SATISH KUMAR MITTAL, J. - (1.) THIS judgment shall dispose of Civil Misc. Application No. 32632 of 2002 as well as the main writ petition.
(2.) THE petitioners have filed the instant writ petition under Article 226/227 of the Constitution of India for issuance of a writ in the nature of mandamus declaring the amended provisions of section 2(g)(4), (b), proviso to Section 13(B) and Section 7 of the Punjab Village Common Lands (Regulation) Haryana Amendment Act, 1992 (Haryana Act No. 9 of 1992), amendment of which has been made vide notification dated 11.2.1992, as ultra vires and unconstitutional and further to declare that the amended provisions have no adverse effect on the rights of the petitioners and further for issuance of a writ in the nature of mandamus directing the Assistant Collector, Ist Grade Kurukshetra (respondent No. 2) and Gram Panchayat, village Sunarian (respondent No. 3) not to dispossess the petitioners from the land in question. In the petition the petitioners have averred that they are the residents of village Sunarian, Tehsil Thanesar, Distt. Kurukshetra. During the consolidation of holdings in village Sunarian, a big chunk of land, including the land in question (which is nearly 47 acres of land), was reserved as Charand for grazing of cattle by the inhabitants of the village. It has been recorded as 'Charand' in the revenue record. This 'Charand' was in fact a forest, which was used for grazing of cattle. The Grain Panchayat. Sunarian (respondent No. 3) had leased out this land to the petitioners. The petitioners had made the disputed land of Charand cultivable by spending a huge amount. They have been recorded as "Gair Marusi" in the revenue record i.e. jamabandi for the year 1989-90. In the column of ownership, the word 'Panchayat Deh' has been mentioned. It has been further averred that the Sarpanch of the Gram Panchayat was inimical towards them. Therefore, the Gram Panchayat has instituted an ejectment application against them under Section 7(2) of the Punjab Village Common Lands (Regulation) Act, 1961 (here in after referred to as 'the Act') in the Court of Asstt. Collector, Ist Grade, Kurukshetra. It has been further pleaded that since they are in possession of the disputed land as Gair Marusi, therefore, their possession can not be termed as unauthorised and illegal. Therefore, the provisions of the Act have no application to them and the initiation of proceedings against them under Section 7(2) of the Act by the Gram Panchayat is without jurisdiction and are liable to be quashed. It has been further averred that the land in dispute being a part of the Charand is Shamlat Deh, therefore, the provisions of the Act do not apply to the present case and the petitioners at the most can be ejected from the land in dispute under the provisions of Punjab Security of Land Tenure Act, 1953. The petitioners further pleaded that the land in dispute has been described as 'Panchayat Deh' in the revenue record, therefore, it does not fall under the Shamlat land as defined under the Act and provisions of the Act are not applicable. As such, their ejectment cannot be ordered under Section 7(2) of the Act by the Assistant Collector, Ist Grade. The petitioners have also challenged the vires of Section 7 of the Act which empower the Asstt. Collector, Ist Grade to impose penalty on the illegal occupant of the Shamlat Deh while ordering the ejectment, as well as the provisions of Section 13(B) of the Act, which provides that before challenging the order of ejectment passed by the Asstt. Collector, Ist Grade, the person in unauthorised occupation is required to deposit the amount of penalty imposed upon him.
(3.) THE aforesaid writ petition was listed for motion hearing for the first time before a Division Bench of this Court on 6.8.1992. On that date the writ petition was admitted on the statement of the counsel for the petitioner that the controversy in the writ petition is squarely covered by the controversy in C.W.P. No. 5781 of 1991, which already stood admitted; and in was ordered to be heard with C.W.P. No. 5781 and dispossession of the petitioners was stayed.;