Hemant Gupta, J. - (1.) CHALLENGE in the present writ petition is to an order passed by Assistant Collector on 27.11.1990, whereby respondent No. 4 was ordered to be evicted from the land shown by points IF, FM, MN by demolition of wall, whereas, he was declared owner of the area CD, DA, CB and BE apart from portion EM, EB, BJ, MJ adjoining the phirni. Feeling aggrieved against the said order, the appeals filed by the parties were dismissed. Still further, the revision filed by the Panchayat before the Commissioner remained unsuccessful. Still aggrieved, panchayat is in the present writ petition. Though, the site plan is not on the record of the writ petition but learned counsel for the petitioner has produced the certified copy of the site plan, which is taken on record and marked as Annexure P/5.
(2.) A perusal of the record shows that initially the Gram Panchayat filed an application under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (For short, the Act) which was dismissed on 28.05.1980. However, learned Collector, in appeal remanded the case vide order dated 21.01.1981 holding that the question of title arises and the suit be decided under Section 13B (Now Section 13A) of the Act. Thereafter, respondent No. 4 filed a suit which was allowed by the Assistant Collector on 30.06.1982. However, learned Collector set aside the order on 23.11.1982. In further appeal, the learned Commissioner on 03.04.1984 set aside the order passed by the Collector and remanded the case to decide the same afresh after framing issues. Thereafter, the learned Collector framed the following issue: "Whether the land does not vest in the Gram Panchayat under any of the clauses of Section 2(g) of Punjab Village Common Lands (Regulation) Act, 1961? OPP" The learned Assistant Collector while considering the respective contentions of the parties has recorded a finding that the land which is lying vacant and not in possession of any person and is being used for common purposes would be a shamlat deh. It was, thus, concluded that in respect of the remaining land (other than the land which is of street), the Gram Panchayat has not been able to produce any documentary evidence that the rest of the land was left for common purposes. The learned Assistant Collector has returned the following findings: "I have heard the arguments of the counsel for the parties and have personally inspected the spot and have also given opportunity to both the parties to produce their evidence on the issue as per direction of the Commissioner, Ambala Division Ambala. Site plan was also got prepared from the halqa patwari and Kanungo, according to the spot. According to the issue framed by the Commissioner, the land in dispute under Section 2 sub clause (iv) did not fall within the meaning of Shamlat Deh but is in the abadi deh. In sub -clause (iv) it is provided that the land will be deemed to be of Abadi Deh or Gora Deh, which is lying vacant at the spot if the same is not in possession of any person and is being used for common purposes by the villagers, i.e. street, play ground, school, wells, ponds etc. But only point IN, NM, MF and FI which is the street land on the remaining land the provisions are not applicable, because the Gram Panchayat has not been able to produce any such documentary evidence from which it could be established that except the street land, the rest of the disputed land was left for common purposes of the villagers."
(3.) SECTION 2(g)(4) as originally enacted contemplated that vacant land within the abadi, which is being used for common purpose, would vest with Gram Panchayat. Section 2(g)(4a) of the Act was inserted vide Act. No. 15 of 1983 w.e.f. 12.02.1981, provided that the vacant land in abadi deh or gora deh not owned by any person falls within the definition of shamlat deh. Still later Clause 4 of Section 2(g) of the Act was substituted by another amendment carried out by Haryana Act No. 9 of 1992. The relevant clauses, before and after amendment, read as under: "Before Amendment "2(g)(4) lands used or reserved for the benefit of village community including streets, lanes, playgrounds, schools, drinking wells, or ponds within abadi deh or gorah deh; and" "**2(g)(4a) "vacant land situate in abadi deh or gora deh not owned by any person". (**Inserted vide Haryana Act No. 15 of 1983 w.e.f. 12.02.1981) After amendment "*2(g)(4) lands used or reserved for the benefit of village community including streets, lanes, playgrounds, schools, drinking wells or ponds situated within the sabha area as defined in clause (mmm) of section 3 of the Punjab Gram Panchayat Act, 1952, excluding lands reserved for common purposes of a village under section 18 of the East Punjab Holdings Consolidation and Prevention of Fragmentation) Act, 1948 (East Punjab Act 50 of 1948), the management and control whereof vests in the State Government under section 23 -A of the aforesaid Act." (*As amended by Haryana Act No. 9 of 1992).";