MOHINDER SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) MOHINDER Singh and three others, through present petition filed by them under Article 226 of the Constitution of India, seek issuance of writ in the nature of certiorari so as to quash orders, Annexure P-3 and P-4, dated 24.4.1998 and 9.11.2001, passed by the Collector and Commissioner, respectively, whereby the petitioners herein were ordered to be evicted in the proceedings initiated against them under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as 'the Act of 1961'). Order, Annexure P-3, passed by the Collector has since been confirmed vide order, Annexure P-4, by the Commissioner. In furtherance to setting aside of orders, Annexure P-3 and P-4, the petitioners further pray that they may be conferred ownership rights of the land, subject matter of dispute, which it is stated, is in their possession for the last more that 40 years.

(2.) BRIEF facts giving rise to the present writ as projected in the petitioner reveal that village Lakhowal Kalan, Tehsil Samrala, District Ludhiana, was inhabited by the Muslims alone before the partition of the country. The Muslims residing in the village migrated to Pakistan at the time of partition and the entire land of the village, be it owned by the proprietors or the Shamlat Deh, became as evacuee property by operation of law. The said land, thus, vested in the Custodian and subsequently came to be acquired by the Central Government by virtue of operation of law under various enactments. The vesting took place under the various Ordinance passed by the State of Punjab and finally under the provisions of the Administration of Evacuee Property Act, 1950 (hereinafter referred to as 'the Act of 1950'). Under the provisions of the Act of 1950, all interests of the Muslims evacuees in the land and the property left behind by them, which had become evacuee property, vested in the Central Government. Subsequently, the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (hereinafter referred to as 'the Act of 1954'), came into existence and in accordance with the said Act also, the Central Government became the owner of the evacuee property. Surplus evacuee property left after satisfying the claim of the displaced persons/claimants, was taken over by the State Government as per letter dated 1.4.1961. There was vast tract of uncultivable and banjar land in the village and on the refusal of the Gram Panchayat to make the said land fit for cultivation, same was allotted to the landless Harijans including the petitioners under Section 5 of the East Punjab Utilization of Land Act, 1949 (hereinafter referred to as 'the Act of 1949'). Petitioner No. 1 was allotted land measuring 39 kanals 12 marlas and possession whereof was given at the spot. Similarly, father of petitioners 2 to 4 was allotted land measuring 32 kanals. The land was Banjar Kadim and part of it was jungle and was lying vacant and unused since long. Although the land was not fit or cultivation, yet petitioner No. 1 and father of petitioners 2 to 4 by the dint of their hard work and by spending lot of time, energy and money, made the same cultivable and subsequently, by spending all their savings, constructed a residential house for themselves and their families on a small portion of the land. At the time of allotment, it is the case of the petitioners, they were told by the Government that after the expiry of lease period, they will be conferred proprietary rights. They were as such in possession of the landing question for the last more than 40 years continuously without any interference from on anybody. It is then pleaded that conflict regarding the custody, management and disposal of evacuee agricultural land in Shamlat Deh arose after the enactment of the Punjab Village Common Lands (Regulation) Act, 1954 and 61. According to these Acts, all rights and interests in Shamlat Deh, whether evacuee or otherwise, were to vest in the Panchayat having jurisdiction. This dispute was finally settled by a decision recorded by a Division Bench of this Court in Gram Sabha and Gram Panchayat Daba v. Chief Settlement Commissioner, 1973 PLJ 398. As per this decision, the Panchayat cannot legally claim its ownership only on the basis of wrong and illegal entry in its favour in the Jamabandi made subsequently. Later, the Government under the provisions of Punjab Package Deal Properties (Disposal) Act, 1976, issued executive instructions/press notes for allotment/transfer of the land to the occupants/landless persons and as such the petitioners had been allotted the land in question. Further to provide disposal of the properties taken over by the Punjab Government in package deal and the matters connected therewith, the State Government enacted the Act of 1976, under which valuable right was given to the persons like the petitioners to own the evacuee land which had been leased by the Punjab Government. It is pleaded that a Division Bench of this Court in Bishen Singh and others v. Chief Settlement Commissioner and others, 1973 PLJ 183, has held that the persons covered by the press note have an enforceable legal right and the press note gives the policy decision of the State Government and the persons, who continued to be in possession of the property and improved the same, can certainly call upon the State Government to carry out the undertaking given by it and it is not open to the State Government to discriminate between one member of the particular category and the other. On 21.4.1971, the then Deputy Commissioner, as the Administrative Head of the District, ordered all the Tehsildars that in future no Shamlat Deh should be leased out and after getting possession from the allottees/lessees, the matter should be reported to him. In compliance of the order aforesaid, the Tehsildars issued notices to the lessees/allottees for handing-over the possession of the lands, like the land in question, to the Gram Panchayats. Said notice was challenged by way Civil Writ Petition bearing No. 2280 of 1971 (Hans Raj and others v. the State and others) and this Court, while issuing notice of the writ petition, granted stay of dispossession and finally allowed the same. It is then pleaded that the said petition pertained to the land in village Kakhowal Kalan only. On 9.2.1982, Gram Panchayat, the fourth respondent herein, filed petitioner under Section 7 of the Act of 1961 against petitioner No. 1. Same was dismissed for non-prosecution on 19.4.1983. The same very respondent once over again filed petition under Section 7 of the Act of 1961 for eviction against the petitioners, which too was dismissed on 20.5.1992, as the Gram Panchayat failed to produce any evidence/witness. The matter with regard to eviction of the petitioners by the dint of these two orders, it is then pleaded, had attained finality. Despite that, the Gram Panchayat filed a third petition under Section 7 of the Act of 1961 itself, which was contested by the petitioners, but the same was allowed vide order, Annexure P-3, dated 24.8.1998 by the Collector. Feeling aggrieved, the petitioners filed appeal, which has since been dismissed vide order, Annexure P-4, dated 9.11.2001, by learned Commissioner. It is then pleaded that in the meanwhile, the Village Common Lands Act was amended by the Punjab Village Common Lands (Regulation) Amendment Act, 1995 (hereinafter referred to as 'the Amended Act of 1995'). By virtue of the provisions of the Amended Act of 1995, in clause (g) of Section 2 of the Village Common Lands Act after sub-clause (ii), sub-clause (ii-a) was inserted. In light of the said provision, the land in question cannot be termed as Shamlat Deh and accordingly, the Gram Panchayat, the fourth respondent herein, could not legally claim ownership and eviction of the petitioners from the land in question. It is then pleaded that this Court vide its judgment passed in Civil Writ Petition No. 3207 of 1982, while dealing with the similar case as that of the petitioners, has held that any transfer made after the commencment of the Village Common Lands Act till July 9, 1985, would cease to be Shamlat Deh and as such, the Gram Panchayat cannot claim any right in the said land and accordingly, the said writ petition was allowed. All these matters, it is the case of the petitioners, were ignored while passing the order of eviction against them. It is then pleaded that the petitioners filed a suit for permanent injunction against the fourth respondent for restraining it from interfering in the peaceful possession of the petitioners over the land in question, on the ground that they have become owners in possession. Initially, temporary injunction was granted but the same was vacated, subsequently. The petitioners had filed appeal against the order declining to grant of ad-interim stay. The Gram Panchayat too had filed suit for permanent injunction against the petitioners after the order of eviction had been passed against them for harvesting the wheat crops and learned trial Court restrained the petitioners from harvesting the wheat crops. Gram Panchayat, through the Block Development and Panchayat Officer, lodged an false FIR under Section 379 of the Indian Penal Code against the petitioners for the alleged theft of the crops, which had admittedly been sown by the petitioners. Gram Panchayat with the help of police force, however, illegally and forcibly removed the wheat crops of the petitioners from the land in question.

(3.) ON merits, it is the case of the respondent Gram Panchayat that the land in dispute vests in it by operation of law. The assertions made by the petitioners that the whole village was inhabited by Muslims has been denied. It has been pleaded that only the land belonging to the Muslims became evacuee property and not the Shamlat land nor the land in dispute. It is denied that the land in dispute was ever allotted to the petitioners. The Gram Panchayat became the owner of the land in dispute and it leased out the same to the petitioners. The petitioners after the expiry of lease did not hand-over the possession of the land to the answering respondents. The fact that the land was leased by the Panchayat to the petitioners is sought to be established by the Jamabandi for the year 1996-97 (Annexure R-4/3). Entry in the Jamabandi shows the lease from 1961 to 1971. It is then pleaded that the petitioners have indulged in contradictory pleas by claiming on the one hand that they are lessees of the Gram Panchayat and on the other hand, they are projecting that the land in question was allotted to them by the Government. They, however, led no evidence to show that they were allotted the land by the Government. Gram Panchayat became the owner of the land in dispute in the years 1955 when mutation was sanctioned in its favour on the basis of order passed by the Punjab Government. This mutation was never challenged by the petitioners or any body else and had attained finality. The petitioners, in any case, came into possession of the property in dispute only as the lessees of the Gram Panchayat in the year 1961. The property in question was never declared as an evacuee property. Thus, it never came to be vested in the Central Government by any notification under Section 12 of the Act of 1954. Insofar as Civil Writ Petition bearing No. 2280 of 1971 is concerned, it is the case of the Gram Panchayat that this Court had given liberty to the authorities to proceed against the petitioners, in accordance with law, for eviction of the petitioners from the land in dispute. In the petition aforesaid, this Court quashed the letter written by the Deputy Commissioner by holding that the Deputy Commissioner is not empowered under the East Punjab Utilisation of Land Act, 1949. Rather vide this judgment, this Court has given liberty to the authorities under the Act to proceed against the petitioners, in accordance with law. Section 7 of the Act of 1961, it is the case of the Gram Panchayat, authorises the Gram Panchayat to initiate proceedings for eviction of the persons in unauthorised possession over Shamlat Deh. The other factual averments made in the petition, as referred to above, while making the pleadings in the written statement have also been denied.