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Sardara Devi and ors. Vs. Commissioner, Hissar Division and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ Petition No. 1319 of 1984
Judge
Reported in(2004)137PLR628
ActsPunjab Village Common Lands (Regulation) Act, 1961 - Sections 4 and 13A
AppellantSardara Devi and ors.
RespondentCommissioner, Hissar Division and ors.
Appellant Advocate I.S. Balhara, Adv.
Respondent Advocate Daljeet Singh, Adv.
DispositionPetition dismissed
Excerpt:
.....is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - 4 supported the impugned orders and argued that the suit filed by late shri kanha ram on 3.10.1978 for cancellation of mutation dated 15.5.1954 was clearly barred by time and the same was not saved by virtue of the amendment made in the act by haryana act no. , after 24 years of the accrual of the cause of action was clearly barred by time cannot be termed as erroneous or vitiated by an error of law......and commissioner, hissar division, hissar (respondent no. 1) respectively under the punjab village common lands (regulation) act, 1961 (for short, 'the act'), as applicable to the state of haryana.2. late shri kanha ram, of whom the petitioners claim to be the legal representatives, filed a suit on 3.10.1978 in the court of respondent no. 3 with the prayer that he be declared as the owner of land measuring 15 kanals 10 marlas situated in village palwas, tehsil and district bhiwani and mutation no. 1602 dated 15.5.1954 sanctioned in favour of gram panchayat, palwas (respondent no. 4) may be declared as illegal. he claimed that the land in question was in his possession since 1950 and respondent no. 4 had no right over it. the suit was dismissed by respondent no 3 vide order dated.....
Judgment:

G.S. Singhvi, J.

1. In this petition, the petitioners have prayed for quashing orders dated 15.10.1980 (Annexure PI), 25.2.1981 (Annexure PIII) passed by Sub Divisional Officer (Civil), exercising the powers of Assistant Collector, 1st Grade, Bhiwani (respondent No. 3), Collector, Bhiwani (respondent No. 2) and Commissioner, Hissar Division, Hissar (Respondent No. 1) respectively under the Punjab Village Common Lands (Regulation) Act, 1961 (for short, 'the Act'), as applicable to the State of Haryana.

2. Late Shri Kanha Ram, of whom the petitioners claim to be the legal representatives, filed a suit on 3.10.1978 in the Court of respondent No. 3 with the prayer that he be declared as the owner of land measuring 15 Kanals 10 Marlas situated in Village Palwas, Tehsil and District Bhiwani and mutation No. 1602 dated 15.5.1954 sanctioned in favour of Gram Panchayat, Palwas (Respondent No. 4) may be declared as illegal. He claimed that the land in question was in his possession since 1950 and respondent No. 4 had no right over it. The suit was dismissed by respondent No 3 vide order dated 15.10.1980 on the ground that the same was time barred. Respondent No. 3 held that the mutation sanctioned in favour of respondent No. 4 could be challenged within 6 years and as the suit had been filed after 24 years, the same was liable to be dismissed. The appeal and revision filed by the present petitioners were dismissed by respondents No. 2 and 1 respectively.

3. Shri I.S. Balhara, learned counsel for the petitioners argued that the concurrent findings recorded by respondents No. 1 to 3 on the issue of limitation is perverse and, therefore, the impugned orders may be set aside and the suit filed by the predecessor of the petitioners may be decreed. He relied on Section 13A of the Act, as substituted by the Punjab Village Common Lands (Regulation) Haryana Amendment Act, 1980 and argued that even though the suit filed by late Shri Kanha Ram in 1978 for setting aside mutation dated 15.5.1954 was time barred, by virtue of amended Section 13-A, the same ought to have been treated as one filed within limitation and decided on merits. He then relied on Section 4(3) of the Act and argued that the suit filed by late Shri Kanha Ram could not be treated as barred by time because he was in cultivating possession of the land on the date of commencement of the Punjab Village Common Lands (Regulation) Act, 1953 and the Pepsu Village Common Lands (Regulation Act, 1954 and continued to be in possession for next 12 years.

4. Shri Daljeet Singh, counsel for Respondent No. 4 supported the impugned orders and argued that the suit filed by late Shri Kanha Ram on 3.10.1978 for cancellation of mutation dated 15.5.1954 was clearly barred by time and the same was not saved by virtue of the amendment made in the Act by Haryana Act No. 2 of 1981 which was published in Haryana Government Gazette (Extra-Ordinary) dated 15.12.1980.

5. I nave given serious thought to the respective arguments. Section 4 and 13A (as amended by Haryana Act No. 2 of 1981) of the Act, which have bearing on the decision of this petition, read as under:

'4. Vesting of rights in Panchayats and non-proprietors.- (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 wherever 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 Panchayat constituted for such village, and where no such Panchayat has been constituted for such village, vest in the Panchayat having jurisdiction over that village is constituted;

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

(2) Any land which is vested in a Panchayat under the shamilat law shall be deemed to have been vested in Panchayat under this Act.

(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 a similar statuts by custom or otherwise such as Dholidars, Bhondedars, Butimars, Bassik-huopahus, Saunjidars, Muqararidars:

(ii) rights of persons who were in cultivating possession of shamilat deh on the date of the commencement of the Punjab Village Common Lands (Regulation) Act, 1953, or the Pepsu Village Common Lands (Regulation) Act, 1954, and were in such cultivating possession for more than twelve years on such commencement without payment of rent or by payment of charges not exceeding the land revenue and cesses payable thereon:

(iii) rights of a mortgagee to whom such land is mortgaged with possession before the 26th January, 1950.'

13-A. Adjudication.- (1) Any person or in the case of a Panchayat, either the Panchayat or its Gram Sachiv, the concerned Block Development and Panchayat Officer, Social Education and Panchayat officer or any other officer duly authorised by the State Government in this behalf, claiming right, title or interest in any land or other immovable property vested or deemed to have been vested in the Panchayat under this Act, may within a period of two years from the date of commencement of the Punjab Village Common Lands (Regulation) Haryana Amendment Act, 1980, file a suit for adjudication, whether such land or other immovable property is shamilat deh or not and whether any land or other immovable property or any right, title or interest therein vests or does not vest in a Panchayat under this Act, in the Court of the Assistant Collector of the first grade having jurisdiction in the area wherein such land or other immovable property is situate.

(2) The procedure for deciding the suits under Section (1) shall be the same as laid down in the code of Civil Procedure, 1908.'

6. A reading of the above reproduced provisions shows that Sub-section (1) of Section 4 contains a non-obstante clause. It declares that 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 interest which is included in the shamilat deh of any village shall, at the commencement of the Act, vest in Panchayat constituted for the village. Sub-section (3) lays down that the existing rights, title or interest or persons who though not entered as occupancy tenants in the revenue records are accorded a similar status by virtue of custom or otherwise, such as Dholidars, Bhondedars, Butimars, Bassik-hupohus, Saunjidars and Muqararidars. The rights of persons who were in cultivating possession of shamlat deh on the date of commencement of the Punjab Village Common Lands (Regulation) Act, 1953 and the Pepsu Village Common Lands (Regulation) Act, 1954 and of the mortgagees to whom such land was mortgaged with possession before the 26th day of January, 1950 have also been saved. Section 13-A(1) of the Act (as amended by Haryana Act No. 2 of 1981) lays down that any person or in the case of a Panchayat, either the Panchayat or its Gram Sachiv, the concerned Block Development and Panchayat officer, Social Education and Panchayat Officer or any other officer duly authorised by the State Government in this behalf, claiming right, title or interest in any land or other immovable property vested or deemed to have been vested in the Gram Panchayat under this Act, may within 2 years from the date of commencement of the Punjab Village Common Lands (Regulation) Haryana Amendment Act, 1980, file a suit for adjudication about the true nature of the land.

7. In my opinion, the suit filed by late Shri Kanha Ram did not fall within the ambit of Section 13A of the Act, as inserted by Haryana Act No. 2 of 1981 because,-

(a) the prayer made in the suit was for grant of a declaration that he was owner in possession of the land in question and for quashing the mutation sanctioned in favour of respondent No. 4 on 15.5.1954, and

(b) the provision contained in Section 13-A was only retroactive and entitled a person to file suit within 2 years from the date of commencement of the Amendment Act of 1980 but it did not revive the cause which had become time barred.

8. Therefore, the finding recorded by the respondent No. 3 that the suit filed by late Shri Kanha Ram in 1978 for quashing the mutation effected on 15.5.1954 in favour of respondent No. 4, i.e., after 24 years of the accrual of the cause of action was clearly barred by time cannot be termed as erroneous or vitiated by an error of law. Similarly, respondents No. 1 and 2 did not commit any illegality by confirming the order passed by respondent No. 3.

9. Section 4(3) of the Act, on which learned counsel for the petitioners have placed reliance, has nothing to do with the issue of limitation decided by respondents No. 1 to 4. That section only saved some of the rights which a person had acquired on the date of commencement of the Punjab Village Common Lands (Regulation) Act, 1953 and the Pepsu Village Common Lands (Regulation) Act, 1954.

10. For the reasons mentioned above, the writ petition is dismissed. Interim order dated 22.3.1984 shall stand vacated automatically.


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