Bhim Singh and ors. vs Gram Panchayat, Jakhauli and ors.

K.S. Bhalla, J.

Petitioners Bhim Singh and others have invoked writ jurisdiction of this Court under Article 226 of the Constitution of India through this petition and sought that orders of Collector, Sonepat and Commissioner, Ambala, Annexures P/7 and P/8 respectively be quashed.

It has been alleged interalia that petitioners and their immediate ancestor Jia Ram were in possession of the land in dispute as cosharers not being in excess of their share in the Shamilat Deh since 1940, that relevant entries in the Khasra Girdawari were changed in Rabi 1950 without any order of any competent authority and instead of Jia Ram it was entered in the column of cultivation as Maqbuza Malkan that subsequently during consolidation operations having been found by the authorities that Jai Ram was in actual possession of the land, entries were again corrected in Kharif 1956 and that on the basis of wrong facts taking advantage of preparation of the register of Girdawari against rules, Gram Panchayat, Jakhauli obtained illegal order of eviction under section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (in brevity the Act hereinafter). It is further alleged that petitioners filed a declaratory suit under Section 13A of the Act before Assistant Collector Ist Grade, Sonepat, seeking declaration that the land in question did not vest in Gram Panchayat, Jakhauli and it had no right to take possession of the same which resulted in success vide order dated 28.5.1983, Annexure P/6. Respondents preferred appeal before Collector, Sonepat which was accepted vide order dated 17.1.1984, Annexure P/7 and the suit of the petitioners was dismissed. Revision referred against that order of Collector, Sonepat was dismissed by Commissioner, Ambala Division vide order dated 18.1.1985, Annexure P/8. It is also alleged that orders, Annexures P/7 and P/8 were passed on wrong assumption of law that the burden of proving that the possession of the cosharer was not on land more than his share lay on the cosharer and not on the Gram Panchayat who seeks an order of ejectment against him.

Bhulle, petitioner of Civil Writ Petition No. 3057 of 1985 has also filed a writ petition against Gram Panchayat, Jakhauli and others on similar facts and has sought quashing of the orders of Collector, Sonepat and Commissioner, Ambala Division. The law point involved in the said writ petition being the same, this judgment of ours shall dispose of both Writ Petitions No. 3044 and 3057 of 1985.

The main law point involved in the two writ petitions is whether the land in dispute does not vest in the Gram Panchayat Jakhauli by virtue of the provisions of Section 2(g)(viii) of the Act. Section 2(g) of the Act defines the term `Shamilat Delh''. Clauses (1) to (5) thereof deal with the kinds of lands which come within the ambit of `Shamilat Deh'' or `Charand''. Unless the land in question satisfies all its ingredients and can be termed as `Shamilat Deh'', it could not have possibly vested in the Gram Panchayat concerned under section 4 of the Act. The subclauses provided thereunder deal with the situations which are not covered in the lands provided in clauses (1) to (5) which constitute Shamilat Deh. Subclause (viii) thereof runs as under :

"(vii) was Shamilat Deh or `Charand'' was assessed to land revenue and has been in the individual cultivating possession of cosharers not being in excess of their respective shares in such Shamilat Deh or `Charand'' on or before 26th January, 1950."

It is not disputed that ancestors of the petitioners were cosharers and it has also been accepted in the impugned orders that the lands in question were in their individual cultivating possession before January 26, 1950 as supported by the revenue record. Thus, the only point left to be seen was whether the cosharers were in possession within their respective shares or in excess thereof. Once it was shown that a cosharer was in individual cultivating possession of Shamilat Deh or Charand assessed to land revenue, the onus shifted to the gram Panchayat to show that he was in possession in excess of his respective because the Gram Panchayat had put forward a claim to the suit land and sought his eviction under Section 7 of the Act. Burden of proving the fact always lies on the party who alleges that fact and brings a claim for adjudication in its favour on the basis of fact alleged. As the Gram Panchayat Jakhauli had claimed that the land in question had vested in it, it would be bound to show that the same was Shamilat Deh within the scope of Section 2(g) of the Act and for that purpose a duty was cast on it to establish that the cosharer in the individual cultivating possession was in such possession in excess of his respective share. A Division Bench of this Court in Gram Panchayat Garhi Brahmana and another v. Puran Singh and others, 1976 PLJ 472, has already correctly laid down the law in this respect that the Gram Panchayat claiming the land to have vested in it was to discharge the burden of establishing that any cosharer was holding land in excess of his sharer. We endorse that view.

Collector, Sonepat, in Annexure P/7 made decision against the petitioners and so did the Commissioner, Ambala Division in Annexure P/8 on the basis that they had failed to prove on the record that land on which they had their possession as shareholders was not in excess of their share. Their orders, therefore, cannot be sustained. On the other hand, the Gram Panchayat having failed to prove that fact, the land in question cannot be treated as Shamilat Deh so as to vest in the Gram Panchayat and petitioners are not liable to be ejected therefrom at the instance of Gram Panchayat Jakhauli.

The writ petition is, therefore, allowed. Orders, Annexures P/7 and P/8 of Collector, Sonepat and Commissioner, Ambala Division, Ambala respectively are quashed and instead, order Annexure P/6 of Assistant Collector Ist Grade, Sonepat is restored but with no order as to costs.