Gram Panchayat, Khanpur vs Joint Development Commissioner, IRD, Punjab

G.S. Singhvi, J.

Gram Panchayat, Khanpur which has been found to be the owner of the dispute property, has moved this Court for quashing of order passed by respondent No. 1 directing that the cost of the disputed land be recovered from respondent No. 2 under Rule 4 of the Punjab Village Common Lands (Regulation) Rules, 1964.

In order to determine whether the direction given by respondent No. 1 to the Collector (District Development and Panchayat Officer), Sangrur to ensure proper execution of order Annexure P4 dated 27.1.1994 regarding recovery of cost of the land from respondent No. 2 is legally sustainable, it would be proper to make a brief reference to the facts.

In the consolidation proceedings held in 60''s for village Khanpur, Khasra No. 973 was left as Gairmumkin Pond and one side of the pond was left as a passage which was shown as such in ''Massavi'' of the village. Later on, it was also reflected in the ''Aks Sajra'' of village Khanpur (Annexure P1). This passage was used by several persons who had plots in and around the pond. Respondent No. 2 was allotted plot bearing Nos. 986 and 987 measuring 5 kanals 2 marlas for the purpose of abadi and also for the purpose of manure pit. After completion of consolidation proceedings, respondent No. 2 constructed his house over land allotted to him. It is said that water pipe line was laid beneath the passage some 7 to 8 years ago, but, respondent No. 2 forcibly encraoched upon the said passage some 5 to 6 years prior to the institution of the proceedings under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961. The Gram Panchayat filed an application before the District Development and Panchayat Officer, Sangrur under Section 7 of the Act of 1961 for ejectment of respondent No. 2 from land measuring 1 bisba 13 bisbansi falling in Khasra No. 973 Khewat No. 291, Khatoni No. 471. This application was contested by respondent No. 2 who pleaded that the disputed land does not vest in Gram Panchayat and the Panchayat is not its owner. He also claimed that the land was in his possession for the last 40 years and it was never used as a pond or a passage. The Gram Panchayat adduced oral as well as documentary evidence to prove that the land vested in the Gram Panchayat. Respondent No. 2 appeared and made a statement to the effect that the land was in his possession for the last many years. After considering the rival pleadings and evidence, the District Development and Panchayat Officer held that the property in dispute is a passage and is a part of Khasra No. 973. He also held that Panchayat is the owner of the land and respondent No. 2 has failed to prove his long possession over the same. On the basis of these findings, the District Development and Panchayat Officer declared respondent No. 2 to be in unauthorised occupation of the land and ordered his ejectment.

Aggrieved by the order of the District Development and Panchayat Officer, respondent No. 2 filed an appeal before respondent No. 1 who decided it vide order Annexure P4 dated January 27, 1994. Respondent No. 1 upheld the finding recorded by the District Development and Panchayat Officer that the property in dispute belongs to the Gram Panchayat and also that respondent No. 2 has made unauthorised construction over it. However, respondent No. 1 further observed that the appellant (respondent No. 2 herein) has long possession over the land and his case deserved to be dealt with under Rule 4 of the 1964 Rules. Consequently, he gave impugned direction for recovery of the cost of the land from respondent No. 2.

The Gram Panchayat has assailed the impugned order on the ground that no such direction could have been given by respondent No. 1 under rule 4 because the disputed property constituted part of a passage and no body has got right over the land which is being used by the people of the village.

In his reply, respondent No. 2 has pleaded that khasra No. 973 was not left as Gairmumkin, Pond and the map produced by the Gram Panchayat does not depict the correct position. He also pleaded that the land in dispute is in his possession since before the year 1950 and the Gram Panchayat does not have any right over the same. Respondent No. 2 has also pleaded that direction given by respondent No. 1 for regularisation of his possession by charging price does not suffer from any patent illegality.

The only point which we are required to determine is whether respondent No. 1 could give a direction for recovery of the cost of the land from respondent No. 2 under Rule 4 of the 1964 Rules and thereby deprive the Gram Panchayat of its right over the property.

A perusal of the order passed by the District Development and Panchayat Officer, Sangrur shows that the petitionerGram Panchayat produced overwhelming evidence to prove that the disputed land forms part of shamlat deh and in the consolidation proceedings which had been completed in 60''s the land bearing khasra No. 973 was left as Gairmumkin Pond. Respondent No. 2 did not produce any evidence to show that the property belonged to him or that he had raised construction over it prior to 1950. Neither revenue record nor any other document produced before the District Development and Panchayat Officer shows the old possession of respondent No. 2. Rather, the entries made in the jamabandi for the year 198990 clearly established ownership of the Gram Panchayat. Plea of respondent No. 2 regarding old possession is also falsified by the fact that the land is a part of public passage and just 5 to 7 years before initiation of the proceedings water pipes were laid beneath the surface of the disputed area. In his crossexamination, respondent No. 2 himself admitted that water pipes pass under the foundation of his house. The construction made by respondent No. 2 is in the form of a verandah, bathroom and latrine and there is no evidence to show that he had made this construction after seeking prior permission of any competent authority. Thus, the finding recorded by the District Development and Panchayat Officer regarding ownership of the dispute property cannot be treated as erroneous. In fact, this finding has been affirmed even by respondent No. 1. Respondent No. 2 has not chosen to challenge order passed by the District Development and Panchayat Officer or that of respondent No. 1. Therefore, it cannot but be held that respondent No. 2 has made encroachment over the land belonging to the Gram Panchayat and has raised some construction in order to grab the said land.

Despite recording a finding that the property in dispute belongs to the Gram Panchayat, respondent No. 1 passed the impugned direction on pure conjectures and imagination as would appear from the following sentences used by him in the impugned order :

"After hearing both the parties, the appellant is in long possession of the land in dispute............. It is clear from the facts of the case that this case comes under this rule. Since, the appellant has constructed house on this area, as such instead of demolishing the house, under Rule 4 the price of the land can be recovered from him."

It is clear from the order of respondent No. 1 that there is no evidence available on the record to support the finding that the land in question was in possession of respondent No. 2 prior to the commencement of the Act of 1961 nor is there any evidence to show that the construction was raised by respondent No. 2 prior to 1950. Respondent No. 2 did not produce any evidence to prove that his possession was old or that the construction raised by him was more than 40 years old. Even before us, no evidence has been produced to prove that respondent No. 2 had raised construction some 40 years ago. Therefore, the direction given by respondent No. 1 for charging the price of the disputed property from respondent No. 2 on the assumption that the disputed construction is old cannot be sustained.

We also find that respondent No. 1 did not have the power to give any direction to the Collector to charge the price of the land under Rule 4 of the 1964 Rules. This rule empowers the Panchayat to allow a person to retain possession of the site if a person has a building, house or any other structure on a land in shamlat deh, provided such construction has been made before coming into force of the Act of 1961. The rule does not authorise any other body except the Panchayat to allow a person to retain possession of a site by payment of price. It must, therefore, be held that respondent No. 1 exceeded his jurisdiction when he directed the charging of price under Rule 4 of the 1964 Rules.

We are further of the opinion that there can be no justification to legalise the unauthorised construction made by respondent No. 2 because the disputed land forms part of a public passage and it would be a great injury to the public interest if the land forming part of the public passage is sold to a private individual who took the law into his own hands.

For the reasons mentioned above, we hold that order Annexure P2 passed by respondent No. 1 is illegal and without jurisdiction in so far as it directs the Collector to charge the price of the disputed land from respondent No. 2 under Rule 4 of the 1964 Rules. Consequently, the impugned direction contained in Annexure P4 is quashed and the competent authority is directed to give effect to the order dated 28.9.1992 passed by the District Development and Panchayat Officer, Sangrur. The petitioner shall get costs of this petition from respondent No. 2, which we assess as Rs. 5000/.

The writ petition is allowed in the manner indicated above.