Judgment:
N.K. Sodhi, J.
1. This judgment will dispose of three Writ Petitions 1589 and 11095 of 1990 and 1564 of 1991 as common questions of law and fact arise in them. In order to appreciate the controversy between the parties, facts are being taken from Civil Writ Petition 11095 of 1990 in which the main arguments were advanced.
2. The facts are few and simple. The petitioners are proprietors of village Bodhni, Tehsil Guiha, District Kurukshetra in the State of Haryana and the petition has been filed by petitioners 1 to 4 on their on behalf and as representatives of the proprietory body of the village. It is stated that in their capacity as proprietors of the village, they have a share in the shamlat land of the village in accordance with their respective ownership areas i.e. Hasab Rasab Khewat and their rights in the village common land according to their khewat areas are also recorded in the revenue records. The case of -the petitioners is that for some time entire shamlat land of the village measuring 9537 kanals 18 marlas was mutated in the name of the Gram Panchayat respondent but later on the mistake was corseted and an area measuring 4900 kanals- 12 marlas out of the total shamlat land was shown as vested in the Gram Panchayat according to the jamabandi for the, year 1982-83 and art area measuring 4637 kanals -6 marlas was divested from the Gram panchayat and revested in the proprietory body. Their further plea is that the petitioners-have been in possession of this area since the times of their fore fathers and their possession was not disturbed even during the short period when the area of shamlat land was wrongly mutated in favour of the Gram Panchayat. They claim that their possession over the land measuring 4637 kanals-6 marlas has been open, notorious and continuous and thus, the petitioners are owners in possession's of this area having become owners there of by adverse possession since their possession has been for more than 12 years after the commencement of the Shamlat Law.
3. On June 30, 1987, the petitioners filed a suit under section 13-A of the Punjab Village Common Lands (Regulation) Act 1961 applicable to the State of Haryana and as amended by the Haryana Act 2 of 1981 (hereinafter called 'the Act') praying for a decree for declaration to the effect that the proprietors of village Bodhni are owners in joint possession of land measuring 4637 kanals-6 marlas out of the total shamlat land and for a consequential relief of permanent injunction restraining the Gram Panchayat-respondent from dispossessing or ejecting them in any manner from the land in dispute. This prayer made in the suit was mainly based on the ground that the petitioners (proprietors) had become owners of the land by adverse possession having remained in possession for a continuous period of more than 1.2 years. On receipt of notice, the Gram Panchayat and respondents No. 4 to 18 who were allowed to be impleaded as respondents in the suit contested the same and on the pleadings of the parties as many as twelve issues were framed. Issue No. 11 pertained to limitation which was in the following terms :-
'Whether the suit is time barred OPD'
The issue relating to limitation was treated as preliminary one and the same was decided by the Assistant Collector Grade-I vide his order dated January 24, 1989 in favour of the petitioners holding that the suit was within time and thus, maintainable. Against this order of the Assistant Collector Grade-I, the Gram Panchayat and some of the other respondents herein filed an appeal before the Collector, Kurukshetra who by an order dated May 2, 1990 allowed the same and held; that the suit filed by the plaintiffs-proprietors of the village was barred by limitation under section 13-A of the Act. It is this order of the Collector which has been impugned in the present writ petition.
4. While challenging the validity of the order passed by the (Collector, the primary contention advanced by Shri R. S. Mittal, learned senior counsel for the petitioners was that the provisions of sections 7 and 13-A of the Act are mutually inconsistent with each other in-as-much-as the petitioners who had become owners by adverse possession could raise this plea by way of a defence if ejectment proceedings against them had been initiated by the Gram Panchayat or any one else authorised to do so under section 7 of the Act but they are debarred from getting such a declaration as to their title under section 13-A of the Act after 5 years from the commencement of Haryana Act No. 2 of 1981. In other words, the argument is that since a person who has completed 12 years of unauthorised occupation over shamlat land can plead ownership by adverse possession as a defence in proceedings under section 7 of the Act, he must also have a right to get his title adjudicated or declared under section 13-A of the Act. For the reasons hereinafter mentioned, there is no merit in this contention and has to be noticed only to be rejected.
5. As the argument of the learned counsel for the petitioners involves around interpretation of sections 7 and 13-A of the Act, it would be apt to reproduce them:-
'7-Power to put Panchayats in possession of certain land. (1) An Assistant Collector of the first grade, having jurisdiction in the village may, either, suo motu or on an application made to him by a Panchayat or an inhabitant of the village or the Block Development and Panchayat Officer or Social Education and Panchayat Officer or any other officer authorised 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 deified to have been vested in the panchayat under this Act and put the Panchayat in possession there of 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 the Assistant Collector of the first grade shall first decide the question of title under section 13-A).
(2) The Assistant Collector of the first grade may, 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 a rate not less than six hundred rupees and not more than two thousand and five hundred rupees per hectare per annum having 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) If any person refuses to comply with the order of eviction passed under sub-section (1) with in ten days the date of such order, the Assistant Collector of the first grade may use force, including police force, as may be necessary for putting the panchayat in possession.
(4) Any person aggrieved be an order of the Assistant Collector of the first grade may, within a period of thirty days from the date of the order, prefer an appeal to the Collector in such form and manner, as may be prescribed.
Section 13-A. Adjudication- (1) any person or in the case of a Panchayat, either the Panchayat or its Gram Sachiv, the concerned Block Development and Panchayat Officer, Social Education and Panchayat Officer or any other officer duly authorised by the State Government in this behalf claiming right, title or interest in any land or other immovable property vested or deemed to have been vested in the panchayat under this Act, may within a period of five years from the date of commencement of the Punjab Village Common Lands (Regulation), Haryana Amendment Act, 198G, file a suit for adjudication, whether such land or other immovable property is shamilat den or not or whether any land or other immovable property or any right, title or interest therein vests or does not vest in a panchayat under this Act, in the Count of the Assistant Collector of the first grade having jurisdiction in the area where such land or other immovable property is situate.
(2) The procedure for deciding the suits filed under subsection (i), shall be the same as laid down in the Code of Civil Procedure, 1908.
The proviso to sub-section (1) of section 7 of the Act was added by Punjab Village Common Lands (Regulation) Haryana Amendment Act, 1980 (Haryana Act No. 2 of of 81) and simultaneously the provisions of section 13-A of the Act dealing with the adjudication proceedings were enacted and a period of two years limitation was provided for instituting suits for getting adjudicated any claim, right title or interest in any land or other immovable property vested or deemed to have vested in the Panchayat under the Act. The period of two years was then increased to five years by Haryana Act 15 of 1983. Haryana Act No. 2 of 1981 came into force on February 12, 1981 and, therefore, according to the provisions as they now stand, a suit under section 13-A of the Act for the adjudication of any of the rights contemplated therein could be filed within a period of 'five years from the date of commencement of that Act and not thereafter. A reading of section 7(1) along with its proviso and section 13-A of Act makes it abundantly clear that there is no mutual inconsistency between the two provisions as was sought to be urged by learned counsel for the petitioners. Under section 7 of the Act, Assistant Collector Grade-I has been given the power either suo-motu or on an application made to him by a panchayat or any other officer mentioned therein to eject any person who is in wrongful or unauthorised possession of the land or other immovable property in the shamilat deh of the village which vests or is deemed to have been vested in the Panchayat under the Act and to put the Panchayat in possession thereof. Assistant Collector Grade-I can do this after making such summary enquiry as he may deem fit and in accordance with such procedure as may be prescribed. In a case where a person is in unauthorised possession of the shamilat land which vests in the Panchayat, he can be ejected under this summary procedure. However, when ejectment of any person is sought under section 7 of the Act, it is open to such a person to raise all defences that he may have with a view to defend/ protect his possession including the plea that he is owner thereof. If any plea regarding title is raised and he can prima facie prove the sarpe, then the Assistant Collector Grade I has to convert himself into a court under section 13-A of the Act and dispose of the petition as a regular suit in accordance with the provisions of the Code of Civil Procedure, 1908. It is not at all necessary for persons like the petitioners who are in possession of the shamilat land and claim to have become owners by adverse possession or otherwise to institute a suit to get their right adjudicated. The Act as it now stands contemplates that they could sit tight over the land in their possession and as and when they are sought to be evicted in proceedings under section 7 of the Act, they can take up their title as a defence and have the matter adjudicated in accordance with the provisions of section 13-A of the Act. If they are owners or have-become owners by adverse possession, they will get the necessary adjudication by way of a declaration from the Assistant Collector Grade-I under section 13-A of the Act. If they are not owners' or their adverse possession has not ripened into full ownership, they would have no right to be in possession of the land in dispute and the Assistant Collector Grade-I would be justified in evicting them according to the summary procedure under section 7 of the Act. Section 13-A of the Act is for a different purpose. Shamilat land as defined under the Act is not something which keeps on increasing. It is what it was at the commencement of the Act or may have rather decreased to some extent. Land, owners who were in possession of shamilat land or claim that the land in their possession was not shamilat could get a declaration in regard, to their title provided they instituted a suit within a period of five years from the date of the commencement of Haryana Act 2 of 1981. In this view of the matter, I find that the provisions of section 7 and section 13-A of the Act are not mutually inconsistent.
6. It was next urged that if a person in possession of land which is shamilat land is forcibly dispossessed, he would be left with no remedy to get his possession back as the jurisdiction of the Civil Court under section 13 of the Act is completely barred and there is no remedy provided under the Act. if he has been dispossessed, after five years from the enforcement of the Act 2 of 1981. There is no merit in this contention either. Such a situation is wholly., imaginary and it does not arise from the facts of the present case. Even otherwise, the action of forcible dispossession is outside the purview of the Act and the ordinary remedies under the general law including the one under section 6 of the Specific Relief Act, 1963 would be available.
7. Mr. Khetarpal, learned counsel for some of the petitioners then contended that the law of limitation must always have co-relation with causes of action but in the instant case Section 13-A of the Act prescribes a period of limitation of five years from the date of the enforcement of the Act and for this reason, according to the counsel, the portion of Section 13-A prescribing five years limitation from the date of the commencement of the Act should be struck doyra. He also submitted that there may be land which may be shown as shamilat land but may not actually be and vice-versa and with regard to such land, a person would be left with no remedy after five years from the enforcement of Act No. 2 of 1981. To further illustrate his contention, he urged that a person who is not in possession of land but owns it which has been wrongly shown as shamilat, he would have no remedy whatsoever to claim his land and, therefore, Section 13-A prescribing five years limitation from the enforcement of the Act is violative of Article 31A of the Constitution, as no compensation has been provided or paid for taking away the land. All these contentions are imaginary and do not arise from the facts of the present case. The petitioners herein are all in possession of the land from where they are sought to be ejected. The learned counsel for the respondents submitted that such eventualities as contemplated by the learned counsel for the petitioners may not arise as shamilat land is what it was at the commencement of the Act and a five years period from February 12, 1981 is sufficient time for any land owner to get this right or title adjudicated or institute proceedings in regard thereto. The provisions of Section 13-A cannot be said to be illegal or unconstitutional on this ground. Moreover, the Act is covered by sub-clause (1) of clause 1 of Article 31A of the Constitution of India and having been reserved for the consideration of the President has received his assent, is limmune from challenge on the ground that it takes away or abridges any of the rights conferred by Articles 14 or 19 of the Constitution. The State Legislature could completely take away the right of any land owner from becoming owner of shamilat land by adverse possession or otherwise though in the instant case it has only laid down that the existence of such a right, if any, must be established in a proceeding instituted within five years of the coming in force of Haryana Act 2 of 1981. The contention that the period of five years as prescribed by this Act is unconstitutional in-as-much as it is not related to causes of action is wholly misconceived. The object of this provision is to avoid continued and endless litigation in regard to shamilat land arid if any person has any cause of action on which he could base his rights he should have exercised those rights within a period of five years of the coming into force of Act 2 of 1981.
8. In the result, there is no merit in these petitions and the same are dismissed with no order as to costs.