Dismissed

Asha & Anr. v. Collector Jhajjar & Ors.

Punjab & Haryana HC6 Nov 2008CWP/19026/2008

Case brief

AI extract

What is this about?

The High Court of Punjab and Haryana dismissed a writ petition challenging an eviction order passed against petitioners from village common land. The court held that the onus to prove title or that the land is not Shamlat deh lies on the possessor, which the petitioners failed to discharge.

What did the court decide?

Writ petition dismissed with costs of Rs. 25,000/- to be deposited with the Legal Services Authority, Haryana.

Asha & Anr. Vs Collector Jhajjar & Ors. — Landlord and Tenant | Punjab & Haryana HC (2008)

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C.W.P No.19026 of 2008

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In the High Court of Punjab and Haryana, Chandigarh.

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C.W.P No.19026 of 2008

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Date of Decision: 6.11.2008

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Smt. Asha and another

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....Petitioners.

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Versus

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Collector, Jhajjar and others

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....Respondents.

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Coram:- Hon'ble Mr.Justice J.S. Khehar Hon'ble Ms. Justice Nirmaljit Kaur

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Present: Mr. Mahavir Sandhu, Advocate for the petitioners.

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J.S. Khehar, J.

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The controversy in the present writ petition relates to the initiation of action at the hands of the Gram Panchayat, Kaloi in Tehsil and District Jhajjar, for the ejectment of the petitioners from the land of the Gram Panchayat comprised in Khewat No.82, Khatauni No.287, Khasra Nos.882/1 and 882/3. For the aforesaid objective, the Gram Panchayat filed an application under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as the Village Common Lands Act), on 4.5.2006 (Annexure P-1). Paragraphs 2 and 3 of the aforesaid application are relevant for the determination of the various issues canvassed at the hands of the learned counsel for the petitioners, and as such, are being extracted hereunder: --

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“2. That the respondents on the Southern-Western side of the land comprised in Khasra No.882/1 which has been shown in the map in red colour as ABCD and by constructing a wall upto plinth level on the land which has been shown in the said map CDEF and in the rest marked land by putting barbed wire has illegally occupied and they also want to extend their possession. Whereas they had no right as per law to do so. Copy of site plan is attached with this application.

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That the applicant has number of times asked the respondents to remove their illegal possession from the land of Gram Panchayat and they were also restrained not to further illegally occupy the land. Earlier they averted the matter on one pretext or the other and ultimately on 2.5.2006 they completely denied to remove their illegal possession. On this date cause of action accrued to the applicant.”

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A perusal of the averments made in paragraphs 2 and 3 of the application reveals, that it was expressly asserted at the hands of the Gram Panchayat, that the petitioners were in illegal occupation of the land marked as ABCD in the site plan attached to the application dated 4.5.2006, and further, that they had also constructed a wall up to the plinth level on the said land. The location of the foundation of the wall was shown in the site plan as CDEF and on the remaining portion on the land i.e. ABEF, the petitioners were alleged to have affixed a barbed wire so as to demarcate their possession.

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As against the aforesaid assertions made by the Gram Panchayat in the application filed under Section 7 of the Village Common Lands Act, the response of the petitioners in the written statement filed

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before the Assistant Collector, First Grade, Jhajjar, was that of complete denial. It was asserted on behalf of the petitioners, that they were not in unauthorized occupation of the land depicted in the application, as also, the site plan attached thereto. The petitioners did not specifically contradict the assertion made by the Gram Panchayat to the effect, that the petitioners had constructed a wall up to the plinth level (which was depicted in the site plan as CDEF). They also did not respond to the averments made in respect of the affixation of the barbed wire so as to demarcate the land in occupation of the petitioners. For an effective and complete determination of the controversy in hand, it would be proper to extract hereunder paragraphs 2 and 3 of the written statement filed by the petitioners before the Assistant Collector, First Grade, Jhajjar. The same are, accordingly, being extracted hereunder: --

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“2. That the contents of para No.2 are wrong and hence denied. It is however, further submitted that the respondents have not illegally occupied any land of the Gram Panchayat. The land in dispute is not the part of Khasra No.882/1. The site plan attached by the applicant along with the application is wrong. The site plan of the spot shall be produced by the respondents at the time of evidence.

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That the contents of para No.3 are wrong and hence denied. The respondents have not made any illegal possession.”

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The Assistant Collector, First Grade, Jhajjar, by his order dated 30.11.2007 (Annexure P-4) allowed the ejectment application filed by the Gram Panchayat. While ordering the eviction of the petitioners from the land in question, the Assistant Collector, First Grade, Jhajjar, also directed the

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Gram Panchayat to take possession of the land under reference within one month.

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Dissatisfied with the order passed by the Assistant Collector, First Grade, Jhajjar, dated 30.11.2007, the petitioners preferred an appeal before the Collector, Jhajjar. The appeal preferred by the petitioners, was dismissed by the Collector, Jhajjar, vide an order dated 22.9.2008.

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The petitioners have approached this Court so as to impugn the order passed by the Assistant Collector, First Grade, Jhajjar, dated 30.11.2007, as also, the appellate order passed by the Collector, Jhajjar, dated 22.9.2008.

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Before this Court, the claim of the petitioners is based on a factual matrix which is totally different from the one adopted by the petitioners in their written statement filed before the Assistant Collector, First Grade, Jhajjar. Before this Court, it has been asserted by the petitioners that the land in respect of which the application for ejectment was filed by the Gram Panchayat, is outside the village “abadi deh”, but within the “phirni” thereof. It is the contention of the learned counsel for the petitioners, that the petitioners have built “pucca” residential house since the time of their forefathers, and that, they have been residing therein with their families. It is asserted, that the petitioners have no other residential house in the village except the house in question. Additionally, it is stated that the other inhabitants of the village had constructed houses adjoining to the house of the petitioners. It is also asserted by the petitioners, that some part of the land in question comprised of open space which the petitioners have been using as their courtyard, whereas over some part of it, the petitioners have constructed a cattle shed for tethering their

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cattle. It is also the case of the petitioners, that a portion of the land is being used by the petitioners for storing agriculture implements, fuel wood, manure pit, Bitoras and fodder etc.

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In addition to the factual position relating to the user of the land, as well as, constructions made by the petitioners thereon, it is the vehement contention of the petitioners, that the litigation under reference came to be initiated as a consequence of a political vendetta. In this behalf, it is pointed out, that some civil and criminal litigation is pending between the petitioners and the Sarpanch of the Gram Panchayat of the village, and it is on account of the inimical attitude of the Sarpanch, that the instant action has been initiated by the Gram Panchayat against the petitioners.

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It is also the assertion at the hands of the learned counsel for the petitioners, that the petitioners are inhabitants and proprietors of the village and are owners in possession of the land in question, and that, they had every right to construct residential quarters for themselves over the suit land. In this behalf, it is pointed out that the petitioners had in fact constructed their residential house on the land in question since the time of their forefathers, and that, they had been residing therein ever since.

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During the course of the hearing of the instant writ petition, the first contention of the learned counsel for the petitioners, was on the basis of the assertions made by them in paragraph 5 hereinabove. It is, therefore, submitted that having occupied the land in question from the time of their forefathers, their possessory right over the land is protected under the mandate of the Village Common Lands Act. It is not a matter of dispute, that even an unauthorized occupant over the Shamlat land has been vested with possessory rights under Section 4 of the Village Common Lands

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Act, if he came into occupation of the land prior to 26.1.1950. Although, it has been repeatedly reiterated that the petitioners have been in possession of the suit land since the time of their forefathers, no authentic evidence has been brought to our notice on the basis whereof a clear finding can be recorded, that the petitioners came into possession of the suit land and commenced to use the same for their residence by effecting construction thereon prior to 26.1.1950. In fact, a conclusion contrary to the aforesaid can clearly be drawn on the basis of the pleadings filed by the petitioners before the Assistant Collector, First Grade, Jhajjar. From the aforesaid pleadings (paragraphs 2 and 3 thereof, as have been extracted hereinabove), it clearly emerges that there is no construction on the land in question and the construction of a wall on a part thereof is only up to the plinth level i.e. to the level of the foundation. It is, therefore, not possible for us to accept the continuous possession of the petitioners over the suit land from a date prior to 26.1.1950. For the reasons recorded hereinabove, we find no merit in the first contention advanced by the learned counsel for the petitioners. 9. The second contention advanced by the learned counsel for the petitioners, is based on the averments made in paragraph 6 hereinabove. It is the vehement contention of the learned counsel for the petitioners, that the litigation initiated by the Gram Panchayat against the petitioners, is based on political vendetta and is, as such, frivolous. To state the least, the instant contention advanced by the learned counsel for the petitioners, is wholly misconceived. The petitioners have not impleaded the particular individual on account of whom they have alleged political vendetta nor have the petitioners placed on the record of this case details of civil or criminal litigation pending between the petitioners and the Sarpanch. If allegations

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of malafide were to be levelled against the Sarpanch by the petitioners, they ought to have impleaded the Sarpanch as a party respondent so as to enable him to repudiate the assertions made by the petitioners. This has not been done. In view of the above, we are satisfied that the allegation of political vendetta raised at the hands of the petitioners, is wholly misconceived. Additionally, we are of the view that such allegations cannot have any effect on the litigation initiated under Section 7 of the Village Common Lands Act. If the land in question is Shamlat deh and a party is in unauthorized possession thereon, the party in question is liable to be evicted therefrom irrespective of personal relationship between the party and the person(s) who initiate the litigation. For the reasons recorded hereinabove, we find no merit in the second contention advanced by the learned counsel for the petitioners.

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The third contention advanced by the learned counsel for the petitioners, is based on the factual position narrated in paragraph 7 hereinabove. The petitioners claim to be the proprietors of the land in question. In other words, the petitioners claim title over the suit land. During the course of hearing, it was the vehement contention of the learned counsel for the petitioners, that an onerous responsibility rested on the shoulders of the Gram Panchayat to establish its title over the land in question. In this behalf, it is pointed out that the Gram Panchayat did not lead any evidence to establish its ownership on the land in question. In the absence of proof that the Gram Panchayat was the owner of the land in question, an ejectment application, according to the learned counsel for the petitioners, cannot proceed against an occupant of a piece of land.

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We have considered the third contention advanced by the

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learned counsel for the petitioners and find no merit therein. Our instant conclusion is based on the mandate of Section 7(1) of the Village Common Lands Act. The same is being extracted hereunder: --

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“7. Power to Put Panchayat in possession of certain lands:-(1). An Assistant Collector of the first grade having jurisdiction in the village may, either suo moto or on an application made to him by a Panchayat or an inhabitant of the village or the Block Development and Panchayat Officer or Social Education and Panchayat Officer, or any other Officer authorised by the Block Development and Panchayat Officer, after making such summary enquiry as he may deem fit and in accordance with such procedure as may be prescribed, eject any person who is in wrongful or unauthorised possession of the land or other immovable property in the Shamlat deh of that village which vests or is deemed to have been vested in the Panchayat under this Act and put the panchayat in possession thereof and for so doing the Assistant Collector of the first grade may exercise the powers of a revenue court in relation to the execution of a decree for possession of land under the Punjab Tenancy Act,1887.

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Provided that if in any such proceedings the question of title is raised and proved prima-facie on the basis of documents that the question of title is really involved, the Assistant Collector of the first grade shall record a finding to that effect and first decide the question of title in the manner laid down hereinafter.”

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A perusal of the proviso to Section 7(1) of the Village Common Lands Act reveals, that in case a person in occupation of land raises a question of title and prima facie establishes the same on the basis of documents, the Assistant Collector in question would, in the first instance, adjudicate upon the issue of title. In so far as the issue in hand is concerned, the petitioners have not placed any material on the record of this case so as to demonstrate their title over the land in question on the basis of any document. On a query from the Court, learned counsel for the petitioners conceded that no such document so as to establish prima facie proof of title, was produced by the petitioners before the concerned Assistant Collector. On the basis of the mandate of proviso to Section 7(1) of the Village Common Lands Act, we are satisfied that the first onus rests on the shoulders of the person against whom an application under Section 7 of the Village Common Lands Act, is filed. He has to establish his ownership over the land in question on the basis of documentary authentication or in the alternative, he may establish that the land in question is not Shamlat deh under the management and control of the Gram Panchayat. Only if, a person against whom an application under Section 7 of the Village Common Lands Act has been filed, makes out a prima facie case on the issue of title, as has been noticed hereinabove, the onus shall shift on the respective parties. In case, documents are placed on the record of the case to show the title of the person in possession then the onus shall rest on the Gram Panchayat to prove otherwise. Whereas if documents are placed on the record of the case to show that the land is not Shamlat deh then the onus would rest on the Gram Panchayat to establish, that it is so. Since in the instant case, the petitioners did not take the first step required, namely, they did not place

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any document for the consideration of the Assistant Collector, First Grade, Jhajjar, so as to establish prima facie the ownership of the petitioners over the suit land, or that the land in question was not Shamlat deh, the instant submission made at the hands of the petitioners, is clearly misconceived. Accordingly, we find no merit in the third contention advanced by the learned counsel for the petitioners.

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The fourth and the last contention advanced by the learned counsel for the petitioners can be stated to be connected to the third contention dealt with hereinabove. The last contention advanced by the learned counsel for the petitioners, was based on clause (vi) of the excluding clauses in the definition of the term “Shamlat deh” under Section 2(g) of the Village Common Lands Act. In this behalf, the contention of the learned counsel for the petitioners, was that in case lands situated outside the “abadi deh” are being used as “gitwar”, “bara”, “manure pit”, or house for cottage industry, immediately before the commencement of the Village Common Lands Act, the same will not be deemed to be Shamlat deh. In order to substantiate his aforesaid contention, learned counsel for the petitioners, has placed reliance on the decision rendered by this Court in Jagir Singh Vs. Gram Panchayat Village Mirazpur and others, 1989 PLJ 494 .

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We have considered the fourth and the last contention advanced by the learned counsel for the petitioners and find no merit therein. In their written statement, the petitioners did not contest the claim of the Gram Panchayat on the basis of their occupation of the land in question, as has now been projected by the petitioners. In fact, the petitioners did not even raise the plea that the land in question is outside the “abadi deh” of the

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village. In the absence of any such plea at the hands of the petitioners before the Assistant Collector, First Grade, Jhajjar, it is not possible for us to entertain the instant plea which is a mixed question of fact and law at the present juncture. As such, we are of the view that the instant plea raised before us is of no consequence.

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We are of the view that the petitioners have misused the process of law so as to retain their unauthorized possession over the suit land. The stance adopted by the petitioners when they contested the claim made by the Gram Panchayat under Section 7 of the Village Common Lands Act so as to seek the ejectment of the petitioners, is apparent from paragraphs 2 and 3 of the written statement filed by the petitioners before the Assistant Collector, First Grade, Jhajjar. All the pleas that have been raised by the petitioners hereinabove, are clearly contrary to the stance adopted by the petitioners before the Assistant Collector, First Grade, Jhajjar. There is now a vigorous tendency at the hands of the litigants to raise whatever pleas come to their mind, even if the pleas are false to their knowledge. All the pleas raised by the petitioners before this Court during the course of the hearing of the present writ petition, were misconceived and contrary to the stance adopted by the petitioners in their written statement while contesting the claim raised by the Gram Panchayat under Section 7 of the Village Common Lands Act. In the present circumstances, we consider it just and appropriate to dismiss the instant writ petition with costs. Accordingly, the instant writ petition is dismissed with costs quantified at Rs.25,000/-.

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The aforesaid costs shall be deposited by the petitioners with the Legal Services Authority, Haryana, within one month from today and a

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receipt thereof shall be placed on the record of the instant case. In case, no such receipt is placed on the record of this case within the time stipulated hereinabove, the Registry shall re-list this case for motion hearing for the recovery of costs.

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Writ petition stands disposed of in the aforesaid terms.

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( J.S. Khehar ) Judge

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( Nirmaljit Kaur ) Judge.

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06.11.2008 sk.

Asha & Anr. v. Collector Jhajjar & Ors.

Case brief

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Asha & Anr. v. Collector Jhajjar & Ors.

Case brief

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