HARI RAM Vs. THE ASSISTANT COLLECTOR

JUDGEMENT

(1.) Prayer in this petition filed under Article 226/227 of the Constitution of India is for quashing the orders dated 2.5.1980 and 28.2.1994, Annexures P-2 and P-3 respectively passed by the Assistant Collector, 1st Grade, Narnaul-respondent No. 1, whereby it was ordered that the petitioner and respondent No. 4 be dispossessed from the disputed land and possession be delivered after demolition of the house constructed thereon within 15 days to the Gram Panchayat by police help. It was also ordered that if the petitioner and respondent No. 4 make an application for the purchase of the land for the house within 10 days, the Gram Panchayat could consider the same and receive the appropriate amount. A few facts relevant for the decision of the controversy involved, as narrated in the petition may be noticed. The petitioner is a resident of village Bayal, Tehsil Narnaul, District Mohindergarh. During consolidation, the authorities reserved a very less area for the abadi and with the increase of population of the village, the residents including proprietors, Harijans etc. started raising construction of their residential houses within the phirni. The petitioner also constructed his residential house about 40/45 years back in the phirni bearing Khasra No. 173 measuring 1 Kanal 17 marlas and started living there alongwith his family members. The Gram Panchayat did not raise any objection at that time. On 07.12.1976, respondent No. 2-Block Development and Panchayat Officer moved a petition under Section 7(2) of the Punjab Village Common Land (Regulation) Act, 1961 (in short, "the Act") for ejectment of the petitioner and respondent No. 4 from the land in dispute before Assistant Collector, 1st Grade, Narnaul, stating that they were in illegal possession thereof. The land in dispute was stated to be owned by the Gram Panchayat, village Bayal, Tehsil Narnaul, District Mohindergarh and they were not cultivators prior to 26.1.1950. Notice was issued by the Court of Assistant Collector, 1st Grade, Narnaul to the petitioner and respondent No. 4 to show cause as to why they be not dispossessed from the land in dispute. They submitted reply to the notice stating therein that they were in legal possession of the land for the last 40/45 years and that they had constructed a concrete house thereon and Gram Panchayat had no concern with the same. It was further stated that the possession of the petitioner and respondent No. 4 was for more than 12 years and as such they were having adverse possession and had become its owner. The question of title was also raised before the Assistant Collector, 1st Grade, Narnaul to the effect that the land in dispute did not fall under the definition of shamilat deh as defined under Section 2(g) of the Act as the construction in question was raised in the phirni about 40/45 years back. The Assistant Collector, 1st Grade after examining the record and hearing the parties, vide order dated 2.5.1980, Annexure P-2 ordered that the petitioner and respondent No. 4 be dispossessed from the land in dispute after demolishing the house and the possession be delivered to the Gram Panchayat within a period of 15 days with the police help. It was also ordered that if they make an application for the purchase of the land in dispute on which the construction had been raised within 10 days, the Gram Panchayat could consider the same and receive the appropriate amount. The petitioner and respondent No. 4 immediately thereafter filed an application to the Gram Panchayat for the purchase of the land in dispute. According to the petitioner, the Gram Panchayat sent the case to the Deputy Commissioner, Narnaul for his approval. No response was received from the Deputy Commissioner. They were living peacefully till 14.5.1993. The order dated 2.5.1980 was not executed by the Gram Panchayat for a period of more than 12 years; On 15.5.1993 respondent No. 2 filed an application before the Assistant Collector, 1st Grade, Narnaul for executing the order dated 2.5.1980 stating therein that the possession of the land in dispute be delivered to the Gram Panchayat. The petitioner pleaded that the execution application was barred by the limitation and prayer was made that the petitioner be informed about the amount required to be deposited for the purchase of the land. Vide order dated 28.2.1994 Annexure P-3, respondent no. 1 ordered that since the petitioner and respondent No. 4 had failed to deposit the amount, the house be got demolished and its possession be delivered to the Gram Panchayat. Aggrieved by the order, the petitioner approached this Court through the present petition.

(2.) No written statement has been filed on behalf of the respondents.

(3.) Learned counsel for the petitioner submitted that the orders dated 2.5.1980 and 28.2.1994, Annexures P-2 and P-3 respectively passed by the Assistant Collector, 1st Grade, Narnaul are legally unsustainable. According to the learned counsel, the order Annexure P-2 dated 2.5.1980 passed by the Assistant Collector, 1st Grade Narnaul on a petition under Section 7(2) of the Act for ejectment of the petitioner and respondent No. 4 from the land in dispute is in violation of judgments of this Court in Smt. Mali v. Collector, Mohindergarh and others, 2013 172 PunLR 474, Jagir Singh v. Gram Panchayat Village Mirajpur and others, 1989 PunLJ 494. It was urged that even though the order of ejectment was passed on 2.5.1980, the same was never executed for a period of 12 years and vide order dated 28.2.1994, Annexure P-3, possession was sought to be taken from the petitioner which was not permissible under the law being hit by delay and laches and was beyond limitation. Learned counsel submitted that in view of the subsequent decisions of this Court and amendment of the Act, it would be appropriate that after setting aside orders Annexures P-2 and P-3, the matter is remitted to the Assistant Collector, 1st Grade Narnaul for fresh adjudication after affording an opportunity of hearing to the parties in accordance with law.