S.S.SARON, J. - (1.) THIS order will dispose of the above mentioned petitions filed by the writ petitioners as they involve similar and common questions of law and facts. The facts are taken from the case of Amar Singh and others v. State of Haryana and others (Review Application No. 344 of 2004 in CWP No. 13152 of 2001).
(2.) ALL the above review applications have been filed for reviewing/recalling the order dated 18.8.2003 passed by this Court, the operative part of which reads as under :- "At the hearing, Shri Ashish Aggarwal, learned counsel for the petitioners gave out that similar writ petition bearing No. 183 of 2001 was disposed of by a Full Bench on 13.3.2003 and submits that this writ petition may also be disposed of in terms of the judgment of the Full Bench. In view of the submission of the learned counsel for the petitioners, the writ petition is disposed of in terms of the judgement of the Full Bench in Jai Singh v. State of Haryana and others, 2003(2) RCR(Civil) 578 : (2003-2) PLR 658." A perusal of the above shows that it is on the statement of the counsel for the petitioners that the cases were disposed of in terms of the Full Bench judgment passed in the case of Jai Singh v. State of Haryana, (2003-2) PLR 658. It is submitted on behalf of the petitioners that when the present petitions came up for motion hearing, the Division Bench had ordered the hearing of the present petitions after the Full Bench decision in Jai Singh's case (supra). The vires of the Punjab Village Common Land (Regulation) (Haryana Amendment) Act, 1992 ('the Amendment Act, 1992' - for short) was under challenge which was likely to affect the decision in the present petitions also. It is submitted that when the writ petitions came up for hearing before this Court after the Full Bench decision in Jai Singh's case (supra) due to inadvertence and oversight and under the bona fide belief that since the Full Bench had given judgment and these cases were to be heard after the decision of the Full Bench, a prayer was made for disposing of the cases in terms of the Full Bench judgment. It is submitted that, however, while passing the judgment in Jai Singh's case (supra), the Full Bench held that the cases in which the orders passed by the authorities under the Punjab Village Common Land (Regulation) Act, 1961 (as applicable in Haryana) (Rs.1961 Act' - for short) were challenged with a prayer to set aside the order of ejectment, such cases shall be examined on merit in the light of law laid down by the Full Bench in Jai Singh's case (supra). Therefore, it was ordered that the cases in which orders of ejectment are also under challenge may be separated from the other bunch in which only the vires of the Amendment Act, 1992 were under challenge. A reference is made to para 66 of the Full Bench judgment and on the basis of the same it is submitted that the present set of writ petitions filed by the petitioners were to be segregated from the bunch and heard independently as per the decision rendered by the Full Bench. In the present case, it is submitted that the land in question was reserved during consolidation after taking the same from the owners for the income of the Gram Panchayat. This, it is submitted, is apparent from the scheme of consolidation (Annexure-P.2) and the relevant Jamabandi (Annexure-P.3). Moreover, possession of the land in question was never taken from the owners by the Gram Panchayat and they remained in cultivating possession of the same. Therefore, the orders of ejectment passed against the petitioners (Annexure-P.10 and P.12) inter alia on the ground that land having been reserved during consolidation would vest in the Grant Panchayat are not liable to be sustained. It is submitted that the Hon'ble Supreme Court in Bhagat Ram v. State of Punjab, AIR 1967 SC 927 held that the land which was reserved for imposing pro-rata cut upon the owners in the village during consolidation of holdings for the income of the Gram Panchayat is unconstitutional being violative of Article 31-A of the Constitution of India. Reliance is also placed on a Division Bench judgment of this Court in the case of Kala Singh v. Commissioner, Hissar Division, 1984 PLJ 169. It is submitted that in the present cases the land was admittedly reserved for income of the Gram Panchayat and the same having been held to be unconstitutional, the land in question would not vest in the Gram Panchayat and the orders of ejectment are liable to be quashed on this ground alone. It is further submitted that even though against the order dated 18.8.2003 passed by this Court, SLPs were filed in the Supreme Court these were dismissed in limine before leave to appeal was granted. Thereafter, review applications were also dismissed on 22.4.2005. However, in view of the judgment of the Supreme Court in Kunahayammed v. State of Kerala, 2000(3) RCR(Civil) 671 : (2000)6 SCC 359, the present review applications are maintainable before this Court.
(3.) IN response, Mr. Ashok Aggarwal, Amicus Curiae appointed by this Court for respondent No. 4-Gram Panchayat has submitted that the application for review after dismissal of the SLPs are not maintainable. In any case, it is submitted by Mr. Ashok Aggarwal, Amicus Curiae that even on merits the petitioners have no claim as their land in question in the present cases is recorded as 'Shamilat Deh' and, therefore, would vest in the Gram Panchayat by virtue of Section 4(1)(a) of 1961 Act and the land has never been in the cultivating possession of the individual owners so as to be excluded from the definition from the 'Shamilat Deh' as contained in Section 2(g) of the 1961 Act. It is submitted that the ratio of the judgments of the Supreme Court in Bhagat Ram's case (supra) and of this Court in Kala Singh's case (supra) would not apply as no land of the proprietors is being taken for the income of the Gram Panchayat in which case applicability of the second proviso of Article 31-A of the Constitution of India may be there. It is only when the land of the proprietors is taken which is within the ceiling limit that the provisions of the second proviso of Article 31-A of the Constitution would apply.;