ROPALA Vs. COLLECTOR, KARNAL

JUDGEMENT

(1.) This letters patent appeal is directed against the order of the learned single Judge whereby in the writ petition challenging the order of the Assistant Collector ordering eviction of the petitioner from the land, in dispute, dated September 30, 1976 and that of the Collector, dismissing the appeal were maintained.

(2.) The petitioner, Ropala, filed a suit for declaration in the Court of the Assistant Collector, First Grade, Panipat, under Section 13-B of the Punjab Village Common Lands (Regulation) Act, 1961, (hereinafter called the Act). The said suit was contested on behalf of the Gram Panchayat. The learned Assistant Collector after framing the issues and allowing the parties to lead evidence came to the conclusion that the plaintiff had taken the land on lease from the Gram Panchayat and after the expiry of the lease, his possession over the suit land had been unauthorised. It was also found that the plaintiff had failed to prove that he was in cultivating possession of the old numbers before January 26, 1950, paying no rent to anybody. In view of this finding, the suit was dismissed. Appeal against the said judgment was dismissed by the Collector on the ground that the same was not maintainable. Before the learned Single Judge, one of the arguments raised was that the order of the Collector that no appeal was provided for against the order of the Assistant Collector is patently illegal and in the alternative, it was argued that if the provisions contained in sub-sections (5) and (7) of the Section 13-A of the Act, which have been struck down by a Division Bench of this Court in Karnal Cooperative Farmers Society Ltd., Pehowa v. Gram Panchayat, Pehowa and others, 1976 PunLJ 237, as unconstitutional are excluded from Section 13-B of the Act, then it will be rendered unworkable. Thus, it was argued that the Collector had been conferred the power to hear appeals by a deeming provision. Lastly, it was argued that there was ample material on the record to show that the land, in dispute, squarely falls within the description of sub-clause (VIII) of clause (g) of Section 2 of the Act, and, therefore, it was not shamilat hence the revenue authorities had no jurisdiction to order eviction therefrom. All these contentions were negatived by the learned Single Judge and ultimately, the writ petition was dismissed.

(3.) The learned counsel for the appellant submitted that even if the land, in dispute, is banjar qadim, then also it does not vest in the Gram Panchayat as the same was never used for common purposes according to the revenue record. In support of the contention, reliance was placed on Gram Panchayat, Sadhraur v. Baldev Singh, 1977 PunLJ 276. However, since no such point was raised either before the Assistant Collector or in the writ petition, nor it was argued before the learned Single Judge, it could not be allowed to be taken for the first time in the letters patent appeal.