Diwan Chand vs Commissioner Karnal And Others

CWP No.16351 of 2024 1
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
202
CWP No.16351 of 2024
th
Date of decision: November 5 , 2026
Diwan Chand
.....Petitioner
Versus
Commissioner, Karnal Division, Karnal and others
.....Respondents
CORAM: HON'BLE MR. JUSTICE VIKAS BAHL
HON'BLE MS. JUSTICE DIVYA SHARMA
Present: Mr. Sukhdeep Singh and Mr. Bhanu Bains, Advocates
for the petitioner.
Mr. Pradeep Prakash Chahar, Additional Advocate General,
Haryana.
Mr. Suraj Mandhan, Advocate
for respondent No.4.
VIKAS BAHL, J. (ORAL)
1. In the headnote of the petition, the following prayers have been
made:
“Civil Writ Petition under Article 226 of Constitution of India
for issuance of a writ in the nature of CERTIORARI for
quashing the Order dated 29.5.2024 (Annexure P-5) passed by
Respondent No 1 whereby while setting aside order dated
23.12.2021 (Annexure P-1) passed by Respondent No 3 and
Order dated 20.7.2022 (Annexure P-2) passed by Respondent
No 2, the Respondent No 1 has illegally set aside the eviction
against the private respondents and other illegal occupants of the
panchayat land. Further, the Respondent No 1 while accepting
the fact of illegal encroachment of private Respondents
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CWP No.16351 of 2024 2
remanded the case for de-novo proceedings of eviction against
the private Respondents being illegal occupants of the Panchayat
land.Further for issuance of writ order or direction for staying
the operation of the Order dated 29.5.2024 (Annexure P-5) and
for expediting the execution of the eviction of the private
respondents from the panchayat land during the pendency of the
present petition.
AND
Any other writ, order, or direction this Hon'ble Court may deem
fit and proper in the peculiar facts and circumstances of this
case.”
2. Learned counsel for the petitioner has submitted that in the
present case, the present petitioner had filed an application under Section
7(2) of the Punjab Village Common Lands (Regulation) Act, 1961 (now
known as the Haryana Village Common Lands (Regulation) Act, 1961
(hereinafter referred to as ‘the 1961 Act’) with respect to the land comprised
in Khasra No.73 (12-4) as the same was gair mumkin johad as per
jamabandi for the year 2013-14. It is submitted that in the said application,
11 persons were made party, which included the Gram Panchayat. It is
st
submitted that the Assistant Collector 1 Grade, Karnal vide order dated
23.12.2021 ordered the eviction of the ten persons and further directed the
Block Development and Panchayat Officer to take possession from the other
persons, who were also found to be in illegal possession in the demarcation
report dated 13.10.2021. It is submitted that five persons out of the ten
persons had filed an appeal before the Collector and the Collector vide order
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CWP No.16351 of 2024 3
st
dated 20.07.2022 upheld the order passed by the Assistant Collector 1
Grade, Karnal, and further directed that proceedings under Section 7(2) of
the 1961 Act be initiated against the persons, who have been found in illegal
possession. The relevant portion of the said order, which has been
highlighted, is reproduced hereinbelow:
“Therefore, while maintaining the order dated 23.12.2021
passed by the lower court, rejecting the arguments raised in the
appeal by the counsel of appellants, the appeal is dismissed. By
sending a copy of this order to the Block Development and
Panchayat Officer, Kunjpura, instructions are given that the
possession of the disputed land should be handed over to the
Gram Panchayat Kalvehri after getting it released from the
appellants and proforma respondents with immediate effect and
the damages imposed on them should also be recovered to be
deposited in the Gram Panchayat Fund. From the observation of
the precedent, it has also been found that according to the
demarcation dated 13.10.2021, apart from the appellants, illegal
possession of other 8 persons of the villagers has also been
found, therefore the Block Development and Panchayat Officer,
Kunjpura is directed that the demarcation dated according to
13.10.2021, eviction claims should be filed against the other 8
occupants in the competent court under Section 7(2) of the
Punjab Village Common Land Act. A copy of this order should
be sent to Assistant Collector First Class and District
Development and Panchayat Officer, Karnal along with the
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CWP No.16351 of 2024 4
records received from their court. After following the orders
passed in this case, the documents should be arranged and
deposited in the record room.
Order pronounced
Date: 20.07.2022”
3. It is submitted that although no further appeal/revision was
maintainable in the present case but yet respondents No.5 to 9 filed a
revision petition before the Commissioner and the Commissioner vide order
dated 29.05.2024 set aside both the orders on the ground that action was
being taken only against the private respondents and not against the other
persons and thus, remanded the matter. It is submitted that the said order is
bad on two counts, one being that the revision was not maintainable and
st
secondly, it is highlighted that even the Assistant Collector 1 Grade as well
as the Collector had both stated that appropriate action be taken against the
persons, who have been found to be in illegal possession and were not made
party and thus, the Commissioner could not have set aside the order against
the private respondents, who had illegally occupied the Gram Panchayat
land and should have only reiterated the directions of the Assistant Collector
st
1 Grade as well as the Collector directing action to be taken against the
persons, who were also found to be in illegal possession but were not made
party.
4. In the present case, notice of motion was issued on 17.07.2024
by the coordinate Division Bench of this Court and the operation of the
impugned order was stayed. The order dated 17.07.2024 is reproduced
hereinbelow:
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CWP No.16351 of 2024 5
“Present:- Mr. Chirag Wadhwa, Advocate
for the petitioner.
*
Learned counsel for the petitioner, inter-alia,
contends that vide order dated 23.12.2021 (Annexure P-1), the
Assistant Collector had directed the eviction of 10 persons on
the basis of the first demarcation report dated 07.12.2015 and
apart from this, recommended that the proceedings should be
initiated against the second set of persons by passing an
ejectment order against them on the basis of second
demarcation report dated 13.10.2021. The ones, who have been
ejected, have filed the appeal against the order dated
20.07.2022 (Annexure P-2) passed by the Collector, which has
been interfered with by the Commissioner vide impugned order
dated 29.05.2024 (Annexure P-5) and the matter has been
remanded to the Assistant Collector on the ground that no
action has been taken against the second set of persons.
Apparently, the order passed by the Commissioner is not
justified.
Notice of motion.
Mr. Ankur Mittal, Addl. A.G, Haryana with Mr.
Saurabh Mago, DAG, Haryana accept the notice on behalf of
respondents No.1 to 3 and seek time to file reply.
Adjourned to 01.10.2024 for service of remaining
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CWP No.16351 of 2024 6
respondents.
Meanwhile, operation of the impugned order
(Annexure P-5) shall remain stayed.
July 17, 2024”
5. The private respondents No.5 to 12 were served, however, no
one appeared on behalf of the said respondents on 01.0.2024 and even on
23.03.2026 and even today no one has appeared on to oppose the present
writ petition.
6. Learned counsel appearing for the State has very fairly stated
that in view of the law laid down by this Court in the case of Amar Pal and
others Versus State of Haryana and others in CWP-12498-2025, the revision
before the Commissioner was not maintainable.
7. This Court in CWP-12498-2025 titled as Amar Pal and others
Versus State of Haryana and others, has held as under:
“7. The present case pertains to the State of Haryana and
undisputedly the provision of the Haryana Act of 1961 would apply.
Both the sides have relied upon the said provisions. It is also not in
dispute that the eviction petition was filed under Section 7 of the Act
of 1961 and that no question of title was either raised or decided. It
would be relevant to note that the proviso to Section 7(1) of the Act
of 1961 provides that in case a question of title is raised and is
proved prima facie from the documents on record, then, the
Assistant Collector 1" Grade is required to give a finding on the said
question of title. Section 7 of the Act of 1961 is reproduced herein
below:-
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CWP No.16351 of 2024 7
“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
on an application made to him by a Panchyayat or an
inhabitant of the village or the Block Development and
Panchayat Officer or Social Education and Panchayat
Officer, or any other Officer authorized 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 possession 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 the rate of one percent of the
Collector rate of the land per acre per annum with the
ceiling of total penalty amount equal to ten percent of the
current Collector rate of the encroached land] having
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CWP No.16351 of 2024 8
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 deciding 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 or fails 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 may be 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 shamilat 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."
8. Further as per provisions of the Act of 1961, against an
order passed under Section 7(1) and (2) of the Act of 1961, an
appeal is maintainable under Section 13-B of the Act of 1961
before the Collector and thus, the said appeal was rightly filed
by the petitioners No.1 to 3 and the predecessor-in-interest of
petitioners No.4 to 7, before the Collector and the Collector had
the jurisdiction to pass the order dated 06.01.2023. No further
revision either before the Commissioner or the Financial
Commissioner was maintainable as a revision before the
Commissioner is maintainable only in case a person is
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CWP No.16351 of 2024 9
aggrieved by an order passed under the proviso to sub-section
(1) of Section 7 of the Act of 1961 vide which the question of
title has been decided. It is not disputed before this Court that
there was no order passed under proviso of Section 7(1) of the
Act of 1961 and thus, there was no occasion for the petitioners
No.1 to 3 and the predecessor-in-interest of petitioners No.4 to
7 to file revision before the Commissioner. Section 13(B) of the
Act of 1961 is reproduced herein below:-
1
“13-B. Appeal and revision. {(1) Any person aggrieved
by an arder of the Assistant Collector of the first grade may,
within a period of thirty days from the date of Order paxsed
under sub-section (1) or sub-section (2) of Section 7 prefer an
appeal to the Collector in such form and manner, as may be
prescribed, and the Collector may after hearing the appeal,
confirm, vary or reverse the order as he deems fit:
Provided that no such appeal shall he unless the amount
of penalty, if any, imposed under sub-section (2) of Section 7,
is deposited with the Collector.}
(2) The Commissioner may, suo motu 2{or on application
made to him by any person aggrieved by an order passed under
the proviso to sub-section (1) of section 7 at any time} call for
the record of any proceedings pending before, or orders passed
by, any authority subordinate to him for the purpose of
satisfying himself as to the legality or propriety of the
proceedings or order and pass such order in relation thereto as
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CWP No.16351 of 2024 10
he may deem fit:
Provided that no order adversely affecting any person
shall be passed unless he has been afforded an opportunity of
being heard.”
9. It would be relevant to note that in the proceedings
instituted under Section 7 of the 1961 Act, there is no provision
for filing an ROR before the Financial Commissioner.
Revisions before the Financial Commissioner are maintainable
under sub-section (2) of Section 13AA of the Act of 1961,
against an order passed by the Commissioner in the proceedings
under Section 13-A sub-section (1) of the Act of 1961, which is
not the case in the present writ petition. Section 13AA of the
1961 Act is reproduced hereinbelow: -
“13AA. Appeal and revision.- (1) Any person, aggrieved
by an order passed under sub-section (1) of section 13A, may
within a period of thirty days from the date of such order, prefer
an appeal to the Commissioner in such form and manner, as
may be prescribed, and the Commissioner may after hearing the
appeal, confirm, vary or reverse the order as he deems fit.
(2) The Financial Commissioner may, suo motu or on an
application made to him by any person aggrieved by an order
passed under sub- section (1), call for the record of any
proceedings pending before, or order passed by the
Commissioner for the purpose of satisfying himself as to the
legality or propriety of the proceedings or order and pass such
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CWP No.16351 of 2024 11
order in relation thereto as he may deem fit;
Provided that no order adversely affecting any person
shall be passed unless he has been afforded an opportunity of
being heard.”
8. In the present case, it is not in dispute that the initial
application, which was filed by the petitioner was under Section 7 of the
st
1961 Act and no question of title was decided by the Assistant Collector 1
Grade or even by the Collector. In the said circumstances, the revision
petition before the Commissioner was not maintainable and thus, the order
of the Commissioner deserves to be set aside on the said ground alone.
Additionally, it would be relevant to mention that even in case action is to be
taken against the other unauthorized occupants, as per the demarcation
report, for the said reason the eviction order passed against the private
respondents should not have been set aside.
9. Keeping in view the abovesaid facts and circumstances, the
present petition is allowed and the impugned order dated 29.05.2024 passed
by the Commissioner is set aside and the orders passed by the Assistant
st
Collector 1 Grade as well as the Collector are upheld.
(VIKAS BAHL)
JUDGE
th
November 5 , 2026 (DIVYA SHARMA)
Puneet JUDGE
Whether speaking/reasoned : Yes
Whether reportable : Yes
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