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SUKHWANT SINGH v. GRAM PANCHAYAT OF VILLAGE DABWALI DHAB & - CWP-1983-1988  RD-P&H 167 (28 September 2005)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
C.W.P. No.1983 of 1988
DATE OF DECISION:04.01.2006
GRAM PANCHAYAT OF VILLAGE DABWALI DHAB & OTHERS ---RESPONDENTS
HON'BLE MR. JUSTICE M.M. KUMAR
Present: Mr. Vikas Behl, Advocate
for the petitioner.
Ms. Anju Arora, Advocate
for the respondent No.1.
Challenge in this petition filed under Article 226 is to the order dated 3.2.1988, passed by the Commissioner, Ferozepur Division, Ferozepur, holding that the petitioner had become unauthorized occupant of the land after the expiry of the lease period and as such, he was not entitled to continue with the possession of the land. The aforementioned finding has been recorded on the basis of the admission made by the petitioner in his cross-examination conducted on him in the proceedings before the Collector, initiated under Section 5 of the Punjab C.W.P. No.1983 of 1988 2
Public Premises and Land (Eviction and Rent Recovery) Act, 1973 (for short - "the Act"). It has further been noticed by the Commissioner that according to the revenue record (Jamabandi 1983-84, Ex.P2), the Gram Panchayat is the owner of the land and after expiry of the lease period of 1983-1984, the petitioner has become unauthorized occupant. The Commissioner, however, has refused to affirm the finding of the Collector on the issue of recovery of an amount of Rs.26,000/- from the petitioner as no notice under Section 7 of the Act was issued by the Collector to him.
When the instant petition came up for consideration before this Court, a conditional order of stay was issued in favour of the petitioner on 22.3.1988, which reads as under:-
"Notice of motion for 20th
April, 1988. If the petitioner
deposits a sum of Rs.40,000/- in the Court of Collector, Muktsar, District Faridkot, on or before Ist April, 1988, then his dispossession from the land in dispute shall stand stayed till further orders. Dasti."
On 3.10.1988, the petition was admitted with a direction by the Division Bench that the interim order was to continue with liberty to the respondents to move an application for vacation of the stay order before the learned Single Judge. The application filed by the respondent - Gram Panchayat for vacation of stay order was dismissed and it was directed that the order dated 22.3.1988 was to continue, subject to the condition that, the writ petitioner was to C.W.P. No.1983 of 1988 3
continue depositing Rs.20,000/- per year,in advance and payment was to commence from 1.4.1989. The balance amount for the period from 1.4.1988 to April 1989 was required to be deposited within a period of 2 months from the date of the order. It was further clarified that in case, the condition was not complied with, the stay order had to be considered as vacated. Accordingly, the petitioner is stated to have been paying the Gram Panchayat, respondent No.1, in compliance with the directions issued on 12.11.1988.
Mr. Vikas Behl, learned counsel for the petitioner has argued that the notice (Annexure P-1) issued by the Collector under sub section 1 of Section 4 of the Act itself suffers from two legal infirmities. According to the Learned counsel, the Collector has failed to specify the grounds of unauthorized possession and the notice is short of statutory period of 10 days as specified under sub-Section 1 of Section 4 of the Act. In support of his submissions, learned counsel has placed reliance on a judgment of the Jammu and Kashmir High Court in the case of Dr.Yash Paul v. S.S. Anand AIR 1980 Jammu & Kashmir 16 and argued that mere mentioning of possession as unauthorized does not constitute disclosure of the grounds as contemplated by sub-Section 1 of Section 4 of the Act. Therefore, the order (Annexure P-2 and P-4) are liable to be set aside.
Ms. Anju Arora, learned counsel for respondent No.1 has pointed out that no such argument was raised before either of the two authorities who have passed the orders Annexure P-2 and P-4 and therefore, such an argument would C.W.P. No.1983 of 1988 4
not now be available to the petitioner. According to the learned counsel, the petitioner was required to be proceeded in accordance with law as per the directions issued by the Civil Court and accordingly, the procedure has been followed by granting adequate opportunity to the petitioner. Once there is admission that he has continued in possession after the expiry of the lease, then there is no escape that the petitioner is liable to be ejected from the land which is owned by the Gram Panchayat.
Having heard the learned counsel for the parties, I am of considered view that this petition is liable to dismissed, because the petitioner has been found to be in unauthorized possession of the land belonging to Gram Panchayat, after the expiry of the lease deed in 1983-84 (Annexure P-2). A perusal of the orders Annexure P-2 and P-4 dated 21-4-1987 and 3-2-1988 respectively patently reveal that the petitioner was granted lease in respect of the suit land for the year 1983-
84. The total area of the land is 221 kanals 7 marlas. The Collector in his order dated 21-4-1987 has recorded that the suit land was given to the petitioner on lease by the Gram Panchayat @ 13000/- for the year 1983-84 and he did not give up the possession despite issuance of notice to him. On 18-11-1986 ex-parte proceedings were ordered against Amar Singh, brother of the petitioner and then both of them were granted opportunity to produce their evidence. It was found that for the year 1983-84 the land was given to the petitioner, as per the record and for the next year it was given to Amar Singh @ 23200/-, who is the brother of the petitioner.
C.W.P. No.1983 of 1988 5
However, Amar singh never deposited the lease amount and possession from Sukhwant Singh was not taken. Similarly when the auction was held in favour of Tara Singh subsequently for the year 1984-85, he also failed to deposit the balance amount. Various documents were produced by the Gram Panchayat which include Resolution dated 24-7-1985 (Ex.A1), copy of conditions of auction (AnA2), copy of Resolution in connection with water (Ex.A3), copy of jamabandi (Ex.A5), copy of khasra girdwaries (Ex.A6 and Ex.P7) etc. It is also patent from the order that Sukhwant Singh has admitted the fact that he is in unauthorized possession. In his cross-examination he accepted that first he took this land on lease for two years and did not succeed in obtaining the lease because of the stay order passed by the civil court (Ex.R1) and decree (Ex.R2). He further stated that Amar Singh never came in possession of this land. On the aforementioned basis, the Collector, Muktsar had recorded the following findings:- "Sukhwant Singh has admitted that he is cultivating the land of the Panchayat as a tenant. From the evidence produced on the record it is proved that the possession of Sukhwant on the disputed land of the Panchayat is illegal and under Section 5 of the Punjab Public Premises act, 1973, Sukhwant Singh is ordered to be ejected from the disputed land measuring 221 K 7 marlas situate in village Dabhwali Dhab and for the year 1985-86 and is assessed at Rs.26000/-. Because in reality the Panchayat had realized Rs.23200/- the Theka amount from Amar Singh. Shri Narinjan Dev Dewan had said that Shri C.W.P. No.1983 of 1988 6
Sukhwant Singh has admitted in statement that his possession of the disputed land is illegal for the last two years. Since Rs.23200/- and the amount of Rs.13000/- is loss and Rs.13000/- was paid to the Panchayat by Sukhwant Singh, therefore, for two years the amount which comes to Rs.26000/- be realized from Sukhwant Singh Shri Sukhwant Singh be issued according to procedure pertaining to ejectment and recovery of rent for illegal use of the Panchayat land."
On an appeal filed before the Commissioner, Ferozpur Division, under Section 9 of the Act, the order passed by the Collector was upheld to the extent that the petitioner was in unauthorized possession and was rightly ordered to be evicted. The commissioner has referred to the admission made by the petitioner before the Collector in his cross-examination. He further concluded that on the basis of revenue record namely jamabandi for the year 1982-83 (Ex.P5) respondent-Gram Panchayat is recorded as owner of the land. However, the order with regard to the recovery of Rs.26000/- from the petitioner was not up-held for the reason that no notice under Section 7 of the Act, for recovery of the amount was issued by the Collector to the petitioner. In the absence of such a notice, recovery could not have been effected. The aforementioned findings recorded by the authorities are fully sustainable in the eyes of law and this Court in exercise of jurisdiction under Article 226 of the Constitution cannot set aside such findings C.W.P. No.1983 of 1988 7
unless it is shown that the findings were without any evidence on record. In the present, no such situation has arisen as the findings are supported by ample evidence.
The argument of the learned counsel that the notice issued under Section 4 of the Act failed to disclose the reason of proposed ejectment and that the notice was shorter than 10 days would not require any detailed consideration because sufficient reasons have been recorded in the notice dated 11-11-1986 (P1) in which it has been specifically recorded that the petitioner is in unauthorized possession of the land measuring 221 kanals situated in village Dabhwali Dhab and the details are fully given in the schedule. A perusal of the schedule shows that all the khasra numbers, khatoni numbers have been given, as per jamabandi for the year 1982-83. Therefore, it cannot be concluded that reasons for unauthorized possession have not been disclosed. In any case, after the issuance of notice, proceedings under Section 5 of the Act were undertaken at the instance of Gram Panchayat and the Collector after granting detailed opportunity to the parties, has passed the order. It is well settled that if after the expiry of the lease, the lessee continues to be in possession of the premises, without the consent of the lessor, then his possession is unauthorized. In this regard reliance may be placed on the observations made by Supreme Court in para No.11 and 12 of the judgment in the case of Commissioner Jallandhar Division & Ors. v. Mohan Krishan Abrol 2004 (7) Supreme Court Cases 505. It is further appropriate to mention that neither C.W.P. No.1983 of 1988 8
before the Collector nor before the Commissioner the arguments which are now sought to be raised were ever raised. In other words, it has to be concluded that those arguments were waived by the petitioner. In any case such arguments cannot be raised for the first time before this Court in proceedings under Article 226 of the Constitution especially when a writ of certiorari has been sought. I am further of the view that the equitable and extra ordinary jurisdiction under Article 226 cannot be exercised in favour of such a petitioner who has been in unauthorized possession of Panchayat land, which is entirely against public interest. Therefore, the orders passed by the Collector (Ex.P2) and the Commissioner (Ex.P4) are to be up-held.
The judgment of the Division Bench of Jammu & Kashmir High Court in the case of Dr. Yashpal Sharma (supra) is entirely on different footing. In that case, apart from recording findings that no compliance was made to the notice issued under Section 4 of the Act, patent violation of principles of natural justice, lack of opportunity under Section 5 of the Act, has been found as a fact. In the present case elaborate opportunity has been granted to the petitioner and even to his brother Amar Singh, in the proceedings initiated under Section 4 as well as 5 of the Act and,therefore, it cannot be concluded that the judgment in Dr. Yashpal's case (supra) would be applicable to the facts of the present case. Therefore, I do not feel persuaded by the arguments raised by the learned counsel. Moreover, no such argument was raised either before the Collector or before the Commissioner C.W.P. No.1983 of 1988 9
and such an argument cannot be raised for the first time before this Court while seeking a writ of certiorari.
For the reasons aforementioned, this petition fails and the same is dismissed.
January 04, 2006 ( M. M. Kumar)
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