Punjab-Haryana High Court
Pardeep Kumar And Others vs Joint Director on 29 November, 2012
Author: Rajive Bhalla
Bench: Rajive Bhalla, Rekha Mittal
Civil Writ Petition No.6539 of 1986 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Civil Writ Petition No.6539 of 1986
Date of Decision: 29.11.2012
Pardeep Kumar and others ..Petitioners
versus
Joint Director, Panchayat, Punjab, and others ..Respondents
CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA
HON'BLE MRS. JUSTICE REKHA MITTAL
Present: Mr. Roshan Lal Sharma, Advocate,
for the petitioners.
Mr. Ashwani Talwar, Addl. A.G., Punjab
for respondent nos. 1 and 2.
Mr. Gurcharan Singh, Advocate
for respondent No.3.
RAJIVE BHALLA, J.
The petitioners pray for issuance of a writ of certiorari setting aside order dated 30.11.1983 passed by the District Development and Panchayat Officer exercising the powers of the `Collector', Patiala, and order dated 29.8.1986 passed by the Joint Director, Panchayat, exercising the powers of the `Commissioner', Punjab, Chandigarh under the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as "the 1961 Act") Counsel for the petitioners submits that land situated in Rectangle No.3, bearing Khasra No.25/1, is recorded, in jamabandi Civil Writ Petition No.6539 of 1986 2 for the year 1961-62 as "Jumla Mushtarka Malkan" and, therefore, does not vest in the Gram Panchayat. The petitioners filed a civil suit before the Sub Judge III Class, Patiala, seeking a declaration of their ownership. The suit was decreed on 20.2.1964. A mutation of ownership was sanctioned in favour of the petitioners on 22.5.1966. The Gram Panchayat filed a petition under section 11 of the 1961 Act, claiming ownership of this land. The application was allowed by the Collector by holding that the land vests in the Gram Panchayat. An appeal filed by the petitioners was dismissed arbitrarily without considering that the land, in dispute, does not vest in the Gram Panchayat and by wrongly holding that judgment and decree dated 20.2.1964, passed by a Civil Court, is collusive.
Counsel for the petitioners further submits that before introduction of Sections 11 and 13 of the 1961 Act, the jurisdiction to decide a dispute, whether land vests or does not vest in a Gram Panchayat, vested in a civil court. The Collector and the Appellate Authority, therefore, had no jurisdiction to ignore the decree. The finding recorded by the appellate court that the decree is collusive, is not borne out from any evidence or material on record. The mere fact that the decree is ex-parte, or that the Sarpanch did not put in appearance, does not raise an inference, that it was obtained by collusion or fraud. A decree is binding inter parties till such time as it is set aside by a competent court. The impugned order may, therefore, be set aside.
Counsel for respondent no.3 submits that as the land is, admittedly, "Jumla Mushtarka Malkan", it vests in the Gram Civil Writ Petition No.6539 of 1986 3 Panchayat. The decree was rightly ignored as it is clearly collusive.
We have heard counsel for the parties and perused the impugned orders. Admittedly, the land, in dispute, is recorded as "Jumla Mushtarka Malkan", i.e., land created during consolidation by applying a pro rata cut on the holdings of proprietors, in accordance with Sections 18 and 23-A of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter referred to as the "1948 Act") and Rule 16 (ii) of the East Punjab Holdings (Consolidation and Prevention of fragmentation) Rules, 1949 (hereinafter referred to as the "1949 Rules"), which read as follows:
"18 Lands reserved for common purposes.--
Notwithstanding anything contained in any law for the time being in force , it shall be lawful for the Consolidation Officer to direct-
(a) that any land specifically assigned for any common purpose shall cease to be so assigned and to assign any other land in its place;
(b) that any land under the bed of a stream or torrent flowing through or from the Shiwalik range within the [State] shall be assigned for any common purposes;
(c) that if 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."
"23 A Management and control of lands for common Civil Writ Petition No.6539 of 1986 4 purposes to vest in Panchayats or State Government
--- As soon as a scheme comes into force, the management and control of all lands assigned or reserved for common purposes of the village under section 18,-
(a) in the case of common purposes specified in sub-
clause (iv) of clause (bb) of section 2 in respect of which the management and control are to be exercised by the State Government , shall vest in the State Government; and
(b) in the case of any other common purpose, shall vest in the Panchayat of that village;
and the State Government or the Panchayat, as the case may be, shall be entitled to appropriate the income accruing therefrom for the benefit of the village community, and the rights and interests of the owners of such lands shall stand modified and extinguished accordingly;
Provided that in the case of land assigned or reserved for the extension of village abadi or manure pits for the proprietors and non-proprietors of the village, such land shall vest in the proprietors and non-proprietors to whom it is given under the scheme of consolidation]."
Rule 16 (i) XX XX XX 16 (ii) In an estate or estates where during consolidation proceedings there is no shamlat deh land or such land is Civil Writ Petition No.6539 of 1986 5 considered inadequate, land shall be reserved for the village Panchayat and for other common purposes, under section 18(c) of the Act, out of the common pool of the village [at the scale given in the Schedule to these rules]. Proprietary rights in respect of land so reserved (except the area reserved for the extension of abadi of proprietors and non-proprietors) shall vest in the proprietary body of the estate or estates concerned and it shall be entered in the column of ownership of record of rights as (Jumla Malkan Wa Digar Haqdaran Arazi Hasab Rasad Raqba). The management of such land shall be done by the Panchayat of the estate or estates concerned on behalf of the village proprietary body and the Panchayat shall have the right to utilize the income derived from the land so reserved for the common needs and the benefits of the estate of estates concerned.]"
A perusal of these provisions leaves no room for debate that land recorded as "Jumla Mushtarka Malkan" vests in a Gram Panchayat for management and control. A Gram Panchayat may, therefore, validly, while claiming possessory title, seek ejectment of a person in possession of such land. The petitioners filed a suit for declaration of their ownership, before a civil court. A perusal of the decree reveals that though the Gram Panchayat and the Gram Sabha were arrayed as parties, the Sarpanch did not come forward to defend the suit. The suit was filed on 8.1.1964 and was decreed ex parte on 20.2.1964. An ex parte decree is binding till Civil Writ Petition No.6539 of 1986 6 such time as it is not set aside by a court of competent jurisdiction but where the decree has been obtained by collusion or fraud, it may be disregarded by the court, before which it is pressed into service. The appellate court has rightly held that the decree is vitiated on account of collusion. The Sarpanch did not come forward to protect the rights of the Gram Panchayat and, in fact, colluded with the petitioners. The Hon'ble Supreme Court has held in Gram Panchayat of Village Naulakha versus Ujagar Singh, (2007) 7 SCC 548, that a collusive decree does not bind parties and may be challenged in collateral proceedings as it is not necessary to file a civil suit. A relevant extract from the judgment reads as follows:
"8 Collusion, say Spencer-Bower and Turner (para 378), is essentially play-acting by two or more persons for one common purpose - a concerted performance of a fabula disguised as a judicium - an unreal and fictitious pretence of a contest by confederates whose game is the same. As stated by Lord Selborne, L.C. In Boswell v. Coaks There is no Judge; but a person invested with the ensigns of a judicial office, is misemployed in listening to a fictitious cause proposed to him, there is no party litigating..... no real interest brought into question and to use the words of a very sensible civilian on this point, fabula nonjudicium, hoc est; in scena, non in foro, res agitur.
That, in our view, is the true meaning of the word "collusion" as applied to a judicial proceeding. Civil Writ Petition No.6539 of 1986 7
9. Further property of a public institution cannot be allowed to be jeopardised by persons who, at an earlier point of time, might have represented it and who were expected to effectively defend public interest and community property. Persons representing public bodies are expected to discharge their functions faithfully and in keeping with the trust reposed in them.
10. We may also add one other important reason which frequently arises under section 11 CPC. The earlier suit by the respondent against the Panchayat was only a suit for injunction and not one on title. No question of title was gone into or decided. The said decision cannot, therefore, be binding on the question of title. See in this connection sajjadanashin Sayed v. Musa Dadabhai Ummer where this Court, on a detailed consideration of law in India and elsewhere held, that even if, in an earlier suit for injunction, there is an incidental finding on title, the same will not be binding in a later suit or proceeding where title is directly in question, unless it is established that it was "necessary" in the earlier suit to decide the question of title for granting or refusing injunction and that the relief of injunction was founded or based on the finding on title. Even the mere framing of an issue on title may not be sufficient as pointed out in that case.
11. Thus, it was open to the statutory authorities under the 1961 Act to go into the collusive nature of the suit in Civil Writ Petition No.6539 of 1986 8 the proceedings under section 7 of the 1961 Act, as stated above. The High Court has not gone into the merits of the decision of the Collector and the appellate authority but has allowed the writ petition solely based on the Full Bench decision in Jagar Ram. We have now overruled the Full Bench decision. We, therefore, set aside the judgment of the High Court and remit the writ petition to the High Court for disposal in accordance with law, in the light of the above observations."
The appellate authority has appraised the decree and recorded a clear finding of fact that the decree is collusive. In the absence of any tenable argument or reason to differ with the finding recorded by the appellate authority, the writ petition is dismissed.
( RAJIVE BHALLA ) JUDGE ( REKHA MITTAL ) 29.11.2012 JUDGE VK