GRAM PANCHAYAT OF CHANDANA, TEH. AND DISTT. KAITHAL THROUGH ITS SARPANCH Vs. COMMISSIONER, AMBALA DIVISION

JUDGEMENT

(1.) BRIEF facts giving rise to this revision petition are that respondents Nos. 2 to 4 were ordered to be evicted from the land measuring 1 kanal 4 marla bearing khasra No. 199, by the Assistant Collector, 1st grade, Kaithal vide order dated 15.04-2005 in exercise of his powers under section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as the Act). The appeal filed under section 13B(1) of the Act against the said eviction order dated 15.4.2005 was dismissed by the Collector, Kaithal vide his order dated 15.6.2005. However, the revision petition filed under section 13B(2) of the Act was allowed by the Commissioner Ambala Division by setting aside the orders passed by the learned Assistant Collector, 1st grade and Collector vide his order dated 17.1.2007. Aggrieved by the said order dated 17.1.2007, the present revision petition has been preferred.

(2.) OPENING his arguments the learned counsel for the petitioner argued that the land in question is a part of phirni and the respondent Nos. 2 to 4 have encroached upon this land illegally by constructing houses. Due to this encroachment, the rasta sarre-aam has been blocked and inhabitants of the village are facing difficulties. Aks shajra and the Field Book which are the authentic revenue records clearly stipulate that the land comprising khasra No. 199 measuring 1 kanal 4 marla is gair mumkin abadi tahat phirni. The land in question being reserved and used for street/phirni falls within the ambit of shamilat deh as defined under sections 2(g)(4) and 4(a) of the Act and it vests in the Gram Panchayat. It was further argued that the learned Commissioner has committed error in observing that as per the report of Kanungo the houses of the respondents Nos. 2 to 4 are constructed on the land in question for the last 15 years. Moreover, the construction of houses on the land in question does not give any right to the respondents Nos. 2 to 4 to encroach upon the panchayat land. The respondents Nos. 2 to 4 have failed to produce any evidence in support of their case to claim the ownership of the land in question. The orders passed by the learned Assistant Collector, 1st grade and Collector, Kaithal are based on the revenue record and sustainable in the eyes law. The learned Commissioner has not given any cogent reason while allowing the revision petition of the unauthorized occupants. Concluding his arguments he prayed for acceptance of this revision petition.

(3.) COUNSEL for the respondent Nos. 2 to 4 argued that the present petition is not maintainable in its present form. The Gram Panchayat had not filed the ejectment application before the Assistant Collector, 1st grade, therefore, it has no locus standi or cause of action to challenge the order passed by the Commissioner by way of present revision petition. The present ejectment application was also barred by principle of res judicata as the ejectment application filed on 11.08.1983 was adjourned sine die vide order dated 16.4,2007 with liberty to the petitioner to get the same restored. The said application is deemed to be still pending. During pendency of previous application a second similar application is not maintainable. It was further argued that the land in dispute is recorded as gair mumkin abadi and it was neither reserved nor ever used for any common purpose of the village, therefore, it does not vests in the Gram Panchayat. The field book could not be prepared contrary to the entries of jamabandis to which a presumption of truth attaches. There is no evidence on record to indicate that the Gram Panchayat is owner of the land in dispute. It was incumbent upon the panchayat to prove its ownership of the land in dispute in order to succeed in seeking eviction of the respondents Nos. 2 to 4. Referring to the case law reported as 1973 PLJ 701 it was argued that the nature of land cannot be decided during the course of ejectment application by following summary procedure. Before passing the eviction order by the Assistant Collector and Collector, the question of title was required to be adjudicated. Therefore, there is no infirmity in the impugned order dated 17.01.2007 passed by Commissioner and prayed for dismissal of this revision petition.