Ram Partap & Anr. v. Joint Development Commissioner (IRD), Punjab & Ors.

Order

31st October, 2012 Ram Partap and another ...Petitioners Versus Joint Development Commissioner (IRD), Punjab and others ..Respondents CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA HON'BLE MRS. JUSTICE REKHA MITTAL Present: Mr. Vaneet Soni, Advocate for the petitioners. Mr. P.C.Goyal, Addl. A.G.Punjab, for respondents no.1 and 2. Mr. Vikas Mehsempuri, Advocate, for respondent no.3. RAJIVE BHALLA, J. The petitioners pray for issuance of a writ of certiorari quashing order dated 06.05.1998 (Annexure P-7), passed by the Joint Development Commissioner (IRD),Punjab (exercising the powers of 'Commissioner'), holding that the land, in dispute, vests in the Gram Panchayat. Counsel for the petitioners submits that the petitioners have been in possession of 32 kanals of land for the last more than 35 years, as it is a part of “Bachat Land” left over during consolidation.

The petitioners are proprietors of the village and are in cultivating possession without any objection from any Civil Writ Petition No.11405 of 1998 -2- person much less the Gram Panchayat. The Gram Panchayat, filed a petition under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as 'the 1961 Act'), which was dismissed on 27.08.1982, by holding that the land does not belong to the Gram Panchayat. The Gram Panchayat filed an appeal after 12 years, which was dismissed on 19.07.1995. The Gram Panchayat, however, persisted in interfering with the petitioners' possession, compelling the petitioners to file Civil Suit No.474 of 1993, to restrain the Gram Panchayat from interfering in their possession.

The suit was decreed on 04.09.1993, but as the Gram Panchayat made another attempt to interfere in the petitioners' possession, they filed Civil Writ Petition No.1307 of 1993, to restrain the Gram Panchayat from auctioning the land. The writ petition was

disposed of on 07.07.1994, by directing that the petitioners shall not be dispossessed otherwise than in due course of law. The Gram Panchayat, thereafter, filed a petition under Sections 4 and 5 of the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1973 (hereinafter referred to as 'the 1973 Act'), which was allowed by the Collector, on

18.05.1994, but in the appeal filed by the petitioners, the order was reversed and application filed by the Gram Panchayat was dismissed, by the Joint Development Commissioner, on

07.02.1996. The Gram Panchayat, thereafter, filed an Civil Writ Petition No.11405 of 1998 -3- application under Section 11 of the 1961 Act, claiming ownership of the land, in dispute. The Collector dismissed this application but the Joint Development Commissioner has accepted the appeal filed by the Gram Panchayat by passing an order, disregarding the petitioners' possession of over 35 years, ignoring the absence of any evidence to prove the ownership of the Gram Panchayat and disregarding dismissal of the petitions for ejectment, filed under Section 7 of the 1961 Act and under Sections 4 and 5 of the 1973 Act. It is further argued that Section 11, as it stood at the time of filing the application, did not empower a Gram Panchayat to file a petition under Section 11 of the 1961 Act. Section 11 of the 1961 Act was amended on

16.07.1993, conferring a right upon a Gram Panchayat to seek declaration of ownership. The Gram Panchayat, therefore, had no right to file a petition and that also without explaining the delay. It is further contended that as the petitioners are in, admitted, possession of the land, in dispute, for more than 35 years, they have perfected their title by adverse possession. The petitioners are also entitled to the benefit of Section 4(3)(ii) of the 1961 Act. The Joint Development Commissioner has decided the appeal in favour of the Gram Panchayat on the basis of jamabandi for the year 1961-62 as the Gram Panchayat is recorded as owner in possession. The Appellate Authority has also relied upon jamabandi for the year 1967-68, where the Civil Writ Petition No.11405 of 1998 -4- Gram Panchayat is recorded as owner and Jagna son of Matoo as a tenant. The Appellate Authority has relied upon jamabandies, for the years 1972-73, 1987-88, 1992-93, to hold that the land was given on lease to the petitioners but they failed to deliver possession after expiry of the lease, they cannot claim ownership. It is also argued that as the Collector had dismissed the application for failure of the Gram Panchayat to file a petition under Section 11 of the 1961 Act, within 30 days of the amendment of Section 11, the Joint Development Commissioner has erred in reversing this part of the order. It is prayed that as the impugned order is illegal and void, the petition may be allowed and the petitioners may be declared owners in possession of the land, in dispute. Counsel for the Gram Panchayat, on the other hand, submits that an order passed under Section 7 of the 1961 Act or the 1973 Act, holding that the land does not belong to the Gram Panchayat does not operate as resjudicata in proceedings under Section 11 of the 1961 Act, as proceedings for eviction under the 1961 and 1973 Act are summary in nature and require the Collector to only record a prima-facie opinion as to ownership. The only authority empowered to decide whether land vests or does not vest in a Gram Panchayat, is the Collector, exercising powers under Section 11 of the 1961 Act. The orders passed under Section 7 of the 1961 Act and Sections 4 and 5 of the Civil Writ Petition No.11405 of 1998 -5- 1973 Act, therefore, do not operate as resjudicata. The petitioners have not placed any evidence on record to substantiate their plea of ownership or that the land was “Bachat”. The petitioners are unauthorised occupants of Gram Panchayat land as Ram Partap, petitioner no.1, took the land on lease, as recorded in the jamabandi for the year 1987-88 and, thereafter, did not vacate the land. The Joint Development Commissioner has rightly held, after considering entries, in jamabandies from the year 1961-62 onwards, that the Gram Panchayat is the owner of the land, in dispute. As regards the petitioners' plea that Section 11 of the 1961 Act did not allow the Gram Panchayat to file a petition under Section 11 of the 1961 Act, it is clarified that, though, an amendment was made in 1993 Act, allowing Gram Panchayats to file petitions under Section 11 of the 1961 Act, the original provision did not prohibit a Gram Panchayat, from filing a petition under Section 11 of the 1961 Act. The amendment made in Section 11 of the 1961 Act, by including the word “Gram Panchayat”, is merely clarificatory as certain judgment had expressed a view that the Gram Panchyat may not have a right to file a petition. We have heard counsel for the parties, perused the paper book, the impugned order and express our inability to set aside the impugned order. The petitioners' entire case with respect to ownership Civil Writ Petition No.11405 of 1998 -6- and their right to remain in possession rests on a plea that the land, in dispute, was “Bachat Land”, left over after consolidation. The petitioners have not adduced any evidence whether in the shape of the scheme or orders passed during consolidation or any revenue entry to prove this fact. This apart, the petitioners claim ownership by adverse possession, thereby admitting the title of the Gram Panchayat. A perusal of the order passed by the Joint Development Commissioner reveals that the land, in dispute, is recorded as ownership of the Gram Panchayat in jamabandi for the year 1961-62. The jamabandi for the year 1967-68 record one Jagna son of Matoo as tenant in possession. The same entry is repeated in jamabandi for the year 1972-73. The petitioners are recorded in possession of the land, in dispute, for the first time in jamabandi for the year 1987- 88 and then also as tenant. The same entry is repeated in jamabandi for the year 1992-93. The petitioners have not been able to rebut the presumption of truth attached to these entries. The petitioners entered the land as tenants, but after expiry of the lease period did not vacate the same. The petitioners, therefore, cannot be allowed to claim ownership much less ownership by adverse possession. The argument that orders passed under Section 7 of the 1961 Act and Sections 4 and 5 of the 1973 Act, dismissing the petitions for eviction, on the ground that land does not belong to the Gram Panchayat operates as Civil Writ Petition No.11405 of 1998 -7- resjudicata, in our considered opinion, is irrelevant as orders, passed in summary eviction proceedings, do not operate as resjudicata before a forum conferred with jurisdiction to decide a question of title. Section 7 of the 1961 Act and Sections 4 and 5 of the 1974 Act provide a summary procedure for eviction of a person in unauthorised possession and any finding recorded with respect to ownership of the Gram Panchayat or rights therein, would not operate as resjudicata in proceedings under Section 11 of the 1961 Act. The petitioners have also advanced an argument that on the date of filing the petition, Section 11 of the 1961 Act did not empower a Gram Panchayat to file such a petition and as after amendment, by inclusion of the word “Gram Panchayat” in Section 11, such a petition was to be filed only within six months, the petition should have been dismissed. The argument, in our considered opinion, is misconceived. Section 11 of the 1961 Act, as originally enacted empowered, “any person” to file a petition. The expression “any person”, would include a Gram Panchayat. The amendment, in Section 11 of the 1961 Act, to include the words “Gram Panchayat” is merely clarificatory. The petitioners' plea that their claim under Section 4(3)(ii) of the 1961 Act has not been considered, disregards the fact that Section 4(3)(ii) of the 1961 Act confers rights upon a non-proprietor, in possession 12 years before coming into force of the 1961 Act. The rights of proprietors are Civil Writ Petition No.11405 of 1998 -8- referred to in Section 2(g)(1 to 5) and (i) to (ix) of the 1961 Act and apply to “Shamilat Deh” and not to “Jumla Mushtarka Malkan”. The petitioners do not claim title on the basis of their status as non-proprietors. A perusal of the relevant jamabandies reveals that the petitioners are recorded in possession, for the first time, in jamabandi for the year 1971-72 and then also as tenants. The petitioners have succeeded in perpetuating their unauthorised possession for more than four decades without any right, title or interest in the land, in dispute. In view of what has been discussed hereinabove, the impugned order is affirmed and the writ petition is hereby dismissed. October 31,2012 (RAJIVE BHALLA) JUDGE (REKHA MITTAL) JUDGE