Tulsi Dass v. The Collector, Hissar & Anr.

Order

11.10.2012. Tulsi Dass ...Petitioner Versus The Collector, Hissar and another ..Respondents CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA HON'BLE MRS. JUSTICE REKHA MITTAL

Present:Mr. Vikas Bahl, Advocate, with Mr. Ramandeep Singh, Advocate, for the applicants-petitioner. Mr. D.Khanna, Addl. A.G.,Haryana for respondent no.1. None for respondent no.2. RAJIVE BHALLA, J (Oral) C.M.No.11363 of 2010 Prayer in this application is to implead the legal representatives of Lekh Ram son of Late Tulsi Dass, who is stated to have passed away on 16.01.2007. The application is allowed, subject to all just exceptions and the legal representatives mentioned in para No.1 of the application are impleaded as petitioners in place of Lekh Ram, deceased. C.M.No.11369 of 2010 Prayer in this application is to implead the legal representatives of Ram Kumar son of Late Tulsi Dass, who is stated Civil Writ Petition No.3904 of 1986 -2- to have passed away on 30.05.2004. The application is allowed, subject to all just exceptions and the legal representatives mentioned in para No.1 of the application are impleaded as petitioners in place of Ram Kumar, deceased. C.M.No.11374 of 2010 Prayer in this application is to implead the legal representatives of Lal Chand son of Late Tulsi Dass, who is stated to have passed away on 27.04.1996. The application is allowed, subject to all just exceptions and the legal representatives mentioned in para No.1 of the application are impleaded as petitioners in place of Lal Chand, deceased. C.M.No.11455 of 2010 Prayer in this application is to implead the legal representatives of Tulsi Dass son of Bhera, the sole petitioner, who is stated to have passed away on 03.04.1993. The application is allowed, subject to all just exceptions and legal representatives mentioned in para No.1 of all of the application are impleaded as petitioners in place of Tulsi Dass, the sole petitioner. Registry is directed to carry out the correction in the memorandum of parties. Civil Writ Petition No.3904 of 1986 The petitioner prays for issuance of a writ of certiorari quashing orders dated 21.10.1985(Annexure P-3) and 03.06.1986 (Annexure P-4), passed by the Assistant Collector Ist Grade, Civil Writ Petition No.3904 of 1986 -3- Fatehabad and the Collector, Hissar, respectively. Counsel for the petitioner submits that as a Civil Court has already held that the petitioner is a tenant of Government High School, Bhodiakhera, Tehsil Fatehabad, District Hissar, Fatehabad (hereinafter referred to as the 'School'), the Gram Panchayat had no right to file a petition under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as 'the 1961 Act'), without seeking adjudication of its title. The Gram Panchayat has not adduced any evidence to prove its title. It is further argued that as the land is “Jumla Mushtarka Malkan”, it vests in proprietors. The Gram Panchayat, therefore, has no right, title or interest that could have empowered it to file a petition under Section 7 of the 1961 Act. No one is present on behalf of the Gram Panchayat, but we have perused the reply filed on behalf of the Gram Panchayat. The Gram Panchayat has averred that the land, in dispute, is “Jumla Mushtarka Malkan Wa Digar Hakdaran Hasab Rasad Rakba” and, therefore, vests in the Gram Panchayat. The land, in dispute, is not owned by the School and mere payment of rent by the petitioner, to the School does not divest the Gram Panchayat of its rights in the land, in dispute. It is further submitted that the Civil Court has recorded its findings while considering a prayer for grant of an injunction and is, however, not a final opinion as to the ownership of the Gram Panchayat. We have heard counsel for the petitioner, perused the impugned orders, the judgment and decree passed by the Civil Civil Writ Petition No.3904 of 1986 -4- Court, the reply filed by respondent no.2 and the entire paper book. The land, in dispute, is, admittedly “Jumla Mushtarka Malkan Wa Digar Hakdaran Hasab Rasad Rakba”, i.e., land that vests in the Gram Panchayat, for management and control, under Sections 18 and 23-A of the East Punjab Holdings(Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter referred to as the 'Consolidation Act') read with Rule 16(ii) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949 (hereinafter referred to as the 'Consolidation Rules'). Counsel for the petitioner has urged that as a civil court has held that the petitioner is a tenant of the School, the Gram Panchayat has no right to seek the petitioner's eviction. The petitioner has also relied upon receipts Ex.R-1 to R-6, to support his plea that the land, in dispute, was leased out to the petitioner by the School. We have duly considered the arguments, contents of judgment and decree passed by Civil Court, along with the receipts, but find no reason to either hold in favour of the petitioner or to issue the writ, as prayed. The land is, admittedly, “Jumla Mushtarka Malkan”, i.e. land that falls to the possessory title of the Gram Panchayat, as allotted during consolidation. The petitioner has not been able to prove by way of any evidence that the land belongs to the School or was entrusted to the School by the Gram Panchayat. The petitioner has not adduced any evidence about the right of the School to rent out the land. The payment of rent by the petitioner to the School, in our considered opinion, may create a relationship of landlord and tenant Civil Writ Petition No.3904 of 1986 -5- between the petitioner and the School but would not divest the Gram Panchayat of its possessory rights, statutorily conferred by Rule 16 (ii) of the Consolidation Rules. The Gram Panchayat has, in a legitimate exercise of its possessory title, conferred by the Consolidation Act and the Consolidation Rules, filed a petition, seeking the petitioner's eviction. The civil court decree was passed in a suit for an injunction and, therefore, cannot be said to have determined that title does not vest in the Gram Panchayat. The petition under Section 7 of the 1961 Act has been rightly allowed and the appeal, filed by the petitioner, challenging the order of Collector rightly dismissed. We, therefore, find no reason whether in fact or in law to hold that the impugned orders, are, in any manner, illegal, void or arbitrary, so as to invite interference. In view of what has been stated hereinabove, the writ petition is dismissed, but with liberty to the petitioner to seek adjudication of any question of title that he may raise with respect to the land, in dispute. (RAJIVE BHALLA) JUDGE October 11, 2012 (REKHA MITTAL) JUDGE