G.R. Majithia, J.
1. This judgment will dispose of three writ petitions (CWP Nos. 3021, 3022 and 3023 of 1988) since common questions of law and facts arise for determination therein.
2. In these petitions the petitioners have challenged the order dated 21-9-1987 passed by the S.D.O. (Civil) Karnal, exercising the powers of Collector, Karnal, whereby their eviction was ordered from the disputed land under the Haryana Public Premises and Land (Eviction & Rent Recovery) Act, 1972, which was affirmed on appeal by Commissioner, Ambala Division, Ambala, vide order Annexure P-7, dated 3-2-1988.
3. Reference to facts has been made from the pleadings in CWP 3021/1988.
4. A scheme of consolidation for Village Ruksana was prepared under the East Punjab Holdings (Consolidation & Prevention of Fragmentation) Act, 1948 (hereinafter referred to as the East Punjab Holdings Act) in the year 1958 59. In the scheme, land was reserved for various common purposes. Land measuring 400 Kanals was also reserved for the income of Gram Panchayat (respondent No. 2) It was also stated in the scheme that besides the area reserved for common purposes, there was no need of the land for any other purpose. Various common purposes for which the land was reserved are mentioned in the scheme Annexure Pi. Besides reserving 400 Kanals of land for the income of the Gram Panchayat, the scheme of consolidation envisage that a pro rata cut from the proprietary land of the owners would be made with a view to completing the land for common purposes and the land so taken in excess shall continue to vest with the owners as 'Jumla Mushtarka Malkan Hasab Rasad'. The proprietors, including the petitioners and their forefathers, bad, thus contributed the land which ultimately became 'Jumla Mushtarka Malkan' The total area which was deducted from the holdings of the proprietors comes to 411 Kanals and 19 Marlas. The land which has been ear marked for the income of the Gram Panchayat and the land which remains surplus after utilising the same for common purposes could not vest in the Gram Panchayat. The petitioners were in cultivating possession of 158 Kanals and 15 Marias of land. This land was the one which remained sarplas/bachat after the land was utilised for the common purpose mention in the consolidation scheme and a copy of jamabandi for the year 1962-63 is placed on record which indicates that the land comprised in Khewat No. 815, Khatauni No. 344, Rect. No. 43, Killa Nos. 4, 5; Rect. No. 23, Killa Nos. 20. 21; Rect, No. 24, Killa Mos. 16, 17, 18, 19, 20, 21, 22, 23, 24, 25; Rect No. 28, Killa Nos. 1,2,3,4,5/1,9,10, was in cultivating possession of the petitioners in eqial share as proprietors. In the column of ownership, it was described as 'Jumla Mushtarka Malkan Hasab Rasad Rakba'. Apprehending their forcible dispossession from the land in dispute, the petitioners tiled a civil suit against the Gram Panchayat and others restraining the latter from forcibly dispossessing the former. The suit was decreed by the Senior Sub Judge on February 16, 1985. Under orders of the Sub Divisional Officer (Civil) the land which was shown in the ownership of Jumla Mmhtaraka Makan Hasab Rasad was mutated in favour of the Gram Panchayat and as a result of the change in ownership, the land which was owned and possessed by Jumla Mushtarka Malkan Hasab Rasad came to be recorded as owned by the Gram Panchavat. The mutation regarding the land in dispute was sanctioned on March 24, 1986. The Gram Panchayat (respondent No. 2) filed an application under Section 3 of the Haryana Common Purpose Land (Eviction and Rent Recovery) Act, 1985 (Haryana Act No. (sic) of 1985) (hereinafter referred to as Haryana Act No. 15 of 1985) read with Section 7 of the Haryana Public Premises and Land (Eviction and Rent Recovery) Act before the Collector Karnal Collector, Karnal found that tap land was reserved for common purposes at the time of consolidation of holdings and in view of the provisions of Section 3 of Haryana Act No. 15 of 1985, the disputed land had to be treated as common purposes land, and treating the petitioners as unauthorised occupants thereon ordered their eviction The Collector. Karnal, also ordered that the petitioners should pay a sum of Rs. 30,000/- as fine during the period they remained in unauthorised occupation This, order was affirmed in appeal by the commissioner vide order dated 3-2-1988. It is pleaded that the land was nether earmarked for any common purpose nor was utilised for the common purposes, the provisions of Haryana Act No. 15 were not applicable to the facts of the present case. The land which was mentioned in the revenue record as owned by Mushtarka Malkan and other right holders forming their share in the khewat does not vest in the Gram Panchayat and such a land does not, therefore, fall under tie ambit of shamlat deh as envisaged by Section 2(g) of the Punjab Village Common Land (Regulation) Act, 1961 (as applicable to Haryana)
5. On behalf of the respondents, written statement has been filed by respondent No. 2 It is, inter alia, pleaded that 400 kanals if land was reserved for the income of the Gram Panchayat but, in fact, it was recorded in the Record of Rights as Rakba Brai Kashat Gram Panchayat (Area for the cultivation of Gram Panchavat, as per English translation). It is averred that the land was rightly mutated it favour of the Gram Panchayat. It was also maintained that the eviction had been rightly ordered under the provision of Haryana Public Premises Act Respondent No. 2 did not supply any material in support of the plea that in the record of rights, the land was shown as Rakba Bral Kashat Gram Panchayat. This was never the plea taken by it either before the Collector or the Commissioner.
6. The petitioners' plea in para 2 of the writ petition that in the scheme, land was reserved for various common purposes which were duly stated therein, apart from those purposes 460 kanals of land was also reserved for the income of the Gram Panchayat and addition to the land which was reserved for the income of the Panchayat a pro rata cut was also imposed on the proprietary land of the owners aid the lard which was taken in excess continued to be recorded in the ownership of Jumla Mushtarka Molkan Hasab Rased has not been controverted by respondent No. 2. From a plea which is not controverted, an inference can be drawn that the same has been admitted to be correct. Even otherwise, the plea stands proved from the scheme of consolidation of village Ruksana (Vide Item No. 4 thereof) and post consolidated Jamabandi for the year 1962-63 The petitioners were the proprietors in the village and were recorded as owners in the Jamabandi for the year 1955-56 prior to the consolidation.
7. Haryana Act No. 15 of 1985 received the assent of the President of India on December 4,1985. In Section 2 of the Act, 'common purposes land' has been a defined. It means the land reserved for the common purposes of a village under Section 18 of the East Punjab Holdings Act, the management and control whereof vests in the State Government of the Gram Panchayat under Section 23.-A of the afore- said Act. Section 3 of the Act No. 15 of 1965 says that Haryana Public Premises and Land (Eviction and Rent Recovery) Act, 1972 shall apply to common purposes land which shall be deemed to be a public premises for the purpose of the said Act The precise purpose of enacting Haryana Act No. 15 of 1985 was that an unauthorised occupant on the land reserved for common purposes of tie village under Section 18 of the East Punjab Hidings Act could be evicted under the Haryana Public Premises and Land (Eviction and Rent Recovery) Act, 1972. The Haryana Act No. 15 of 1985 shall apply only to the land which is reserved for common purposes under Section 18 of the East Punjab Holdings Act. The Punjab Gram Panchayat (Common Purposes Land) Eviction and Rent Recovery Act, 1976 was enacted by the Punjab State, is almost identical in terms to Haryana Act No. 15 of 1985 In the present case the mutation was entered and sanctioned in favour of the Gram Pancbayat in the light of the provisions of Section 2 of the Haryana Act No. 15 of 1985. The land entered in the record of right as Jumla Mushtarka Malkan Haaab Rasad came to be recorded in the ownership of the Gram Panchayat. The precise question that arises for determination in as to whether the land in dispute was reserved for common purposes as envisaged by Section 2 of Haryana Act No. 16 of 1985 which postulates that 'common purposes land' means the land reserved for common purposes of a village under Section IS of the East Punjab Holdings Act. Section 18 of the East Punjab Holdings Act provides that notwithstanding anything contained in any law for the time being in force, it shall be lawful for the Consolidation Officer to direct that if in any area under consolidation no land is reserved for any common purpose including extension of the village abadi, or if the land so reserved is inadequate, to assign other land for such purpose. Section 23-A if the Act says that the management and control of all lands assigned or reserved for common purposes of the village under Section 18 shall vest in the Panchayat or the State Government It is only the land which is reserved for common purposes under Section 18 of the East Punjab Holdings Act, the management and control of which will vest in the Gram Panchayat. As observed earlier, an area measuring 400 Kanals was reserved for the income of Panchayat whereas the total area so reserved for common purposes comes to 1294 K-15 M. inclusive of the land reserved for the income of the Panchayat. This area which was reserved for common purposes would vest in the Gram Panchayat and it has got the right to move the appropriate authority for evicting an unauthorized occupant on the land which was duly reserved for common purposes under the scheme. The land in dispute vas not the one which reserved for common purposes It is the land which was reserved for the income of the Gram Panchayat or which was deducted by imposing a pro rata cut on the proprietary land of the owners and was in excess of the land which was required for common purposes and came to be recorded in the record of rights as Junk Mushtarka Malkan Hasab Rasad. This land did not vest in the Gram Panchayat under Section 23-A of the East Punjab Holdings Act.
8. In Bhagat Ram v. State of Punjab (1967) 69 P. L. R. 287, the ape court ruled that no reservation of land tan be made under Section 18 of the East Punjab Holdings Act for the income of the Panchayat and such a reservation was quashed being violative of second proviso to Article 31A(l) of the Constitution of India. However, it was held that for common purposes of the village, reservation could be made. As observed earlier, land was reserved for common purposes of the village The land in dispute was never used for common purposes of the village It was kept apart as Mushtarka Balkan and as per the revenue record which was prepared immediately after the consolidation* it was recorded as Jumla Mushtarka Malkan Hassb Rasad in the ownership column while in the column of cultivation it was mentioned to be in possession of various proprietors, including the petitioners. The land is dispute is being used for agricultural purposes by the proprietors of the village, and net for any common purpose of the village. :
9. In Kala Singh v. Commissioner Hissar, Division 1983 P. L. J. 169, a Division Bench of this Court held that the land which was reserved for the income of the Panchayat during consolidation belongs to the proprietary body and doss not vest in the Gram Panchayat in view of the judgment of the Supreme Court in Bhagat Ram' case (supra). It is not Samilat deh as defined in Section 2(g) of the Punjab Village Common Land. (Regulation) Act, 1961. In Kala Singh's ewe (supra), the eviction of the land owners was sought, under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961. For eviction of an unauthorized occupant, the proceedings could either be initiated under Section 7 of Punjab Village Common Land (Regulation) Act, 1961 or under the Public Premises Eviction Act, by virtue of Section 3 of Haryana Act Na. 15 of 1985 The result is the same in all these cases and the ratio of judgment in Kala Singh's case (supra) is fully applicable to the facts of tie present case Since the land in the instant case was not reserved for any commas purposes and was in fact, in the cultivating possession of the proprietor of the village being owned by the proprietary body, it did not fail under Section 2 of Haryana Act No. J 5 of 1983 and the proceedings could not be initiated under the Haryana Public Premises and Land (Eviction & Rent Recovery) Act, 1972, by virtue of Section 3 of Haryana Act No. 15 of 1985. The initiation of the proceedings being without any legal sanction, the entire proceedings are without jurisdiction and void.
10. Learned counsel for the respondent Gram Panchayat pressed into service the decision in Gram Panchayat Bashamberpura v. Sardara Singh and Anr. 1988 P. L. J. 486, is support of his submission that the land had been rightly mutated in favour of the Gram Panchayat and the petitioners eviction has been correctly ordered under Haryana Act No. 13 of 1985. In tae said case, the learned Judge found that as a matter of fact, the land which was jointly owned by the owners and other cultivators was reserved for Public welfare purpose; school and such a land cooks under the management of the Panchayat and, thus, vests in the Panchayat. It will be useful to reproduce the relevant observations from the said judgment : -
'In the present case, in the revenue record land h not described as shamilat deh. However, in view of the entry in the jamabandi for the year 1979-80, as reproduced above, the land was jointly owned by the own and other right holders in the village, it was reserved for public welfare purposes (common purposes) i.e., school, during consolidation proceedings Such land comes under the management of Panchayar and thus (sic) in the Panchayat under Section 23-A(b) of the Eats Punjab Holdings (Consolidation and Prevention of Fragmentation) Act and such land would be public premises as defined under Section 2(e) of the Punjab Public Premises and Land (Eviction and Rent Recovery) Act.'
These observations, clearly indicate that the ratio of the judgment is in applicable to the facts pf the present case.
11. Learned counsel for the respondents also relied upon Gopal Singh v. State of U.P., AIR 1986 S. C. 1194. In this case, apart from other questions, the vires of Sections 5(6) and 3 7) of the U. P. Imposition of Ceiling on Land Holdings Act (( of 1961) were challenged and the apex court held that the section was valid and its constitutional validity could not be challenged because of the immunity enacted in Article 31B of the Constitution of India. This judgment again has got no applicability to the facts of the instant case The counsel for the respondents also relied upon another judgment of the Supreme Court reported as R.S. Dass v. Mrs. K. Goyal etc., A.I.R. 1987 S.C. 593. In this case, the dispute was regarding the validity of select list prepared under Rule 5 of the Indian Administrative Service (Recruitment) Rules, 1954. It has to relevancy to the Instant case.
12. For the aforesaid reasons, order dated 21-9 1987 passed by the S.D.O. (Civil) {Carnal, exercising the powers of Collector, Karnal, ordering eviction of the petitioners from the disputed land and imposing fine of them, as affined on appeal by the Commissioned, Ambala Division, Ambala, vide order dated 3-2-4988. are set aside. The writ petitions succeed. It is made clear that the land in dispute vests in the proprietary body which shall be entitled to get it partitioned according of law.
13. In view of the peculiar circumstances of the case, the parties are left to bear their own costs