Punjab-Haryana High Court
Ajmer Singh vs The Joint Direct, Panchayats on 6 July, 1995
Equivalent citations: (1995)111PLR567
Author: Ashok Bhan
Bench: Ashok Bhan
JUDGMENT Ashok Bhan, J.
1. This order shall dispose of Civil Writ Petition Nos. 2727, 2854, 2881 and 4533 to 4536 all of 1983 and 1739, 2420 and 2523 all of 1985, as common questions of law and facts are involved in these writ petitions. Facts are being taken from C.W.P. No. 2727 of 1983.
2. This petition has been filed for issuance of a writ of certiorari for quashing the orders Annexure P-1 and P-2, passed under Section 7 of the Punjab Village Common Lands (Regulations) Act, 1961 (hereinafter referred to as 'the Act'), ordering ejectment of the petitioner from the land comprising Rectangle No. 40 Khasra No. 1 (0-40-47), 2(0-40-47), 9(0-40-47), 10(0-40-47), 11(0-40-47), 12(0-40-47), 19(0-40-47), 20(0-40-47), Rectangle No. 41 Killa Nos. 5(0-39-46), 6(0-40-47), 14(0-13-15), 15(0-40-47), 16(0-40-47) and 17(0-40-47) situated in revenue estate of village Mardhanheri, Tehsil and District Patiala.
3. Gram Panchayat Mardhanheri (hereinafter referred to as 'the Gram Panchayat') claimed that the above-mentioned land had vested in it as common land under the provisions of the Act. On the basis of these allegations the Gram Panchayat made an application under Section 7 of the Act. The application filed by the Gram Panchayat was allowed by the Collector on 25.5.1975. Against the order passed by the Collector, Petitioner preferred an appeal before the Commissioner, Patiala. Learned Commissioner, after going through the provisions of the Act and the rules framed thereunder and the facts of the case, held that the onus to prove that the land in respect of which the ejectment is sought had vested in the Gram Panchayat under the provisions of the Act lies of Gram panchayat and that the Gram Panchayat under the provisions of the Act lies on Gram Panchayat had failed to discharge this onus by placing on record appropriate evidence. Appeal was accepted by the Commissioner. Order of ejectment passed by the Collector was set aside. It was held that the land in possession of the petitioner was not proved to have vested in the Gram Panchayat under the provisions of the Act. While accepting the appeal, in the last paragraph, it was observed "However, the Panchayat shall be within its competence to file a fresh application under Section 7 in this case in accordance with law".
4. Gram Panchayat did not challenge the order of the Commissioner by filing a writ petition in the High Court. It started recovery proceedings against the petitioner on the assumption that the petitioner was in an unauthorised possession of the land and was, therefore, liable to pay damages at the rate of 20 times of usual rent. These recovery proceedings were challenged by the petitioner in this Court by filing C.W.P. No. 4519 of 1980, which was admitted for hearing and the recovery proceedings were stayed. In the meanwhile, the Gram Panchayat again filed an application under Section 7 of the Act for ejectment of the petitioner. Petitioner resisted the application on the ground that in view of the order of the Commissioner and the pendency of the writ petition (C.W.P. No. 4519 of 1980) in this Court, the application was not maintainable and that the Gram Panchayat did not place any document on record to show that the land had vested in the Gram panchayat under the provisions of the Act. Both the objections raised by the petitioner were not accepted by the District Development and Panchayat Officer, Patiala, exercising the powers of the Collector under the Act. It was held that the Gram Panchayat was the owner of the land and the petitioner was in an unauthorised possession of the land belonging to the Gram Panchayat and, therefore, liable to be ejected. Against this order, petitioner preferred an appeal which was also rejected by the impugned order Annexure P-3, by the Joint Director, Panchayats, Punjab, exercising the powers of the Commissioner. Aggrieved against orders Annexure P-2 and P-3, present writ petition has been filed, interalia, on the grounds that the second application under Section 7 of the Act was not maintainable that the findings recorded by the learned Commissioner in the earlier proceedings holding that the land in dispute was not shamilat deh was res judicata between parties and that the observations made by the learned Commissioner in the earlier proceedings that it would be open to the Gram Panchayat to file a fresh application under Section 7 of the Act were without jurisdiction because the learned Commissioner had recorded a categorical finding in his order holding that the land does not vest in the Gram Panchayat.
5. In response to the notice issued, written statement has been filed.
6. In the written statement filed, it has been pleaded by the Gram Panchayat that the land had vested in the Gram Panchayat under the provisions of the Act and the petitioner was in its unauthorised occupation; that the order passed by the Commissioner dated 8.3.1979 was not final between he parties as in the concluding portion the Commissioner had observed that it would be within the competence to the Gram Panchayat to file a fresh application under Section 7 of the Act in this case in accordance with law and that the second application filed by the Gram Panchayat was, therefore, legally maintainable.
7. Mr. Sarjit Singh, learned Senior Advocate, appearing for the petitioner argued that the second application filed by the Gram Panchayat under Section 7 was not maintainable; that no fresh evidence was produced by the Gram Panchayat to establish that the land in dispute vested in the Gram Panchayat and that in the absence of any such fresh evidence, the findings recorded by the authorities below were illegal and liable to be set aside and that when a question of title is raised then the authorities should have kept the proceedings under Section 7 of the Act in abeyance till the question regarding title was finally determined between the parties under Section 11 of the Act.
8. As against this, Mr. D.S. Nehra, learned Senior Advocate appearing for the Gram Panchayat argue that the question of title had never been raised by the petitioner before the authorities below; that even in the writ petition it has not been stated that a question of title as raised by the petitioner and the authorities below failed to adjudicate the same; that no question of title has been raised in the pleadings of the petitioner in this Court; that the Supreme Court of India in Civil Appeal No. 4372 of 1986 (Gram Panchayat, Mardhanheri, Patiala, Punjab v. Sarwan and Ratti Ram), decided on 22.9.1987, while setting aside the order of this Court in proceedings between the Gram Panchayat, Mardhanheri and Sarwan and Ratti Ram, residents of the village, had held that the Gram panchayat was entitled to take possession of the land measuring 151 kanals and 19 marlas and that once that decision had been given by the Supreme Court of India, the Gram Panchayat, Mardhanheri, was entitled to take possession of the land in dispute from the petitioner as well.
9. I have perused the pleadings between the parties.
10. From the reading of the impugned orders, it is evident that the question of title has not been raised by the petitioner before the authorities below. It has not been stated in this petition that the question of title had been raised but the same had not been adjudicated upon by the authorities. Even in the writ petition, it has not been stated that a question of title was involved and before finally settling the question of title, the Gram Panchayat was not entitled to proceed under Section 7 of the Act. Since, the petitioner failed to raise the point regarding title before the authorities below and take this point in the pleadings in this Court, he cannot succeed on the ground that the authorities below proceeded to pass the order of ejectment under Section 7 of the Act without settling the question of title under Section 11 of the Act at the first instance.
11. Learned counsel for the petitioner relied upon the decision in C.W.P 1165 of 1981 Sant Ram v. Joint Director, Panchayats and Ors., (1995-2) 110 P.L.R. 713 decided on 3.5.1995 by a learned Single Judge of this Court to canvass he proposition that the second application under Section 7 of the Act was not maintainable. No doubt, in C.W.P. No. 1165 of 1981, it has been held by the learned Single Judge of this Court that the second application under Section 7 of the Act was not maintainable but the facts of this case are slightly different from the facts of C.W.P. 1165 of 1981. In that case, question of title had been raised in the earlier proceedings as well as in the subsequent proceedings as the petitioner in that case had claimed that the land in his possession was in Abadi deh and, therefore, cannot form part of shamilat deh. In the present case, the plea regarding title has not been raised. Learned Commissioner, while disposing of the earlier proceedings, had in the last paragraph specifically observed "However, the Panchayat shall be within its competence to file a fresh application under Section 7 in this case in accordance with law". In view of the observations made by the learned Commissioner, the Gram Panchayat had two options either to challenge the order passed by the Commissioner by filing a writ petition in this Court or to apply again under Section 7 of the Act. Gram panchayat opted for the second course and made an application under Section 7 of the Act for the ejectment of the petitioner. Gram Panchayat was given an option to file a fresh application Under Section 7 of the Act by the Commissioner in the previous order. Petitioner could have challenged this portion of the order but he failed to do so. He cannot be permitted now in these proceedings to argue that the right given to the Gram Panchayat to file a fresh application Under Section 7 of the Act was bad in law.
12. Unfortunately the Gram Panchayat failed to produce the evidence before the authorities below to conclusively prove that the land in dispute vested in the Gram Panchayat. In this Court, the Gram Panchayat, along with its written statement, has placed on record certain documents to show that the land had vested in the Gram Panchayat. These documents had not been placed before the authorities below. Authorities below had no occasion to consider these documents.
13. Learned counsel appearing for the Gram Panchayat argued that this Court should take these documents into consideration at this stage specially when under the similar circumstances, the Supreme Court of India has held that the Gram Panchayat was entitled to take possession of 151 kanals and 19 marlas of land belonging to the Gram Panchayat, Mardhanheri.
14. It would not be fair to the petitioner if these documents are taken into consideration as these documents had not been placed before the authorities below and the petitioner had no opportunity to rebut the same. Facts of each case can vary and the judgment relied upon by the learned counsel for the Gram Panchayat may not be applicable to the facts of the present case and the petitioner in all fairness has to be granted a fair chance to protect his interests. The documents which were not placed before the authorities below and which have been placed on record now, under the circumstances cannot be taken into consideration. Keeping in view the peculiar facts and circumstances of the case and in the interest of justice, I deem it proper to accept the writ petition and set aside the impugned orders Annexures P-2 and P-3 and remit the case back to the prescribed authority under the Act for re-deciding the dispute between the parties after affording adequate opportunity to both the parties to adduce evidence in support of their respective contentions. No Costs.
15. Parties, through their counsel, are directed to appear before the prescribed authority on 9.8.1995.