Punjab-Haryana High Court
Shera & Another vs Director on 13 March, 2014
Author: Hemant Gupta
Bench: Hemant Gupta, Surinder Gupta
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision: 13.03.2014
C.W.P.No.4711 of 2014
Shera & another
...Petitioners
Versus
Director, Rural Development & Panchayat Department & others
...Respondents
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE SURINDER GUPTA
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?
Present: Mr. P.K.Gupta, Advocate, for the petitioners.
HEMANT GUPTA, J.
Challenge in the present petition is to an order passed by the Director, Rural Development & Panchayat Department, exercising the powers of the Commissioner on 18.03.2013 (Annexure P-8) affirming the order dated 21.12.2006 (Annexure P-5) passed by the Collector -cum- Divisional Deputy Director, Panchayats, declaring the Panchayat to be the owner of land in dispute.
The Panchayat filed a petition under Section 11 of the Punjab Village Common Lands (Regulation) Act, 1961 (for short 'the Act') claiming its ownership over the land bearing Khewat No.279, Khatauni No.490, Khasra No.55//16(8-0), 24(8-0), 74//5(8-0), 58//11(8-0), 59//26(0-13), 59//17/1(6-0), total measuring 38 kanals 13 marlas situated in village Balbera, Tehsil & District Patiala in the case of the present petitioners apart from some other petitions in respect of other persons relating to separate parcels of land. Kumar Vimal 2014.03.19 12:51 I attest to the accuracy and integrity of this document Chandigarh C.W.P.No.4711 of 2014 2
The Panchayat claimed to be owner of the land, which is a shamlat deh in its possession prior to 1950. The Panchayat is said to have given the land in question to the present petitioners on lease, but after the expiry of lease, the possession was not delivered. It was also asserted that the present petitioners in collusion with the officials of the Revenue Department have taken loan from the Punjab National Bank against the land owned by the Panchayat. It is also pleaded that the land was Banjar Kadim on 09.01.1954 and was made cultivable by the Panchayat after spending huge amount and given on lease. The land was shamlat deh prior to the commencement of the Act and continuous to be owned by Panchayat even after consolidation.
In reply, the ownership and possession of the Panchayat was denied. It was asserted that the land has never been used for common purposes and that the present petitioners have a right to take loan or to alienate the same, as the Panchayat has no concern with this land. It is also pointed out that the Panchayat had earlier filed a petition under Section 7 of the Act, which was dismissed on 30.05.1997. Therefore, the present petition filed on 24.05.2004 is barred by limitation, as the same could be filed only up to 30.05.2000.
The learned Collector considered the order (Ex.R-2) dated 19.11.1966 in proceedings under Section 7 of the Act, wherein a finding was returned that possession of the present petitioners was not unauthorized. The petitioners also relied upon jamabandi Ex.R-1 for the year 2003-04, wherein the petitioners were recorded as owner of the suit land. Considering the entire evidence led by the parties, it was found that from the jamabandi for the year 1998-99, that shamlat deh is recorded as the owner of the land though in Column of Cultivation, name of the present petitioners is mentioned. In Kumar Vimal Column No.12, the land is shown to have been mortgaged with the Bank. 2014.03.19 12:51 I attest to the accuracy and integrity of this document Chandigarh C.W.P.No.4711 of 2014 3 The Gram Panchayat was ordered to get the question of title decided from the competent Court vide order dated 30.05.1997 (Ex.R-5). In view of the fact that the Panchayat is recorded as owner of the suit land, the question of title was decided in favour of the Panchayat.
Initially, an appeal against the said order was dismissed by the Commissioner on 30.10.2009. However, in CWP No.7133 of 2010 preferred against the said order, the order passed by the Commissioner was set aside, when none had put in appearance on behalf of the Panchayat before this Court. The argument on behalf of the petitioners was that the question; whether the land in dispute is Banjar Kadim on 04.05.1961 i.e. the date of the commencement of the Act, has not been decided. Therefore, whether such land was used for common purposes was an issue, which is required to be decided by the Authorities under the Act. In view of the said finding, the matter was remitted.
After remand, the learned Commissioner noticed that as per the Draft Scheme Consolidation, the mutation of 1547-07 standard kanal area of shamlat deh was entered in the name of Nagar Panchayat and that in the jamabandi for the year 1978-79 and 1998-99, produced before the learned Collector, Nagar panchayat has been shown as owner of the land in dispute. There is no document to prove that the petitioners are in continuous cultivating possession of the land in dispute prior to 26.01.1950. For the said reasons, the appeal was dismissed.
Before this Court, learned counsel for the petitioners relied upon jamabandi for the year 2003-04, wherein the petitioners are recorded as owner of the suit land. Reliance is also placed upon a judgment of the Division Bench reported as Naurang Singh (Dead) through LRs Vs. State of Kumar Vimal Punjab 1997 (1) PLR 363 to contend that dismissal of petition under Section 7 2014.03.19 12:51 I attest to the accuracy and integrity of this document Chandigarh C.W.P.No.4711 of 2014 4 of the Act makes the petitioners owner of the suit land, therefore, the petitioners were rightly reflected as owner in the jamabandi for the year 2003-04 and were also competent to raise loan from the Bank, as owner of the suit land.
We have heard learned counsel for the petitioners and find that the present petition is only to continue over the possession of the Panchayat land on one pretext or the other and is without any merit. The first order passed in a petition under Section 7 of the Act is dated 19.11.1966 (Annexure P-2). The stand of the petitioners was that they are in possession of the land in dispute prior to 1950 and that they have made land cultivable after spending a lot of money and also dug a well on the land. A perusal of the order also shows that an argument was raised that the proceedings under Section 7 of the Act have been initiated in the year 1965 though the possession of the petitioners commenced from kharif 1952. It was, thus, argued that the possession of the petitioners is adverse to the owner for more than 12 years. The learned Assistant Collector returned a finding that the petitioners are in possession for more than 12 years, therefore, the possession is not wrongful and unauthorized. Consequently, the notice was discharged.
It appears that the petitioners thereafter filed a suit for injunction before the Civil Court against the Panchayat for restraining the Panchayat from interfering or dispossessing the plaintiffs from the suit land. Such suit was decreed ex parte on 31.05.1986. Another suit was filed by the plaintiffs against Hakam son of Kapura Singh and Kura son of Kishna in view of their threatened dispossession. The said suit was also decreed on 28.01.1999. It is, thereafter, the proceedings under Section 11 of the Act were initiated, wherein the petitioners have been unsuccessful.
Kumar Vimal 2014.03.19 12:51 I attest to the accuracy and integrity of this document Chandigarh C.W.P.No.4711 of 2014 5
The proceedings under Section 7 of the Act are summary proceedings based upon presumption that Panchayat is the owner. It is akin to execution proceedings. There is no adjudication of title in such proceedings and even if any such finding is recorded, it is only for the purposes of deciding an application under Section 7 of the Act. There is no decision on merits regarding question of title.
In Naurang Singh's case (supra), the Assistant Collector has dismissed the eviction petition filed by the Gram Panchayat on 04.05.1967 i.e. prior to the substitution of Section 7 of the Act in the year 1976. The Court held that prior to 1976, there was no special forum to determine the question with respect to vesting of the land in Gram Panchayat, though the questions were to be determined summarily by the Assistant Collector. It was held to the following effect:
"24. Prior to 1976 there was no special forum to determine the question with respect to vesting of the land in dispute in the Gram Panchayat or with respect to the nature of the land. Reading of the Section makes it incumbent that before a Gram Panchayat could be put in possession either vesting of land in dispute in it or nature of the land is not in dispute. In the alternative, the authority was required to determine the nature of possession, vesting of the land in the Gram Panchayat and only then the Authority assumes jurisdiction to put Gram Panchayat into possession, although the questions were to be determined summarily yet the parties adversely affected by the decision could get their right, title or interests determined from the Civil Court.
xx xx xx
32. For the reasons recorded above, we are of the considered view that the order dated 05.04.1967 would operate as res-judicata inter se the parties or in the alternative it would operate as estoppel for the respondent Gram Panchayat to re-litigate the same cause of action before the same forum between the same parties."
The aforesaid judgment, referred to by the learned counsel for the petitioners, was considered by one of us (Hemant Gupta, J.) sitting singly Kumar Vimal 2014.03.19 12:51 I attest to the accuracy and integrity of this document Chandigarh C.W.P.No.4711 of 2014 6 in a judgment reported as Ajit Singh Vs. State of Punjab & others (2011) 3 RCR (Civil) 67, wherein it has been held to the following effect:
"The issue, whether the order passed in proceeding under Section 7 of the Act will operate as res judicata or as an estoppel in proceeding under Section 11 of the Act, is not res-integra. A Division Bench of this Court in judgment Tara Chand and Fateh Singh Vs. Gram Panchayat and Gram Sabha of village Atail and others, 1979 PLJ 1, considered the similar argument as is raised in the present case. It was held that the Assistant Collector trying an application under Section 7 of the Act has to make only summary enquiry and that the language of Section 7 of the Act presupposes that the land about which application is made is shamlat answering the description given in the Act. The Assistant Collector under Section 7 of the Act is a Tribunal of limited jurisdiction and therefore, cannot enter into the enquiry as to whether the land is shamlat or not. Therefore, the question of title decided by the Assistant Collector is prima facie and does not assume finality. It was held to the following effect:
"11. ....the purpose and scope of section 7 is limited only for holding a summary enquiry for the eviction of a person, who is in an unauthorized possession of the immovable property in the shamlat deh which vests or is deemed to have vested in the Panchayat. By no stretch of imagination, this enquiry can include the proceedings for the exclusion of the land from the shamlat deh.
xx xx xx It is well settled that the decision of a Tribunal which does not have jurisdiction to adjudicate upon a particular point, in spite of the party subjecting to its jurisdiction and leading evidence, cannot operate as res judicata on the same matter between the parties. The Assistant Collector Ist Grade deciding the application in summary enquiry, traveled beyond the scope of jurisdiction to give a finding on the title of the petitioners. The finding even when affirmed in appeal so far as the title is concerned, has to be treated as non est. Mere filing of an application under section 7 cannot deprive the party of his right to have recourse to the provisions of section 13-B. He can show cause against his eviction on any plea available to him. He is to move under section 13-B only when his possession is threatened. He can wait to approach the Assistant Collector Ist Grade under section 13-B until an order to evict is passed. It may be quite possible that his plea for resisting the eviction may be unheld by the Assistant Collector deciding the application under section 7. The party failing to invoke the aid of section 13-B during the pendency Kumar Vimal 2014.03.19 12:51 I attest to the accuracy and integrity of this document Chandigarh C.W.P.No.4711 of 2014 7 of the proceedings under section 7 is not estopped to approach the appropriate authority under section 13-b. Any such decision under section 7, as in this case, is neither a res judicata nor the proceedings act as an estoppel against the affected party.
13. The Assistant Collector Ist Grade conducting proceedings under section 13-B is a Tribunal of wider jurisdiction as compared with the same officer under section 7. The latter is a Tribunal of comparatively limited jurisdiction. The Tribunal of limited jurisdiction cannot oust the jurisdiction of a Tribunal with wider jurisdiction even if both the Tribunals are manned by the same person. The separate statutory provisions are made for achieving the interest of justice and the parties cannot be denied their right to have their claims adjudicated from the proper forum by the officers manning such Tribunals, by adopting short-cut methods of summary enquiry."
xxx xxx xxx Recently, the judgment in Rama Sarup's case (supra), mentioned above, has been examined by the learned Single Judge of this Court in a judgment reported as Ram Sawroop Vs. Commissioner, Gurgaon Division, Gurgaon and others, 2009 (4) PLR 458, wherein again finding has been returned that the proceedings under Section 7 of the Act are summary in nature and therefore, the doctrine of res judicata is not applicable to the summary proceedings. In the aforesaid case, it was held that the second application filed under Section 7 of the Act would not be barred by the principle of res judicata.
In view of the aforesaid judgment and the nature of Section 7 of the Act, as inserted vide Act No.19 of 1976, the Collector is empowered to pass an order to put Panchayat in possession of the land which vests and is deemed to have been vested in it under the Act. Such provision pre- supposes the title of the Panchayat over the said property. The jurisdiction of the Collector under Section 7 of the Act is analogous to the execution proceedings. The disputed question of title over any land claimed to be shamlat or otherwise, is required to be adjudicated upon under Section 11 of the Act as substituted by Act No.19 of 1976. While providing alternative mode of adjudication of question of title of the land as shamlat or not, the jurisdiction of the Civil Court was specifically barred. Therefore, in proceedings under Section 11 of the Act, the question of title is adjudicated upon in substitution of the proceedings before the Civil Court and the order passed in such proceeding alone is final and binding on the parties."Kumar Vimal 2014.03.19 12:51 I attest to the accuracy and integrity of this document Chandigarh C.W.P.No.4711 of 2014 8
Earlier a Division Bench of this Court in a short order passed in Amarjit Singh Vs. State of Punjab (2003) 2 RCR (Civil) 664, observed as under:
"5. However, we are unable to accept such contention. The proceedings under Section 7 of the Act are summary in nature, whereas in case of dispute regarding the right, title or interest in the shamilat land, the same can be determined only under Section 11 of the Act. A perusal of the order dated 25.08.1976 would show that notice served under section 7(2) of the Act was withdrawn, whereas subsequent application under Section 7 of the Act was dismissed on 08.04.1982 as an application under section 11 of the Act was filed by the Panchayat. It is the said application under section 11 of the Act which has now been decided by the Commissioner."
Another Division Bench of this Court in LPA No.1369 of 2009 titled 'Jagdish Singh Vs. Director, Rural Development & Panchayat Department, Punjab & others' decided on 10.12.2009, observed as under:
"It has been noticed by the Learned Single Judge that an application was filed to seek ejectment of Ruldu Singh, father of the present appellant, which was allowed on 21.5.1963. The Panchayat has purportedly taken possession thereafter on 7.8.1963. The present appellant has filed a civil suit for declaration that he is owner and in possession of the land in question. The plaint of the said suit was returned to the appellant for the reason that the Civil Court has no jurisdiction to decide the same. Thereafter, the present appellant filed a petition under Section 11 of the Act on 10.6.1997. The said petition was accepted on 13.12.2004. The appeal filed by the Panchayat was dismissed on 20.1.2006. The said orders were impugned by the Panchayat in a writ petition before this Court. The Learned Single Judge has accepted the writ petition on the ground that the Collector has decided the petition under Section 11 of the Act in a summary manner, though such proceedings are required to be decided as a regular suit i.e.,after framing issues and affording opportunity to the parties to lead evidence on such issues. It is the said order which is under challenge in the present appeal.
Learned counsel for the appellant has relied upon the judgment of the Hon'ble Supreme Court in Kannan (dead) by LRs and others v. V.S. Pandurangam (dead) by LRs. and others, AIR 2008 SC 951; the Division Bench judgments of this Court in Ajit Singh v. Joint Development Commissioner, Punjab, 2005(3) PLR 50; Kashmir Singh and others v. Joint Development Commissioner (IRD), Punjab, Chandigarh and others, Kumar Vimal 2014.03.19 12:51 2006(1) Local Acts Reporter 606 and the Single Bench judgments of this I attest to the accuracy and integrity of this document Chandigarh C.W.P.No.4711 of 2014 9 Court reported as Thakur Singh and others v. State of Punjab and others, 1995 PLJ 195 and Tika and others v. Ram Chander & others, 2003(3) PLR 631, wherein it has been held that non-framing of the issues, pales into insignificance if the parties have understood their case and have led evidence in respect of their respective contentions. It is contended that non- framing of the issues is merely an irregularity as the parties have led voluminous evidence before the Collector. Therefore, the matter could not have been remanded back only for the reason that the issues were not framed.
The argument raised by the learned counsel for the appellant on the basis of the aforesaid judgments cannot be said to be incorrect. However, the fact remains that the Learned Single Judge has recorded a finding that the Collector has proceeded to decide the petition under Section 11 of the Act in a summary manner and that the procedure meant for deciding the same as a regular suit, was not followed.
In view of the said fact, the order passed by the Learned Single Judge remitting the matter to the Collector for fresh decision after giving opportunity to the parties to lead evidence in respect of their respective contentions, cannot be said to be incorrect, which may warrant interference by this Court in the present intra Court appeal."
In view of the above, we do not find any merit in the argument raised that the order passed by the Assistant Collector in proceedings under Section 7 of the Act bars the Panchayat from raising the question of title in proceedings under Section 11 of the Act.
Still further, the Assistant Collector in proceedings under Section 7 of the Act has dismissed the petition for the reason of possession of the petitioners from kharif 1952 is for a period of 12 years so as to treat the petitioners to be in adverse possession. Even in the said order, the petitioners are not proved to be in possession prior to 26.01.1950. In fact, there is no assertion that the petitioners are the proprietors and the shamlat deh was created during consolidation by applying pro-rata cut or that the petitioners are in cultivating possession of the land owned by Panchayat not exceeding Kumar Vimal 2014.03.19 12:51 I attest to the accuracy and integrity of this document Chandigarh C.W.P.No.4711 of 2014 10 their share prior to 26.1.1950 so as to exclude the land from being shamlat deh. The land was shamlat even prior to consolidation.
In view of the above, we find that the present petition is nothing, but another attempt to continue in the possession of the land meant for public.
Consequently, we do not find any merit in the present petition. The same is dismissed with costs.
(HEMANT GUPTA)
JUDGE
13.03.2014 (SURINDER GUPTA)
Vimal JUDGE
Kumar Vimal
2014.03.19 12:51
I attest to the accuracy and
integrity of this document
Chandigarh