Quashed

Mahender Singh v. Collector Cum Deputy Commissioner Jhajjar and Ors.

Punjab & Haryana HC26 Jul 2013CWP/10396/2013

Case brief

AI extract

What is this about?

The High Court of Punjab & Haryana allowed writ petitions against orders of the Assistant Collector and Collector. It held that these quasi-judicial orders were non-speaking and failed to address the question of title or discuss relevant revenue documents as directed by a previous Division Bench. The matters were remanded for fresh disposal.

What did the court decide?

Orders dated 17.01.2013 and 23.04.2013 quashed; matter remitted to Assistant Collector Ist Grade for fresh disposal with three hearing dates.

Mahender Singh Vs Collector Cum Deputy… — Landlord and Tenant | Punjab & Haryana HC (2013)

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CWP No. 10396 of 2013

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IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

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CWP No. 10396 of 2013 Date of Decision:- July 26, 2013

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Mahender Singh

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..............PETITIONER(S)

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vs.

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The Collector-cum-Deputy Commissioner, Jhajjar and others

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...........RESPONDENT(S)

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CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MR. JUSTICE G.S. SANDHAWALIA

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

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Mr. Sushil Gautam, Advocate.

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JASBIR SINGH, J. (Oral)

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This order will dispose of eight writ petitions i.e. CWP Nos. 10396, 11164, 11166, 11168, 11171, 11172, 11195 and 11223 of 2013. To dictate order, facts are being taken from CWP No. 10396 of 2013 titled as Mahender Singh vs. The Collector-cum-Deputy Commissioner, Jhajjar and others.

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The petitioner herein claims that he is a right holder in the village and has a share in the Jumla Mushtarka Malkan land. It is his further case that land falling in Khasra Nos. 42//6 (6-7), 15/1 (2-13), 43//10/1 (0-11), 10/2 (1-12) and 11/1 (8-07) total measuring 19 kanals 10 marlas was kept separate at the time of consolidation proceedings by imposing a pro rata cut. In the revenue record, it was shown in the name of Jumla Malkan Wa Digar Hakdaran Hasab Rasad Rakba Khewat. In the cultivation column, right holders were shown in cultivating possession. It has been so said by making reference to copy of a jama-bandi for the year 1991 (Annexure P-7). It is grievance of the petitioner that his suit Gupta Shivani 2013.08.21 14:21 I attest to the accuracy and integrity of this document High Court Chandigarh

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CWP No. 10396 of 2013

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claiming title in the above land has wrongly been dismissed.

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As against this, it is claim of the Gram Panchayat-respondent no. 3 that the land in dispute is Shamilat Deh land. It was being managed by the Gram Panchayat since from the date of conclusion of consolidation proceedings and on several occasions, the right holders, with whom dispute is going on, have taken the land on lease.

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By stating as above, the Gram Panchayat filed an application under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (in short 'the Act') on 19.01.2011. The petitioner appeared in those proceedings and took up plea of ownership, as the stand as has been referred to in earlier part of this order. It is necessary to mention here that before starting above said proceedings, demarcation was got done at the spot of the land in dispute on 22.08.2010. It transpired that one Dharampal son of Kurda (petitioner no. 1 in CWP No. 11166 of 2013) and Bheem Singh were in cultivating possession of land falling in Rectangle No. 42 Killa No. 6, 15/1 and Rectangle No. 43 Killa No. 10/1, 10/2 and 11/1. 17 encroachments were noted in the land in dispute, including the encroachment made by the petitioner and others. Detail is given at page no. 67 of this writ petition. It was noted, after demarcation, that in the area in possession of the persons mentioned in that report, they have raised the some construction. Assistant Collector Ist Grade, Jhajjar dismissed application filed by the Gram Panchayat opining that the land in dispute was not its ownership. The Gram Panchayat went in appeal, which was allowed on 10.04.2012. Right holders including the petitioner in this case came to this Court by filing separate writ petitions which were disposed of on 18.09.2012 by passing main order in CWP No. 10562 of 2012, filed by the petitioner. It was noted by a Division Bench of this Court that the Collector and also the Assistant Collector Ist Grade, when giving finding in favour of either of the parties, had not applied their mind. Non speaking orders have been passed without discussing the effect of revenue documents on record. Gupta Shivani 2013.08.21 14:21 I attest to the accuracy and integrity of this document High Court Chandigarh

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CWP No. 10396 of 2013

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Relevant portion of the order dated 18.09.2012 reads thus:-

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“ We have heard counsel for the parties,

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perused the impugned order and though order passed by the Assistant Collector Ist Grade, is not under challenge, have no hesitation in holding that neither the Assistant Collector Ist Grade nor the Collector have passed a speaking order. The Assistant Collector Ist Grade and the Collector, have referred to the pleadings, the evidence and arguments addressed, but thereafter proceeded to decide the petition and appeal, without reference to any document much less the revenue record in support of their respective conclusions. The dispute, in the present case, necessarily required the Assistant Collector Ist Grade and the Collector, who exercise quasi-judicial powers, to record a prima-facie finding whether land, which is, admittedly, described as Jumla Mushtarka Malkan and vests in the Gram Panchayat for management and control in accordance with Sections 18 and 23-A of the Consolidation Act and Rule 16(ii) of the 1949 Rules, was earmarked/reserved during consolidation for any common purpose. The plea was decided in favour of the petitioner by the Assistant Collector Ist Grade without recording any reasons or referring to any document prepared during consolidation. The Collector reversed this finding without recording any reason or referring to any document or revenue entry. The order passed by the Collector, reads as follows: -

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“After hearing the learned counsel for both the

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parties and after perusing the evidence,

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Gupta Shivani 2013.08.21 14:21 I attest to the accuracy and integrity of this document High Court Chandigarh

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CWP No. 10396 of 2013

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documents and the rulings cited by them, I came to the conclusion that there is force in the appeal of the appellant. The Gram Panchayat is owner of the land in dispute. Therefore, the appeal of the Gram Panchayat is accepted and the order passed by the lower court is set aside and the orders are being passed in favour of the Gram Panchayat. Order announced. The file after compliance be consigned to the record room.”

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The Collector has passed a non-speaking order devoid of any reasons much less a process of reasoning. The Assistant Collector Ist Grade, also passed a non-speaking order. We, therefore, have no option but to allow the writ petitions and set aside orders dated 27.12.2011 and 10.04.2012, passed by the Assistant Collector Ist Grade, Jhajjar and the Collector, Jhajjar, respectively, and remit the matter to the Assistant Collector Ist Grade, Jhajjar, for adjudication afresh and in accordance with law. Parties are directed to appear before the Assistant Collector Ist Grade, Jhajjar, on 18.10.2012, who shall decide the matter within three months.”

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Reading of the order indicates that it was intention of this Court that the question of title be looked into by the Assistant Collector Ist Grade, Jhajjar. Directions were issued to pass a speaking orders after looking into documents on record and effect of those documents upon rights of the parties. Matter again went to the Assistant Collector Ist Grade, Jhajjar. Detailed evidence was led by both the parties. It is so mentioned in the order under challenge dated 17.01.2013 (Annexure P-10). Reading of that order shows that after narrating the history of the case and detail of the documents produced on record by both the

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Gupta Shivani 2013.08.21 14:21 I attest to the accuracy and integrity of this document High Court Chandigarh

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CWP No. 10396 of 2013

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parties, without discussing the effect of those documents, on the basis of some spot inspection report, order ejecting the petitioner was passed on 17.01.2013. Reading of the order makes it very clear that dispute affecting valuable rights of the petitioner and other right holders was decided in a very cursory manner. Detailed evidence which was on record was not discussed and it was not noted as to in the face of the documents placed on record how the land will vest in the Gram Panchayat. To say that land was taken on lease by some of the right holders, no detail of specific khasra numbers was given. Who are those right holders when land was taken on lease by them? Whether land in dispute was the land for which amount was paid by them? No finding was given in that regard. It was said that at the time of spot inspection, other right holders of the village affirmed that there was a well (Chah Badrawala) in existence in the property in dispute and that was being used by the villagers for the purpose to serve water to their animals.

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Despite directions issued by this Court to give finding regarding question of title, no effort was made in that regard. The same was done by the Collector when dismissing appeal filed by the petitioner on 23.04.2013. Though very lengthy, both the orders lack in application of mind. Detailed evidence was available before both the officers, but no reference was made to the documents on record and their effect upon the rights of both the parties.

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When issuing notice of motion on 15.05.2013, following contention of counsel for the petitioner was noticed by this Court:-

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“Counsel for the petitioner submits that, though, it was specifically noticed in order dated 18.09.2012, passed in Civil Writ Petition No. 10562 of 2012, while remanding the matter to the Assistant Collector Ist Grade, Jhajjar, that no finding was recorded on the question of title based upon a plea that the land, in dispute, was not earmarked/reserved during consolidation for any common

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Gupta Shivani 2013.08.21 14:21 I attest to the accuracy and integrity of this document High Court Chandigarh

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CWP No. 10396 of 2013

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purpose, the Assistant Collector Ist Grade, Jhajjar, has once again proceeded to decide the petition for eviction, without recording any finding of the question of title and by disregarding documents of consolidation, adduced by the petitioners to prove that the land was not reserved for any common purpose. The appellate authority has also disregarded these documents and affirmed the order passed by the Assistant Collector Ist Grade, Jhajjar.”

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After hearing counsel for the parties and looking into record of the case, we are satisfied that the argument raised by counsel for the petitioner on 15.05.2013 was correct. This Court, vide order dated 18.09.2012, has specifically observed that the Assistant Collector Ist Grade, Jhajjar and the Appellate Authority had decided lis between the parties without making any reference to the documents produced on record. It was further observed that it would have been desirable for the Assistant Collector Ist Grade, Jhajjar to give a prima facie finding whether the land which, admittedly was described as Jumla Mushtarka Malkan, vests in the Gram Panchayat or not. It was also to be noted whether at any time, the land was put in possession of the Gram Panchayat as per the provisions of Sections 18 and 23-A of The East Punjab Holding (Consolidation and Prevention of Fragmentation) Act, 1948. The above said finding given by this Court was not taken care of when the impugned orders were passed. Counsel for the respondent has failed to show that there was any compliance with the directions given by this Court.

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Under the circumstances, these writ petition are allowed.

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Orders under challenge dated 17.01.2013 and 23.04.2013 (Annexures P-10 and P-11) passed by Assistant Collector Ist Grade, Jhajjar and Collector, Jhajjar respectively are quashed. Matter is remitted to the Assistant Collector Ist Grade, Jhajjar for fresh disposal and he is directed to pass a speaking Gupta Shivani 2013.08.21 14:21 I attest to the accuracy and integrity of this document High Court Chandigarh

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CWP No. 10396 of 2013

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order after hearing arguments of both the parties. For arguments, only three dates be given. After discussing the effect of all the documents on record, a finding qua title of land, be given as per the parameters set down by this Court in order dated 18.09.2012. If it is found that the land was taken on lease by any of the petitioners in this writ petitions, a finding be recorded in that regard. Parties are directed to appear before Assistant Collector Ist Grade, Jhajjar on 12.08.2013.

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(Jasbir Singh) Judge 26.07.2013 (G.S. Sandhawalia) shivani Judge

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Gupta Shivani 2013.08.21 14:21 I attest to the accuracy and integrity of this document High Court Chandigarh

Mahender Singh v. Collector Cum Deputy Commissioner Jhajjar and Ors.

Case brief

What is this about?

What did the court decide?

Mahender Singh v. Collector Cum Deputy Commissioner Jhajjar and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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