DALIP RAM Vs. STATE OF PUNJAB

JUDGEMENT

(1.) The contentions and the factual matrix involved in the captioned Special Leave Petitions would reveal that the bone of contentions in them, essentially is one and the same viz., whether the subject lands were Shamlat deh, allotted (if at all allotment was there) on quasi permanent basis to displaced person(s) or whether they were Shamlat deh otherwise transferred to any person by sale or by any other manner whatsoever after commencement of Punjab Village Common Lands (Regulation) Act, 1961 (for short, 'the Act'). An answer to that question in the affirmative would fetch protection to such allotment or transfer by sale or by any other manner, statutorily by virtue of the amendment of Sec. 2(g)(ii-a) of the Act. Hence, the fate of most of these Special Leave Petitions is dependent mainly on that question. Needless to say, that some allied questions may also crop up for consideration. Special Leave Petition No. 8687 of 2012 is taken as the lead case and wherever any allied question also crops up and if found relevant, we will refer to such question(s) appropriately and also deal with them. Before dealing with the lead case and also the contentions, it will not be inappropriate to state that a scanning of all the above Special Leave Petitions would reveal that all the aforesaid cases have been pending for a long time and in fact, some of them were pending for more than three decades.

(2.) One Dalip Ram, son of Shri Uttam Ram filed the captioned Special Leave Petition seeking leave to challenge the judgment dtd. 18/10/2011 passed by the High Court of Punjab and Haryana at Chandigarh in Civil Writ Petition No.5865 of 1992. As per the same, the High Court rejected his challenge against the order dtd. 28/8/1991 passed by the Financial Commissioner in Appeal No.110 of 1998 carrying challenge against the order dtd. 19/1/1988 in case No.5441987 of the second respondent in an application filed by the third respondent-Gram Panchayat under Sec. 7 of the Act. The second respondent as per order dtd. 19/1/1988 allowed the aforesaid application for eviction of the petitioner herein from the subject land specifically described in the application. In the application, the third respondent-Gram Panchayat stated that the petitioner hereinthe respondent therein, is in unauthorised possession of the subject land belonging to the Gram Panchayat which was leased out to his father, even after the expiry of the lease period. Further, it was stated that even thereafter, he had neither handed over its possession to the Gram Panchayat nor paid lease money therefor. As per the order dtd. 19/1/1988, the second respondent found that the Gram Panchayat is the owner of the subject land thereby, rejecting the contra claim over ownership by the petitioner and finding that the petitioner hereinrespondent therein is in unauthorised possession of the subject land, ordered for his eviction. In the appeal filed by the petitioner herein, the Commissioner confirmed the order, rejecting the contentions of the petitioner that the land in question was Banjar Qadim and spending huge amounts he converted it to cultivable land and that the Panchayat has got no connection with the said land. The authorities concurrently found that in the Jamabandi for the year 1963-64, the subject land was recorded as Shamlat Deh and the petitioner's father was shown as its Chakotadar (lessee). Upon his death, the petitioner stepped into his shoes and continued its possession, even after the expiry of the lease period unauthorisedly. The Commissioner has also concurred with the findings that the petitioner had failed to hand over the possession of the land to the Gram Panchayat and also pay Chakota (rent). The petitioner challenged the aforesaid orders dtd. 19/1/1988 and 28/8/1991 unsuccessfully before the High Court in Civil Writ Petition No. 5865 of 1992 and the same was originally dismissed by the High Court as per order dtd. 21/7/1993. Seeking leave to challenge the said order in Writ Petition No. 5865 of 1992, the petitioner filed Special Leave Petition No. 3261-3262 of 1999. Taking into account the submission of the petitioner, that after the dismissal of the Writ Petition, an amendment was brought into Sec. 2(g)(ii) as Sec. 2 (g)(ii-A) in the Act as per Punjab Act No.8 of 1995 and was given effect from 9/7/1985, it was prayed to set aside the order sought to be impugned and the Writ Petition may be directed to be considered afresh having regard to the amendment brought in to the said Sec. . Accepting the said prayer, this Court as per order dtd. 1/12/2004, set aside the said order of the High Court and the matter was remitted to the High Court for fresh disposal observing that whether the amendment would cover the case of the petitioner or not is a matter to be examined on the basis of the materials already placed on record and in the light of the contentions raised. The order against which leave is sought for to challenge the same in this proceeding, was passed by the High Court pursuant to such consideration on remand. Though on merits, the said Writ Petition was again dismissed by the High Court subsequent to the remand, as per order dtd. 18/10/2011, it is a fact that the question, whether the aforesaid amendment brought to the Act covers the case of the petitioner was not pointedly considered thereunder. The said situation cannot be appreciated. Though we are not happy with the said situation taking into account the fact that the Writ Petition is of the year 1992, we do not think it appropriate to remand the matter again at this distance of time. In that view of the matter, we are inclined to consider the question, whether the amendment in view of the factual position obtained in this case would apply to the case of the petitioner so as to statutorily protect the allotmenttransfer in any other manner of the subject land, if any, by virtue of the said amendment.

(3.) As part of such consideration, we will first refer to the position of Sec. 2 (g) of the Act after the aforesaid amendment and it reads thus -