Allowed

Dalmira and Ors. v. Commissioner Ambala Division Ambala and Ors.

Punjab & Haryana HC28 Feb 2012CWP/18246/2010

Case brief

AI extract

What is this about?

The Court allowed the petitioners writ petition challenging ejectment orders. It held that authorities failed to consider evidence of predecessor possession and did not frame an issue on title as mandated by the proviso to Section 7 of the 1961 Act. The impugned orders were set aside and the matter remitted.

What did the court decide?

Impugned orders dated 28.11.2008, 03.03.2009 and 29.07.2009 set aside and matter remitted to Assistant Collector for proceedings in accordance with proviso to Section 7 of the 1961 Act.

Dalmira and Ors. Vs Commissioner Ambala Division… — Land Acquisition | Punjab & Haryana HC (2012)

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Civil Writ Petition No.18246 of 2010 -1-

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Civil Writ Petition No.18246 of 2010 Date of Order: 28.02.2012

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Dalmira and others

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...Petitioners

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Versus

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Commissioner, Ambala Division, Ambala Cantt and others

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..Respondents

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CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA HON'BLE MR. JUSTICE RAKESH KUMAR JAIN

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Present: Mr. Bhag Singh, Advocate for the petitioners.

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Ms. Shruti Jain, AAG, Haryana for respondents no.1 to 3.

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Mr. Rajinder Goyal, Advocate for respondent no.4.

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RAJIVE BHALLA, J (Oral)

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The petitioners pray for issuance of a writ in the nature of certiorari for quashing orders dated 28.11.2008 (Annexure P-1), 03.03.2009 (Annexure P-2) and 29.07.2009 (Annexure P-3), passed by the Assistant Collector Ist Grade, Gulha, the Collector, Kaithal and the Commissioner, Ambala Division, Ambala, respectively.

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Counsel for the petitioners submits that as jamabandi

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for the year 1937-38 and all subsequent jamabandies record the

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Civil Writ Petition No.18246 of 2010

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cultivating possession of the petitioners' grand father and father, respectively as “Hisedaran”, the land in dispute is excluded from “Shamilat Deh” by virtue of Section 2(g)(viii) of the Punjab Village Common Lands (Regulation) Act, 1961(hereinafter referred to as the '1961 Act') (as applicable to the State of Haryana). It is further submitted that, though, this point was specifically raised and necessary documents produced in evidence, the authorities have neither considered nor decided the question of title and summarily ordered ejectment.

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Counsel for respondents no.4 and 5 submit that as the land in dispute is “Shamilat Deh”, it vests in the Gram Panchayat. The petitioners have failed to prove cultivating possession of his predecessors prior to 26.01.1950. The authorities under the Act have, therefore, rightly ordered their ejectment.

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We have heard counsel for the parties and perused the impugned orders.

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A perusal of the order passed by the Assistant Collector Ist Grade, Guhla, reveals that the petitioners have raised a specific plea that the land in dispute was in possession of their grand father Budh Ram as co-sharer in equal share, as recorded in the jamabandies for the years 1937-38, 1941-42 and 1945-46. The Assistant Collector Ist Grade did not consider this averment or evidence and failed in exercise of his jurisdiction to

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Civil Writ Petition No.18246 of 2010

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frame an issue on the question of title, as required by proviso to Section 7 of the 1961 Act. The appellate and the revisional authorities failed to discern this error of jurisdiction and proceeded to dismiss the appeal and the revision summarily without taking into consideration the documents produced by the petitioner.

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In view of what has been stated hereinabove, we allow the writ petition, set aside the impugned orders and remit the matter to the Assistant Collector Ist Grade, Gulha and direct him to proceed in accordance with proviso to Section 7 of the 1961 Act and after deciding the question of title, consider whether the petitioners have to be evicted, from the land in dispute.

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Parties are directed to appear before the Assistant Collector Ist Grade, Gulha, on 02.04.2012.

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The Assistant Collector Ist Grade, Gulha, shall conclude proceedings within six months from receipt of a certified copy of this order.

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(RAJIVE BHALLA) JUDGE

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February 28, 2012 (RAKESH KUMAR JAIN) nt JUDGE

Dalmira and Ors. v. Commissioner Ambala Division Ambala and Ors.

Case brief

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Dalmira and Ors. v. Commissioner Ambala Division Ambala and Ors.

Case brief

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