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Judgment
M.M. Punchhi, J.—This is a petition under Articles 226 and 227 of the Constitusion of India for the issuance of a writ of habeas corpus to get ended the detention of one Gurdip Singh son of Arjan Singh The said detenue was stated to be in detention in Central Jail. Patiala, under the orders of Collector-cum-Block Development and Panchayat Officer, Patiala. The said detenue, under orders of this Court, was produced before A S. Bains, J., who directed the detenue to be released on interim bail on his furnishing personal bond in the sum of Rs. 5000/-to the satisfaction of the Deputy Registrar upto 31.3.1980, on which date, the habeas corpus petition was ordered to be finally disposed of. The detenue secured his release thereunder and the matter has now been placed before me
The matter appears essentially be one of a civil nature, but since the liberty of and individual is involved and a writ of habeas corpus has been sought, it would be apt to dispose it off on the criminal side. The petition has arisen in the circumstances mentioned here in after.
It is concerded(sic) at the Par(sic) by the learned Counsel appearing for the state that a pared(sic) of land in village Dilawarpur Dhakrsha is recorded in revenue papers as Jumla Molkan va. Digar Haodarar Arazi Hasad Raqba and this is the stance of the Petitioner as well The Petitioner claimed that this land was in his cultivating possession. The Gram Panchayat, Dilawarpur Dhakraba, on 21.6.1976, filed an application u/s 7 of the Punab Village Common Lands (regulation) Act 1986(sic) as amended In 1976 (for a short called "the Common Hands Act'') against the detenue for his ejectment from agricultural land measuring 42 Kanal 14 Marlas, on the plea(sic) that the Land in question vested in the Panchayat. The Collector on 9.11.1976 ordered the ejectment of the detenue The detenue filed an appeal before the Commissioner, Patiala Division, Patiala, which was allowed on February 1, 1979 On the question of ownership of the land the Commissioner in paragraph 23 of her detailed order (Annexure P 3) observed as follow-:-
Since the applicant u/s 7 has been totally unable to prove that the land in question vests, or is deemed to have been vested, in the Gram Panchayat by virtue of its, being thamlat deh, which onus(sic)had been cast squarely upon him under the law, it is fuile(sic) to make an appraisal of the evidence, produced by the present Appellant for it is apparent that the provisions of Section 7 were not applicable to this land, when is had not been proved to be shamlat deh ; and the ejectment of the present Appellant therefrom could not, therefore have been ordered even if no evidence bad been led by him in support of his plea The impugned order is, therefore, void ab initio and is liable to be quashed on This ground alone, even if to other ground urged by the Appellant is taken into consideration.
This judgment is find between the parties subject to a rider given in the last line of the order, which is to the following effect: -
However the Panchayat will within its competence to file a fresh application u/s 7 in this case in accordance with law.
It is also undisputed that no such application has been made by the Cram Panchayat
The description of the land as, aforesaid is in a legal terminology, employed in Rule 10 (ii) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation Rules 194 (for short called the Consolidation Rules. The said rule contemplates that when during consolidation proceedings it is found that there is no shamlat deh land or such land is considered inadequase the land can be rest(sic) for a village panchayat and for other common purposes u/s 8(3) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (for short called'' the Consolidation of) out of the common pool of the village The proprietary was(sic) in respect of such reserved land shall vest in the uroprietary body of the estate concerned and in the column of ownership of the record of rights entry has to be recorded as depicted before. The management of such land has to be done by the Panchayat of the estate or estates concerned on behalf of the village proprietary body and the Panchayat has been given the tight to derive income of the land so reserved for the common need''s of the estate on estates concerned It is in the exercise of such right that the said parcel of lard was given to the detenue on Jesse for two years in 1975 at the rate of Rs. 125/ per year and he continue! to be a lease hoding over of such period.
Having failed to evict him in proceedings u/s 7 of the Common Lands Act, it appears, that the Gram Panchyat at passed resolution o. 33 dated 8th September 1879 for the recovery of amount of Rs. 5150/-from the detenue u/s 85 of the Punjab Gram Panchayat Act, as arrears of land revenue The calculation so made is on the basis that under the newly added Rule 20 A of the Punjab Village Common Lands (Regulation) (Third Amendment Rules, 1978, the Gram Panchayat was entitled to charge twenty times the lease money for the period for which a lessee holds over. The rule is to the following effect: -
20 A Damages- (1) if any person who is a lessee of any land vested or deemed to have been vested in a Panchayat does not deliver to the Panchayat vacant possession of the land immediately after the expiry of the period of lease he shall, for the period he fails to do so, be liable to pay damages to the Panch2yat equivalent to twenty times the amount which would have been payable to the Panchayat had the lease of such lard continued during that period.
( ) The previsions contained in sub rule (1) shall be deemed to be one of the terms of each lease of land granted be the Panchayat after the commencement of the Punjab Village Common Lands (Regulation) (Third Amendment) Rules, 1978.
On the basis of the demand so created, Respondent No. 1, the Collector-cum Block Development & panchayat officer has sworn on affidavit that be issued demand notice u/s 68 of the Punjab Land evenue Act to the detenue on 15th September 1975 to pay the said sum of Rs 5250/ plus other amount totalling Rs 5253/- by 22nd September, 197V, tailing which warrants of arrest would be issued. The detenue was given the right to file objections against the proposed action by virtue of the said notice. Respondent No 1 claims that the datenue refused 10 accept service of the said notice, but the same was pasted at his door. The detenue did not appear on 22nd September 1979, nor did he pay the amount. His arrest was effected to pursue the recovery. It is further claimed by Respondent No. 1 that since the Commissioner. Patiala, had held that Gram Panchayat could proceed u/s 7 of the Common Lands Act in accordance with law, the land in question was thus proved to have vested in the Gram Panchayat. It is in this manner that the onus of proving the legality of detention is (ought to be discharged, and rightly so, since such justification has to come from the detaining authority.
New it has to be seen whether the orders, which cultimated in the detention of the detenue are legal. There is a binding judgment between the detenue and the Gram Panchayat that the land in dispute does not vest in the Gram Panchayat under the Common Lands Act. On the contrary, stance is forthcoming that the land in dispute is only common purposes land, under the management and control of the Gram Panchayat in accordance with the provisions of Rule 16 (ii) of the Consolidation Rules and Section 23-A of the Consolidation Act. rinding obvious difficulty in the matter of recovery of a amounts due on such '' common purposes lands,'' the Punjab Legislature enacted the Punjab Gram Panchayat (Common Purposes Land) Eviction and Rent Recovery Act, 1976 (for short called ''the Common Purposes Act'') wherein ''common purposes land has been defined to mean land reserved for the common purposes of the village u/s 18 of the consolidation Act. the Management and control wherein veils in the Gram Panchayat u/s 23-A of the Consolidation Act. Section 3 thereof has made applicable the provisions of Punjab Public Premises and Lard Eviction and Kent Recovery Act. 1973 (for short called '' the Public Premises Act '') to common purposes land and, deemingly, it is provided that such '' common purposes land '' shall he deemed to be public premises'' for the purpose of the Public Premises Act. It is thus plain that derivatively.common purposes land '' is '' public premises '' for the purposes of eviction and rent recovery under Public Premises Act and not ''village common land'' under the Common Lands Act. And if the land in question is not '' village common land '' but '' common purposes land'', then obviously the provisions of the Common Lands Act and the rules framed thereunder inclusive of Rule 20''A has no applicability, as to inflate the lease rent of Rs. 125/-per year to Rs 2500/ per year by way of penalty ; the resultant cause of the Petitioner''s liability at Rs. 5253/- and his detention sequelly. Equally, it is doubtful whether to a lease executed in 1975, provisions for such enhancement of rent can deemingly be so made as the rule purports to warrant From whatever angle the matter be viewed, the detention of the detenue purporting to be in exercise of powers conferred under the Common Lands Act is void ab initio and in the alternative, wholly illegal, even if the provisions of Rule 20-A of the Punjab Village Common Lands (Regulation) Rules, 1978, are stretchedly made applicable. The instant lease was not a lease granted by the Panchayat after the commencement of such Rule in order to attract Rule 20- A. Such slipshod attempts by administrative functionaries which tend to violate the liberty principle enshrined in the Constitution of India for the safeguard of citizens cannot be easily overlooked. No body can dispute that the Panchayat must have its dues from the d.etenue. but strictly in accordance with law Yet at the same time, the misemployment of Jaw as a tool of tyranny cannot be permitted at any cost.
In the result, this petition is allowed and the detention of the detenue is declared illegal He is on bail bonds. The detenue will gel costs of this petition which are assessed at Rs. l000 /