SITA RAM ETC Vs. GRAM PANCHAYAT ISMAILA ETC

JUDGEMENT

(1.) In this petition under Article 226 and 227 of the Constitution of India, the petitioners seek quashing of the orders dated 9.1.2007 (Annexure P/17), 22.1.2007 (Annexure P/19) and 23.5.2007 (Annexure P/21) passed by the Assistant Collector I- Grade, Rohtak - respondent No.2, the Collector Rohtak respondent No.3 and the Commissioner, Rohtak Division, Rohtak respondent No.4 respectively.

(2.) The case of the petitioners is that petitioners No.1 and 2 along with their three brothers Lachhe Ram, Ramphal and Sube Ram whose legal representatives are petitioners No.3 and 4 and proforma respondents No. 5 to 16 are proprietors and co-sharers in the revenue estate of Village Ismaila (9 Biswa), Tehsil and District Rohtak. Their ownership land was nearly 124 Bighas. The land of the petitioners and the co-sharers is situated in Thola Jaimalan. Their share in the Shamlat Thola Jaimalan has been more than 50 Kanals of land . In the Jamabandi (Record of Rights) of 1946-47 (Annexure P-1), Khasra Nos.1339, 1340, 1341, 1338, 1320, 1344 and 1345 are recorded as Shamlat Deh Hasab Rasad Arazi Khewat and in possession of the proprietors (Makbuza Malkan).

(3.) The consolidation of land holdings in Village Ismaila (9 Biswa) continued from 1951 to 1960. Therefore, no Jamabandi of the village was prepared during the period after 1946-47 till 1960-61. In the Scheme of Consolidation (Annexure P-2) it has been mentioned in Item No.3 that there are four tholes in the village including Thola Jaimalan. Each Thola has separate fields and the fields of the Tholas do not intermix with each other. Therefore, during consolidation and repartition, the area of the Thola was to be kept separate. In terms of Item No.4 of the Consolidation Scheme (Annexure P-2), it was provided that in the partition of the Shamlat area, no area of Shamlat Thola or Shamlat Deh would be included. However, these would be given proper shape on the killa lines which was to be adjacent to the present uncultivated land. In the repartition, as a result of consolidation of land-holdings under the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1947 ('Consolidation Act'- for short), the petitioners and the cosharers were allotted land measuring 49 Kanals 15 Marlas. It is submitted that the petitioners, their co-sharers and their predecessors-in-interests had brought the land comprised in Khasra Nos. 1339, 1340, 1341, 1338, 1320, 1344 and 1345 under cultivation by means of their hard labour in breaking the sand domes and irrigating the land. The same was allowed to continue in their possession during repartition at the time of consolidation. The old Khasra numbers as mentioned above, have been assigned new Khasra numbers which are mentioned in the Jamabandi for the year 1960-61 (Annexure P-3) in respect of the land measuring 22 Kanals 18 Marlas. The same entries were repeated in the subsequent Jamabandi for the year 1963-64 (Annexure P-4). It is submitted that the Jamabandis for the year 1960-61 (Annexure P-3) and 1963-64 (Annexure P-4) did not show the land measuring 26 Kanals 17 Marlas due to inadvertence which was however, shown in the Jamabandi of the year 1967-68 (Annexure P-5). In the said Jamabandi (Annexure P-5), the entire area of land measuring 26 Kanals 17 Marlas has been shown in the possession of the petitioners. Thereafter, the entries were repeated in all the subsequent Jamabandis in respect of the entire 49 Kanals 15 Marlas land which was brought under individual separate cultivation by the petitioners and their co-sharers including proforma respondents No.5 to 16. The copies of Jamabandis for the year 1972-73 (Annexure P-6), 1977- 78 (Annexure P-7), 1982-83 (Annexure P-8) ,1987-88 (Annexure P-9), 1992-93 (Annexure P-10) and 1997-98 (Annexure P-11) are attached. The Khasra girdawaris from 1997 to 2006 (Annexure P-12) and the latest Jamabndi for the year 2002-03 (Annexure P-13) are also attached. As per the latest Jamabandi, it is stated that the petitioners and their co-sharers have been recorded to be in separate individual cultivating possession of the land measuring 49 Kanals 15 Marlas. The land has been in their cultivating possession before the Gram Panchayat Ismaila (9 Biswa) was constituted under the Punjab Gram Panchayat Act, 1952. Therefore, according to them, the Gram Panchayat (respondent No.1) could not have acquired any proprietory rights in the above said land because the Shamlat law came into force on 9.1.1954. The petitioners and the proforma respondents have in fact been in individual cultivating possession and recorded as tenants on the land in dispute without paying any rent to the Gram Panchayat, although the entries continue in the names of Lachhe, Ramphal, Suba, Kali Ram and Sita Ram sons of Ram Nath son of Shiv Dayal. The petitioners are shown in the revenue record as ; "Gair Marusi Billa Lagan Bawajah Sabika Hissedari" in recognition of their right of possession as co-owners in the village proprietary body. It is submitted that by mere mention of Gair Marusi (Tenant at will), does not affect the foundation of title of the owner. The mutation No.1454 which has been sanctioned in favour of the Gram Panchayat on 19.10.1955 (Annexure P-14A), was without notice to the petitioners or their predecessors-in-interest as admitted by the Patwari in his statement (Annexure P-14) recorded before the Assistant Collector I-Grade while appearing as RW-1. Therefore, it cannot be held that the land of the proprietors of the village including the petitioners had become the property of the Gram Panchayat. In terms of the mutation No.1454 sanctioned on 19.10.1955 (Annexure P-14A), the Shamlat Deh Hasab Rasad Arazi Khewat land which was ownership of all the proprietors jointly including the petitioners, was wrongly mutated in favour of the Gram Panchayat on the basis of letter dated 10.3.1954 without any notice to the proprietors. It is submitted that in the facts and circumstances, the petitioners are owner of the land measuring 49 Kanals 18 Marlas and respondent No.1-Gram Panchayat has no right to the same. The eviction petition under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961, (as applicable in Haryana) ('1961 Act' - for short) that was filed, was not maintainable and the impugned orders (Annexures P-17, P-19 and P-21) are liable to be quashed.