Latest law (Rent and Revenue) published in June, 2012 Part of L.A.R.

Local Acts Reporter

L.A.R

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Reporting latest judgments of (Supreme Court of India, Punjab and Haryana High Court, Financial Commissioners of Punjab and Haryana)

on

Local (State) Acts of Punjab, Haryana and Chandigarh

(As well as Rent & Revenue)

(Alongwith Statutory Amendments Section)

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SUBJECT  INDEX

Capital of Punjab (Development and Regulation) Act, 1952 (27 of 1952)

Section 3 – Land for roads -- Liquor Vendor’s site -- Land which has been reserved for the expansion of the roads and slow carriage ways must be regarded as a part of the road and cannot be utilized for any other purpose whatsoever and grant of the lease on such land to open the liquor vends and tavern cannot be considered to be legal. Amit Jain and others v. State of U.T., Chandigarh and others, 2012(2) L.A.R. 64 (P&H DB).

Section 3 – Constitution of India, Article 14 -- Liquor Vendor’s site – Allotment by negotiation -- Government can sell, lease or transfer either by auction, allotment or otherwise any land or building belonging to the Government in on such terms and conditions as provided by any Rules made under the Act -- Allotment of the land to the successful bidders of liquor vends by private negotiation is in violation of Section 3 of the Act and as well in violation of Article 14 of the Constitution. Amit Jain and others v. State of U.T., Chandigarh and others, 2012(2) L.A.R. 64 (P&H DB).

Section 3 – Excise Policy 2012-13 – Liquor Vendor’s site -- As per the Excise Policy, permission to run liquor vend on a particular location can be refused by the Administration for the public morality, public health and public order -- Congestion of traffic is a valid ground to refuse permission -- Keeping in mind public safety, liquor vends in the pre-fabricated temporary structures over the Government land, which is reserved for the expansion of road and slow carriage ways near the roundabouts and traffic lights should not be allowed. Amit Jain and others v. State of U.T., Chandigarh and others, 2012(2) L.A.R. 64 (P&H DB).

Section 3 – Excise Policy 2012-13 – Tavern site -- Provision for Toilet -- As per condition of the Excise Policy, tavern must have toilets -- Admittedly, there is no sewer line connecting to these liquor vends and tavern – Held, in the absence of toilet in the tavern, same cannot be allowed to run and permission should have been refused on the ground of public morality, public health and public order. Amit Jain and others v. State of U.T., Chandigarh and others, 2012(2) L.A.R. 64 (P&H DB).

Code of Civil Procedure, 1908 (V of 1908)

Section 9 – Indian Easements Act, 1882 (5 of 1882), Sections 4, 12, 18 -- Customary easement – Jurisdiction of Civil Court -- Decision of the Tahsildar after a summary enquiry with reference to the ‘previous custom’ is open to challenge in a civil suit and subject to the decision of the civil court -- Contention that Tahsildar alone has the jurisdiction, and not the civil court, to decide upon the existence or otherwise of a customary easement (relating to right of way or right to take water, to a person’s land), rejected. Smt. Ramkanya Bai & another v. Jagdish & others, 2012(2) L.A.R. 23 (SC).

Constitution of India

Article 14 -- Capital of Punjab (Development and Regulation) Act, 1952 (27 of 1952), Section 3 – Liquor Vendor’s site – Allotment by negotiation -- Government can sell, lease or transfer either by auction, allotment or otherwise any land or building belonging to the Government in on such terms and conditions as provided by any Rules made under the Act -- Allotment of the land to the successful bidders of liquor vends by private negotiation is in violation of Section 3 of the Act and as well in violation of Article 14 of the Constitution. Amit Jain and others v. State of U.T., Chandigarh and others, 2012(2) L.A.R. 64 (P&H DB).

Article 14 – Equality -- Petitioner cannot claim any right on the basis of illegality committed by the respondents in respect of another person -- There cannot be any equality in illegality. Nivedita Sharma v. The State of Haryana and others, 2012(2) L.A.R. 58 (P&H DB).

Article 226,227 -- Maintainability of Public Interest Litigation Rules, 2010, Rule 2 – Public interest litigation -- Want of affidavit -- Non-compliance of -- Public Interest Litigation, require the petitioners to file a specific affidavit showing their credentials and also stating that petitioners are public spirited persons and they have no personal interest in the matter – In the writ petition specific stand is that present petition is being filed in the public interest and petitioners are the public spirited persons -- Moreover, Court has taken cognizance of the matter keeping in view the larger public interest involved – Held, since this Court has taken cognizance of the matter, same cannot be thrown out on the hypertechnical ground. Amit Jain and others v. State of U.T., Chandigarh and others, 2012(2) L.A.R. 64 (P&H DB).

Article 226,227 -- Punjab Panchayati Raj Act, 1994 (9 of 1994), Section 13-A, 20 – De-notification of Sarpanch – Illegal order -- Writ jurisdiction -- Totally illegal order contrary to provisions of the statute and State Government denotifying the name of private respondent as Sarpanch by notification – Held, the same was rightly challenged by filing the writ petition and the Court was fully justified in allowing the said petition. Sukhdev Singh v. State of Punjab and others, 2012(2) L.A.R. 6 (P&H DB).

East Punjab Urban Rent Restriction Act, 1949 (III of 1949)

Section 13-B, 18-A -- Limitation Act, 1963 (36 of 1963), Section 5 -- Leave to defend -- Application for leave to contest is to be filed within 15 days from the date of service – No fault can be found in order of Rent Controller declining the application for condonation of delay u/s 5 of the Limitation Act, 1963. Om Parkash’s case (2010) 9 SCC 183 relied. Vinod Chawla v. Surinder Singh and others, 2012(2) L.A.R. 21 (P&H).

General Clauses Act, 1897 (10 of 1897)

Section 26 -- Punjab Agricultural Produce Markets Act, 1961 (23 of 1961)Section 10, 13 – Licensing of Auction Platform Rules 1981, Rules 4, 21 – Licensee changed the shop – Renewal of Licence – Auction platform – Right of -- Licencee cannot be denied the right of renewal of licence only because in the form of application, a licensee has changed the place of business within the notified area -- No justification to deny to an existing licensee who applies for renewal should lose his auction platform, if he already held one. M/s Sood Brothers v. Union Territory, Chandigarh, 2012(2) L.A.R. 79 (P&H).

Haryana Development and Regulation of Urban Areas Act, 1975 (8 of 1975)

Section 3-C – Independent dwelling unit – Basement – Section 3C permits transfer, sale, gift, exchange or lease of an independent dwelling unit -- It also restricts that there can be only three dwelling units on a residential plot -- Basement is not an independent residential floor, therefore, the same is not transferable independently -- Circular dated 27.3.2009, provides for transfer of the basement along with the ground floor or to have proportionate right in the basement in respect of common services – Circular permitting registration of the sale deed in respect of the basement and ground floor, is legal and valid and does not suffer from any illegality -- Basement is not habitable and the dwelling unit, therefore, it cannot be transferred as an independent unit. Nivedita Sharma v. The State of Haryana and others, 2012(2) L.A.R. 58 (P&H DB).

Section 3-C – Independent dwelling unit – Basement – Two sale deeds were executed i.e. in respect of the ground floor and another sale deed bearing in respect of the basement -- Though the two separate instruments of sale were executed, but such instruments of sale are in respect of ground floor and basement in favour of the same vendee -- No violation of either the statute or Circular. Nivedita Sharma v. The State of Haryana and others, 2012(2) L.A.R. 58 (P&H DB).

Indian Easements Act, 1882 (5 of 1882)

Sections 4, 12, 18 -- Code of Civil Procedure, 1908 (V of 1908), Section 9 – Customary easement – Jurisdiction of Civil Court -- Decision of the Tahsildar after a summary enquiry with reference to the ‘previous custom’ is open to challenge in a civil suit and subject to the decision of the civil court -- Contention that Tahsildar alone has the jurisdiction, and not the civil court, to decide upon the existence or otherwise of a customary easement (relating to right of way or right to take water, to a person’s land), rejected. Smt. Ramkanya Bai & another v. Jagdish & others, 2012(2) L.A.R. 23 (SC).

Land Acquisition Act, 1894 (1 of 1894)

Section 11-A – Award – Mandatory period -- Section 11A mandates that an award shall be made by the Collector u/s 11 of the Act within a period of two years from the date of the publication of the declaration -- Non-adherence to this period results in entire acquisition proceedings being lapsed -- Declaration u/s 6 published before the commencement of the Amendment Act, the award shall be made within a period of two years from such commencement (24.9.1984) -- Period during which any action or proceeding relating to acquisition taken pursuant to such declaration remains stayed by an order of the court, shall be excluded -- Period prescribed in Section 11A is mandatory. Mulchand Khanumal Khatri v. State of Gujarat & Others, 2012(2) L.A.R. 73 (SC).

Section 11-A – Limitation Act, 1963 (36 of 1963), Section 12 -- Award – Mandatory period – Limitation -- Stay order of the High Court remained operative for the period 24.9.1984 to 11.1.1996 -- Whether Section 11A of the Act permits exclusion of time that was taken in obtaining the certified copy of the judgment and order passed by the High Court and the period from the date the certified copy was obtained and it was brought to the notice of the authority – Held, period prescribed in Section 11A is mandatory -- No justification to read the provisions of the Limitation Act, 1963 and particularly Section 12 thereof into it -- Period cannot be excluded under explanation appended to Section 11A of the Act. Mulchand Khanumal Khatri v. State of Gujarat & Others, 2012(2) L.A.R. 73 (SC).

Section 23, 24 -- Market Value – Different sale deeds – Preference of -- Where sale deeds pertaining to different transactions are relied on behalf of the Government, the transaction representing the highest value should be preferred to the rest unless there are strong circumstances justifying a different course -- It is not desirable to take an average of various sale deeds placed before the authority/court for fixing fair compensation. Mehrawal Khewaji Trust (Regd.), Faridkot & others v. State of Punjab & others, 2012(2) L.A.R. 123 (SC).  

Section 23, 24 -- Market Value – Sale deed of small area, 2-1/2 year old – Reliance upon -- Sale deed was two and a half years prior in time of notification u/s 4(1) – No reason to eschew the above sale transaction – Annual increase @ 12% per annum allowed and area of land under sale deed is a smaller one, deduction @ 20% allowed. Mehrawal Khewaji Trust (Regd.), Faridkot & others v. State of Punjab & others, 2012(2) L.A.R. 123 (SC).

Section 23, 24, 28, 34 -- Additional market value -- Interest thereupon – Appellants are entitled to get interest on the additional market value including solatium. Mehrawal Khewaji Trust (Regd.), Faridkot & others v. State of Punjab & others, 2012(2) L.A.R. 123 (SC).

Section 4,5A,6,17 – Acquisition of land for residential Scheme – Urgency power – Invoking of -- Ordinarily, invocation of urgency power by the government for a Residential Scheme that does not fall in exceptional category cannot be held to be legally sustainable. Ram Dhari Jindal Memorial Trust v. Union of India and others, 2012(2) L.A.R. 95 (SC).

Section 4,5A,6,17 – Acquisition of land for residential Scheme – Urgency power – Invoking of – Requirement of -- Statement made in notification is to the effect the Lt. Governor, Delhi is satisfied that provisions of section 17(1) are applicable and is further pleased under sub-section (4) to direct that all the provisions of Section 5A shall not apply -- No other material available on record which indicates that there has been application of mind – Power of urgency by the Government u/s 17 for a public purpose like Residential Scheme cannot be invoked as a rule but has to be by way of exception -- Notification u/s 4, 6 quashed, competent authority may now invite objections u/s 5-A of the Act. Ram Dhari Jindal Memorial Trust v. Union of India and others, 2012(2) L.A.R. 95 (SC).

Section 5-A, 17 -- Acquisition of land – Urgency powers – Invoking of – Duty of Government -- Use of power of urgency under Section 17(1) and (4) of the Act ipso facto does not result in elimination of enquiry u/s 5A -- Satisfaction of the government on twin aspects viz; (i) need for immediate possession of the land for carrying out the stated purpose and (ii) urgency is such that necessitates dispensation of enquiry is a must and permits no departure for a valid exercise of power under Section 17(1) and (4). Ram Dhari Jindal Memorial Trust v. Union of India and others, 2012(2) L.A.R. 95 (SC).

Licensing of Auction Platform Rules 1981

Rule 4 – Punjab Agricultural Produce Markets Act, 1961 (23 of 1961), Section 10 -- Auction site – Right of Licensee – “Any person” u/s 10 for grant of licence ought not to be seen without reference to the above rule insofar as a claim for an auction platform is made -- A licensee cannot have a right to auction platform if he did not have a right to a shop in some capacity either as an owner or as a tenant. M/s Sood Brothers v. Union Territory, Chandigarh, 2012(2) L.A.R. 79 (P&H).

Rule 4, 21 -- Punjab Agricultural Produce Markets Act, 1961 (23 of 1961), Section 10 -- Renewal of Licence – Auction platform – Right of -- Requirements in the rules state no more than the necessity of having a shop in the premises -- What space it shall be in the auction platform is not set out through any of the provisions of the Act or the rules -- This assumes significance because there is admittedly a shortage of space in the auction platforms and, therefore, there has to be a workable policy to accommodate persons, who are the licensees -- So long as there are no rules or provisions in the Act any such attempt, which will prejudice the existing licence holders, it cannot be tolerated -- A licence granted under the Act and Rules entitles the licensee to run his business anywhere within the area of the Market Committee -- It may be that a new licensee could use his own shop as an auction platform in a situation where no auction platform is available. M/s Sood Brothers v. Union Territory, Chandigarh, 2012(2) L.A.R. 79 (P&H).

Rules 4, 21 – Punjab Agricultural Produce Markets Act, 1961 (23 of 1961)Section 10, 13 – General Clauses Act, 1897 (10 of 1897), Section 26 -- Licensee changed the shop – Renewal of Licence – Auction platform – Right of -- Licencee cannot be denied the right of renewal of licence only because in the form of application, a licensee has changed the place of business within the notified area -- No justification to deny to an existing licensee who applies for renewal should lose his auction platform, if he already held one. M/s Sood Brothers v. Union Territory, Chandigarh, 2012(2) L.A.R. 79 (P&H).

Limitation Act, 1963 (36 of 1963)

Section 12 – Land Acquisition Act, 1894 (1 of 1894), Section 11-A – Award – Mandatory period – Limitation -- Stay order of the High Court remained operative for the period 24.9.1984 to 11.1.1996 -- Whether Section 11A of the Act permits exclusion of time that was taken in obtaining the certified copy of the judgment and order passed by the High Court and the period from the date the certified copy was obtained and it was brought to the notice of the authority – Held, period prescribed in Section 11A is mandatory -- No justification to read the provisions of the Limitation Act, 1963 and particularly Section 12 thereof into it -- Period cannot be excluded under explanation appended to Section 11A of the Act. Mulchand Khanumal Khatri v. State of Gujarat & Others, 2012(2) L.A.R. 73 (SC).

Section 5 -- East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 13-B, 18-A -- Leave to defend -- Application for leave to contest is to be filed within 15 days from the date of service – No fault can be found in order of Rent Controller declining the application for condonation of delay u/s 5 of the Limitation Act, 1963. Om Parkash’s case (2010) 9 SCC 183 relied. Vinod Chawla v. Surinder Singh and others, 2012(2) L.A.R. 21 (P&H).

Maintainability of Public Interest Litigation Rules, 2010

Rule 2 – Constitution of India, Article 226,227 -- Public interest litigation -- Want of affidavit -- Non-compliance of -- Public Interest Litigation, require the petitioners to file a specific affidavit showing their credentials and also stating that petitioners are public spirited persons and they have no personal interest in the matter – In the writ petition specific stand is that present petition is being filed in the public interest and petitioners are the public spirited persons -- Moreover, Court has taken cognizance of the matter keeping in view the larger public interest involved – Held, since this Court has taken cognizance of the matter, same cannot be thrown out on the hypertechnical ground. Amit Jain and others v. State of U.T., Chandigarh and others, 2012(2) L.A.R. 64 (P&H DB).

Punjab Agricultural Produce Markets Act, 1961 (23 of 1961)

Section 10 -- Licensing of Auction Platform Rules 1981, Rule 4 – Auction site – Right of Licensee – “Any person” u/s 10 for grant of licence ought not to be seen without reference to the above rule insofar as a claim for an auction platform is made -- A licensee cannot have a right to auction platform if he did not have a right to a shop in some capacity either as an owner or as a tenant. M/s Sood Brothers v. Union Territory, Chandigarh, 2012(2) L.A.R. 79 (P&H).

Section 10 -- Licensing of Auction Platform Rules 1981, Rule 4, 21 -- Renewal of Licence – Auction platform – Right of -- Requirements in the rules state no more than the necessity of having a shop in the premises -- What space it shall be in the auction platform is not set out through any of the provisions of the Act or the rules -- This assumes significance because there is admittedly a shortage of space in the auction platforms and, therefore, there has to be a workable policy to accommodate persons, who are the licensees -- So long as there are no rules or provisions in the Act any such attempt, which will prejudice the existing licence holders, it cannot be tolerated -- A licence granted under the Act and Rules entitles the licensee to run his business anywhere within the area of the Market Committee -- It may be that a new licensee could use his own shop as an auction platform in a situation where no auction platform is available. M/s Sood Brothers v. Union Territory, Chandigarh, 2012(2) L.A.R. 79 (P&H).

Section 10, 13 – Licensing of Auction Platform Rules 1981, Rules 4, 21 – General Clauses Act, 1897 (10 of 1897), Section 26 -- Licensee changed the shop – Renewal of Licence – Auction platform – Right of -- Licencee cannot be denied the right of renewal of licence only because in the form of application, a licensee has changed the place of business within the notified area -- No justification to deny to an existing licensee who applies for renewal should lose his auction platform, if he already held one. M/s Sood Brothers v. Union Territory, Chandigarh, 2012(2) L.A.R. 79 (P&H).

Punjab Land Revenue Act, 1887 (XVII of 1887)

Section 13 -- Appointment of Lambardar – Appeal -- Comparative merits -- Appellate Authority’s power -- Commissioner came to the conclusion that private respondent was younger in age, economically sound, better educated and was having better social status, but these facts were not properly appreciated by the Collector -- Order of the Collector was set aside and respondent No.4 was appointed as Lambardar of the village -- Order of the Commissioner was upheld by the Financial Commissioner and further by the Ld. Single Judge – Held, private respondent is a better candidate, therefore, the learned Single Judge, rightly declined to interfere in the orders of the revenue authorities, appointing private respondent as Lambardar of the village. Talwinder Singh v. Financial Commissioner (Co-operation), Punjab, Chandigarh and others, 2012(2) L.A.R. 3 (P&H DB).

Section 13, 15 – Punjab Land Revenue Rules, Rule 15 -- Appointment of Lambardar – Choice of Collector – FIR against candidate -- Collector not only found private respondent as a better candidate, but it was also found that the appellant had got prepared a false voter identity card in the name of his wife, though he was not married at all – In criminal case, private respondent, had already been acquitted before initiation of the proceedings for appointment of Lambardar -- District Collector had rightly appointed private respondent being an Ex-Serviceman, as Lambardar --  Choice of the Collector in the matter of appointment of Lambardar should not be interfered on superficial grounds, until and unless the order of the Collector in this regard suffers from patent illegality. Kushal Pal v. State of Haryana and others, 2012(2) L.A.R. 19 (P&H DB).

Punjab Land Revenue Rules

Rule 15 -- Appointment of Lambardar – Criminal case – Moral Turpitude -- Criminal case registered u/ss 323, 324, 325, 452, 148, 149 IPC, and appointed candidate was acquitted much prior to the date of inviting applications – Held, registration of the said criminal case could not have been taken into consideration, particularly when the offences in that case did not relate to moral turpitude. Talwinder Singh v. Financial Commissioner (Co-operation), Punjab, Chandigarh and others, 2012(2) L.A.R. 3 (P&H DB).

Rule 15 – Appointment of Lambardar – Election Kanungo – Candidature of – Contention that private respondent at the time of initial appointment was working as Election Kanungo – Held, merely taking employment is no bar for appointment on post of Lambardar – No merit in the contention. Sukhminder Singh’s case 1992 (3) SCT 28 & Gurmail Singh Lambardar’s case 2011(1) RCR(Civil) 308 relied. Sukhdev Singh v. The State of Punjab and others, 2012(2) L.A.R. 92 (P&H DB).

Rule 15 -- Punjab Land Revenue Act, 1887 (XVII of 1887), Section 13, 15 – Appointment of Lambardar – Choice of Collector – FIR against candidate -- Collector not only found private respondent as a better candidate, but it was also found that the appellant had got prepared a false voter identity card in the name of his wife, though he was not married at all – In criminal case, private respondent, had already been acquitted before initiation of the proceedings for appointment of Lambardar -- District Collector had rightly appointed private respondent being an Ex-Serviceman, as Lambardar --  Choice of the Collector in the matter of appointment of Lambardar should not be interfered on superficial grounds, until and unless the order of the Collector in this regard suffers from patent illegality. Kushal Pal v. State of Haryana and others, 2012(2) L.A.R. 19 (P&H DB).

Punjab Municipal Corporation Act, 1976 (42 of 1976)

Section 7-A, 10 – Election of Municipal Corporation/Councils/Panchayats – Fairness in election – Videography – Police protection -- (i) The Chief Secretary, Punjab, Director General of Police, Punjab, State Election Commissioner, Punjab and the Chief Election Commissioner, Punjab are directed to ensure that election is conducted in a free and fair manner, without intimidation of the voters etc.; (ii) The incidences of booth capturing if occur anywhere the same shall be immediately reported to officers of the State Election Commission, Punjab and Chief Election Commissioner, Punjab; (iii) It is further directed that adequate police force be deputed at all the polling booths, particularly the sensitive polling stations for maintaining law and order with the sole objective of holding free and fair elections; (iv) If any person(s) asks for personal security then the concerned Superintendent of Police will assess the threat perception and if it is found necessary, the concerned Superintendent of Police will provide security to such person(s) during the period of election; and (v) The petitioners or any other person are at liberty to arrange videography outside the polling station at their own costs and if they express such a desire, they be not prevented from doing so. It is, however, made clear that videography shall not be conducted inside the polling booths to maintain secrecy of the polling. Krishan Kumar Sharma and others v. State of Punjab and others, 2012(2) L.A.R. 117 (P&H DB).  

Punjab Panchayati Raj Act, 1994 (9 of 1994)

Section 13-A -- Punjab State Election Commission Act, 1994 (19 of 1994), Section 74 -- Election of Panch – Setting aside of – Effect on Sarpanch -- Prayer was for declaration of election of Panch as void with a further prayer that she be declared elected as a Panch in SC (Woman) category – No prayer for setting aside the election of Sarpanch -- Merely because one of the members, who had participated in the election of the Gram Panchayat in the first meeting held u/s 13-A, and if subsequently the election of the said member is set aside, the proceedings of the said meeting or the election of the Sarpanch could not be set aside. Sukhdev Singh v. State of Punjab and others, 2012(2) L.A.R. 6 (P&H DB).

Section 13-A, 14, 15 -- Election of Sarpanch – Term of office of Sarpanch – Removal of -- Term of office of Gram Panchayat shall be for five years unless dissolved earlier under the Act -- Panch, who has been elected as Sarpanch in the first meeting held u/s 13-A of the Panchayati Raj Act, will hold the office for a term of five years until and unless he resigns as contemplated u/s 17 or removed by passing No-Confidence Motion as contemplated u/s 19 or suspended and removed as contemplated u/s 20 of the Panchayati Raj Act. Sukhdev Singh v. State of Punjab and others, 2012(2) L.A.R. 6 (P&H DB).

Section 13-A, 20 – Constitution of India, Article 226,227 -- De-notification of Sarpanch – Illegal order -- Writ jurisdiction -- Totally illegal order contrary to provisions of the statute and State Government denotifying the name of private respondent as Sarpanch by notification – Held, the same was rightly challenged by filing the writ petition and the Court was fully justified in allowing the said petition. Sukhdev Singh v. State of Punjab and others, 2012(2) L.A.R. 6 (P&H DB).

Section 20(1)(a), 20(3), 208(1)(c) – Suspension of Sarpanch – Removal of Sarpanch -- If a Sarpanch/Panch is found guilty and has been convicted for any offence involving moral turpitude or for such offence i.e., forgery in the Panchayat's record, embezzlement of Panchayat funds etc. when it would not be desirable in the interest of Panchayat to permit such Panch or Sarpanch to perform the duties of Panch or Sarpanch, then it would be disqualification u/s 208(1)(c) and is liable to be removed u/s 20(1)(a) of the 1994 Act, however, if no conviction order is passed then disqualification as provided under Section 208(1)(c) of the 1994 Act, shall not be attracted – Therefore, the removal order passed against the petitioner is not only without jurisdiction but also beyond the scope of Section 20(1)(a) of the 1994 Act. Paramjit Kaur, Panch v. The Financial Commissioner and others, 2012(2) L.A.R. 55 (P&H).

Section 20(1)(a), 20(3), 208(1)(c) – Suspension of Sarpanch – Removal of Sarpanch -- Having possession of any narcotic substance is a serious offence and amounts to moral turpitude -- Elected Sarpanch/Panch represents the society and they are the elected representatives and role-model of the habitants of the village, therefore, they are supposed not to indulge in any criminal activities, more so, in offence punishable under the NDPS Act – Removal order is liable to be quashed, however, the petitioner shall remain under suspension during the pendency of the investigation/trial, as the case may be. Paramjit Kaur, Panch v. The Financial Commissioner and others, 2012(2) L.A.R. 55 (P&H).

Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1973 (31 of 1973)

Section 3, 4, 5 – Dilapidated condition of building – Lease not extended – Unauthorized occupants -- Building, in which the post office is running, is an old building and in dilapidated condition – Running of a public office, like the post office, in such a building is neither safe nor in public interest. It may result into any mis-happening at any time – Contention that due to the financial crunch, the Union of India is not in a position to construct the new building for housing the post office, cannot be accepted -- Denial of relationship of landlord and tenant by the Union of India is totally unwarranted – Writ was rightly dismissed with costs of Rs. 50,000/-. Union of India and others v. Municipal Council, Muktsar and others, 2012(2) L.A.R. 89 (P&H DB).

Section 3,4 – Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 7 -- Jumla Mushtarka Malkan land – Eviction from -- Since, the management and control vest in the Gram Panchayat, such land is public premises and ejectment of unauthorized occupant therefrom can be made under both the Acts i.e. Section 5 of the Eviction Act and Section 7 of the Common Lands Act – Whichever remedy, Panchayat deem it appropriate speedy, summary and effective, it can avail. Rajdev Singh and another v. Joint Development Commissioner, Punjab and others, 2012(2) L.A.R. 107 (P&H DB). 

Section 3,4 – Jumla Mushtarka Malkan land – Eviction from -- Contention that property is “Jumla Mushtarka Malkan” and the petitioners are proprietors of the village, as such have share in the land in question, this land has neither been reserved for common purposes nor is being used for common purposes and the petitioners are in the cultivating possession, as such, have becomes owners to the extent of their shares – Held, no evidence that what was the share of the petitioners and they were in exclusive possession of any part of the land after having a valid partition of the “Jumla Mushtarka Malkan” land – Land as per Jamabandi for the year 1958-59 is Gram Panchayat -- So, all the rights vest in the Gram Panchayat for management and control – Eviction order upheld. Rajdev Singh and another v. Joint Development Commissioner, Punjab and others, 2012(2) L.A.R. 107 (P&H DB). 

Punjab Security of Land Tenures Act, 1953 (10 of 1953)

Section 2(3), 2(5-a) – Transfer of land by sale – Surplus area – Declaration of -- Notice – Date of 30.07.1958 which would be relevant for exclusion if the sale had taken place before the said date -- For any transaction subsequent to the same, issuance of notice would still be relevant – Transferees had not obtained mutation and the authorities could not be faulted for proceeding to determine the surplus even without notice to alleged transfers -- No scope for intervention in the impugned proceedings and the challenge to the same is rejected. Karam Chand and another v. The State of Punjab, through Secretary (Revenue), Punjab Government, Chandigarh, and others, 2012(2) L.A.R. 112 (P&H).  

Punjab State Election Commission Act, 1994 (19 of 1994)

Section 74 -- Punjab Panchayati Raj Act, 1994 (9 of 1994), Section 13-A -- Election of Panch – Setting aside of – Effect on Sarpanch -- Prayer was for declaration of election of Panch as void with a further prayer that she be declared elected as a Panch in SC (Woman) category – No prayer for setting aside the election of Sarpanch -- Merely because one of the members, who had participated in the election of the Gram Panchayat in the first meeting held u/s 13-A, and if subsequently the election of the said member is set aside, the proceedings of the said meeting or the election of the Sarpanch could not be set aside. Sukhdev Singh v. State of Punjab and others, 2012(2) L.A.R. 6 (P&H DB).

Section 26,27,28, 81 – Election of Panch – Name in two electoral roll – Effect of --No person is eligible to contest the election if his/her name is registered in the electoral roll for more than one constituency – Plea that an application for cancellation of voter card has been moved to the concerned authority before the Election – Document is required to be proved as per the provisions of CPC, which has not been done – Matter remitted back to Election Tribunal for deciding afresh by affording reasonable opportunity to both the sides to submit their claim. Smt. Varinder Kaur alias Barinder Kaur v. Smt. Gurcharan Kaur and another, 2012(2) L.A.R. 45 (P&H).

Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961)

Section 7 – Eviction petition – Res-judicata -- Petition u/s 11 of the Act, claiming ownership of the land in dispute dismissed by the Collector by holding that the Gram Panchayat is owner of the land in dispute -- Question regarding ownership having been decided, inter parties, the petitioners, cannot be heard to urge that they are owners of the land in dispute. Pritam Dass and others v. The Joint Director, Panchayats, Punjab and others, 2012(2) L.A.R. 1 (P&H DB).

Section 7 -- Eviction petition – Res-judicata -- Section 7 of the Act, prescribes a summary procedure for eviction of an unauthorised occupant -- Dismissal of a petition u/s 7 of the Act, does not operate as res-judicata in a subsequent petition. Pritam Dass and others v. The Joint Director, Panchayats, Punjab and others, 2012(2) L.A.R. 1 (P&H DB).

Section 4 -- Non-proprietor of village – Right of -- Section 4 of the Act protects the possession of such non-proprietors as are proved to be in possession for a period of 12 years, before the coming into force of the Act -- Petitioners are recorded in possession, for the first time in the year 1962-63, i.e., after the coming into force of the Act – Plea raised by the petitioners that as they have been in possession of the land in dispute since 1947, their possession is protected by virtue of Section 4(3)(ii) of the Act, must fail. Pritam Dass and others v. The Joint Director, Panchayats, Punjab and others, 2012(2) L.A.R. 1 (P&H DB).

Section 4 – Unauthorised occupants – Non-proprietors of village – Right to purchase -- Plea that the petitioners are non-proprietors and have constructed houses in this land -- Liberty granted to the petitioners to file an application before the Gram Panchayat in accordance with law, for purchase of land which forms the site beneath their houses -- In case such an application is filed, it shall be considered and decided by the Gram Panchayat within three months --  During pendency of such an application, the dispossession of the petitioners shall remain stayed from the houses. Pritam Dass and others v. The Joint Director, Panchayats, Punjab and others, 2012(2) L.A.R. 1 (P&H DB).

Section 7, 11 – Eviction petition – Title dispute -- If a question of right, title or interest is raised by any person and a prima-facie case is made out in support thereof, the Collector shall direct the person who has raised such question to submit his claim u/s 11 and till the question is so determined, the application shall remain pending. Gram Panchayat Dholwaha v. Joint Development Commissioner (IRD), Punjab and others, 2012(2) L.A.R. 13 (P&H DB).

Section 7, 11 – Eviction petition – Title dispute – Power of Commissioner -- Commissioner had no jurisdiction, while deciding an appeal arising from, proceedings u/d 7 of the 1961 Act to decide a question of title -- If the Commissioner was, prima-facie satisfied that a credible question of title has arisen for consideration, he was required to call upon parties to file a petition u/s 11 of the Act and direct that during pendency of proceedings, the petition u/s 7 of the 1961 Act shall be kept in abeyance. Gram Panchayat Dholwaha v. Joint Development Commissioner (IRD), Punjab and others, 2012(2) L.A.R. 13 (P&H DB).

Section 7, 11 – Punjab Village Common Lands (Regulation) Rules, 1964, Rule 6 -- Gair marusi tenant – Entries in jamabandi – Proof of tenancy -- Jamabandi entries as Gair Marusi tenants -- In the absence of any resolution or lease deed executed by the Gram Panchayat, in accordance with Rule 6 of the 1964 Rules, entries in the Jamabandis do not confer the status of a tenant so as to enable the petitioners to allege that they are the tenants, protected by the Punjab Land Revenue Act or by the judgment in Sarwan and Rati Ram’s case 1985 PLJ, 262 -- Petitioners are held to be unauthorised occupants of panchayat property and have, therefore, been rightly ordered to be evicted. Bikar Singh and others v. Joint Development Commissioner (IRD) and others, 2012(2) L.A.R. 16 (P&H DB).

Section 7, 13-A (Haryana) – Unauthorised occupants – Eviction of -- Title suit – Damages – Quasi judicial authorities/Courts – Power of -- No specific provision under the Act for imposing penalty for use and occupation – Petitioner was held liable to pay damages to the Gram Panchayat for unauthorized use and occupation of the land from the date, the petitioner has been declared unauthorized occupant of the land by the Competent Court – Damages assessed for all the crops on the basis of “Jhad Paidawar” crop-wise, value of which shall be paid by the petitioner along with interest @ 9% per annum calculated on bank basis till the date of payment -- This is in the nature of damages/mense profits for unauthorized use and occupation of land of Gram Panchayat by the petitioner, it is not penalty -- Power to restitute by way of damages is inherent in the quasi judicial authorities / Courts -- Unscrupulous litigants cannot drive benefit of technicalities of law by agitating the matter time and again. Pyare Lal v. Financial Commissioner, Haryana and others, 2012(2) L.A.R. 48 (P&H DB).

Section 5(5) -- Punjab Village Common Lands (Regulation) Rules, 1964 Rule 5 – Exchange of land – Setting aside of – Natural justice – Speaking order – Requirement of -- Collector sanctioned exchange of land, without there being any jurisdiction vested in him but said order of Collector has been cancelled on a complaint, in which a preliminary inquiry and regular inquiry has been held -- Order passed is without issuing any show cause notice or providing inquiry report to the petitioners or granting an opportunity to contest the correctness of the reports – Impugned order does not disclose any reasons for cancellation of order – Held, not only judicial or quasi judicial order is to be passed following the principles of natural justice, but also the administrative orders, which affect the civil rights, have to adhere the principle of natural justice -- Impugned order set aside. Milkha Singh and another v. State of Punjab and others, 2012(2) L.A.R. 86 (P&H DB).

Section 11 – Title dispute – Panch filing appeal -- Locus Standi to file appeal -- Collector allowed the application u/s 11 by recording a finding that, though, the land belongs to the Gram Panchayat but as it was donated to the petitioners' father, who has constructed a house, the land no longer vests in the Gram Panchayat -- Gram Panchayat did not file any appeal -- A Panch, of the Gram Panchayat, filed an appeal, which was allowed by the appellate authority and the order passed by the Collector was set aside – Contention that as the Gram Panchayat did not file any appeal, the appellate authority could not entertain the appeal, at the behest of a private person, merits summary rejection -- Plea of locus-standi, particularly, when raised in a case of illegal appropriation of public property, cannot be a ground to reject a bonafide appeal. Nasib Kaur and others v. State of Punjab and others, 2012(2) L.A.R. 93 (P&H DB).

Section 11 – Title dispute – Admittedly, the land in dispute is recorded as the ownership of the Gram Panchayat -- Collector has recorded a finding that, though, the land belongs to the Gram Panchayat, it was donated to the petitioners' father and as he has constructed a house, the land, no longer belongs to the Gram Panchayat -- Finding, recorded by the Collector, is not based upon any evidence, much less a resolution passed by the Gram Panchayat gifting the land to the petitioners' father -- Order passed by the Collector was, therefore, rightly set aside by the Appellate Authority -- Petitioners may, however, approach the Gram Panchayat, for purchase of the land, in accordance with law. Nasib Kaur and others v. State of Punjab and others, 2012(2) L.A.R. 93 (P&H DB).

Section 7 -- Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1973 (31 of 1973), Section 3,4 – Jumla Mushtarka Malkan land – Eviction from -- Since, the management and control vest in the Gram Panchayat, such land is public premises and ejectment of unauthorized occupant therefrom can be made under both the Acts i.e. Section 5 of the Eviction Act and Section 7 of the Common Lands Act – Whichever remedy, Panchayat deem it appropriate speedy, summary and effective, it can avail. Rajdev Singh and another v. Joint Development Commissioner, Punjab and others, 2012(2) L.A.R. 107 (P&H DB). 

Section 7, 11 – Res-judicata -- Earlier petition filed u/s 7 of the 1961 Act, was dismissed – Subsequent petition u/s 7 and 11 of the 1961 was allowed by Collector and affirmed by Commissioner -- Petition u/s 7 of the Act shall not operate as res judicata in a subsequent petition, filed under Section 11 of the Act – Writ challenging the order on the ground of res-judicata, dismissed. Tehal Singh and others v. The State of Punjab and others, 2012(2) L.A.R. 120 (P&H DB).  

Punjab Village Common Lands (Regulation) Rules, 1964

Rule 5 – Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 5(5) -- Exchange of land – Setting aside of – Natural justice – Speaking order – Requirement of -- Collector sanctioned exchange of land, without there being any jurisdiction vested in him but said order of Collector has been cancelled on a complaint, in which a preliminary inquiry and regular inquiry has been held -- Order passed is without issuing any show cause notice or providing inquiry report to the petitioners or granting an opportunity to contest the correctness of the reports – Impugned order does not disclose any reasons for cancellation of order – Held, not only judicial or quasi judicial order is to be passed following the principles of natural justice, but also the administrative orders, which affect the civil rights, have to adhere the principle of natural justice -- Impugned order set aside. Milkha Singh and another v. State of Punjab and others, 2012(2) L.A.R. 86 (P&H DB).

Rule 5 – Nature of Land – Change of – Sanction of Government – Requirement of -- Entry of the revenue record is ‘Gair Mumkin Shamshan Bhumi’ and its nature is sought to be changed as commercial -- Once the nature of the land is to be changed from ‘Gair Mumkin Shamshan Bhumi’ to commercial then it does not remain within the competence of the Gram Panchayat to pass any final resolution -- It would always be subject to the sanction of the Government, which has not been given – Resolution set aside. Hinduwan Shamshan Bhumi, Tosham v. State of Haryana and others, 2012(2) L.A.R. 31 (P&H DB).

Rule 6 -- Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 7, 11 – Gair marusi tenant – Entries in jamabandi – Proof of tenancy -- Jamabandi entries as Gair Marusi tenants -- In the absence of any resolution or lease deed executed by the Gram Panchayat, in accordance with Rule 6 of the 1964 Rules, entries in the Jamabandis do not confer the status of a tenant so as to enable the petitioners to allege that they are the tenants, protected by the Punjab Land Revenue Act or by the judgment in Sarwan and Rati Ram’s case 1985 PLJ, 262 -- Petitioners are held to be unauthorised occupants of panchayat property and have, therefore, been rightly ordered to be evicted. Bikar Singh and others v. Joint Development Commissioner (IRD) and others, 2012(2) L.A.R. 16 (P&H DB).

Wakf Act, 1995 (43 of 1995)

Section 7 -- Evacuee property – Jurisdiction of civil court -- Suit was filed on 7.11.1983, and the Wakf Act, 1995 came into force from 1.1.1996 – Held, matter which is pending in any suit before the commencement of the Act or which is the subject matter of an appeal, there would be no bar for the Civil Court to decide such issues. Tehsildar (Sales), Gurgaon and another v. Roshan Lal and others, 2012(2) L.A.R. 38 (P&H).

Section 7(1) -- Evacuee property – Non-declaration of – Jurisdiction of civil court -- Jurisdiction of the Civil Court was not barred for entertaining the suit for permanent injunction, since there was no evidence on the record of the case which the State produced that the property in dispute has been declared evacuee property. Tehsildar (Sales), Gurgaon and another v. Roshan Lal and others, 2012(2) L.A.R. 38 (P&H).

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