Hemant Gupta, J.@mdashThe challenge in the present writ petition is to order (Annexure P/5) passed by Collector, Palwal under Sections 4, 5
and 7 of the Haryana Public Premises and Land (Eviction and Rent Recovery) Act, 1972 (For Short, the Public Premises Act) whereby, the
petitioners were ordered to be evicted, inter alia for the reason that the petitioners cannot retain the land in question after they cease to render
religious services being dholidars. Such order was affirmed in appeal by the Commissioner, Gurgaon Division, Gurgaon vide order dated 11th
November 1994 (Annexure P/6). Learned counsel for the petitioners vehemently argued that the predecessor-in-interests of the petitioners were
recorded as Dholidars in the jamabandi for the years 1939-40, 1964-65 and for the years 1989-90. The jamabandi for the year 1939-40 and
1989-90 has been attached with the writ petition. The order passed by the Collector, Palwal shows that the jamabandi for the years 1964-65 is on
record. Learned Counsel for the Petitioner has produced said jamabandi for the perusal of the Court during hearing as well.
2. Though, the jamabandi for the years 1939-40 does not correlate the land in question in the absence of record showing the new khasra numbers
in lieu of the khasra numbers mentioned therein, but jamabandis for the year 1964-65 and 1989-90 reflects the petitioners to be owner in
possession of land as dholidars in the column of cultivators. The entry in the column of rent is ""Payment of rent is exempted in lieu of religious
services rendered"". On the basis of such record, it is argued that in terms of Section 4(3)(ii) of Punjab Village Common Lands (Regulations) Act,
1961 the existing rights of dholidars are protected and, thus, on the basis of Haryana Amending Act No. 9 of 1992, the land in dispute could not
be mutated in the ownership of Municipal Committee as successor-in-interest of Gram Panchayat. It is also argued that during the pendency of the
writ petition Haryana Dholidar, Butimar, Bhondedar and Muqararidar (Vesting of Proprietary Rights) Act, 2010 (For short the 2010 Act)
conferring proprietary rights/ownership rights on the dholidars, who are in possession as dholidars for the period of last 20 years on the appointed
day i.e. from the day of publication on which the said Act came into force. Thus, it is contended that as the petitioners are in possession from more
than 20 years even prior to the initiation of the proceedings under the Public Premises Act, therefore, the petitioners are entitled for conferment of
proprietary rights under the aforesaid Act.
3. It is also argued by learned counsel for the petitioners that Collector and the Commissioner under the Public Premises Act, exercise summary
jurisdiction on the assumption that the property in question is a public property. The disputed question of title such as rights of dohlidars could not
have been examined by the Collector in proceedings under the Act. Therefore, the order of eviction passed against the petitioners is not
sustainable.
4. Learned counsel for respondent No. 4 Municipal Committee argued that petitioners were, recorded as dohlidars and having failed to render
religious services their licence as dohlidars came to be terminated and, thus, Municipal Committee with whom the land vested is competent to seek
ejectment of the petitioners. It has been so ordered by the Collector, which affirmed by the Commissioner.
5. We have heard learned counsel for the parties.
6. We find that the orders passed by the Collector and affirmed by the Commissioner are not sustainable for more than one reason. Firstly, the
entry in the revenue record produced by the petitioners before the Collector reflected the petitioners as dohlidars in occupation of the land in
question. Even if, the Gram Panchayat was owner, the dohlidar could not be evicted in view of the statutory provisions contained in Section 4(3)(i)
of Punjab Village Common Lands (Regulations) Act, 1961. Section 4 of the Act is reproduced as under:-
Vesting of rights in Panchayats and nonproprietors:-(1) Notwithstanding anything to the contrary contained in any other law for the time being in
force or in any agreement, instrument, custom or usage or any decree or order of any court or other authority, all rights, title and interests wherever
in the land,-
(a) which is included in the shamlat deh of any village and which has not vested in panchayat under the shamlat law shall, at the commencement of
this Act, vest in a Panchayat constituted for such village, and where no such Panchayat has been constituted for such village, vest in the Panchayat
on such date as a panchayat having jurisdiction over that village is constituted;
(b) which is situated within or outside the abadi deh of a village and which is under the house owned by a non proprietor, shall on the
commencement of the shamlat law, be deemed to have been vested in such non-proprietor.
(2) Any land which is vested in a Panchayat under the shamlat law shall be deemed to have been vested in panchayat under this Act.
(3) Nothing contained in clause (a) of sub-section (1) and in sub-section (2) shall affect or shall be deemed ever to have affected the;
(i) existing rights, title or interest of persons who though not entered as occupancy tenants in the revenue records are accorded a similar status by
custom or otherwise, such as Dholidars, Bhondedars, Butimars, Basikhuopahus, Saunjidars, Maqararidars;
(ii) rights of persons in cultivating possession of shamlat deh for more than twelve years (immediately proceeding the commencement of the Act)
without payment of rent or by payment of charges not exceeding the land revenue and cesses payable thereon:
(iii) rights of a mortgagee to whom such land is mortgaged with possession before the 26th January, 1950.
7. Learned Collector has negated an argument that the petitioners cannot be evicted being dholidar for the reason that vesting of rights under the
Punjab Village Common Lands (Regulations) Act, 1961 is not relevant as there is no such provision in the Public Premises Act. We find that the
argument is fallacious as before passing an order of eviction, the rights of the parties have to be examined in the light of Statutes applicable. The
rights of dohlidars from eviction are protected in respect of Panchayat land in view Section 4(3)(i) of Punjab Village Common Lands (Regulations)
Act, 1961. Therefore, the findings recorded by the Collector in exercise of the summary jurisdiction is not tenable.
8. Apart from the said fact, we find that in terms of 2010 Act, the proprietary rights have been conferred on dohlidars. Undisputedly, the
petitioners were recorded as dohlidars in the jamabandi for the years 1964-65. The eviction proceedings were initiated on 27th July, 1993.
Therefore, even before initiation of proceedings, the petitioners were recorded as dohlidars for the period of 20 years. Thus, in terms of 2010 Act,
the petitioners are entitled to proprietary rights on payment of such compensation which the Collector may determine in terms of Section 4 of the
2010 Act. In view of the statutory enactment, we find that the order of the Collector passed against the petitioners is not sustainable.
Consequently, we allow the present writ petition by setting aside the orders Annexure P/5 and Annexure P/6 and direct the Collector to determine
the compensation payable to the petitioners on being satisfied that the petitioners are the dohlidars for the period of 20 years prior to the appointed
day in accordance with law.
