Punjab-Haryana High Court
Jaspal Alias Jaswant Singh And Ors. vs State Of Haryana And Ors. on 26 April, 2001
Author: N.K. Sud
Bench: N.K. Sud
JUDGMENT Jawahar Lal Gupta, J.
1. The petitioners are aggrieved by the order dated May 18, 1999 passed by the Commissioner, Ambala Division. A copy of this order has been produced on record as Annexure P-6. By this order the Commissioner has directed the Assistant Collector, 1st Grade, Guhla, to execute the order of ejectment within a period of three months. The petitioners pray that this order be quashed. A few facts may be noticed.
2. Roop Singh (who is not a party) filed a petition under Section 7(2) of the Punjab Village Common Lands (Regulation) Act, 1961 alleging that Surta (the predecessor-in-interest of the petitioners) and others wee in illegal occupation of Shamlat land which vested in the Panchayat. The application was contested. Vide order dated March 31, 1994, the Assistant Collector, 1st Grade, found that the land was entered as 'Charand in Wazib-Ul-Araj. It falls within the definition of 'Shamlat land' as contemplated under Section 2(g) of the Act. The possession of Surta was illegal. A penalty of Rs. 80007- per hectare per year was imposed. He was ordered to be evicted.
3. The petitioners, who are the successors-in-interest of Surta, allege that they had challenged this order in C.W.P. No. 4640 of 1994, Initially, the Bench had stayed their dispossession vide order dated August 24, 1994. On March 10, 1995, the writ petition was finally disposed of with the following observations:
"This is an application for vacation of stay granted on 24.8.1994. In the main civil writ petition challenge is to the provision of Punjab Village Common Lands (Regulation) Act Haryana Amendment Act, 1991 being ultra vires the Constitution of India. This petition was awaiting the decision of Full Bench in Civil Writ Petition No. 5877 of 1992 (1995 PLJ 83) which has been decided.
We dispose of the Civil Misc. and the writ petition in terms of the decision rendered by the Full Bench in Civil Writ Petition No. 5877/1992 (:1995 PLJ 83). No costs.
10.3.1995 Sd/- Ashok Bhan Judge Sd/- V.K. Bali Judge".
4. On the basis of the above order, the petitioners claim that no order could be passed against them under the provisions of the Act. They further allege that no appeal was filed against this order by the Panchayat. Ultimately, the judgment of the Full Bench in terms of which the writ petition was disposed of was reversed by their Lordship of the Supreme Court in State of Haryana v. Jai Singh and Ors., (1999-1)121 P.L.R. 322 (S.C.). The petitioners maintain that even if it is assumed that the order dated March 10, 1995 passed in terms of the decision of the Full Bench of this Court had been reversed, the only consequence would be that their writ petition would stand revived and the interim stay order passed by the Bench on August 24, 1994 shall come into play.
5. The petitioners further state that the respondent-Gram Panchayat had filed a revision petition for the implementation of the order of ejectment passed by the Assistant Collector and in pursuance thereto the Commissioner passed the impugned order. It is alleged that the Panchayat had no right to file a revision petition. Only an aggrieved person could have filed -it- Their petition having been decided and no appeal having been filed, the order passed on March 31, 1994 could not be executed. On these premises, the petitioners pray that the directions given by the Commissioner deserve to be annulled.
6. A written statement has been filed on behalf of respondent No. 5. The claim made by the petitioners has been controverted. It is maintained that the land forms part of the Shamlat Deli'. Thus, the order passed by the Assistant Collector was legal and valid. More than that the respondent has pointed out that Surta had filed an appeal against the order of the Assistant Collector. This appeal was considered by the Collector and was dismissed vide order dated August 16, 1994. A copy of this order has been produced as Annexure R-5/1 with the written statement. It is alleged that this order has not been challenged by the petitioners in any proceedings including the present writ petition. In fact, on behalf of the respondent, it is maintained that the petitioners are guilty of withholding this information from the Court. The Collector's order having not been challenged since the year 1994, the respondent maintains that the petitioners are liable to be evicted.
7. Another fact which has been pleaded is that initially an application had been filed on behalf of the Panchayat ort June 18, 1997 before the Commissioner. He was requested to direct the Assistant Collector to implement the order for eviction. When no action was taken, the facts were brought to the notice of the Commissioner by filing a revision petition. The respondent maintains that the impugned order is in strict conformity with law and calls for no interference in proceedings under Article 226 of the Constitution. It is also maintained that the possession of the land was actually delivered to the Panchayat on July 26, 1999 vide Daily Diary Report No. 513. On these premises, the respondent maintains that the writ petition should be dismissed.
8. Learned counsel for the parties have been heard.
9. Mr. S.C. Kapoor, learned counsel for the petitioners, has contended that C.W.P. No. 4690 of 1994 had been allowed. Thus, the order of the Assistant Collector should be deemed to have been quashed. He further submits that by giving the impugned directions the Commissioner has deprived the petitioners of the right to raise objections in the execution proceedings. Thus, the impugned order deserves to be annulled. The claim made on behalf of the petitioners has been controverted by Mr. Ashish Aggarwal, learned counsel for respondent No. 5.
10. It deserves notice at the outset that Surta had filed an appeal against the order of the Assistant Collector. Vide order dated August 16, 1994 the appeal was dismissed on the ground of limitation as well as on merit. The averment in the petition that the appeal was dismissed on the ground of maintainability alone is not accurate. A categorical finding had been recorded that the appellant was unable to produce any evidence to show that his possession was authorised. In any event, the order passed by the Collector on August 16, 1994 had not been challenged by the petitioners in C.W.P. No. 4640 of 1994 or in any other proceedings thereafter. Thus, the direction given by the Collector for the eviction of the petitioners subsists. In the execution of the order, the petitioners are liable to be evicted.
11. Mr. Kapoor contended that C.W.P. No.4670 of 1994 filed by the petitioners had been allowed. That having happened, the order of eviction passed by the Assistant Collector should be deemed to have been annulled. We are unable to accept this contention, The writ petition had been undoubtedly disposed of in terms of the judgment of the Full Bench in C.W.P. No.5877 of 1992; Jai Singh v. State of Haryana, (1995-1)109 P.L.R. 614 (F.B.). The prayer which was allegedly made by the petitioners for the quashing of the order dated March 31, 1994 is not shown to have been specifically allowed. Thus, in view of the principle embodied in Section IT of the Code of Civil Procedure the relief which was specifically prayed for was not expressly granted. Resultantly, it shall be deemed to have been declined. In any event, the order passed by the Assistant Collector having been challenged and the appeal having been dismissed by the Collector, the order dated August 16, 1994 has attained finality. This order having not been challenged, the execution proceedings could have been initiated by the 5th respondent.
12. Mr. Kapoor submitted that the writ petition having been disposed of in terms of the decision of the Full Bench, the petitioners are entitled to the consequential benefits. Even this plea cannot be sustained as the decision of the Full Bench has already been reversed by their Lordships of the Supreme Court in Jai Singh's case (supra).
13. Faced with this situation, Mr. Kapoor contended that the directions given by the Commissioner are wholly without jurisdiction. The petitioners have been arbitrarily deprived of the opportunity to raise objections during execution. This contention has no basis in fact and in law. Section 13-B(2) of the Act authorises the Commissioner to call for the record of any proceedings and to 'pass such order in relation thereto as he may deem fit". The provision confers a very vide power on the Commissioner. In the exercise of this power he can pass such order as the circumstances of a case may warrant. Still further, it also permits him to pass a suitable order on an application from an aggrieved person.
14. In the present case, the 5th respondent has categorically pleaded that an application had been filed by the Panchayat before the Collector for execution. He had failed to take action. Thereafter, an application had been filed on the administrative side before the Commissioner. Still, no action was taken. Then, another application was filed before the Commissioner invoking his jurisdiction under Section 13-B(2). This fact finds mention in paragraph 2 of the impugned order. In the circumstances of the case, it is clear to us that the Commissioner had acted within the power conferred on him by the statue. He had not exceeded his jurisdiction. The order is in strict conformity with Section 13-B(2) of the Act.
15. Mr. Kapoor submits that by this process, the petitioners have been deprived of the opportunity to raise objections before the Assistant Collector. Even this contention is misconceived. A perusal of the order passed by the Commissioner shows that the Assistant Collector has to execute the order "in accordance with law". Thus, the right of the petitioners has not been affected. It would be open to the petitioners to raise such pleas as may be permissible under the law.
16. No other point has been raised.
17. In view of the above, we find no merit in this writ petition. It is, consequently, dismissed. However, the patties are left to bear their own costs.