Punjab-Haryana High Court
Kashmira Singh (Died) Through L.R. vs Gram Panchayat Of Village Budha Khera ... on 1 September, 1999
Equivalent citations: (2000)126PLR195
Author: J.S. Khehar
Bench: J.S. Khehar
ORDER K.K. Srivastava, J.
1. This is an application filed under Section 151 of the Code of Civil Procedure by respondent No. 1 RFA No. 297 of 1990 i.e. Gram Panchayat, Village Budha Khera, District Kamal and another, for recalling order dated 16.9.1993 passed by a learned Single Judge of this Court in RFA No. 297 of 1990 vide which the appeal was allowed in accordance with a compromise arrived at between the parties. This compromise dated 17.8.1993, was arrived at between the appellant Smt. Charan Karu and Roshan Lal, Panch, Gram Panchayat, Budha Khera on behalf of the Gram Panchayat marked C-I on the basis of which the RFA was decided by the learned Single Judge.
2. Kashmira Singh, since deceased and thereafter his daughter/legal representative Smt. Charan Kaur wife of Manjit Singh resident of Budha Khera aforesaid filed the RFA against the order dated 24.10.1998 passed by Additional District Judge, Kamal, dismissing reference petition bearing L.A Case No. 142/4 of 1988 dated 16.4.1988 under section 30 of the Land Acquisition Act. The applicant, Gram Panchayat and the State of Haryana through the Secretary Urban Estate Department, Haryana, Chandigarh, were arrayed as respondents in RFA. The applicant-Gram Panchayat was impleaded through its Sarpanch. In the aforesaid RFA, Panch Roshan Lal and Charan Kaur, daughter of Kashmira Singh filed compromise deed dated 17.8.1993, which was marked as C-1 by the learned Single Judge on 16.9.1993 and which is on record of the file of RFA and the same reads as under:
Compromise Deed.
Respectfully showeth:
1. That we the above parties i.e. the legal representative of Kashmira Singh i.e. Charan Kaur wife of Manjit Singh and daughter of Kashmira Singh R/o Village Budha Khera. Tehsil and District Kamal and Roshan Lal Panch, Gram Panchayat Budha Khera have resolved for this dispute and it has been decided as under:
Since the land in dispute i.e. 14 Kanals 4 marlas comprised in Khewat No. 75/2 was in possession of Kashmira Singh for the last so many years and he had got a decree from the Civil Court dated 23.12.1982 whereby late Kashmira Singh was declare to be owner of the land., therefore, Gram Panchayat is not entitled to any compensation but it is only the legal representatives of Kashmira Singh, who are entitled to the same as per decree. This decree has never been challenged and has attained finality. It has been understood between the parties that in view of this compromise, the compensation of land be given to Smt. Charan Kaur and Gram Panchayat has nothing to do with this land.
Sd/- Charan Kaur d/o Kashmira Singh r/o village Budha Khera Sd/- Panch Roshal Lal, Gram Panchayat, village Budha Khera Dated 17.8.1993.
The learned Single Judge acting on the compromise C-1 disposed of the RFA by the following order:
"The appeal has been compromised. The compromised deed has been placed on the record and is marked as Ex.C-1. The same be made part of the order. In accordance with the compromise between the parties, the appeal is hereby allowed. The compromise amount be paid to Charan Kaur d/o Kashmir Singh, deceased."
Respondent No. 1-Gram Panchayat seeks the recalling of the order dated 16.9.1993, quoted above, on the ground that Roshan Lal, Panch, who had been authorised by resolution No. 2 dated 29.7.1993 to follow up the proceedings of the RFA, travelled beyond his authority to enter into a compromise and consequently acted illegally. The action of Roshan Lal, Panch, is in violation of Rule 16 of the Punjab Village Common Lands (Regulation) Rule, 1964, framed under the Punjab Village Common Lands (Regulation) Act, 1961 as applicable to the State of Haryana. It has been averred in the application in para 3 as under:
"The Sarpanch or Panch so appointed shall not be competent or admit claim of the party suing the Panchayat without prior authorisation by the Panchayat by a resolution in writing passed in a meeting specifically called for the purpose. If any decree or order is passed by the Court as a result of fraud, mis-representation, concealment of facts or collusion with the opposite party, the Sarpanch or Panch shall be personally liable for the loss caused to the Panchayat."
The Compromise, in terms of which the order dated 16.9.1993 in RFA No. 297 of 1990 was passed, therefore, is by Roshan Lal, who was not competent to enter into the compromise or to put signatures on the compromise deed and is a nullity. A compromise which is in violation of law is void and a decree passed in terms of such compromise is illegal in view of Explanation of Rule 3 of Order 23 C.P.C.
It was further alleged that even otherwise the compromise smacks of collusion between Charan Kaur who was then Panch and Roshan Lal, who was then Panch and Opinder Singh who was then Sarpanch, particularly, when award of the Additional District Judge, which was challenged in the RFA, had dismissed the reference under section 30 of the Land Acquisition Act holding that Civil Court had no jurisdiction in the matter. It was also urged that Kashmira Singh (since deceased) had earlier lost his suit for declaration of title under section 13-A of the Punjab Village Common Lands (Regulation) Act. 1961 which was decided by the Assistant Collector, Ist Grade, Karnal, on 23.12.1981 and was upheld in appeal vide order dated 21.9.1982 by the Collector, Karnal. It was mentioned that Kashmira Singh, deceased, was then Sarpanch of Village Budha Khera and he was then in a position to maneuver in his suit by wielding influence on the person following up proceedings in the case on behalf of the Sarpanch. It was further contented that as a result of the decision in the RFA, on the basis of compromise, huge loss of over Rs. 11.63 lacs has been caused to the Gram Panchayat and the aforesaid amount stands paid to Smt. Charan Kaur under order dated 11.6.1994 of then Additional District Judge, Karnal. Additionally, it was mentioned that the matter was enquired into by the S.D.O. (Civil). Karnal and FIR No. 553 dated 24.11.1995 under Sections 406/420/120B IPC was got registered at police Station Sadar, Karnal, which was being investigated. The photo copy of the resolution passed by the Gram Panchayat on 22.6.1996 was annexed with the petition which has been signed by Smt. Parkashi, Sarpanch of the Gram Panchnyat Budha Khera, Karnal, resolving that the application for review/recall in the case be moved and Smt. Parkashi, Sarpanch was authorised to do it.
3. Upon issuance of notice of motion. Smt. Charan Kaur appeared and filed written statement to the application alleging therein that a valid compromised was effected between the parties as Shri Roshan Lal was duly authorised by the Panchayat of the village not only to appear in the proceedings but also for entering into compromise as the father of the appellant had a very good case. It was alleged that the father of appellant (late Kashmira Singh) was declared owner of the property in the year 1982 but compensation was not granted to him and he had to seek a reference under Section 30 of the Land Acquisition Act (for short 'AAA'). It was contended that the application filed under Section 151 C.P.C. by the present Sarpanch-Smt. Parkashi was illegal and not maintainable under Section 151 C.P.C. and was hopeless barred by time inasmuch as the order sought to be recalled was passed way back on 16.9.1993 and application under Section 151 C.P.C. for recalling the order was filed on 28.3.1997. The appellant Charan Kaur, it is alleged, had moved an application for execution and a notice was issued on 13.1.1994 to the Gram Panchayat which refused to accept notice and Munadi was ordered. On 2.4.1994, the Court recorded that Munadi had been effected but none appeared. It is alleged that when the Court ordered the amount to be paid to the appellant, the then Gram Panchayat passed a resolution and thereafter money was paid by the Gram Panchayat to the petitioner by taking loan against its FDR in the year 1994. Money was ordered to be paid out of fixed deposit of the Gram Panchayat vide order dated 10.6.1994 of the Court. The Court vide order dated 17.12.1994 directed the amount to be paid to the appellant. All these orders were passed within the notice of the Gram Panchayat. The Gram Panchayat filed an FIR against Charan Kaur but no auction was taken thereon as the police found that the amount had been withdrawn after due compromise and after due notice to the Gram Panchayat. It was also pointed out that the Gram Panchayat decided to file an application in this Court vide resolution dated 14.10.1995 but nothing was done Subsequently, the Sarpanch of the Gram Panchayat got a resolution passed in her favour dated 22.6.1996 whereas the application under Section 151 CPC was moved in the year 1997. It was reiterated that the Gram Panchayat had passed a resolution and Roshan Lal, Panch was authorised to compromise the matter. After the compromise was effected and money was withdrawn, the pages on which the resolution was passed in the proceedings book were removed by tearing them from the proceedings book. It was alleged that this was found by the police during investigation of the case. Even the Block Development and Panchayat Officer to whom the complaint was made also found that pages of the resolution book in which proceedings were recorded had been removed. The Panchayat was trying to take benefit of the fact that the original resolution from the book has been removed. The allegation regarding the collusion between the Sarpanch and the appellant-Charan Kaur was categorically denied. It was contended that the Sarpanch, with the majority of the Panches, had decided to compromise the matter. The Civil Court had decided the cases in favour of Sardar Kashmir Singh who was declared to be the owner vide judgment and decree dated 23.12.1982.
4. The applicant-Gram Panchayat-respondent in RFA filed replication to the written statement of Smt. Charan Kaur. In the replication, the allegation made about the compromise being valid and entered into by the Panch Roshan Lal, who was empowered by the resolution of the Gram Panchayat, was denied. The existence of any resolution authorising-Roshan Lal, Panch was denied. It was mentioned that no compromise alleged to have been signed by. Roshan Lal, Panch dated 17.8.1993 is on the file of this Court. The statement dated 16.9.1993 of Roshan Lal, Panch, mentions that compromise bears a signature. The statement dated 16.9.1993 of Charan Kaur referred to the statement of Roshan Lal. The order dated 16.9.1993 passed by this Court mentioned the compromise deed having been placed on record and marked C-1 and the same was made part of the Court order. It was also mentioned that the Gram Panchayat never passed a resolution authorising either Roshan Lal, then Panch or Opinder Singh, then Sarpanch to enter into the compromise nor any copy of such a resolution was produced in this Court in RFA No. 297 of 1990. The maintainability of the application under Section 151 C.P.C. was defended and it was alleged that in the absence of any specific provision, the Court could exercise powers under Section 151 C.P.C. The other allegations made in the written statement were denied and it was alleged that at the time when the application for execution of the impugned order was made, then Opinder Singh was the Sarpanch who continued to be so when order were passed by the Court for payment of the dues to Charan Kaur out of the fixed deposit receipt. It was reiterated that Opinder Singh, Sarpanch, along with Roshan Lal, Panch, colluded with Charan Kaur who was also the Panch of the Gram Panchayat from November 1991 to December 1994. The delay in filing the application was, thus, on this account. Regarding the present application having been filed in 1997, it was alleged in para 5 of the replication that Opinder Singh was authorised to initiate proceedings to challenge the impugned order vide resolution dated 14.10.1995 but he did not take any action in the matter and by subsequent resolution dated 22.6.1996 the present Sarpanch was authorised to take action in the matter and she engaged a counsel on 17.7.1996 and thereafter documents necessary for filing application were obtained and made available to the counsel, who filed application on 28.3.1997. It was denied that there had been unnecessary delay in filing the present application.
5. The appellant in the RFA, namely. Charan Kaur, who is respondent in this miscellaneous application moved a Civil Miscellaneous Application No. 5105-C1 of 1998 seeking permission to file copy of resolution dated 29.7.1993 Annexure A-1. It is on the printed book of the Gram Panchayat Budha Khera along with its English Translation. This Civil Miscellaneous was opposed by the applicant-respondent No. 1 Gram Panchayat on the ground that the copy of the resolution, which was being filed, was not correct and the true copy of the resolution which was passed by the Gram Panchayat along with its English translation, was being attached with the reply as Annexure R/X. The copy of the resolution dated 29.7.1993, Annexure R/X, is sent by the present Sarpanch Parkashi. The copy of the resolution Annexure A-1 has been prepared on the original printed book of the Gram Panchayat and the same had been signed by Opinder Singh, In order to properly consider the rival contentions of the parties, we deem it appropriate to allow this miscellaneous application filed by Smt. Charan Kaur and accordingly, allow the same and permit the copy of the resolution Annexure A-1 to be placed on record of the Civil miscellaneous No. 1730-CI of 1997 filed under Section 151 C.P.C.
6. It is significant to note that Opinder Singh was the Sarpanch at the relevant time when the RFA pending in this Court was said to be compromised. Roshan Lal who signed the compromise deed was undisputedly the Panch of the Gram Panchayat. The compromise deed which was filed in this Court before the learned Single Judge in RFA is on record and the same has been marked as C-1 and it bears the signatures of Roshan Lal, Panch, Gram Panchayat, Budha Khera and Smt. Charan Kaur daughter of Kashmira Singh. This compromise deed is dated 17.8.1993. A perusal of Annexure A-1 which has been taken on record and which is the copy of the resolution of the Gram Panchayat shows that the Gram Panchayat unanimously resolved to authorise Shri Roshan Lal, Panch to follow the proceedings in this Court and was also authorised to take a decision in this case. It was also mentioned in the resolution that the land about which that compensation' was being claimed by Kashimira Singh belonged to him and the Panchayat had no concern with the same. It was, thus, the stand taken by Gram Panchayat at that time i.e. 29.7.1993 that the matter which was a pending in this Court at the instance of Kashmira Singh be decided and Roshan Lal, Panch, was authorised to take appropriate proceedings in this court and take a decision regarding the matter. As mentioned earlier, the compromise deed has been signed by Roshan Lal, Panch, who under the resolution aforesaid was authorised to take the decision regarding the case. The learned Single Judge acted on the compromise deed aforesaid and passed the order which is sought to be recalled by the Gram Panchayat now. We find that the Gram Panchayat had resolved to authorise Roshan Lal to take a decision in the matter and the said Roshan Lal, Panch signed the compromise deed which had been perused by the learned Single Judge of this court, who had marked it as C-1 and acted thereon. There was no challenge to the authority of Roshan Lal, Panch, of the Gram Panchayat to enter into the compromise. It cannot, this, be said that the learned Single Judge of this Court committed an error apparent on the face of record to decide the RFA in pursuance of the compromise deed presented before the Court on behalf of the parties i.e. Charan Kaur. daughter of Kashmira Singh-deceased, appellant and Roshan Lal, Panch representing the Gram Panchayat Budha Khera. In other words, the order which is sought to be recalled by the Gram panchayat by means of this application cannot be said to be contrary to law or unlawful.
7. It may be mentioned that the applicant-Gram Panchayat, Budha Khera has assailed the action of Roshan Lal, Panch and for that matter action of Opinder Singh, Sarpanch of the Gram Panchayat at that time, on the allegation that they have colluded with the appellant and acted contrary to the interest of the Gram Panchayat, and thereby causing huge financial loss to the Gram Panchayat. The allegations which have now been levelled by the Gram Panchayat against the aforesaid Opinder Singh and Roshan Lal are about their not only colluding with the appellant but relate to committing fraud and misrepresentation and thereby causing loss to the Gram Panchayat. We are of the considered view that in this case under section 151 C.P.C., we cannot properly consider and examine the merit or demerit of the rival contentions. The allegation, which have been made in the application show the fraud or mis-representation, which is alleged on the part of Roshan Lal and Opinder Singh, are to be proved before a Court of competent jurisdiction by leading appropriate evidence. The transaction has been entered into by Roshan Lal as a co-author of compromise with the appellant and if Roshan Lal is accused of committing fraud or mis-representation on the Gram Panchayat, the same is a voidable act and not void ab-initio, and till these allegations are proved as a fact before a Court of competent jurisdiction, this Court cannot take judicial note of these allegations. In this view of the matter, the remedy of the applicant would be by filing a civil suit challenging the impugned order passed on the basis of the compromise by proving therein the allegations of fraud or mis-representation etc. against the then Sarpanch Opinder Singh and Panch Roshan Lal. This matter cannot, thus, be appropriately examined within the purview of Section 151 C.P.C. and in this regard the provisions of Order 23 Rule 3-A would be of no bar. Order 23 Rule 3-A C.P.C. provides that no suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. In the instant case, the facts and circumstances which have been shown in the application filed under Section 151 C.P.C. by the Gram Panchayat Clearly show that the action of Roshan Lal, Panch and Opinder Singh, Sarpanch is said to be the result of fraud and mis-representation which cannot be assumed but which are to be proved and the same can properly be done in an independent civil suit filed by the Gram Panchayat. The learned counsel for both the sides have placed reliance on the judgment of a learned Single Judge of the Karnataka High Court regarding the scope of Order 23 Rule 3A, C.P.C. The learned counsel for the applicant has relied on Smt. Tara Bai v. V.S. Krishnaswamy Rao, A.I.R. 1985 Karnataka 270 and expressed the view that under Section 151 C.P.C. the Court is not helpless even in cases where the compromise has been recorded by the Court when fraud has been perpetuated by either of the parties. Thus, it appears to me that Section 151 C.P.C. is the only section that is applicable to such cases. In the case of Smt. Tara Bai (supra) the facts stated briefly are as under:
"One Srinivasarao died leaving behind him his widow defendant 1 and two daughters defendant 2 Tara Bai and defendant 3 Shanta Bai and a son Krishnaswamy Rao, plaintiff. The plaintiff filed a suit - O.S. No. 192/77 for partition and possession of his 5/8th share in the suit property. Later on a joint Memo signed by all the parties and their advocates was filed in the suit on 21.9.1979 stating that the plaintiff Krishnaswamy Rao was entitled to 5/8th share and each of defendants 1 to 3 was entitled to l/8th share. Accordingly, a preliminary decree in terms of the joint Memo was ordered to be drawn up on 21.9.1979. Therefore an application for final decree in F.D.P. No. 18.80 was filed by the plaintiff on 16.8.1990. The present revision petitioner-defendants 2 appears in the decree final proceedings and consented on 13.2.1981 to the appointment of the Commissioner. The Court fixed 18.2.1981 for inspection of the property by the Commissioner. The Commissioner thereafter submitted his report. The Court fixed 6.4.1981 for the objections of the parties, if any, to the Commissioner's report. On that day i.e. 6.4.1981, defendant 2 Tara Bai filed the present Memo/Application under Section 151 C.P.C. alleging that the said joint Memo in terms of which a preliminary decree was passed was vitiated by fraud and that her signature was obtained to that joint Memo by practising fraud or misrepresentation."
The plaintiff opposed the application which was dismissed and the matter was taken to the High Court. It was under these facts that the learned Single Judge held that a fresh suit was barred under order 23 Rule 3A C.P.C. and the matter could be examined on an application moved under Section 151 C.P.C.
8. Another learned Single Judge of the same high Court i.e. the Karnataka High Court in S.G. Thimmappa v. T. Anantha and Ors., A.I.R. 1986 Karnataka 1, after examining a catena of judgments of the various High Courts considered the expression "lawful agreement on compromise"; occurring in order 23 Rule 3A C.P.C. and held as under:
"By lawful, it means it is not contrary to law, public policy or void ab initio, or unlawful, but it cannot include the grounds like fraud, undue influence, coercion, by which the decree lawful, for the limited purpose of 0.23, R.3 C.P.C."
"A contract or agreement may be lawful but it can still be challenged on the ground that it was entered into or achieved by exercising fraud, undue influence or coercion and can be avoided. This aspect of the matter is not covered by the words 'not lawful' occurring in Rule 3A of 0.23 C.P.C. Therefore, to hold that the compromise decree cannot be challenged on the ground of fraud, undue influence or coercion under R.3A would not be correct...."
We are of the considered opinion that view expressed in the case of S.G. Thimmappa (supra) shows the correct position of law.
9. In the instant case the Gram Panchayat which was represented in RFA by Roshan Lal, Panch, under resolution of the Gram Panchayat, made a statement before the learned Single Judge of this Court who acted on the compromise dead and passed the order which is sought to be recalled in this application under Section 151 C.P.C. The action of Roshan Lal, Panch, alleged to be vitiated by fraud, undue influence etc. cannot be said to be void ab initio but the same is only voidable and the same can be avoided till it is proved to be void in a appropriate civil suit filed before a Civil Court of competent jurisdiction.
10. In view of the foregoing discussion, we are of the considered view that the application under Section 151 C.P.C. has no merit and is also not maintainable and is dismissed.