MAHESH GROVER,J - (1.) THE petitioner has filed the present petition under Articles 226/227 of the Constitution of India for issuance of a writ in the nature of certiorari quashing orders dated 30.7.2004 (Annexure P-7), 22.11.2004 (Annexure P-8) and 21.9.2005 (Annexure P-9) passed by Assistant Collector 1st Grade, Kurukshetra (respondent No. 4); the Collector Kurukshetra (respondent No. 3) and the Commissioner, Ambala Division, Ambala (respondent No. 2), respectively.
(2.) THE facts of the case are that the petitioner is stated to be the proprietor of village Bishan Garh (Darra Khurd), District Kurukshetra and, therefore, he is share-holder in the Shamlat Bachat land of the village. According to him, the land in question is situated in the revenue estate of village Bishangarh (Dara Khurd), District Kurukshetra and it has been in possession of his fore-fathers since the year 1918-19 because it is recorded in the column of ownership in the jamabandi for that year as "shamlat deh hasab rasab Zare khewatt", whereas in the column of cultivation, the name of his grand-father has been recorded a Gair Marusian. He has averred that in the column of rent, the land in question has been recorded "Lagan Nadarad Bawajah Taswar Malkiati". Even in the jamabandis for the years 1967-68 and 1972-73, the father of the petitioner has been recorded to be in possession of the land in question and in the jamabandi for the year 2002-03, he and his father have been shown to be in possession as share holders and the ownership of "shamlat deb hasab rasad zare khewat" has been recorded. The petitioner has pleaded that during the consolidation in the village, the land in question was not as assigned for any common purpose and was never utilised for common purpose as defined in Section 2(bb) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (for short, 'the 1948 Act'). In brief, his contention is that the land is not shamlat deh and it continued to belong to the proprietors of the village and continued to be in their possession. In 1992, the State of Haryana amended the Punjab Village Common Lands (Regulation) Act, 1961 (for brevity, 'the 1961 Act') and by virtue of the amendment, the land in question was included in the definition of 'shamlat deh'. The petitioner has asserted that the amendment made in the 1961 Act became the subject matter of challenge before the High Court and the Full Bench of the High Court in Jai Singh v. State of Haryana, 1995(1) RRR 623 (P&H) : (1995-1)109 P.L.R. 614 (F.B.), struck down the amending provisions as being violative of Articles 31-A and 14 of the Constitution of India. The matter then went up in Petition for Special Leave to Appeal before the Supreme Court [Reported as State of Haryana v. Jai Singh, 2001(1) RCR(Civil) 579 (SC) : (1999-1)121 P.L.R. 322 (S.C.) - Editor] and it was remanded back for fresh decision. The Full Bench of this court reheard the matter and delivered the decision on 13.3.2003 (reported as (2003-2)134 P.L.R. 658) and it was held that the land which has been contributed by the proprietor on the basis of pro rata cut on their holdings imposed during the consolidation proceedings and had not been earmarked in the Consolidation Scheme shall not vest in the Gram Panchayat and the State Government on the dint of sub-section (6) of the Section 2(g) and the explanation appended thereto or any other provisions of the 1961 Act or 1949 Act.
(3.) A petition under Section 7 of the 1961 Act was filed by respondent No. 5 against the petitioner seeking his ejectment from the land in question. The petitioner took up the plea that the land is not shamlat deh and does not vest in the Gram Panchayat and since the question of title was involved, therefore, before the proceedings under Section 7 could be adjudicated upon, it was incumbent upon Assistant Collector, 1st Grade, Kurukshetra (respondent No. 4) to decide the question of title.;