Punjab-Haryana High Court
Mewa Singh And Another vs State Of Punjab And Others on 30 January, 2009
Author: Ranjit Singh
Bench: Ranjit Singh
CIVIL WRIT PETITION 3324 OF 1994 :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
DATE OF DECISION: JANUARY 30, 2009
Mewa Singh and another
.....Petitioners
VERSUS
State of Punjab and others
....Respondents
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
PRESENT: Mr. Arun Jain, Sr.Advocate with
Mr. Deepak Thapar, Advocate,
for the petitioners.
Mr. P. C. Goyal, Addl.A.G., Punjab,
for the State.
Mr. Pawan Kumar, Sr.Advocate with
Mr. Swapan Shorey, Mr.Sukhjinder Singh &
Mr. Chaman Lal Premy, Advocates,
for Gram Panchayat, Jalbera.
Mr. N. L. Sammi, Advocate.
Mr. Gurcharan Singh, Advocate.
****
RANJIT SINGH, J.
Four sets of writ petitions are listed together for disposal. Though relief claimed therein is somewhat different but the same can be disposed of by a common order.
CIVIL WRIT PETITION 3324 OF 1994 :{ 2 }:
One set of writ petitions bearing Civil Writ Petition Nos.5610 of 1988 (Atama Singh Vs. State of Punjab and others), 6386 of 1988 (Karnail Singh and others Vs. State of Punjab and others), 6387 of 1988 (Gurdev Singh and others Vs. State of Punjab and others), 6388 of 1988 (Raghbir Singh and another Vs. State of Punjab and others), 6389 of 1988 (Amar Singh @ Baba Singh Vs. State of Punjab and others),6390 of 1988 (Randhir Singh through his L.R. Vs. State of Punjab and others), 6391 of 1988 (Pritam Singh Vs. State of Punjab and others),6392 of 1988 (Mehar Singh and others Vs. State of Punjab and others), 6393 of 1988 (Pala Singh and another Vs. State of Punjab and others), 7029 of 1988 (Hazura Singh and another Vs. State of Punjab and others), 2201 of 1989 (Mukand Singh Vs. State of Punjab and others),5609 of 1989 (Avtar Singh Vs. State of Punjab and others) and 12869 of 1988 (Bachan Dass Vs. State of Punjab and others), are those where the petitioners have made a challenge to an application filed by the Gram Panchayat under Section 11 of the Punjab Village Common Lands (Regulation) Act, 1961 (for short, "the Act"), which is sought to be quashed through the writ petitions on the ground that this application would be barred by principle of res judicata.
The second set of petitions bearing Nos.3324 of 1994 (Mewa Singh and another Vs. State of Punjab and others),3326 of 1994 (Sucha Singh Vs. State of Punjab and others), 3327 of 1994 (Kartar Singh Vs. State of Punjab and others), 3328 of 1994 (Amar Singh Vs. State of Punjab and others),3329 of 1994 CIVIL WRIT PETITION 3324 OF 1994 :{ 3 }:
(Jagjit Singh Vs. State of Punjab and others), 3330 of 1994 (Jaspal Singh Vs. State of Punjab and others),3331 of 1994 (Malkiat Singh Vs. State of Punjab and others) and 3332 of 1994 (Ajmer Singh Vs. State of Punjab and others), are such where the petitioners were proceeded exparte and they moved an application for setting aside of said order. This was allowed subject to payment of Rs.500/- as mesne profits per acre and on non-payment of this amount, the exparte proceedings were up-held. The finding accordingly was that the land is shamlat and in the ownership of Gram Panchayat. These orders are challenged in this set of writ petitions, which were also ordered to be heard alongwith the writ petitions noticed in the first set of petitions.
Third set of writ petitions bearing Petition Nos.1862 of 1996 (Jagir Singh Vs. State of Punjab and others), 1863 of 1996 (Sukhminder Singh and others Vs. State of Punjab and others), and 1864 of 1996 (Hazara Singh and others Vs. State of Punjab and others), are the petitions where the petitioners were proceeded against exparte. This order was set-aside on payment of Rs.500/- per acre as mesne profits. Since the mesne profits were not paid, the exparte order was upheld. This order was appealed against by the petitioners. The Appellate Authority remanded the case, maintaining the exparte order unless the mesne profits were paid. Applications under Section 11 of the Act were allowed for the reason that the remand order had not been complied with. These orders are under challenge in this third set of writ petitions.
There is yet another petition bearing Civil Writ Petition No.11173 of 1988 (Gurmail Singh and others Vs. State of CIVIL WRIT PETITION 3324 OF 1994 :{ 4 }:
Punjab and others), filed by the Scheduled Caste residents of the village, who have come forward to claim that the land be declared as Panchayat land and be auctioned to them. The right to the scheduled caste for auction of the land can only accrue to them after the decision of the earlier set of the writ petitions and that too if the land is declared to be that of the Panchayat. Till that declaration is made in an application filed under Section 11 of the Act, the petitioners in this writ petition No.11173 of 1998 would not have any cause to espouse.
Since the identical question of law arises in all these petitions as has been raised and relates to the plea of res judicata, the same are being disposed of by a common order. The facts are being taken from Civil Writ Petition No.3324 of 1994, which was taken as a lead case to base their submissions by counsel for the petitioners.
The whole claim of the petitioners flows from an order passed by Civil Court dated 26.5.1959, Annexure P-1. Civil Court had passed a decree in favour of land holders and against the Gram Panchayat, holding that the land in question is not shamlat and had also been partitioned. The matter then came upto this Court at the instance of Sadhu Singh etc. when it was held by this Court that the decree passed by the Civil Court would be binding and the petitioners could not be evicted from the land by ignoring the decree as it was not a shamlat land. This was when the Panchayat sought eviction of the petitioners on an application filed under Section 7 of the Act. Despite this, another attempt was made by filing second application under Section 7 of the Act for eviction of the petitioner-land holders.
CIVIL WRIT PETITION 3324 OF 1994 :{ 5 }:
This Court, through its order dated 4.12.1985, again quashed the order of eviction as sought by the Gram Panchayat by saying that the question being dealt with, would be barred by principle of res judicata. Another attempt was made in the year 1987 by the Panchayat by filing an application under Section 11 of the Act for determining the title. Some of the petitioners, as noticed in the first set of writ petitions, immediately challenged this filing of application on the ground that it will be barred by res judicata in view of the judgment passed by the Civil Court as well as the judgments delivered by this Court on two occasions on 17.8.1973 and 4.12.1985. In some of the cases, the Collector proceeded exparte against the land holders. As per the allegations of the petitioners, this was on showing refusal of service by the land holders. In some of the cases, it is held through this exparte order that the land in question is shamlat and is in the ownership of Gram Panchayat. The application, under Section 11 of the Act, has accordingly been allowed exparte. The application for setting aside this exparte order was also filed and the petitioners so affected were directed to deposit a sum of Rs.500/- per acre as mesne profits with the Gram Panchayat till the decision of the case. Once the said petitioners could not deposit the mesne profits, the applications for setting aside the exparte orders were dismissed and the order dated 7.1.1988, holding Gram Panchayat to be the owner of the land, was maintained. In an appeal, the case was remanded back with the condition that the cases will be restored on deposit of Rs.500/- per acre as mesne profits. Since the mesne profits were not deposited by the time given, the cases obviously were not restored. These orders CIVIL WRIT PETITION 3324 OF 1994 :{ 6 }:
were accordingly challenged by filing writ petitions as noticed above. Some of the petitions contained a challenge only to the filing of applications under Section 11 of the Act, which are still pending adjudication. All said writ petitions were admitted and ordered to be heard together.
I have heard the learned counsel for the parties.
By referring to the orders Annexures P-1 to P-3, learned counsel for the petitioners would plead that the application by the Panchayat under Section 11 of the Act would be barred by principle of res judicata as the Panchayat can not be permitted to file one application after another at different stages. It is to be noticed that the counsel for the petitioners primarily would base their submissions on order, Annexure P-1, which is a Civil Court decree regarding the ownership of the disputed land. Finding by the Civil Court is that the plaintiffs i.e. the petitioners and defendant No.2 are the owners of the suit land and the same is not a shamlat deh. During the earlier round, when an application under Section 7 of the Act was filed by the Panchayat and the eviction of the petitioners was ordered, it was held by this Court that it is not open to the revenue authorities to ignore the decree passed by the Civil Court. Subsequently, when another application under Section 7 of the Act was filed and the ejectment order passed, the petitioner had filed a writ petition before this Court on the ground that this application would be barred by general principle of res judicata. Finding merit in this plea, a Division Bench of this Court allowed the writ petition and quashed the proceedings pending before the authorities against the petitioners. By taking support from this view, the counsel for the petitioners would CIVIL WRIT PETITION 3324 OF 1994 :{ 7 }:
contend that the application under Section 11 of the Act, for declaring the title of the petitioners in the land would be barred by principle of res judicata, as this matter has already been adjudicated by the Civil Court. It is also pleaded that even this Court has come to the conclusion that principle of res judicata would apply in this case to bar the application under Section 11 of the Act.
Learned counsel appearing for the Panchayat would, however, plead that the decree passed by the Civil Court can be ignored by the revenue Courts in view of the law laid down in Gram Panchayat of village Naulakha Vs. Ujagar Singh, 2000(7) S.C.C.
543. Learned counsel for the petitioners would, distinguish this judgment by saying that the observations of the Hon'ble Supreme Court came to be made in the background that the decree therein was collusive and obtained by fraud and so it was observed that this can be gone into by the revenue courts. The prayer made is for ignoring the same.
It is noticed that in the first set of writ petitions, mere filing of application under Section 11 of the Act for determining the title of the suit is under challenge. In the second set of writ petitions, the orders under challenge are basically exparte, which were set-aside on conditions, which were not complied with and accordingly the finding has come that land in question is a shamlat deh and in the ownership of Panchayat. This finding is not on the basis of merits. It would need consideration if the applications filed under Section 11 of the Act would be barred by principle of res judicata either on account of a finding given by the Civil Court or on account of earlier action of the Panchayat in filing application under Section 7 of the Act. This CIVIL WRIT PETITION 3324 OF 1994 :{ 8 }:
matter must receive attention of the authorities for it to pass any appropriate order. Apparently, it was premature on the part of the petitioners to rush to this Court merely on filing of this application under Section 11 of the Act by the Gram Panchayat. The petitioners could very well have raised the plea of res judicata before the authority concerned, which was dealing with the application under Section 11 of the Act. The petitioners and respondents would be entitled to raise their respective pleas before the authority to decide the case on merits as well as on technical plea of res judicata. It is, thus, appropriate that the cases must go back to the authority concerned where application under Section 11 of the Act has been filed for it to determine this aspect.
Since in some of the writ petitions the challenge is to the exparte order and no adjudication on merit has followed, it would be fair to set-aside those orders and remand these cases back for fresh decision alongwith the first set of writ petitions where the challenge was made only on the filing of the application under Section 11 of the Act. Since the issue involved in all such cases is the same, it would be fair to direct the authorities to decide the same without putting the petitioners at any distinct or different position. It would be fair to direct that the orders requiring the petitioners to deposit mesne profit before being heard on merit is not insisted upon to ensure equivalence.
All the petitions are accordingly remanded to the Collector, Patiala. The exparte orders in the respective petitions and the orders which were passed in appeals against the said orders are set-aside. The authority will decide afresh the claim of the Gram CIVIL WRIT PETITION 3324 OF 1994 :{ 9 }:
Panchayat in regard to its ownership under Section 11 of the Act by giving opportunity to all the parties concerned. Similarly, the third set of the writ petitions would also go back to the authorities concerned and the exparte orders and the subsequent orders passed in the appeals would stand quashed. It is made clear that the petitioners, who are directed to deposit mesne profits, would not be required to deposit any mesne profits before they are heard on merits. However, all the petitioners would be liable to pay compensation/damages for the use of this land, if ultimately it is held that the Gram Panchayat is owner of the land. The writ petitions are accordingly remanded back to the Collector, Patiala, for fresh decision on merits by giving proper opportunities to the respective parties. The sole writ petition filed by the scheduled caste, however, apparently would be rendered infructuous and is disposed of as such. Needless to say that all the petitioners would be entitled to any further remedy as per law if ultimately the authorities come to hold that land is owned by Gram Panchayat, as then fresh cause would arise for all the petitioners including the one filed by Scheduled castes.
The writ petitions are disposed of in the above terms.
January 30, 2009 ( RANJIT SINGH ) khurmi JUDGE