 of the Punjab Village Common Lands (Regulation) Act, 1961 (in short 'the Act') claiming title in the land in dispute. Admittedly, as per the revenue record, including Jamabandi for the year 2002-03, the land is shown in the ownership of the Nagar Panchayat Deh. Realizing its mistake, that application was withdrawn and an application was filed under Section 7 of the Act seeking ejectment of the petitioner from the land in dispute. In the application so filed, it was stated that the land was reserved for a common purpose i.e. a water body/chappar and it was being used by the villagers to dispose of their dirty water therein. It was further stated that the petitioner has illegally occupied the said land and has raised construction unauthorizedly. When the petitioner was asked to vacate the land, he refused to do so. Compelled under the circumstances, application was filed under Section 7 of the Act seeking his ejectment with a prayer that he be ordered to vacate the land in dispute.
Upon notice, petitioner put in appearance before the Competent Authority, where it was stated that application has been filed because of political rivalry. It was further stated that land falling in Khasra No. 217 (in dispute) falls within the Phirni and said land was kept reserved for extension of abadi deh. It was further stated that for non-joinder of necessary parties, petition deserves to be dismissed. Names of many persons were mentioned against whom application under Section 7 of the Act was not filed. Some allegations were also levelled against the then Sarpanch that with his connivance, land was mutated in the name of some right holders. It was further stated that possession of the petitioner is much before 26.01.1950 through his predecessor-in-interest and the petitioner had constructed his house in the land in dispute.
However, in the reply filed, it is nowhere stated that the petitioner is right holder in the village and at the time of consolidation proceedings, any cut was imposed upon him to retrieve land for common purposes.
Both the parties were given an opportunity to lead evidence. Petitioner, in his evidence, brought on record a copy of site map of construction raised by him (Annexure R-1), photographs (Annexures R-2 and R-3), voter card (Annexure R-4) and electricity bill (Annexure P-5). The Gram Panchayat brought in evidence Jamabandi for the year 2002-03 to prove that as per revenue record, the land is under the ownership of the Gram Panchayat Deh and it was reserved as a village pond. The Collector, on appraisal of evidence led by both the parties, allowed application filed by the Gram Panchayat on 31.10.2007 and ordered ejectment of the petitioner from the land in dispute. A specific finding was given that the petitioner has failed to prove his possession in the land in dispute before 26.01.1950. The petitioner went in appeal, which was dismissed on 26.12.2008. Hence, this writ petition.
It is stated by counsel for the petitioner that both the authorities below have committed an error by giving no finding qua title of the land in dispute. It is stated that from filing of application by the Gram Panchayat under Section 11 of the Act, it is clear that the Gram Panchayat was not sure qua its title in the land in dispute. It is further stated that petitioner's request to decide question of title was also not looked into by the Collector.
On perusal of the record, we are not inclined to agree with the reasons, on account of which, it is stated that above orders are liable to be set aside. On perusal of the paper book and after hearing the arguments, this Court is not inclined to give any benefit to the petitioner of the above said argument. It is apparent on record that when the matter was fixed for arguments before the Collector, he asked the following questions to the petitioner/the respondents before him:-
"1. Whether they accept the ownership of the Gram Panchayat?2. Whether they have taken the possession of the land in question, if yes, then what is the proof of that?On getting reply from his counsel, it was recorded as under:-"The counsel of the respondent agreed that according to Revenue Record the owner of the land in dispute is Gram Panchayat and he also agreed that they have occupied this land by making pucca house but it is before 26.1.1950."
Once the petitioner himself has admitted title of the Gram Panchayat, there was no necessity for the Collector to decide that issue. Otherwise also, as per proviso 1 to Section 7(1) of the Act, it is necessary for the Collector to decide question of title only if somebody has raised it and prima facie proved that a case is made out in support of the averment made. At the time of arguments, we asked counsel for the petitioner to show any prima facie case to look into question of title, which, he has failed to do so.
As per Jamabandi on record, land is shown in the ownership of Nagar Panchayat Deh. If that is so, relief can be given to the petitioner only if he brings his case within the exceptions carved out to the definition of Shamilat Deh under Section 2(g) of the Act. Otherwise also, when filing reply to this writ petition, it was specifically stated by the Gram Panchayat that the land in dispute was reserved for common purposes i.e. Chappar/ pond at the time of consolidation proceedings. It has been so said in para no. 3 of the reply, to which replication has not been filed. Para No. 3 (on merits) of the written statement reads thus:-
"3. That the contents of this para are wrong and denied. However it is submitted that, the disputed land, as has already been mentioned in the preliminary submissions is part and parcel of Khasra no. 217 (16 kanal - 19 marla) reserved for common purposes of the village community at the time of consolidation of the village and was/is being used for the common purposes Gupta Shivani 2014.01.16 11:51 I attest to the accuracy and integrity of this document High Court Chandigarh by the whole village community and recorded in the revenue record i.e. Jamabandi for the year 2002-03 as "Gair Mumkin Chappar" and the petitioner is in illegal possession on 200 sq. yard and has constructed house un-authorisedly out of the same as such the petitioner has no right title or interest in it. Therefore, the status of the petitioner is that of unauthorized occupant against whom competent authority had already passed orders u/s 11 and eviction orders u/s 7 of the Act declaring the answering respondent as owner of the disputed land and the petitioner as unauthorized occupant, as such, the petition is without any basis and is not sustainable in the eyes of law."
Above said averment has gone un-rebutted. Otherwise also, it is not in dispute that consolidation took place in the year 1956. This land was kept separate by imposing cut upon the right holders for a common purpose at that time. It is shown in Jamabandies prepared thereafter. To prove that possession of the petitioner started before 26.01.1950, no document worth the name has been proved on record. Except bringing in evidence copy of the site plan, photographs, copy of voter card and copy of electricity bill, no evidence has been produced to show possession before 26.01.1950. In view of evidence on record, it is proved on record that the land was kept reserved for a common purpose. In view of provisions of Section 2(g)(4) of the Act, this land would fall within the definition of Shamilat Deh land. The said provision reads thus:-
"2(g) "Shamilat deh" includes (1) to (3) xxx xxx xxx xxx (4) Lands used or reserved for the benefit of the village, community including, streets, lanes, playgrounds, schools, drinking wells, or ponds within abadi deh or gora deh and (5) xxx xxx xxx xxx"
Counsel for the petitioner has further argued that as per the revenue record i.e. Jamabandi for the year 2002-03, land is shown in possession of Maqbooza Biswedari. This entry cannot be read in favour of the petitioner because the land was reserved for common purposes during consolidation proceedings. It was shown in the ownership of Nagar Panchayat Deh and is shown in possession of the right holders who were using the said pond for discharging dirty water of their houses. By noting evidence on record, the Collector has specifically observed that as per documents produced by the petitioner, his possession is proved only from the year 2005 and not there before. At the time of arguments, counsel for the petitioner has failed to refer to any document on record to show that possession of the petitioner, as claimed in the written statement, goes before 26.01.1950. By noting above said facts, the Appellate Authority, in order dated 26.12.2008 has observed as under:-
"After hearing the arguments of both the parties and examining the records and file, I reached to the conclusion that according to Jamabandi 2002-03 Gram Panchayat is the owner of the disputed land and the type of land is described as Gair-Mumkin pond. Appellant has not produced any such type of record in this Court as well as in lower court from where it could be made out that appellant is in possession prior to 26.1.1950. The electricity bill produced by him is of 1991 and is not of Kheri Gujjran but to village Sullar. Ration card is of year 2005 and voter card is of 2001.
No benefits can be given to the appellant on this basis of these documents, because documents can be made without examining the type of possession whether it is legal or illegal. Gram Panchayat will be left with no land for the common purposes if people of the village or from the other villages keep encroaching the land of Gram Panchayat with the connivance of the Sarpanch or the employees of the Department. Appellant has not produced any proof of the possession before 26.01.1950. So the order of the lower court is kept intact and the present appeal dismissed.Besides this the under mentioned appeals are also same on the similar facts and legal points. These appeals are also filed under Section 7(2) of the Punjab Village Common Land (Regulation) Act, 1961. In these cases also the appellant could not prove the possession before 26.1.1950. They are also in the illegal possession of the land in question. So these appeals are also dismissed on the above mentioned terms and facts."
This village is situated near to boundary of Municipal Corporation, Patiala. The land is very valuable, the petitioner and others, by filling up the pond, have raised construction unauthorizedly. It is not an averment of the petitioner that he is a right holder in the village and cut was imposed upon him to retrieve land for common purpose at the time of consolidation proceedings. In view of that, petitioner even cannot claim to be a co-sharer in the land in dispute to save his possession.
The Hon'ble Supreme Court, in the case of Jagpal Singh's case (supra), by placing reliance upon an earlier judgment in the case of Hinch Lal Tiwari vs. Kamala Devi, AIR 2001 SC 3215, has observed as under:-
"13. We find no merit in this appeal. The appellants Gupta Shivani 2014.01.16 11:51 I attest to the accuracy and integrity of this document High Court Chandigarh herein were trespassers who illegally encroached on to the Gram Panchayat land by using muscle power/money power and in collusion with the officials and even with the Gram Panchayat. We are of the opinion that such kind of blatant illegalities must not be condoned. Even if the appellants have built houses on the land in question they must be ordered to remove their constructions, and possession of the land in question must be handed back to the Gram Panchayat. Regularizing such illegalities must not be permitted because it is Gram Sabha land which must be kept for the common use of villagers of the village. The letter dated 26.9.2007 of the Government of Punjab permitting regularization of possession of these unauthorized occupants is not valid. We are of the opinion that such letters are wholly illegal and without jurisdiction. In our opinion such illegalities cannot be regularized. We cannot allow the common interest of the villagers to suffer merely because the unauthorized occupation has subsisted for many years.
14. In M.I. Builders (P) Ltd. vs. Radhey Shyam Sahu, 1999 6) SCC 464 the Supreme Court ordered restoration of a park after demolition of a shopping complex constructed at the cost of over Rs.100 crores. In Friends Colony Development Committee vs. State of Orissa, 2004 (8) SCC 733 this Court held that even where the law permits compounding of unsanctioned constructions, such compounding should only be by way of an exception. In our opinion this decision will apply with even greater force in cases of encroachment of village common land. Ordinarily, compounding in such cases should only be allowed where the land has been leased to landless labourers or members of Scheduled Castes/Scheduled Tribes, or the land is actually being used for a public purpose of the village e.g. running a school for the villagers, or a dispensary for them.
15. In many states Government orders have been issued by the State Government permitting allotment of Gram Sabha land to private persons and commercial enterprises on payment of some money. In our opinion all such Government orders are illegal, and should be ignored.
16. The present is a case of land recorded as a village pond. This Court in Hinch Lal Tiwari vs. Kamala Devi, AIR 2001 SC 3215 (followed by the Madras High Court in L. Krishnan vs. State of Tamil Nadu, 2005(4) CTC 1 Madras) held that land recorded as a pond must not be allowed to be allotted to anybody for construction of a house or any allied purpose. The Court ordered the respondents to vacate the land they had illegally occupied, after taking away the material of the house. We pass a similar order in this case." Specific directions were given to the Gram Panchayat to retrieve land reserved for common purposes, especially the water bodies. In the present case, it is greed of the petitioner which has put an end to a pond. In the Jamabandi for the year 2002-03, nature of the land has been mentioned as Gair Mumkin Pond. It is also not in dispute that this land was reserved for the said purpose during consolidation proceedings.
In view of the above, no case is made out for interference. Dismissed.
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