Punjab-Haryana High Court
Mahabir And Anr vs District Collector Fatehabad & Ors on 16 December, 2023
Bench: Sureshwar Thakur, Sudeepti Sharma
Neutral Citation No:=2023:PHHC:163858-DB
CWP-24926-2014 (O & M) -1- 2023:PHHC:163858-DB
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH.
CWP-24926-2014 (O & M)
Reserved on: 07.12.2023
Pronounced on: 16.12.2023
MAHABIR AND ANR. .....Petitioners
Versus
DISTRICT COLLECTOR FATEHABAD & ORS. ....Respondents
CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
HON'BLE MRS. JUSTICE SUDEEPTI SHARMA
Argued by: Mr. Shailender Kashyap, Advocate with
Mr. Parshant Sethi, Advocate
for the petitioners.
Mr. Ankur Mittal, Addl. A.G., Haryana with
Mr. Saurabh Mago, DAG, Haryana.
Mr. Mahesh Dheer, Advocate
for respondent No. 3.
Mr. Atul Lakhanpal, Sr. Advocate with
Mr. Arjun Lakhanpal, Advocate
for respondents No. 4 to 7.
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SURESHWAR THAKUR, J.
1. The present petitioners becoming aggrieved from the
makings of concurrently made verdicts, thus respectively by the
Assistant Collector concerned, and, by the Collector concerned, to
which respectively Annexure P-1 and P-2 become assigned, whereby
the apposite petition thus seeking eviction of the respondents from the
petition lands became dismissed, thus, have instituted thereagainst the
instant writ petition before this Court.
2. The eviction of the respondents in the said petition was
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claimed on the ground, that the respondents concerned had assumed
illegal and unauthorized possession over the petition lands, despite the
petitioners herein being khewatdars of the village, rather through their
predecessors-in-interest, especially when qua them became reserved
rights but alongwith other members of the village proprietary body, to
use the petition lands, rather for common benefits/common users, thus
in the finalized consolidation scheme.
3. They asserted that since the attestation of mutation, as
made vis-a-vis the Gram Panchayat concerned, thus by the revenue
officer concerned, rather remained un-challenged, thereby the
allotment(s), if any, as made by the custodian concerned, but not being
binding, upon, the Gram Panchayat concerned.
4. In short, the contention (supra) became planked on a
verdict made by the Hon'ble Apex Court in case titled as Gram
Panchayat of Village Jamalpur Versus Malwinder Singh, reported in
1985 AIR (Supreme Court) 1394. Since thereins, it becomes
expostulated, that after the coming into force of the Punjab Village
Common Lands (Regulation) Act, 1953, thus the custodian concerned,
became left with no vestige of jurisdiction, thus to make allotment(s) of
shamilat deh lands, to the allottees concerned, as the said shamilat deh
lands, did rather, on migrations of Muslims, from India to Pakistan,
became completely vested in the Gram Panchayat concerned.
5. In sequel, it became contended that the allotment(s), if any,
as made in breach of the judgment (supra), thus by the custodian
concerned, is completely tainted and flawed.
6. However, through the Amending Act No. 13 of 1996,
Section (ii-a) became inserted in Section 2(g) of the Punjab Village
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Common Lands (Regulation) Act, 1961 (hereinafter for short called as
the 'Act of 1961'), provisions whereof are extracted hereinafter.
(ii-a) was shamilat deh, but has been alIotted to any
person by the Rehabilitation Departrment of the State
Government, after the commencement of this Act, but on or
before the 9th day of July, 1985 ;]
7. The said inserted provision, though did assign
retrospective validity to allotment(s) made of the shamilat deh lands, by
the custodian concerned, but yet with a cut-off date being mentioned
thereins, inasmuch as, the allotments being required to be made before
the 9th day of July, 1985.
8. It is pertinent to mention here, that the vires of insertion of
provision (supra) through the amending Act No. 13 of 1996, was
challenged before this Court, in a case titled as Gram Panchayat of
village Kum-Kalan versus State of Punjab and others, and, to which
CWP No. 4816 of 1996, is assigned. However, through a decision made
on the said petition, this Court had upheld the vires of the said inserted
provision, hence through the relevant amending Punjab Act No. 8 of
1995, and, Haryana Act No. 13 of 1996.
9. Significantly, the patta or the allotment as made to the
predecessors-in-interest of the respondents herein, inasmuch as, as
made in favour of Mohd. Yusuf son of Mohd. Yakub, by the custodian
concerned, who thereafter made alienations thereof, to the vendees
concerned, who are arrayed as respondents in the relevant lis', but
remains unchallenged. The effect thereof, is but naturally that, the
allotment made to Mohd. Yousuf son of Mohd. Yakub, thus by the
custodian concerned, who thereafter alienated, the said lands through
respectively entered wasika No.2568 dated 20.10.1977 and Vasika No.
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362 dated 25.06.1982, thus to the alienees concerned, thus makes the
said alienations to be valid.
10. Furthermore, for want of challenge being made to the
above registered deeds of conveyance, thus before the jurisdictionally
competent Civil Court, thereby, the said alienations are declared to be
lawfully made alienations, unless subsequent thereto they are, if yet
permissible under law become challenged through a civil suit becoming
drawn before the jurisdictionally competent Civil Court concerned.
11. Be that as it may, through the Amending Act No. 13 of
1996, sub clause (ii-a) became inserted in clause (g) of Section 2 of the
'Act of 1961', provisions whereof have been extracted above.
12. It appears that the reason for the incorporation of the said
amendment, in the relevant provision(s), as carried under the 'Act of
1961' was to overcome the effects of the judgment made in Jamalpur's
case (supra) by the Hon'ble Apex Court.
13. Therefore, it has to be tested whether in terms of the said
amendment whereby retrospective validity becomes assigned to the
allotment(s) made of the evacuee properties by the custodian, thus to
the allottees concerned, thus qua the allotment(s), as appertain to the
instant case were made on or before 9th day of July, 1985.
14. For applying the mandate of the above inserted amendment
in Section 2(g) of the 'Act of 1961', it is deemed imperative to thus,
from the facts at hand, determine whether the said amendment, rather is
applicable hereto, inasmuch as, whether the allotment, as, made to one
Mohd. Yusuf son of Mohd Yakub, thus was made prior to 9th July,
1985. If after discerning the records, it becomes unearthed, that the
allotment(s) of the petition lands, as made to Mohd. Yusuf vis-a-vis the
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custodian concerned, were made prior to 9th July, 1985, thereby the
said allotment(s) would be valid and also the allottee concerned,
became well empowered to execute in respect thereof, deeds of
conveyance vis-a-vis the alienees concerned.
15. In the above regard, it evidently emerges that the
allotment(s) as become made to Mohd. Yusuf, thus was made before
9th July, 1985, thereby the said made allotment, is covered within the
domain of the amendment (Supra). Resultantly the said allotment was a
validly made allotment, besides he became well empowered to alienate
the said allotted lands, to the alienees, through his executing the
wasika(s) (supra), vis-a-vis the alienees concerned.
FINAL ORDER OF THIS COURT.
16. In aftermath, this Court finds no merit in the writ petition,
and, with the above observations, the same is dismissed. The
concurrently made dismissal orders by the statutory authorities below
are maintained and affirmed.
17. No order as to costs.
18. Since the main case itself has been decided, thus, all the
pending application(s), if any, also stand(s) disposed of.
(SURESHWAR THAKUR)
JUDGE
(SUDEEPTI SHARMA)
16.12.2023 JUDGE
kavneet singh
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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