Punjab-Haryana High Court
Gram Panchayat Village Ladhpur vs State Of Punjab And Ors on 29 October, 2014
Author: Surya Kant
Bench: Surya Kant, Jaspal Singh
CWP No. 4245 of 2009[O&M]. ::-1-::
IN THE HIGH COURT FOR THE STATES OF PUNJAB
AND HARYANA AT CHANDIGARH.
CWP No. 4245 of 2009. [O&M]
Date of Decision:29th October, 2014.
Gram Panchayat Village Ladhpur Petitioner
Versus
State of Punjab & Ors. Respondents
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Present:- Mr. S.D.Sharma, Sr. Advocate with Ms. Shagun Sharma,
Advocate, for the petitioner.
Mr. Rajinder Goyal, Additional AG, Punjab.
Mr. Vikas Bahl, Sr. Advocate with Mr. Parminder Singh,
Advocate and Mr. P.K.Gupta, Advocate, for respondents
No. 7 and 8.
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CORAM:HON'BLE MR. JUSTICE SURYA KANT
HON'BLE MR. JUSTICE JASPAL SINGH
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1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
***
SURYA KANT, J.
Gram Panchayat of village Ladhpur, District Fatehgarh Sahib impugns the orders dated 11.05.2006 [P-11] and 23.01.2008 [P-12] passed by the Additional Deputy Commissioner [Development] exercising the powers of Commissioner under the Punjab Village Common Lands [Regulation] Act, 1961. Vide the first order, the Collector has dismissed the petition of Gram Panchayat filed under Section 11 of the Act to declare it the owner of subject land measuring 266 Bighas 4 Biswas [equivalent to 443 kanals] situated within the revenue estate of village Ladhpur. Vide the second order, the Commissioner has dismissed the petitioner's appeal against the above mentioned order of the Collector.
DINESH GUPTA2014.11.12 15:27 I attest to the accuracy and authenticity of this document
CWP No. 4245 of 2009[O&M]. ::-2-::
[2]. The case of the Gram Panchayat is that the land in
dispute was recorded in the revenue record as "Shamlat-deh Hasab Rasad Raqba Khewat' prior to the year 1956 and was consequently mutated in its favour on 05.12.1956 in accordance with Section 3 of the Punjab Village Common Lands [Regulation] Act, 1953. Since then the Gram Panchayat was consistently shown to be owner of the subject land in the Jamabandi entries up to the year 1999-2000. [3]. 10 Proprietors-cum-right-holders of the village filed a petition under Section 42 of the East Punjab Holdings [Consolidation and Prevention of Fragmentation] Act, 1948 [in short '1948 Act'], in the year 1994 claiming themselves to be the owners of a part of the land in dispute, i.e., to the extent measuring 182 kanals 19 marlas [110 Bighas] and sought its partition. The petition was filed almost 38 years after the consolidation had taken place in the village in the year 1950-51. It was claimed that the land in dispute was owned by Khewatdars [right-holders] of the village and it was erroneously mutated in favour of the Gram Panchayat as shamlat-deh. It was averred that the illegally entered mutation did not confer any title in favour of Gram Panchayat not it could affect the ownership rights of proprietors.
[4]. The petitioner - Gram Panchayat contested the claim of the proprietors and raised a specific objection re: inordinate delay of 30 to 35 years in filing of the petition.
[5]. The Director Consolidation, however, repelled the objection of the Gram Panchayat and held vide his order dated 22nd May, 1996 [P-2] that since in the Jamabandi for the year 1950-51, DINESH GUPTA 2014.11.12 15:27 I attest to the accuracy and authenticity of this document CWP No. 4245 of 2009[O&M]. ::-3-::
Khewat No. 86 was recorded to be ownership of "Shamlat Hasab Rasad Khewat Maqbuja" and in the column of Cultivator, proprietors were entered into its joint and separate possession, the land in dispute continued to be owned by the right-holders and not the Gram Panchayat. The mutation sanctioned in favour of the Gram Panchayat was declared to have no effect on the rights of Khewatdars. The land was ordered to be partitioned amongst the right-holders of the village relying upon a decision of this Court reported as 1991 PLJ, 46. The Director Consolidation distributed the land measuring 182 kanals 19 marlas amongst the right-holders [P-2] proportionate to their landholdings and specific Killa Numbers as per their entitlement were allotted.
[6]. The Gram Panchayat challenged the above stated order of the Director Consolidation before this Court in CWP No. 10626 of 1996 but it was dismissed by a Division Bench on 23.07.1996 by an order which reads "No merits. Dismissed". It may be specifically noticed at the cost of repetition that the above stated controversy pertained to land measuring 182 kanals 19 marlas out of land measuring 443 kanals.
[7]. The petitioner-Gram Panchayat thereafter on 02.04.1997 filed a suit-cum-petition under Section 11 of the 1961 Act to declare it as the owner in possession of the entire land measuring 443 kanals including the land in dispute measuring 182 kanals 19 marlas. The right-holders-cum-proprietors of the village also filed a petition to sanction the mutation of land measuring 182 kanals 19 marlas in their favour and it appears that their application was dismissed by the DINESH GUPTA 2014.11.12 15:27 I attest to the accuracy and authenticity of this document CWP No. 4245 of 2009[O&M]. ::-4-::
Assistant Collector as well as the appellate authority. However, the Consolidation Officer in purported exercise of his powers under the 1948 Act passed an order on 30.10.1998 changing the mutation of shamlat-deh in favour of about 62 right-holders/ proprietors of the village. That order was challenged by the Gram Panchayat in this Court in CWP No. 736 of 1999 which was dismissed on 25.07.2007 by relegating the Gram Panchayat to alternative remedy of appeal before the Settlement Officer, Consolidation under Section 21[3] of the 1948 Act.
[8]. The Gram Panchayat challenged the order of learned Single Judge in LPA No. 222 of 2007 which was also dismissed by a Division Bench of this Court on 21.07.2009 observing that:-
"5. In view of the fact that earlier writ petition against order dated 22.5.1996 was dismissed on 23.7.1996, second petition, in effect, challenging the very same order, was not maintainable. In any case, the learned Single Judge has given liberty to the appellant to file appeal under Section 21(3) of the Act, if so advised. In these circumstances, no ground is made out to interfere with the view taken by the learned Single Judge".
[9]. It would be apt at this stage to briefly notice the legislative scheme of the 1961 Act. Section 2[g] defines shamlat-deh lands, ownership and management of which, according to Section 4 of the Act, completely vests in the Gram Panchayat, who can utilise such land in accordance with the provisions of 1961 Act and the Rules framed thereunder. Section 7 of the Act enables the Gram Panchayat to seek eviction of an unauthorised occupant of its land through summary proceedings. However, if in the course of such proceedings DINESH GUPTA 2014.11.12 15:27 I attest to the accuracy and authenticity of this document CWP No. 4245 of 2009[O&M]. ::-5-::
or otherwise, there arises a dispute qua title of the suit land between the private person and the Gram Panchayat, the Collector, in eviction proceedings, is required to firstly determine the question of title. A suit-cum-petition for declaration of title/ownership is also maintainable under the Act before the Collector. The jurisdiction of Civil Court to adjudicate the question of title in respect of such lands is expressly barred under Section 13 of the Act. Section 11, [relevant extracts only], reads as follows:-
"11. Decision of claims of right, title or interest in shamilat deh.- [1] Any person or a Panchayat claiming right, title or interest in any land, vested or deemed to have been vested in a Panchayat under this Act or claiming that any land has not so vested in a Panchayat, may submit to the Collector, within such time, as may be prescribed, a statement of his claim in writing and signed and verified in the prescribed manner and the Collector shall have jurisdiction to decide such claim in such manner as may be prescribed.
[2]. .....".
[10]. It was in deference to the legislative scheme of the 1961 Act that the petitioner - Gram Panchayat filed a declaratory suit-cum- petition under Section 11 on 02.04.1997, in respect of entire land measuring 443 kanals obviously including the land measuring 182 kanals 19 marlas, which was ordered to be partitioned amongst the proprietors-cum-right-holders by the Director Consolidation vide his order dated 31.05.1996 [P-2].
[11]. The Additional Deputy Commissioner [Development], Fatehgarh Sahib, exercising the powers of Collector, dismissed the DINESH GUPTA 2014.11.12 15:27 I attest to the accuracy and authenticity of this document CWP No. 4245 of 2009[O&M]. ::-6-::
suit-cum-petition of the Gram Panchayat under Section 11 qua land measuring 182 kanals 19 marlas as it already stood partitioned by the Director Consolidation vide order dated 31.05.1996 which was upheld by this Court by dismissing the Gram Panchayat's writ petition in limine. As regard to the remaining land, the claim of Gram Panchayat was accepted and it was declared to be owner of that land.
[12]. While none of the right-holder/proprietor went in appeal against the above mentioned order of the Collector dated 11.05.2006 [P-11], the Gram Panchayat felt aggrieved against part rejection of its claim qua the land measuring 182 kanals 19 marlas. [13]. The Joint Development Commissioner, exercising the powers of Appellate Authority under the 1961 Act, vide his impugned order dated 23.01.2008 [P-12] not only dismissed the appeal filed by the Gram Panchayat, he has made some evasive, vague and casual observations leaving an impression that the Gram Panchayat has lost its title qua the entire land measuring 443 kanals, i.e., 266 Bighas 4 Biswas. While holding so, the Appellate Authority has relied upon the orders of this Court dismissing Gram Panchayat's writ petition against the order dated 31.05.1996 of the Director Consolidation and the order dated 27.07.2007 vide which this Court dismissed RSA No. 3717 of 2005 of the Gram Panchayat which was upheld by the Hon'ble Supreme Court on 11.01.2008. [14]. It is, thus, necessary to briefly refer to the civil suit, out of which the above mentioned RSA had originated. Three proprietors of the village [Gurdev Singh, Ishar Singh and Mastan Singh] filed a civil DINESH GUPTA 2014.11.12 15:27 I attest to the accuracy and authenticity of this document CWP No. 4245 of 2009[O&M]. ::-7-::
suit for permanent injunction restraining the Gram Panchayat "from auctioning the land for lease" comprising the Khasra Numbers which were mentioned in the head-note of the suit. Four issues were framed in the said civil suit, namely, [i] Whether the plaintiffs are entitled to decree for permanent injunction?; [ii] Whether the suit was not maintainable?; [iii] Whether the jurisdiction of civil Court was barred? and [iv] the Relief. It is apparent from the judgment of learned Additional District Judge dated 01.04.2005 dismissing Gram Panchayat's appeal that the entries in the Jamabandi incorporated on the basis of the order of the Director Consolidation dated
31.05.1996 were relied upon to hold that the Gram Panchayat had no concern with that land, hence it could not have auctioned the same. The decree for permanent injunction was, thus, granted against which in second appeal, this Court vide order dated 27.08.2007 observed that since no question of title was involved in the suit for injunction, hence it was not barred under Section 13 of the 1961 Act and that "in view of the judgment of this Court holding the title of the appellant [Gram Panchayat], there was no ground to interfere with the injunction orders".
[15]. The Gram Panchayat having felt aggrieved at the part dismissal of its suit-cum-petition under Section 11 of the Act has impugned the order of the Collector and the Commissioner-cum- Appellate Authority dated 11.05.2006 and 23.01.2008 [P-11 and P- 12] in the instant writ petition.
[16]. It deserves mention here that according to learned Senior Counsel for the petitioner - Gram Panchayat, the proprietors of the DINESH GUPTA 2014.11.12 15:27 I attest to the accuracy and authenticity of this document CWP No. 4245 of 2009[O&M]. ::-8-::
village have taken possession of the entire land measuring 443 kanals on misinterpretation/mis-construction of the order dated 23.01.2008 of the Appellate Authority and as on date, not even an inch of land is left in possession of the Gram Panchayat.
[17]. From the above given resume of facts along with brief reference to multiple rounds of litigation between the Gram Panchayat and proprietors, the following issues require determination in these proceedings:-
[i] Whether the Director Consolidation is vested with any power under Section 42 of the 1948 Act to decide title disputes and order partition of the land?
[ii] What is the effect of dismissal of the Gram Panchayat's writ petition by this Court in limine vide order dated 23.07.1996 [P-3] against the order of Director Consolidation dated 31.05.1996?
[iii] What is the legal effect of the decisions of this Court or the Hon'ble Supreme Court with reference to the land measuring 182 kanals 19 marlas?
[iv] Whether the orders passed by this Court or the Hon'ble Supreme Court in an injunction suit have any bearing on the rights or title claimed by the Gram Panchayat in the suit land?
[18]. We have heard learned counsel for the parties at considerable length and have gone through the record. [19]. It may be seen that for the purpose of correct appreciation of the controversy, the land in dispute measuring 443 DINESH GUPTA 2014.11.12 15:27 I attest to the accuracy and authenticity of this document CWP No. 4245 of 2009[O&M]. ::-9-::
kanals can be divided into two parts, namely, land measuring 182 kanals 19 marlas which was subject matter of the 1st and 2nd rounds of litigation and in relation to which the proprietors claimed that the inter-se lis has already attained finality in their favour. The second part of the land would be the remaining land measuring 260 kanals 01 marla, regarding which no order has ever been passed by a Competent Authority in favour of the proprietors, much less an order which can be said to have attained finality.
[20]. It is clarified that for the purpose of answering some of the legal issues set out in Para No. 17, we are not drawing any distinction between the two parcels of land. [21]. The two questions [i] and [ii] above pertaining to the competence of Director Consolidation to decide a title dispute in purported exercise of his powers under Section 42 of the 1948 Act or the effect of dismissal of a writ petition or SLP in limine, without assigning any reasons are no longer res-integra and have been authoritatively answered by the Hon'ble Supreme Court in Gram Panchayat Nurpur Vs. State of Punjab & Ors., [1998] 8 SCC, 672 as well as a Full Bench of this Court in Parkash Singh & Ors. Vs. Joint Development Commissioner, Punjab & Ors., 2014[2] RCR [Civil], 721. In Gram Panchayat, Nurpur it stands settled that Section 42 of the 1948 Act does not empower the authorities under the Statute to decide the question of title as to whether the land vests in Gram Panchayat as shamlat-deh or is owned by the right- holders. Such a question can be decided only by the authorities DINESH GUPTA under the 1961 Act, for jurisdiction of the Civil Court is also expressly 2014.11.12 15:27 I attest to the accuracy and authenticity of this document CWP No. 4245 of 2009[O&M]. ::-10-::
barred in relation thereto.
[22]. It is equally profitable to rely upon the decision of Hon'ble Supreme Court in Gram Panchayat Kakran Vs. Additional Director of Consolidation & Anr., [1997] 8 SCC, 484 which lays down that no application under Section 42 of the 1948 Act could be entertained after an inordinate delay without satisfactory explanation for such delay. In the instant case, the Consolidation was held in the year 1950-51 and the application under Section 42 was admittedly moved by 10 proprietors in the year 1994. The Gram Panchayat did raise the objection of prolonged and unexplained delay but unfortunately it was brushed aside by the Director Consolidation, following the decision of this Court which was lateron disapproved in Gram Panchayat, Kakran.
[23]. There has to be thus an inescapable conclusion on question No. [i] that the order dated 22nd May, 1996 [P-2] was passed by the Director Consolidation transgressing his jurisdiction and was ex-facie void ab-initio.
[24]. The question as to whether the order dated 22nd May, 1996 of the Director Consolidation acquired legitimacy and enforceability in law on the strength of doctrine of merger as the Gram Panchayat's writ petition challenging the same was dismissed by this Court in limine vide order dated 23rd July, 1996, also does not call for any detailed discussion and has been effectively answered against the proprietors recently by a Full Bench of this Court in Parkash Singh's case [supra]. The following questions came up for DINESH GUPTA consideration before the Full Bench in the cited case:- 2014.11.12 15:27 I attest to the accuracy and authenticity of this document
CWP No. 4245 of 2009[O&M]. ::-11-::
"1. Whether a Director Consolidation, exercising power under the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 can decide whether land vests or does not vest in a Gram Panchayat?
2. If answer to the first question is in the negative, then whether an order passed by a Director Consolidation, determining ownership of a Gram Panchayat, affirmed by the High Court and the Supreme Court operates as res-
judicata in a subsequent petition, filed under Section 11 of the Act?
3. Whether Section 13-B of the Act empowers the Collector, exercising jurisdiction under Section 11 of the Act, to disregard an order passed by the Director Consolidation, that has been affirmed by the High Court and the Hon'ble Supreme Court.
4. Whether a plea that the order passed by the Director Consolidation was obtained by fraud can be raised after the order has been affirmed by the High Court and the Hon'ble Supreme Court?"
[25]. The Full Bench by two separate but concurring judgments in Parkash Singh's case has answered those questions thus:-
"We, therefore, answer the second and third questions, in the following terms:-
(1) The State or its delegate, exercising power under Section 42 and authorities under the Consolidation Act are tribunals of limited jurisdiction.
(2) Consolidation authorities have no power to decide disputed questions of title in respect of lands, or any right, title or interest therein.
(3) The State or its delegate, may in the exercise of power under Section 42 of the Consolidation Act order correction of errors, in accordance with law; DINESH GUPTA 2014.11.12 15:27 I attest to the accuracy and authenticity of this document
CWP No. 4245 of 2009[O&M]. ::-12-::
(4) While exercising powers under Section 42 of the Consolidation Act, if it is held that the land, in dispute, vests or does not vest in a Gram Panchayat such an order would be construed to be an opinion recorded by a Tribunal of limited jurisdiction and an order so passed would not operate as res-judicata to be binding upon parties or the Collector, exercising power under Section 11 of the 1961 Act, or the jurisdictional forum, constituted for deciding a question of title.
(5) If a writ petition or special leave petition filed to challenge an order passed under Section 42 of the Consolidation Act is dismissed without assigning any reason, by use of the words "dismissed", "no merits, dismissed" or such like similar expressions, the order passed under Section 42 of the Consolidation Act shall not merge in the order passed by the High Court or the Hon'ble Supreme Court, so as to operate as res-judicata or prohibit the Gram Panchayat from approaching the jurisdictional forum, or.
(6) If an order passed under Section 42 of the Consolidation Act has not been challenged in a writ petition or before the Hon'ble Supreme Court, such order shall be ignored, by the Collector exercising power under Section 11 of the 1961 Act, as Section 13-B clearly postulates that notwithstanding anything to the contrary in any law or any agreement, instruments, custom or usage or any decree or order of any court or other authority, the provisions of the 1961 Act shall prevail. (7) If, however, the order passed by the Director Consolidation has been affirmed, by the High Court or in a special leave petition or an appeal before the Hon'ble Supreme Court on merits, the order passed by the Director Consolidation shall be deemed to have merged in orders passed under Articles 226 and 136 of the DINESH GUPTA 2014.11.12 15:27 I attest to the accuracy and authenticity of this document CWP No. 4245 of 2009[O&M]. ::-13-::
Constitution of India and would, therefore, on the basis of the doctrine of rule estoppel, merger and the order of precedence among courts, prohibit the Gram Panchayat from filing a petition under Section 11 of the 1961 Act, the Collector from entertaining such a petition, or where the land is "Jumla Mushtarka Malkan" the Civil Court".
[Emphasis by us].
[26]. In view of the binding principles No. [4] and [5], as reproduced above, our answer to question No. [ii] has to go in favour of the petitioner - Gram Panchayat.
[27]. Adverting to questions No. [iii] and [iv] which can be taken up together, it may be mentioned in all fairness that learned counsel for the proprietors heavily relied upon the decisions dated 25th July, 2007 [P-6] of the learned Single Judge and dated 21st July, 2009 [R- 1] whereby CWP No. 736 of 1999 and LPA No. 222 of 2007 of the petitioner - Gram Panchayat, against the order dated 30th October, 1998 of the Consolidation Officer sanctioning mutation in favour of the proprietors, were dismissed. It is apparent from these orders that the writ petition was held to be not maintainable in view of availability of alternative remedy of statutory appeal and the writ petition was dismissed relegating the Gram Panchayat to that remedy. The Appellate Bench though in para No. 2 of its order dated 21st July, 2009 observed that as a result of dismissal of the writ petition of the Gram Panchayat in limine on 23rd July, 1996, "rights of the parties were crystalised up to this Court" but the Letters Patent Appeal was essentially dismissed in view of the fact that the learned Single Judge had given liberty to the Gram Panchayat to avail the remedy of DINESH GUPTA 2014.11.12 15:27 I attest to the accuracy and authenticity of this document CWP No. 4245 of 2009[O&M]. ::-14-::
appeal. These orders, with utmost respect do not fall in the exceptional clause No. [7] carved out by the Full Bench in Parkash Singh's case [supra].
[28]. Similarly, the proprietors can draw no mileage out of the order dated 27th August, 2007 [P-9] whereby this Court dismissed Regular Second Appeal of the Gram Panchayat arising out of a civil suit "for Permanent Injunction" to restrain the Gram Panchayat "from auctioning the land for lease". This order was nothing but an off- shoot of the order of the Director Consolidation which was upheld by this Court while dismissing the Gram Panchayat's writ petition in limine. As noticed above, in view of the correct statement of law enunciated in Gram Panchayat,Nurpur and Gram Panchayat, Kakran's cases, coupled with the Full Bench decision of this Court in Parkash Singh's case, it stands crystalised beyond any pale of doubt that the title dispute between proprietors and the Gram Panchayat in respect of a land which the latter claims to be a shamlat deh can be decided by none else except the Collector in exercise of powers under the 1961 Act.
[29]. Learned counsel for the proprietors, in addition to the legal contentions with reference to the above cited orders passed between the parties in previous rounds of litigation, also vehemently urged that notwithstanding the declaration of law in the manner as summarised above, no effective relief can be granted to the petitioner Gram Panchayat for the reasons that :
[i] the instant writ petition is liable to be dismissed DINESH GUPTA following the principle of abatement. It is pointed out 2014.11.12 15:27 I attest to the accuracy and authenticity of this document CWP No. 4245 of 2009[O&M]. ::-15-::
that the petitioner - Gram Panchayat on 15th December, 2010 made a statement to delete at-least 15 proprietors from the array of respondents as they were reported to have died and their legal representatives were not brought on record and the impugned orders have thus attained finality qua them;
[ii] once the writ petition stands dismissed against those who were deleted from the array of respondents, it is not maintainable against the left-out respondents as there can be no determination of share in the absence of legal representatives of the deleted respondents. He relied upon the decisions of the Hon'ble Supreme Court in [i] State of Punjab Vs. Nathu Ram, 1962[2] SCR, 636 and [ii] Badni [dead] by Lrs Vs. Siri Chand [dead] by Lrs, 1999[2] SCC, 448;
[iii] a substantial part of the land in question is described as Banjar Qadim which does not fall within shamlat deh under Section 2[g] of the 1961 Act. A Full Bench decision in Gram Panchayat Sadhraur Vs. Baldev Singh & Ors., 1997 PLJ, 276 was cited;
[iv] The nature of land as depicted in the revenue record also excludes it from the ambit of shamlat-deh; and [v] no evidence whatsoever has been led by the Gram Panchayat to prove that the subject land is shamlat- deh and has vested in it.
[30].
DINESH GUPTA
Having regard to some of the above noticed contentions, 2014.11.12 15:27 I attest to the accuracy and authenticity of this document CWP No. 4245 of 2009[O&M]. ::-16-::
it would be appropriate at this stage to refer back the bifurcation of the land in dispute in two parcels i.e., one which was subject matter of previous litigation, i.e., land measuring 182 kanals 19 marlas and and second measuring 260 kanals 01 marla which is now said to have been forcibly occupied by the proprietors even in the absence of any declaration in their favour by any authority. [31]. So far as the land measuring 260 kanals 01 marla is concerned, admittedly, it was mutated in favour of the Gram Panchayat in the year 1956. It is duly recorded as shamlat-deh. The Gram Panchayat has been leasing out this land on yearly basis to generate its income. It was, thus, being utilised by the Gram Panchayat for one of the prescribed 'common purpose'. In the absence of any lawful order in their favour, no inhabitant of the village is entitled to forcibly occupy this land. The appellate order dated 23rd January, 2008 passed under the 1961 Act can not be construed to say that on an appeal filed by the Gram Panchayat [and not by any right-holder], the Appellate Authority has declared the above mentioned land also under the ownership of right-holders. It is, thus, imperative upon the District Administration to ensure that the possession of the above said land is restored in favour of the Gram Panchayat in accordance with law. Any deviation or inaction shall be viewed seriously. It is made clear that so long as an Authority of competent jurisdiction does not decide any title dispute qua this land, it shall be taken to have vested in the Gram Panchayat for all intents and purposes. The order of the Appellate Authority wherever gives any misleading impression with regard to the above stated land, is DINESH GUPTA 2014.11.12 15:27 I attest to the accuracy and authenticity of this document CWP No. 4245 of 2009[O&M]. ::-17-::
taken to have been set aside and clarified.
[32]. As regard to the land comprising first parcel measuring 182 kanals and 19 marlas, there can be no quarrel that in view of the conclusion drawn in Para 28 of this order, it can not be safely inferred that the respondents or other proprietors are said to have acquired ownership qua that land only on the basis of a void order passed by the Director Consolidation, though upheld by this Court. The order of the Director Consolidation is held to have no sanctity in law and the respondents can not enure any benefit out of it. Similarly, the dismissal of the writ petition by this Court in limine does not foreclose the title dispute for ever. Likewise, the orders dated 11th May, 2006 or 23rd January, 2008 [P-11 and P-12] also do not clothe the respondents with a perfect title as the Gram Panchayat's declaratory petition has been dismissed only because of the fact that this Court had upheld the order of the Director Consolidation.
[33]. Having held so, we are also of the considered view that the questions like [i] attainment of alleged finality of an illegal order qua some of the proprietors against whom the writ petition was withdrawn; [ii] that there is no evidence led by the Gram Panchayat to substantiate its ownership or [iii] that a part of the land can not be treated as shamlat-deh within the meaning of Section 2[g] of the 1961 Act, are mixed questions of law and facts. It is, thus, not necessary for this Court to travel into those questions as the same can be effectively determined by the Authorities to whom such a power has been expressly vested under the 1961 Act.
[34]. As a result of the above discussion - DINESH GUPTA 2014.11.12 15:27 I attest to the accuracy and authenticity of this document CWP No. 4245 of 2009[O&M]. ::-18-:: [i] the Gram Panchayat is held to be owner of the land measuring 260 kanals 01 marla and in respect
thereto the Deputy Commissioner, Fatehgarh Sahib and other authorities are directed to comply with the directions contained in Para No.31 of this order; [ii] the impugned orders dated 11th May, 2006 and 23rd January, 2008 can not sustain and are hereby quashed.
[iii] as a necessary corollary, the dispute regarding ownership rights qua the land measuring 182 kanals 19 marlas has to be re-determined by the Collector, Fatehgarh Sahib, following the settled law and by completely over-looking the unauthorised orders passed by the Consolidation Authorities even if such orders were upheld by this Court;
[iv] the Collector, Fatehgarh Sahib shall, however, in the interest of justice, give two opportunities to the Gram Panchayat to lead any additional evidence and not more than four opportunities jointly to the right- holders to lead their additional evidence, if any, and then shall decide the petition strictly in accordance with law preferably within a period of six months from the date of receipt of a copy of this order.
[35]. Disposed of. Dasti.
( SURYA KANT )
JUDGE
October 29, 2014. ( JASPAL SINGH )
dinesh JUDGE
DINESH GUPTA
2014.11.12 15:27
I attest to the accuracy and
authenticity of this document