- (1.) The present writ petition was filed challenging the order dated 25.8.2000 (Annexure P-7) passed by the Assistant Collector First Grade, Yamuna Nagar whereby while directing the eviction of the petitioner under Section 7(2) of the Punab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as "the Act"), imposed a penalty of Rs.10,000"- per hectare per year upon him from the year 1993. The petitioner has also challenged the order dated 22.7.2003 (Annexure P-8), passed by the Collector Yamuna Nagar declining to entertain the appeal, in view of the default of the petitioner in depositing the penalty in view of Section 13B of the Act. The challenge is to the provisions of Section 13 of the Punjab Village Common Lands (Regulations) Act, 1961 (for short "the Act").
(2.) Initially, the Division Bench hearing the writ petition referred the matter to a Full Bench in view of conflict of opinion by two Division Benches of this Court. In CWP No.15930 of 2008, Satbir Singh and another v. The Collector, Jhajjar and others, decided on 8.9.2008, it was held that the provision of pre-deposit of entire penalty is a mandatory provision. In CWP No. 13468 of 2007, Sehaj Ram v. The Collector, 1amnuna Nagar, decided on 28.8.2007, another Division Bench held that the pre-deposit is not a mandatory provision. When the matter came up for hearing he fore the Full Bench, the Additional Advocate General, Haryana placed reliance on a Full Bench judgment of this Court rendered in CWP No.5877 of 1992, Jai Singh and others v. State of Haryana and others, decided on 13.3.2003. In the said decision, the view taken in Satbir Singh and another's case , was endorsed in the following terms : "xx xx xx The position of law being so settle that where in so far as Mr. Veneta is concerned, he raised the contention only half heartedly, galaxy of lawyers, apearing in various matters, do not raise any argument with regard to invalidity of Section 7 and proviso to Section 13(b) of the Amending Act." Noticing that the decision in Jai Singh and others' case , was based largely on the fact that most of the Lawyers appearing for the petitioners therein did not raise ally argument with regard to the validity of Section 13B of the Act, the Full Bench referred the matter to a Larger Bench consisting of five Judges, and this is how the matter is before this Bench.
(3.) Before proceeding further, it would be apposite to have a brief overview of the Act. The Act has been promulgated to consolidate and 'amend the law regulating the rights in shamilat deh and abadi deh. Section contains definitions, while Section 3 details the land to which the Act applies. Section 4 is the vesting Section whereby shamilat deh vests in the Panchayats and non-proprietors (in some cases). Section 5 regulates use and occupation etc of lands vested or deemed to have been vested in panchayats. Section 5A permits disposal of such lands in certain circumstances while Section 5B voids transfers of Panchayat land which may have been made in contravention of the prescribed terms and conditions. Section 6 provides for appeal against any action or decision taken by the Panchayat under Section 5 of the Act. Section 7 deals with eviction of unauthorized occupants and is necessary to be quoted herein below for proper appreciation of the issue involved : "7. Power to put Panchayat in possession of certain lands. - (1) An assistant Collector of the first grade having jurisdiction in the village may, either suo moto or an application made to him by a Panchayat or inhabitant of the village or the Block Development and Panchayat Officer or Social Education and Panchayat Officer, or any other Officer authorised by the Block Development and Panchayat Officer, after making such summary enquiry as he may deem fit and in accordance with such procedure as may be prescribed,eject any person who is in wrongful or unauthorised possession of the land or other immovable property in the shamilat deh of that village which vests or is deemed to have been vested in the panchayat under this Act and put the panchayat in possession thereof and for so doing the Assistant Collector of the first grade may exercise the powers of a revenue court in relation to the execution of a decree for pbssessien of land under the Punjab Tenancy Act, 1887 : Provided that if in any such proceedings the question of title is raised and proved prima facie on the basis of documents that, the question of title is really involved, the assistant Collector of the first grade shall record a finding to that effect and first decide the question of title in the manner laid down hereinafter. (2) The Assistant Collector of the first grade shall by an order, in writing, require any person to pay a penalty, in respect of the land or other immovable property which was or has been in his wrongful or unauthorised possession, at a rate not less than five thousand rupees and not more than ten thousand rupees per hectare per annum, having regard to the benefit which could be derived from the land or other immovable property. If the penalty is not paid within the period of thirty days from the date of the order,the same shall be recoverable as arrears of land revenue. (3) The procedure for deeding the question of title under proviso to sub-section (1) shall be the same as laid down in the Code of Civil Procedure, 1908. (4) If any person refuses ails to comply with the order of eviction passed under sub-section (1) within ten days of the date of such order, the Assistant Collector of the first grade may use such force, including police force, as maybe necessary for putting the panchayat in possession. (5) Any person who is found in wrongful or unauthorised possession of the land or other immovable property in shamlat deh and is ordered to be ejected under sub-section (1), shall be punishable with imprisonment for a term which may extend to two years.";