Gian Chand v. Commissioner, Rohtak Division, Rohtak

Order

26.11.2012 Gian Chand ...Petitioner Versus Commissioner, Rohtak Division, Rohtak and others CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA HON'BLE MRS. JUSTICE REKHA MITTAL ..Respondents

Present: Mr.Sanjiv Gupta, Advocate for the petitioner. Mr. D.Khanna, Addl. A.G.,Haryana for respondents no.1 to 3. Mr. Nonish Kumar, Advocate for respondent no.4. Mr. R.S.Budhwar, Advocate for respondent no.5. RAJIVE BHALLA, J (Oral) The petitioner prays for issuance of a writ of certiorari quashing orders dated 03.03.2008 (Annexure P-7) and

13.10.2011 (Annexure P-9), passed by the Collector, Karnal and the Commissioner, Rohtak Division, Rohtak. The petitioner is, admittedly, in possession of the land, in dispute, which measures 10 marlas and bears Khewat No.235, Khatauni No.299, Rect. No.26, Khasra No.19/2(0-5) and 19/3(0-5) as per jamabandi for the year 2003-04. Hukam Chand, respondent no.4, filed a petition under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as 'the 1961 Act') praying that as the Civil Writ Petition No.1208 of 2012 2 land, in dispute, belongs to the Gram Panchayat and the petitioner is in unauthorised occupation, he should be evicted. The petitioner raised a plea that the land, in dispute, was allotted to Mangal son of Gian son of Chhota and Nathu son of Sukh Ram son of Balak, during consolidation as a “Gair Mumkin Bara”. Mangal and Nathu have transferred their rights in favour of the petitioner and, thus, the petitioner is not an unauthorised occupant and cannot be evicted from the land, in dispute. The petitioner also pleaded that as land is a “Gair Mumkin Bara”, the petition, filed under Section 7 of the 1961 Act, is not maintainable. The Gram Panchayat supported the case of the petitioner. The Assistant Collector Ist Grade-cum-District Development and Panchayat Officer, Karnal, dismissed the petition by holding that as the petitioner is recorded as “Gair Marusi”, he cannot be evicted. Aggrieved by this order, Hukam Chand, filed an appeal, which was allowed by the Collector by holding that the entry of “Gair Marusi” is irrelevant, in the absence of any evidence of payment of Batai or the execution of a lease deed etc. and as the petitioner is an unauthorised occupant, he has to be evicted from the land, in dispute. A revision filed by the petitioner was also dismissed by the Commissioner for lack of jurisdiction. Counsel for the petitioner submits that, though, the Civil Writ Petition No.1208 of 2012 3 petitioner is recorded as “Gair Marusi” and the Gram Panchayat as owner, but as the land, in dispute was allotted as a “Gair Mumkin Bara”, during consolidation, the land does not vest in the Gram Panchayat. The petition under Section 7 of the 1961 Act for eviction from “Shamilat Deh” is, therefore, not maintainable. The Gram Panchayat has not denied these facts. The Collector has failed to consider this plea and has instead, decided the appeal against the petitioner on the ground that as the entry of “Gair Marusi” is not supported by any evidence of payment of rent, the petitioner is an unauthorised occupant of Gram Panchayat property. It is prayed that the impugned orders may be set aside and a declaration of ownership be issued in favour of the petitioner. Counsel for the Gram Panchayat, supports the arguments advanced by counsel for the petitioner, though, in the written statement, the Gram Panchayat has averred that as the land, in dispute, is recorded as the ownership of the Gram Panchayat in relevant jamabandies, and the petitioner has not been able to prove allotment of land as a “Gair Mumkin Bara”, the writ petition should be dismissed and the order passed by the Collector should be affirmed. Counsel for the private respondent submits that the only plea raised by the petitioner was that as he was “Gair Marusi”, he is a tenant and, therefore, cannot be evicted by Civil Writ Petition No.1208 of 2012 4 resort to Section 7 of the 1961 Act. The petitioner cannot be permitted to change his plea and to plead that the land is a “Gair Mumkin Bara” allotted to Mangal and Nathu, during consolidation. We have heard counsel for the parties, perused the impugned orders and are constrained to observe that neither the Assistant Collector Ist Grade nor the Collector or the revisional authority appraised the material on record, particularly the reply filed by the petitioner, to the application under Section 7 of the 1961 Act. An extract from the reply reads as follows:- “2. That para no.2 of the application is not admitted. Exact details of the land in dispute has not been explained by the applicant intentionally whereas this land is a land of one Bara which has already been allotted by the Gram Panchayat to the applicant and as per law, this land can not be got vacated. The present respondent has obtained only those rights with respect to this land which vests in an original allottee to whom the present Bara was allotted by the existing Gram Panchayat.” The petitioner has clearly averred that the land, in dispute, is a Bara, allotted by the Gram Panchayat. The petitioner has placed before us revenue record, Annexures P-12 Civil Writ Petition No.1208 of 2012 5 and P-13, which prima-facie prove that the land, in dispute, is a “Gair Mumkin Bara” and was allotted to Mangal and Nathu, during consolidation and, therefore, the land, in dispute, though, recorded as ownership of the Gram Panchayat, may not be “Shamilat Deh” and may not vest in the Gram Panchayat and the petition, filed under Section 7 of the 1961 Act, may not be maintainable. In view of what has been stated hereinabove, the writ petition is allowed, orders passed by the Assistant Collector Ist Grade-cum-District Development and Panchayat Officer, Karnal, the Collector and the Commissioner, Rohtak Division, Rohtak, are set aside and the matter is remitted to the Assistant Collector Ist Grade, Karnal, to decide the matter afresh, particularly with respect to the question of title, in accordance with law, within three months of the parties putting in appearance. Parties are directed to appear before the Assistant Collector Ist Grade-cum-District Development and Panchayat Officer, Karnal, on 20.12.2012. (RAJIVE BHALLA) JUDGE November 26, 2012 (REKHA MITTAL) JUDGE