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Har Nand Vs. the Commissioner, Ambala Cantt and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ No. 2077 of 1969
Judge
Reported inAIR1972P& H14
ActsConstitution of India - Articles 226 and 227; Punjab Village Common Lands (Regulation) Act, 1961 - Sections 7
AppellantHar Nand
RespondentThe Commissioner, Ambala Cantt and ors.
Cases ReferredShri Jug Lal v. The Gram Panchayat
Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the..........bhojes, of naraingarh tehsil of ambala district. (viii) was shamilat deh and was assessed to land revenue and has been in the individual cultivating possession of co-sharers, not being in excess in such shamilat deh on or before the 26th january, 1950; or (ix) is used as a place of worship or for purposes of subservient thereto'. '3. (1) this act shall apply and before the commencement of this act, the 'shamilat law' shall be deemed always to have applied to all lands which are shamilat deh as defined in clause (g) of section 2'. '4. (1) notwithstanding anything to the contrary contained in any other law for the time being in force or in any agreement, instrument, custom or usage or any decree or order of any court or other authority, all rights, title and interests whatever in.....
Judgment:
ORDER

1. The facts giving rise to this petition under Arts. 226 and 227 of the Constitution of India are not in dispute and may be briefly stated. 96 kanals and 14 marlas of land described in the revenue records as shamilat deh and situated in village Madina Gindhran, Tehsil Gohana, District Rohtak, was held by one Hari Dass as a dohlidar for a long time and as let out by him to the petitioner as a tenant. In the year 1947 Hari Dass above mentioned left the place and has not been heard of since then.

On the 1st of January, 1968, the Gram Panchayat of village Madina Gindhran (respondent No. 4, hereinafter to be referred to as the Panchayat) presented to the Assistant Collector 1st Grade, Gohana, an application under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter called the Second Act) praying for the ejectment of the petitioner from the land on the ground that he had 'acquired its unauthorised possession for the last 5 years'. The petitioner having admitted before the Assistant Collector that Hari Dass had not been heard of since 1947, the application was accepted by the Assistant Collector who held that the dohli in question came to an end 'immediately after the death of Hari Dass dohlidar' and the dohli interest reverted to the original owner so that all rights in the disputed land thereupon vested in the Panchayat. An appeal taken by the petitioner to the Collector and a second appeal presented by him to the Commissioner also failed.

2. The orders of the Assistant Collector, the Collector and the Commissioner (Annexures 'D','E', and 'F' respectively to the petition) have been assailed before me only on the following grounds, although some other grounds of attack were also listed in the petition:

(a) No proceedings under Section 7 of the Second Act could have been taken unless the petitioner was in wrongful or unauthorised possession of the land in dispute.

(b) The possession of the petitioner was neither wrongful nor unauthorised in as much as the dohli tenure held by Hari Dass is still alive.

(c) In any case the dohli tenure was alive on the 9th January 1954, when the Punjab Village Common Lands (Regulation) Act, 1953 (hereinafter to be referred to as the First Act) came into force. Though the land was described as shamilat deh in the revenue records, even then it did not fulfil the definition of 'shamilat deh' within the meaning of that expression as given in clause (g) of Section 2 of the Second Act which definition, because of the provisions of sub-section (1) of Section 3 of the Second Act, had to be read into the First Act also.

(d) The Panchayat was neither a natural nor a juristic person and could not therefore, file any proceedings under the Second Act so that the impugned orders were without jurisdiction.

3. There is no, nor can be any dispute with the proposition covered by ground (a) but the provisions of Rule 19 of the Punjab Village Common Lands (Regulation) Rules, 1964 which govern proceedings under the Second Act, in so far as they are relevant, may be quoted here:

'19. For purpose of Section 7 of the Act, a person shall be deemed to be in unauthorised occupation of any land in shamilat deh:--

(a) where he has, whether before or after the commencement of the Act, entered into possession thereof otherwise then under and in pursuance of any allotment, lease or grant by the Panchayat; or

(b) where he being an allottee, lessee or grantee, has, by reason of the determination or cancellation of his allotment or lease or grant in accordance with the terms in this behalf therein contained, ceased whether before or after the commencement of the Act, to be entitled to occupy or hold such land in shamilat deh;or

* * * * *

* * * *'

These provisions made it clear that if the entry of a person on land is under a grant which comes to an end, his occupation of the land becomes unauthorised as from the date of the termination of the grant and it goes without saying that the occupation of the land by those whom he may in the meantime have brought on the land either as lessees or licensees would also assume a similar character. It follows that if the dohli tenure held by Hari Dass had come to a termination on the date when the application under Section 7 of the Second Act was filed by the Panchayat, his occupation must be deemed to be unauthorised so that the proceedings held in pursuance of the application would not suffer from the infirmity of lack of jurisdiction.

4. Ground (b) is without substance and must be repelled. Although there is no presumption under the provisions of Section 108 of the Indian Evidence Act that a person not heard of for a period of more than 7 years died on a particular date, the proposition that if he is shown not to have been so heard prior to the commencement of a proceeding in which the question of his being alive or dead is in issue he may be presumed to have died at the latest on the commencement of that proceeding, it is disputed before me. It being admitted on all hands that Hari Dass is missing since 1947, it must be presumed that he is no longer alive when the application under Section 7 of the Second Act was filed by the Panchayat. It is further not disputed before me that he left no heirs and that the dohli tenure terminated with his death. The petitioner's possession over the land in dispute, therefore, was 'unauthorised' when the said application was filed.

5. Ground (c) is based on the provisions of clause (g) of Section 2, sub-section (1) of Section 3 and sub-section (1) as well as clause (i) of sub-section (3) of Section 4 of the Second Act. These provisions may be reproduced here with advantage:

'2. (g) 'Shamilat deh' includes:--

(1) lands described in the revenue records as shamilat deh excluding the abadi deh;

(2) shamilat tikhas;

(3) lands described in the revenue records as shamilat tarafs, pattis, pannas, and tholas and used according to revenue records for the benefit of the village community or a part of thereof or for common purposes of the village;

(4) lands used or reserved for the benefit of village community including streets, lanes, play-grounds, schools, drinking wells, or ponds within abadi deh or qora deh; and

(5) lands in any village described as banjar qadim and used for common purposes of the village according to the revenue records;

Provided that shamilat deh, at least to the extent of twenty-five per centum of the total area of the village does not exist in the village;

but does not include land which :--

(i) becomes or has become shamilat deh due to river action or except shamila deh entered as pasture, pond or play-ground, in the revenue records;

(ii) has been allotted, on quasi permanent basis, to a displaced person.

(iii) has been partitioned and brought under cultivation by individual land holders before the 26th January, 1950;

(iv) having been acquired before the 26th January 1950 by a person by purchase or in exchange for a proprietary land from a cosharer in the shamilat deh is so recorded in the jamabandi or is supported by a valid deed;

(v) is described in the revenue record as shamilat taraf, patti, panna, and tholas and is not used according to revenue records for the benefit of the village community or a part of thereof or for common purposes of the village;

(vi) lies outside the abadi deh and is used as gitwar,bara, manure-pit or house or for cottage industry;

(vii) is shamilat deh of villages included in the fourteen revenue estates called Bhojes, of Naraingarh Tehsil of Ambala District.

(viii) was shamilat deh and was assessed to land revenue and has been in the individual cultivating possession of co-sharers, not being in excess in such shamilat deh on or before the 26th January, 1950; or

(ix) is used as a place of worship or for purposes of subservient thereto'.

'3. (1) This Act shall apply and before the commencement of this Act, the 'shamilat law' shall be deemed always to have applied to all lands which are shamilat deh as defined in clause (g) of Section 2'.

'4. (1) Notwithstanding anything to the contrary contained in any other law for the time being in force or in any agreement, instrument, custom or usage or any decree or order of any court or other authority, all rights, title and interests whatever in the land :--

(a) which is included in the shamilat deh of any village and which has not vested in a Panchayat under the 'shamilat law' shall, at the commencement of this Act, vest in a Panchayat constituted for such village and where no such Panchayat has been constituted for such village, vest in the Panchayat, on such date as a Panchayat having jurisdiction over that village is constituted.

(b) which is situated within or outside abadi deh of a village and which is under the house owned by a non-proprietor, shall on the commencement of the 'shamilat law' be deemed to have been vested in such non-proprietor.'

'4. (3). Nothing contained in clause (a) of sub-section (1) and in sub-section (2) shall affect or shall be deemed ever to have affected the :--

(i) existing rights, title or interest of persons, who though not entered as occupancy tenants in the revenue records, are accorded a similar status by custom or otherwise, such as dohlidars, bhoudedars, butimars, besikhuopohus, saunfidars, makararidars;'

According to the learned counsel for the petitioner, the definition of Section 2(g) has to be read into the First Act by reason of the provisions of sub-section (1) of Section 3 thereof and the relevant date for the determination of the character of the land with reference to Section 2 (g) is the 9th January, 1954, when the First Act came into force. The proposition so enunciated by him appears to me to be well-bounded and finds full support in Nathu v. Puran, ILR (1962) 2 Punj 631, a case decided by Mahajan, J., which was followed, with approval, by a Division Bench of this Court (Mahajan and Narula, JJ.) in Lakhi Ram v. The Gram Panchayat Gudha, District Karnal, ILR (1968) 1 Punj 301. However, this proposition is of no avail to the petitioner inasmuch as the land in dispute fulfilled the requirements of 'shamilat deh' as defined in Section 2 (g) of the Second Act not only when that came into force but also on the 9th of January, 1954, inasmuch as it is undisputed that the said land has throughout been described as shamilat deh in the revenue records and that it does not fall within the abadi deh not within any of the nine exceptions appearing in Section 2 (g) of the Second Act.

It is no doubt true that the rights of a dohlidar are protected under Clause (I) of sub-section (3) of Section 4 of the Second Act but that clause has nothing to do with the vesting in the Panchayat of land described as shamilat deh in the revenue records. Any land held under a dohli tenure but described as 'shamilat deh' as on the 9th of January, 1954, would vest in the Panchayat concerned provided it does not lie within the village abadi nor falls within any of the exceptions above mentioned so that the dohlidar would as from the 9th of January, 1954, hold the land under the Panchayat who would be the owner thereof and as soon as the dohli tenure comes to an end, the Panchayat would become entitled to the possession of the land which it may acquire, if necessary, by recourse to the provisions of Section 7 of the Act. In this view of the matter it must be held that even if it is assumed that Hari Dass dohlidar was alive on the 9th of January, 1954, that circumstance would be no hurdle in the way of the Panchayat becoming the owner of the land as from that date and of its ejecting any person holding unauthorised possession thereof as from the date when the tenure became extinct. I must hold, therefore, that there is no substance in ground (c) either.

6. Ground (d) is also meritless. Section 7 of the Second Act itself empowers a Panchayat to make an application of the kind with which we are here concerned, and such being the case, it is immaterial that the Panchayat is not a natural or juristic person. In this connection I may also refer to Shri Jug Lal v. The Gram Panchayat, Civil Writ No. 2042 of 1967, decided by me on 5-2-1971=(reported in AIR 1971 Punj 393), wherein detailed reasons have been given in support of this view.

7. For the reasons stated, the petition fails and is dismissed but in view of the points of law involved, I leave the parties to bear their own costs.

8. Petition dismissed.


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