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Judgment
VIKAS BAHL, J. (ORAL)
Present writ petition has been filed under Article 226/227 of the Constitution of India for the issuance of a writ in the nature of certiorari for setting aside the order dated 09.04.2025 (Annexure P-6) passed by respondent No.1 and order dated 06.01.2023 (Annexure P-3) passed by respondent No.3 and order dated 31.12.2020 (Annexure P-2) passed by respondent No.4.
Brief facts of the present case are that the respondent No.5 had filed a petition under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (now known as the Haryana Village Common Lands (Regulation) Act, 1961, hereinafter to be referred as 'Act of 1961'), for the eviction of the petitioners No.1 to 3, predecessor-in-interest of petitioners No.4 to 7 and other persons and vide order dated 31.12.2020, the Assistant Collector 1st Grade, Barara had passed the order of eviction against the said persons. The petitioners No.1 to 3 and the predecessor-in-interest of petitioners No.4 to 7 had filed an appeal against the said order and the Collector vide order dated 06.01.2023 had dismissed the appeal qua them but had remanded the case to the Assistant Collector 1st Grade with respect to the case of the persons, who had died and whose legal representatives were not served. The petitioners No.1 to 3 and predecessor-in-interest of petitioners No.4 to 7, thereafter, filed a revision before the Commissioner and the Commissioner vide order dated 05.03.2024 had set aside the order of the Collector and the order of the Assistant Collector 1st Grade dated 31.12.2020 remanded the case for fresh decision and had directed that all the parties be heard. Respondent No.5 filed ROR No.149 of 2024 against the said order which was allowed vide order dated 09.04.2025 and the order of the Commissioner dated 05.03.2024 and that of the Collector dated 06.01.2023 were set aside and the order of the Assistant Collector 1st Grade dated 31.12.2020 was upheld.
On 05.05.2025, the Co-ordinate Division Bench of this Court was pleased to pass the following order: -
“Present : Mr. Vikram Singh, Advocate and Ms. Sumitra, Advocate for the petitioners. Mr. Saurabh Mago, DAG, Haryana.
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Learned counsel for the petitioners inter alia relies on Section 13B of the Haryana Village Common Lands (Regulation) Act, 1961 (for short – the Act) to contend that the impugned order passed by respondent No.1 is without jurisdiction as in eviction proceedings initiated under Section 7(2) of the Act, the final adjudicating authority is the Collector.
Notice of motion for 25.08.2025. Mr. Saurabh Mago, DAG, Haryana accepts notice on behalf of respondents No.1 to 4.
Respondent No.5 be served through ordinary process. In the meanwhile, operation of the impugned order dated 09.04.2025 (Annexure P-6) shall remain stayed.
05.05.2025”
Learned counsel for the petitioners has submitted that the order dated 09.04.2025 passed by the Financial Commissioner in ROR No.149 of 2024 is without jurisdiction and thus, deserves to be set aside on the said short ground alone.
Learned counsel for the respondents-State as well as learned counsel for private respondent No.5 have submitted that even the order dated 05.03.2024 is without jurisdiction and deserves to be set aside, inasmuch as, a revision before the Commissioner was only maintainable in case any person was aggrieved by an order passed under proviso to sub-section (1) of Section 7 of the Act of 1961. It is submitted that admittedly no order was passed under the proviso to Section 7(1) of the Act of 1961 and thus, the order of the Commissioner also deserves to be set aside.
This Court has heard learned counsel for the petitioners as well as learned counsel for the respondents and is of the view that both the orders dated 05.03.2024 passed by the Commissioner as well as dated 09.04.2025 passed by the Financial Commissioner are without jurisdiction and deserve to be set aside as has been detailed hereinafter.
The present case pertains to the State of Haryana and undisputedly the provision of the Haryana Act of 1961 would apply. Both the sides have relied upon the said provisions. It is also not in dispute that the eviction petition was filed under Section 7 of the Act of 1961 and that no question of title was either raised or decided. It would be relevant to note that the proviso to Section 7(1) of the Act of 1961 provides that in case a question of title is raised and is proved prima facie from the documents on record, then, the Assistant Collector 1st Grade is required to give a finding on the said question of title. Section 7 of the Act of 1961 is reproduced herein below:-
“7. Power to put Panchayat in possession of certain
lands.- ¹[(1) An Assistant Collector of the first grade having jurisdiction in the village may, either suo moto or on an application made to him by a Panchyayat or an inhabitant of the village or the Block Development and Panchayat Officer or Social Education and Panchayat Officer, or any other Officer authorized by the Block Development and Panchayat Officer, after making such summary enquiry as he may deem fit and in accordance with such procedure as may be prescribed, eject any person who is in wrongful or unauthorised possession of the land or other immovable property in the shamilat deh of that village which vests or is deemed to have been vested in the panchayat under this Act and put the panchayat in possession thereof and for so doing the Assistant Collector of the first grade may exercise the powers of a revenue court in relation to the execution of a decree for possession of land under the Punjab Tenancy Act, 1887:
Provided that if in any such proceedings the question of title is raised and proved prima facie on the basis of documents that the question of title is really involved, the Assistant Collector of the first grade shall record a finding to that effect and first decide the question of title in the manner laid down hereinafter.
(2)The Assistant Collector of the first grade shall by an order, in writing, require any person to pay a penalty, in respect of the land or other immovable property which was or has been in his wrongful or unauthorised possession, [at the rate of one percent of the Collector rate of the land per acre per annum with the ceiling of total penalty amount equal to ten percent of the current Collector rate of the encroached land] having regard to the benefit which could be derived from the land or other immovable property. If the penalty is not paid within the period of thirty days from the date of the order, the same shall be recoverable as arrears of land revenue.
(3)The procedure for deciding the question of title under proviso to sub-section (1) shall be the same as laid down in the Code of Civil Procedure, 1908.
(4)If any person refuses or fails to comply with the order of eviction passed under sub-section (1), within ten days of the date of such order, the Assistant Collector of the first grade may use such force, including police force, as may be necessary for putting the panchayat in possession.
(5)Any person who is found in wrongful or unauthorised possession of the land or other immovable property in shamilat deh and is ordered to be ejected under sub-section (1), shall be punishable with imprisonment for a term which may extend to two years.”
Further as per provisions of the Act of 1961, against an order passed under Section 7(1) and (2) of the Act of 1961, an appeal is maintainable under Section 13-B of the Act of 1961 before the Collector and thus, the said appeal was rightly filed by the petitioners No.1 to 3 and the predecessor-in-interest of petitioners No.4 to 7, before the Collector and the Collector had the jurisdiction to pass the order dated 06.01.2023. No further revision either before the Commissioner or the Financial Commissioner was maintainable as a revision before the Commissioner is maintainable only in case a person is aggrieved by an order passed under the proviso to sub-section (1) of Section 7 of the Act of 1961 vide which the question of title has been decided. It is not disputed before this Court that there was no order passed under proviso of Section 7(1) of the Act of 1961 and thus, there was no occasion for the petitioners No.1 to 3 and the predecessor-in-interest of petitioners No.4 to 7 to file revision before the Commissioner. Section 13(B) of the Act of 1961 is reproduced herein below: -
“13-B. Appeal and revision.- ¹{(1) Any person aggrieved by an order of the Assistant Collector of the first grade may,
within a period of thirty days from the date of Order passed under sub-section (1) or sub-section (2) of Section 7 prefer an appeal to the Collector in such form and manner, as may be prescribed, and the Collector may after hearing the appeal, confirm, vary or reverse the order as he deems fit:
Provided that no such appeal shall lie unless the amount of penalty, if any, imposed under sub-section (2) of Section 7, is deposited with the Collector.}
(2)The Commissioner may, suo motu 2{or on an application made to him by any person aggrieved by an order passed under the proviso to sub-section (1) of section 7 at any time} call for the record of any proceedings pending before, or orders passed by, any authority subordinate to him for the purpose of satisfying himself as to the legality or propriety of the proceedings or order and pass such order in relation thereto as he may deem fit:
Provided that no order adversely affecting any person shall be passed unless he has been afforded an opportunity of being heard.”
It would be relevant to note that in the proceedings instituted under Section 7 of the 1961 Act, there is no provision for filing an ROR before the Financial Commissioner. Revisions before the Financial Commissioner are maintainable under sub-section (2) of Section 13AA of the Act of 1961, against an order passed by the Commissioner in the proceedings under Section 13-A sub-section (1) of the Act of 1961, which is not the case in the present writ petition. Section 13AA of the 1961 Act is reproduced hereinbelow: -
“13AA. Appeal and revision.- (1) Any person,
aggrieved by an order passed under sub-section (1) of section 13A, may within a period of thirty days from the date of such order, prefer an appeal to the Commissioner in such form and manner, as may be prescribed, and the Commissioner may after hearing the appeal, confirm, vary or reverse the order as he deems fit.
(2)The Financial Commissioner may, suo motu or on an application made to him by any person aggrieved by an order passed under sub- section (1), call for the record of any proceedings pending before, or order passed by the Commissioner for the purpose of satisfying himself as to the legality or propriety of the proceedings or order and pass such order in relation thereto as he may deem fit;
Provided that no order adversely affecting any person shall be passed unless he has been afforded an opportunity of being heard.”
The above-said proposition of law have not been disputed before this Court.
Since we have only been called upon to consider the maintainability of the revision before the Commissioner as well as before the Financial Commissioner and no argument on merits have been addressed before this Court, thus, in view of the above-said discussion, the present writ petition is partly allowed and the order dated 05.03.2024 passed by the Commissioner as well as the order dated 09.04.2025 passed by the Financial Commissioner are set aside as both the said orders have been passed without jurisdiction. However, liberty is granted to both the parties to lay challenge to the order dated 06.01.2023 passed by the Collector, if aggrieved, in accordance with law and the present order would not preclude them from instituting appropriate proceedings to challenge the same.
Pending application(s), if any, stand disposed of in view of the above-said order.