Punjab-Haryana High Court
Ujagar Singh vs The Joint Director Panchayats on 22 May, 2013
Author: Rekha Mittal
Bench: Rajive Bhalla, Rekha Mittal
Civil Writ Petition No. 5408 of 1987 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
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Civil Writ Petition No. 5408 of 1987(O&M)
Date of decision: 22.05.2013
Ujagar Singh ........ Petitioner
Versus
The Joint Director Panchayats, Punjab and others .......Respondent(s)
Coram: Hon'ble Mr. Justice Rajive Bhalla
Hon'ble Mrs. Justice Rekha Mittal
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Present: Mr. Jai Bhagwan Sharma, Advocate
for the petitioner
Ms Vandana Malhotra, Addl. A.G, Punjab
for the respondent Nos. 1 and 2
Mr. Gurcharan Singh, Advocate
for respondent No. 3
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1. Whether Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in
the Digest?
Rekha Mittal, J.
The petitioner prays for issuance of a writ of certiorari quashing orders dated 10.01.1985 and 30.04.1987 (Annexures P8 and P9), passed by the Collector/Divisional Deputy Director Rural Development and Panchayat, Patiala and the Joint Director Panchayats, Punjab (exercising the powers of 'Commissioner'), respectively, whereby the petition filed under Section 11 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as 'the 1961 Act') has been dismissed and the order passed by the Collector, Patiala has been affirmed in appeal.
The brief facts of this case are that the Gram Panchayat, Challela, Tehsil Sirhind, District Patiala, filed an application under Section 7 of the 1961 Act for ejectment of the petitioner along with respondents No. Civil Writ Petition No. 5408 of 1987 (O&M) 2 4 to 6, by alleging that they are in unauthorized possession of the land, measuring 140 kanals 15 marlas, which is 'shamilat deh'. The application filed by the Gram Panchayat was dismissed, except to the extent of 2 kanals 7 marlas, which was held to be in excess of entitlement of the petitioner and respondents No. 4 to 6.
The Gram Panchayat filed an appeal before the Commissioner, who vide order dated 07.03.1967 accepted the appeal, set aside the order passed by the Collector and remanded the case for decision afresh. The Assistant Collector, Patiala ordered the ejectment of the petitioner along with respondents No. 4 to 6, vide order dated 25.03.1968. The petitioner along with respondents No. 4 to 6 filed an appeal before the Collector, who accepted the appeal, set aside the order and remanded the case to the Assistant Collector, Ist Grade, for adjudication afresh. The proceedings before the Assistant Collector, Ist Grade, Fatehgarh Sahib eventually resulted in dismissal of the application in default on 13.05.1971.
The Gram Panchayat again filed a petition for ejectment of the petitioner and respondents No. 4 to 6 on the plea that the petitioner and respondents No. 4 to 6 are in illegal and unauthorized possession of 'shamilat deh'. The petitioner and respondents No. 4 to 6 raised a plea that the land does not vest in the Gram Panchayat and as the earlier application for ejectment was dismissed, the present petition is barred by the principle of res judicata. The petitioner also fled a petition under Section 11 of the 1961 Act, for declaration of his title to the land, in question. The application filed by the Gram Panchayat for ejectment and the petition filed under Section 11 of the 1961 Act were decided together, vide order dated 10.01.1985 (Annexure P8). The petition filed by the petitioner under Civil Writ Petition No. 5408 of 1987 (O&M) 3 Section 11 of the 1961 Act was dismissed, but the petitioner and respondents No. 4 to 6 were ordered to be ejected from the land, in dispute. Feeling aggrieved, the petitioner filed an appeal before the Joint Director Panchayat (exercising the powers of 'Commissioner'). The appeal was also dismissed, vide order dated 30.04.1987 (Annexure P9).
Counsel for the petitioner submits that the petitioner and respondents No. 4 to 6 have become owners of the land, in dispute, as the land was "banjar qadim' prior to 26.01.1950 and the petitioner and respondents No. 4 to 6 are in its possession before 26.01.1950. It is further argued that the land, in dispute, was allotted in favour of the petitioner and respondents No. 4 to 6 during consolidation of the village as reflected in Khatauni Pamaish (Annexure P1). It is submitted that as the petitioner and respondents No. 4 to 6 are owners of the land, in dispute, they are not liable to be ejected and, therefore, the order passed by the authorities dismissing their petition for declaration of title and allowing the application filed by the Gram Panchayat for their ejectment is liable to be set aside. It is further argued that as the earlier application filed by the Gram Panchayat for ejectment of the petitioner and respondents No. 4 to 6 was dismissed on 13.05.1971, the subsequent proceedings for eviction are barred by the principle of res judicata.
Counsel for the contesting respondent-Gram Panchayat argues that the petitioner and respondents No. 4 to 6 are in illegal and unauthorized possession of 'shamilat deh', which vests in the Gram Panchayat and they have been rightly ordered to be evicted from the land, in dispute. It is further argued that an order passed in summary proceedings under Section 7 of the 1961 Act, does not operate as res judicata in proceedings for Civil Writ Petition No. 5408 of 1987 (O&M) 4 adjudication of question of title, under Section 11 of the 1961 Act. It is argued that as the earlier application for eviction of the petitioner was dismissed for want of prosecution, there was no adjudication on merits, therefore, the plea of res judicata is even otherwise not available to the petitioner. According to counsel, the petitioner has failed to adduce any evidence to substantiate his plea that the land, in question, was "banjar qadim' on the date of commencement of the 1961 Act, which came into force on 04.05.1961, to claim that the land, in dispute, is not included in 'shamilat deh', under Section 2(g) (3) of the 1961 Act. The petitioner has also failed to lead any evidence to prove that he has become owner of the land, in dispute, by virtue of its exclusion under Section 2 (g) (viii) of the 1961 Act on the basis of his plea of possession prior to 26.01.1950. The last submission made by counsel is that order dated 04.09.1985, passed by the Director Consolidation of Holdings, Punjab relied upon by the petitioner in view of averments in para 16 of the petition has already been set aside by this Court in the case 'Gram Panchayat Chalela and another v. The Director, Consolidation of Holdings Punjab and others', reported as The Punjab Law Reporter Vol. CXXXVII (2004-2) 357.
We have heard counsel for the parties, perused the impugned orders and the documents on record.
Counsel for the petitioner has not disputed that the land, in dispute, is 'shamilat deh' and the same has been recorded as 'shamilat deh Hasad Rasad Khewat' in the revenue record. The Gram Panchayat initiated proceedings for eviction of the petitioner and respondents No. 4 to 6 in the year 1965-66, which eventually culminated in order dated 13.05.1971, whereby, the application of the Gram Panchayat was dismissed for want of Civil Writ Petition No. 5408 of 1987 (O&M) 5 prosecution, without adjudication on merits. The Gram Panchayat again filed a petition under Section 7 of the 1961 Act for recovery of possession by alleging that the petitioner and respondents No. 4 to 6 are in illegal and unauthorized possession of the land, in dispute. The petitioner and respondents No. 4 to 6 filed their reply and contested the eviction proceedings. However, Ujagar Singh, petitioner, filed a petition under Section 11 of the 1961 Act for declaring him as owner of the land, in dispute. The proceedings for eviction as well as petition raising the question of title were heard and disposed of by a common order dated 10.01.1985, whereby the application for eviction filed by the Gram Panchayat was accepted and the claim of the petitioner in regard to his ownership of the land, in question, was rejected. The appeal preferred by Ujagar Singh, petitioner and Harnek Singh, his brother, was dismissed by the Appellate Authority on 30.04.1987.
A perusal of averments of the petition for declaration of ownership filed by the petitioner would reveal that the petitioner has raised two fold pleas. The first plea raised by the petitioner is that the land, in question, was "banjar qadim' and was never used for common purposes of the village. Another plea raised by the petitioner is that he is in possession of the land continuously before 26.01.1950 being one of the khewatdars of the village. Counsel for the petitioner, during the course of arguments, has not challenged the correctness of the findings recorded by the Collector based upon entries in jamabandis and khasra girdawaries produced as evidence that the land in possession of the petitioner was "banjar qadim' in the year 1950 and the same was made cultivable in the year 1954. Counsel has also not disputed that after 1954, the land in possession of the petitioner Civil Writ Petition No. 5408 of 1987 (O&M) 6 remained cultivated and was not "banjar qadim'.
Before we proceed further, it would be appropriate to refer to a relevant extract from Section 2(g), which reads as follows:-
2(g) "shamilat deh" includes-
(1) lands described in the revenue records as shamilat deh excluding abadi deh;
(2) xx xx xx (3) lands described in the revenue records as shamilat, Tarafs, Pattis, Pannas and Tholas and used according to revenue records for the benefit of the village community or a part thereof, or for common purposes of the village;
(4) xx xx xx (5) lands in any village describes as banjar qadim and used for common purposes of the village, according to revenue records;
but does not include land which--
(i) xx xx xx xx
to
(vii) xx xx xx xx
(viii) was shamilat deh, was assessed to land revenue and has been in the individual cultivating possession of co-sharers not being in excess of their respective shares in such shamilat deh on or before the 26th January, 1950; or
(ix) xx xx xx xx"
In order to seek exclusion of land from 'shamilat deh' under Section 2(g) (viii) of the 1961 Act, on the plea of possession prior to 26.01.1950, the petitioner has to prove:-
i) cultivating possession over the land on or before 26.01.1950;Civil Writ Petition No. 5408 of 1987 (O&M) 7
ii) the land being assessed to land revenue; and
iii) the land in possession being not in excess of share in such 'shamilat deh'.
As the petitioner does not challenge the correctness of the entries in the revenue record as well as the findings of the Collector that the land in possession of the petitioner was 'banjar qadim' prior to 1954, the plea of the petitioner with regard to cultivating possession on or before 26.01.1950, merits rejection. This apart, as the land was 'banjar qadim' before 1954, that is uncultivated land which had remained fallow for the last eight or more harvests, there would be no assessment of land revenue as the land revenue is assessed only on cultivated land. The petitioner did not adduce any evidence to prove his share in 'shamilat deh' of the village. In this view of the matter, there is no merit in the contention of the petitioner that he along with respondents No. 4 to 6 became owner of the land, in dispute, by invoking Section 2(g) (viii) of the 1961 Act.
Another issue which arises for consideration is whether the land was 'banjar qadim' on 04.05.1961, the date on which the 1961 Act came into force. Before proceeding further, we would like to clarify that the entire 'shamilat deh' stood vested in the Gram Panchayat, under Section 3 of the Pepsu Village Common Lands (Regulation) Act, 1954. The aforesaid Act was repealed and re-enacted the 1961 Act. The 1961 Act defined 'shamilat deh' and created certain exceptions in the form of exclusion clauses thereby excluding certain lands from 'shamilat deh'.
A perusal of Section 2(g) (5) makes it manifest that the land described as 'banjar qadim' can be included in 'shamilat deh' only if it is used for common purposes of the village according to revenue record. As Civil Writ Petition No. 5408 of 1987 (O&M) 8 the land, in dispute, was not 'banjar qadim' on the relevant date i.e. 4.05.1961, the plea of the petitioner claiming ownership of the land, in dispute, by invoking Section 2(g) (5) has been rightly rejected by revenue authorities, though the Collector has wrongly held that the relevant date for proving the land as 'banjar qadim' is 09.01.1954 in place of 04.05.1961.
Another important aspect which requires consideration is that the petitioner filed a petition under Section 11 of the 1961 Act in regard to the land, measuring 140 kanals 15 marlas mentioning post consolidation rectangle numbers and khasra numbers. The petitioner, in order to connect the land in his possession prior to consolidation with the land, in dispute or to prove that the land in dispute was allotted to the petitioner and respondents No. 4 and 6 in lieu of land in their possession before consolidation, produced one of the documents of consolidation, namely, Khatauni Pamaish (Annexure P1).
During consolidation of holdings under the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (in short, 'the 1948 Act'), five documents are prepared in the following seriatim:-
i) Khatauni Ishtemal;
ii) Naksha Haqdarwar;
iii) Register Karwai;
iv) Khatauni Pamaish; and
v) Misl Haquiat (final document of consolidation)
The petitioner has, however, produced only the Khatauni
Pamaish. We would like to clarify that in Khatauni Pamaish, the newly allotted khasra numbers as mentioned in the Register Karwai are Civil Writ Petition No. 5408 of 1987 (O&M) 9 incorporated and it also mentions against each new number, an old khasra number i.e. the khasra numbers out of which the new number has been carved out. The old numbers given may or may not be the previous ownership numbers of the right holders. As per Khatauni Pamaish (Annexure P1), the land of new khasra numbers mentioned in the petition under Section 11 of the 1961 Act was carved out from the old khasra numbers mentioned in column no. 1 of the document. It is none of the plea of the petitioner that old khasra numbers mentioned in column no. 1 of Annexure P1 were in possession of the petitioner and respondents No. 4 to
6. The petitioner has not produced the final document of consolidation i.e. misl haquiat in order to connect the land, in dispute, with the land which was in occupation of the petitioner and respondents No. 4 to 6 prior to consolidation or before 26.01.1950. The misl Haquiat is the first jamabandi prepared after consolidation of holdings and it contains old khasra numbers as well as the newly allotted khasra numbers of the right holders. The petitioner has failed to adduce any evidence to connect the land, in dispute with the land in his possession prior to consolidation of holdings in the village.
Counsel for the petitioner has not disputed that the order passed by the Director , Consolidation of Holdings in his favour has already been set aside by the judgment referred to by counsel for the Gram Panchayat in Gram Panchayat Chalela and another (supra). In the said case, this Court, while relying upon a decision of the Hon'ble Supreme Court in the case of Gram Panchayat, Nurpur v. State of Punjab (1997-2) 116 P.L.R. 694 (S.C.), held that the Additional Director, Consolidation of Holdings has no authority to go into the question whether the land in Civil Writ Petition No. 5408 of 1987 (O&M) 10 dispute was 'shamilat deh' or not and such a question could only be determined in proceedings under Section 11 of the 1961 Act.
To be fair with the counsel for the petitioner, the plea of the petitioner that order passed in earlier eviction proceedings operates as res judicata in the subsequent proceedings for eviction decided on 10.01.1985, is misconceived and merits rejection. Firstly, no decision on merits was made in the earlier ejectment proceedings, dismissed for want of prosecution. Even otherwise, the proceedings under section 7 are summary in nature, therefore, a decision in such summary proceedings does not constitute res judicata in subsequent eviction proceedings. Reference in this context can be made to a Division Bench judgment of this Court in 'Rama Sarup and others v. State of Haryana and others, 2006(4) R.C.R. (Civil
350). This apart, as the plea of ownership set up by the petitioner was rejected after due consideration of the entire matter in right perspective, the Gram Panchayat got a fresh cause of action to recover possession from the petitioner and respondent Nos. 4 to 6, who cannot be allowed to perpetuate their illegal possession, without any right, title or interest.
In view of what has been discussed herein above, finding no merit in the petition, the same is accordingly dismissed. The impugned orders (Annexure P8 and P9), passed by the Collector and the Commissioner, respectively, are affirmed. No order as to costs.
(Rekha Mittal) Judge (Rajive Bhalla) Judge 22.05.2013 mohan