Punjab-Haryana High Court
Mohinder Singh And Another vs Director Rural Development And ... on 27 September, 2012
Author: Rajive Bhalla
Bench: Rajive Bhalla, Rekha Mittal
Civil Writ Petition No. 6599 of 2008 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Civil Writ Petition No. 6599 of 2008
Date of Decision: 27th September, 2012
Mohinder Singh and another ..Petitioners
Versus
Director Rural Development and Panchayat,Punjab and others
..Respondents
CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA
HON'BLE MRS. JUSTICE REKHA MITTAL
Present: Mr. Harsh Bunger, Advocate for the petitioners.
Ms. Sudeepti Sharma, DAG, Punjab
for respondent Nos. 1 to 3.
Mr. N.P.S.Mann, Advocate, for respondent No.4.
RAJIVE BHALLA, J.
The petitioners pray for issuance of a writ of certiorari quashing order dated 15.1.1988 passed by DDPO-cum-Collector, Jalandhar, order dated 23.8.2007 passed by the Divisional Deputy Director, Panchayat Lands, Jalandhar, and order dated 13.9.2007 passed by the Joint Development Commissioner (IRD), Punjab, (exercising powers of 'Commissioner') under the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as the "1961 Act").
The petitioners filed an application for setting aside ex parte order dated 15.1.1988, whereby a petition filed by Charan Civil Writ Petition No. 6599 of 2008 2 Singh, under section 11 of the 1961 Act, seeking a declaration that the land, in dispute, does not vest in the Gram Panchayat, was dismissed. The application was dismissed on 23.8.2007 for failure to explain the delay of 19 years. The appeal filed by the petitioners was also dismissed.
Counsel for the petitioners submits that one Charan Singh son of Harnam Singh filed a petition under section 11 of the 1961 Act, in collusion with the then Sarpanch of the Gram Panchayat, praying that land measuring 203 Kanals-06 Marlas does not vest in the Gram Panchayat. The Gram Panchayat was impleaded as respondent no.1 and proprietors were impleaded as respondent nos. 2 to 73. The proprietors were proceeded against ex parte. The District Development and Panchayat Officer dismissed the petition on 15.1.1988. The Gram Panchayat, however, concealed this order. The proprietors, accordingly, continued to be recorded as owners in possession. The petitioners came to know about this order in the second week of August, 2007, when the Gram Panchayat started proclaiming its ownership. The petitioners applied for a certified copy of order dated 15.1.1988 on 14.8.2007 which was delivered on 20.8.2007 and thereafter filed an application, before the Divisional Deputy Director, Panchayat Lands, Jalandhar, exercising powers of the Collector for setting aside ex parte order dated 15.1.1988. The application was wrongly dismissed on 23.8.2007 for failure to explain the delay of 19 years. The petitioners, thereafter, filed an appeal along with an application for condonation of delay, before the Director, Rural Development and Panchayat, Punjab. Civil Writ Petition No. 6599 of 2008 3 The appeal was dismissed on 13.9.2007 on the grounds that delay in filing the application and the appeal have not been satisfactorily explained.
Counsel for the petitioners further submits that Charan Singh aforesaid had no right to file a petition either on behalf of proprietors or by arraying them as respondents no. 2 to 73. As per service report notices issued to respondent nos. 2 to 9, 11 to 17, 24 to 27, 29 to 36, 50 and 51, 53 and 56 to 73 were received back with the report that they were not living in the village whereas respondent nos. 39, 41, 45, 47, 54 and 55 had passed away. The District Development and Panchayat Officer was, therefore, duty bound to serve notices upon all the respondents and to call upon Charan Singh aforesaid to implead legal representatives of the deceased respondents, but instead ex parte proceedings were initiated against them. The petitioners' application dated 17.08.2007 (Annexure P-5) for setting aside ex parte order, dated 15.01.1988, should, therefore, have been allowed.
It is further argued that as respondent nos. 2 to 9, 11 to 17, 24 to 27, 29 to 36, 50 and 51, 53 and 56 to 73 were not served, the impugned order should have been set aside by granting an opportunity to the petitioners to prove that the land, in dispute, does not vest in the Gram Panchayat. The delay in filing the application should have been disregarded as the petitioners were never served. It is further contended that as all the right holders were not impleaded and legal representatives of deceased proprietors were not impleaded, order dated 15.1.1988 is nullity and should be set Civil Writ Petition No. 6599 of 2008 4 aside. Furthermore, order dated 15.1.1988, is a nullity as the Collector did not frame any issues and passed a non-speaking order.
Counsel for the Gram Panchayat, on the other hand, vehemently submits that the writ petition should be dismissed for concealment of material facts. Charan Singh, aforesaid, is the father of proforma respondent no.5. The plea that Charan Singh colluded with the Gram Panchayat is too far fetched to believe. If Charan Singh had colluded with the Gram Panchayat, he would not have filed an appeal against order dated 15.1.1988, which was dismissed on 10.1.1992, by the Additional Director, Panchayats, Punjab. The petitioners have concealed that the Collector ordered service of the respondents by way of munadi (proclamation) and as no one has put in appearance on behalf of respondent nos. 2 to 73, they were proceeded against ex parte. The petitioners have not disclosed that the Gram Panchayat had filed a petition under section 7 of the 1961 Act, on 13.6.1995, before the District Development and Panchayat Officer-cum-Collector, Jalandhar, for eviction of Charan Singh son of Harnam Singh, Gurbaksh Kaur wife of Tarsem Singh, Maha Singh son of Waryam Singh, Balwant Singh son of Waryam Singh, Bachittar Singh son of Amar Singh and Bhupinder Singh son of Gurbaksh Singh, all residents of village Dhanal Kalan, Tehsil and District Jalandhar. The Collector ordered their eviction, as far back as on 9.10.1995,. An appeal filed against this order was dismissed on 5.10.2001. Waryam Singh, father of Mohinder Singh petitioner no.1, was also arrayed as a party, along Civil Writ Petition No. 6599 of 2008 5 with the alleged proprietors, who refused to accept notices. The petitioners have wrongly alleged that the Gram Panchayat concealed this order. In fact, the petitioners have concealed another major fact that other proprietors filed a suit for permanent injunction against the Gram Panchayat with respect to land measuring 172 Kanals-11 Marlas, which was dismissed on 30.7.1983. An appeal against this judgment and decree was dismissed on 04.6.1985. The petitioners have also concealed that after eviction orders were passed, the Gram Panchayat filed an execution application. The proprietors filed objections, which were dismissed on 1.3.2006. After dismissal of the objections, the proprietors devised a new strategy and filed an application through the petitioners, after 19 years for setting aside order dated 15.1.1988. The Collector and the Director- cum-Commissioner have rightly dismissed the application and the appeal, respectively.
We have heard counsel for the parties, perused the impugned orders and find no reason to issue the writ, as prayed.
Charan Singh, admittedly, a proprietor, filed a petition under section 11 of the 1961 Act, claiming ownership of land measuring 203 Kanals-06 Marlas. The Gram Panchayat was arrayed as respondent no.1. The proprietors were arrayed as respondent nos. 2 to 73. The Collector ordered service of private respondents by proclamation. The Gram Panchayat filed a reply pointing out that respondent nos. 2 to 9, 11 to 17, 24 to 27, 29 to 36, 50 and 51, 53 and 56 to 73 had left the village and, therefore, had no subsisting interest in the land, in dispute. The Gram Panchayat also informed Civil Writ Petition No. 6599 of 2008 6 the Collector that respondent nos. 39, 41, 45, 47, 54 and 55 had passed away and as Charan Singh, has not impleaded their legal representatives, the petition should be dismissed. The Collector, dismissed the petition by holding that copy of the scheme, Ex. R- 1, reveals that the land, in dispute, was reserved for common purposes of the village during consolidation and, therefore, vests in the Gram Panchayat. Charan Singh filed an appeal against this order which was also dismissed.
The petitioners, without disclosing that Charan Singh's appeal against order dated 15.1.1988 had been dismissed and by concealing other relevant facts, filed an application for setting aside ex parte order dated 15.1.1988. The application was dismissed on 23.8.2007 for failure to explain the delay of 19 years. An appeal filed against order dated 15.1.1988 and against order dismissing the application, was dismissed on 13.9.2007. The petitioners allege that Charan Singh colluded with the Gram Panchayat in filing the petition under section 11 of the 1961 Act. The plea, in our considered opinion, is too far fetched to believe. A proprietor would not collude with the Gram Panchayat to obtain an order against his interest. The petition, under section 11 of the 1961 Act, was filed, by Charan Singh by arraying the Gram Panchayat as respondent no.4. The Gram Panchayat filed a reply controverting averments in the petition. The petition was eventually dismissed. If Charan Singh had colluded with the Gram Panchayat, he would not have filed an appeal, which was also dismissed. The plea of collusion is without any substance.
The petitioners filed the application for setting aside ex Civil Writ Petition No. 6599 of 2008 7 parte order dated 15.1.1988, after 19 years without furnishing any explanation for delay. The petitioners seek to justify the delay by urging that they were not aware of this order and came to know of this order only in the second week of August, 2007, when the Gram Panchayat began proclaiming its ownership. Apart from the fact that this explanation is not pleaded in the application for recalling of order dated 15.1.1988, the facts pointed out by counsel for the Gram Panchayat falsify this plea. The petitioners have concealed that the Gram Panchayat had filed a petition under section 7 of the 1961 Act, against Charan Singh, Gurbaksh Kaur, Maha Singh, Balwant Singh, Bachittar Singh, Bhupinder Singh and father of petitioner no.1, which was allowed. The petitioners have also concealed that an appeal was filed against ejectment order which was dismissed on 05.10.2001. The petitioners have not disclosed that warrants of possession, were issued to execute the order of eviction; and objections against execution were dismissed. The petitioners' argument that they had no knowledge of order dated 15.1.1988, rings hollow and, therefore, the application and appeal were rightly rejected by the Collector and the Appellate Authority. It appears that after appeal, filed against orders passed under section 7 of the 1961 Act, was dismissed, the proprietors devised a new strategy and approached the Collector by filing an application for setting aside order dated 15.1.1988. The Collector rightly dismissed the application by holding that no explanation is forthcoming for delay of 19 years. An appeal filed by the petitioners was also dismissed as the appeal was time barred and there was no cogent explanation for Civil Writ Petition No. 6599 of 2008 8 delay of 19 years. We are conscious of the fact that order dated 15.1.1988 would operate against all proprietors, as it declares that the Gram Panchayat is owner and may have granted liberty to the petitioners to file a fresh petition to establish their rights, if any, but the devious attempt by the petitioners, to raise false pleas to justify delay, mis-lead this Court and conceal material facts, disentitles them to any such relief.
In view of what has been stated hereinabove, we dismiss the writ petition but with no order as to costs.
( RAJIVE BHALLA ) JUDGE ( REKHA MITTAL ) th 27 September, 2012 JUDGE VK