Punjab-Haryana High Court
Parkash Singh And Others vs Joint Development Commissioner on 6 July, 2012
Author: Rajive Bhalla
Bench: Rajive Bhalla, Rakesh Kumar Jain
Civil Writ Petition No.2318 of 2002 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Writ Petition No.2318 of 2002
Date of Order: 6th July, 2012
Parkash Singh and others ...Petitioner
Versus
Joint Development Commissioner,
Punjab and others. ..Respondents
CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA
HON'BLE MR. JUSTICE RAKESH KUMAR JAIN
Present: Mr. P.K.Gupta, Advocate,for the petitioners
Mr. Manoj Bajaj, Addl. A.G.,Punjab
for the State.
Mr. Arun Jain, Senior Advocate with
Mr. Amit Jain, Advocate
Mr. Abhinash Jain, Advocate
for Mr. B.R.Mahajan, Advocate
for respondent no.3 in CWP No.2318 of 2003.
Mr. Rakesh Chopra, Advocate
for respondent-Gram Panchayat
Mr. Ashok Singla, Advocate
RAJIVE BHALLA, J.
A reference has been made by one of us (Rajive Bhalla, J.) to a larger Bench with respect to the following questions:-
"1. Whether a Director Consolidation, exercising power under the East Punjab Civil Writ Petition No.2318 of 2002 -2- 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?"
We have heard counsel for the parties.
In order to place the aforementioned questions in Civil Writ Petition No.2318 of 2002 -3- their correct perspective, we would briefly refer to the facts.
The writ petition has been filed by a set of petitioners supported by a set of proforma respondents, who claim that as they are co-sharers/proprietors in the land in dispute, they filed a petition under Section 42 of the East Punjab Consolidation of Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter referred to as 'the Consolidation Act') for partition of the land. The petitioners etc. pleaded that as before consolidation, the land was "Shamilat Deh Hasab Rasad Malgujari as per jamabandi for the year 1951-52, the land should have been partitioned amongst right holders of this khewat, at the time of consolidation. The Gram Panchayat was arrayed as respondent no.3. The Additional Director Consolidation, Punjab, allowed the petition on 03.09.1996 and directed that the land to be partitioned amongst right holders.
Aggrieved by this order, the Gram Panchayat filed Civil Writ Petition No.9162 of 1996, which was dismissed by a Division Bench on 03.07.1996, by passing the following order:-
"No merit, dismissed".
The Gram Panchayat, filed Special Leave Petition No.16450 of 1996, which was dismissed on 02.09.1996, by passing the following order:-
"Upon hearing counsel the court made the following order:-Civil Writ Petition No.2318 of 2002 -4-
The Special Leave Petition is dismissed."
Ram Lal etc., residents/proprietors of the village, filed Civil Writ Petition No.10113 of 1996, impugning the validity of order dated 03.09.1996, passed by the Additional Director Consolidation. The writ petition was dismissed on 21.03.1997, by passing the following order:-
"On 3.3.96 Hon'ble Mr. Justice A.S.Nehra and Hon'ble Mr. Justice V.K.Jhanji, JJ have already upheld the impugned order of the Additional Director in Civil Writ Petition No.9162 of 1996 by passing the following order in limine:-
No merit. Dismissed.
The aforementioned order was upheld by Hon'ble Supreme Court in SLP No.16450 of 1996. No interference in writ jurisdiction is called for. Dismissed at this stage of motion hearing.
Sd/- N.C.Jain, Judge.
Sd/- Sarojini Saksena, J Dated: 21.3.1997 Judges."
Ram Lal etc., filed Special Leave Petition No.9237 of 1997, which was dismissed on 07.05.1997 and the following order was passed:-Civil Writ Petition No.2318 of 2002 -5-
"Upon hearing counsel the court made the following order:-
The Special Leave Petition is
dismissed."
Another set of residents, namely, Chunni Lal and others filed Civil Writ Petition No.7263 of 1997, challenging the order dated 03.03.1996, passed by the Additional Director Consolidation, Punjab, which was dismissed on 10.02.1998 and the following order as passed:-
"Challenge in this writ petition under Articles 226 and 227 of the Constitution of India is to the order dated 3.6.1996 Annexure P.6, passed by the Addl. Director Consolidation of Holdings at the instance of some of the tenants allegedly in possession of a part of the land in dispute. By the impugned order the Addl. Director Consolidation of Holdings came to the conclusion that there was a document of transfer of title with the respondent-gram panchayat as required by law and thus the mutation sanctioned in its favour is illegal, null and void and the same has no effect on the rights of the petitioner therein. Consequently, the land bearing khewat no.77 was ordered to be Civil Writ Petition No.2318 of 2002 -6- partitioned amongst the right holders of the village. Hence this petition.
In response to notice of motion, private respondents have put in appearance and filed reply. The petitioners filed replication to the written statement filed by the respondents.
After hearing learned counsel for the parties and perusing the record we are of the opinion that this petition deserves to be dismissed. Respondent Gram Panchayat challenged the order dated 3.6.1996 by filing a writ petition in this court being CWP No.9162 of 1996 which was dismissed in limine by order dated 3.7.1996. Special Leave Petition against the order of a Division Bench of this court passed in CWP No.9162 of 1996 was dismissed by the apex court by order dated 2.9.1996. Not only this Ram Lal and others the tenants on a part of the land in dispute filed another writ petition challenging the order dated 3.6.1996 being CWP No.10113 of 1996. Special Leave Petition at the instance of Ram Lal and others against the order of this court was dismissed by the apex court by order dated 7.5.1997. The Civil Writ Petition No.2318 of 2002 -7- petitioners as already noticed are some of other tenants on a part of the land in dispute. They have challenged the order dated 3.6.1996 now again on the same grounds on which same challenged in CWP No.10113 of 1996. Thus in view of the dismissal of the above two writ petitions being CWP No.9162 of 1996 and 10113 of 1996 filed on two different occasions challenging the same order which has been challenged now in this writ petition also, we see no ground to interfere especially having regard to the fact that special leave petitions preferred on each of the two occasions against the dismissal of the writ petitions were dismissed by the Supreme Court. Challenge having already failed at least two occasions earlier, we are not now inclined to permit the petitioners to take up the issue/matter which has been settled upto the Supreme Court.
The writ petition is consequently dismissed.
Sd/- G.C.Garg Sd/- N.K.Aggarwal Judges"Civil Writ Petition No.2318 of 2002 -8-
A Special Leave Petition No.7593 of 1998 was dismissed on 22.02.1999.
The Gram Panchayat, thereafter, filed a petition under Section 11 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as 'the 1961 Act') for declaration of its ownership and prayed that the petitioners should be restrained from alienating or partitioning the land. The petitioners put in appearance, filed a reply and after parties led evidence, the Collector dismissed the petition on 14.01.1999. The Gram Panchayat filed an appeal, which was allowed by the Joint Development Commissioner, Punjab, Chandigarh, (exercising the powers of 'Commissioner') under Section 11(2) of the 1961 Act, by remanding the case to the Collector, Fatehgarh Sahib, with an observation that the question of title be decided after taking into consideration evidence adduced by both parties.
The writ petition has been filed by the petitioners challenging order passed by the appellate authority, primarily on the ground that as order passed by the Additional Director Consolidation of Holdings, holding that Gram Panchayat is not owner and directing partition of the land amongst proprietors having been affirmed by the High Court and by the Hon'ble Supreme Court on three separate occasions, the Appellate Authority has erred in remanding the case for decision of a Civil Writ Petition No.2318 of 2002 -9- question of title, ignoring the fact that this question stands decided up to the Hon'ble Supreme Court.
We have considered arguments addressed, on the questions framed and are of the opinion that the factual position obtaining in the writ petition arises in a number of petitions pending in this court, appeals pending before the Joint Director Panchayats and in cases pending before Collectors. In addition to the questions framed, ancillary issues relating to merger of orders passed by Director Consolidation, in orders passed by the High Court and the Hon'ble Supreme Court, the principles of primacy of judicial precedents, the question whether Consolidation authorities in the garb of making good deficiency of allotment to a landowner, can direct that such deficiency be made good from "Shamilat Deh" or "Jumla Mushtarka Malkan", the difference between "Jumla Mushtarka Malkan" and "Bachat Land", the nature and the manner of vesting of "Jumla Mushtarka Malkan" in a Gram Panchayat and proprietors and other questions of general importance arise for consideration. The questions raised in the reference and posed in this paragraph, are of significant public importance as large tracts, of panchayat land, have been partitioned by Consolidation authorities and apportioned amongst proprietors, though, the land was "Shamilat Deh" or "Jumla Mushtarka Malkan".
We, therefore, direct that the matter may be placed Civil Writ Petition No.2318 of 2002 -10- before Hon'ble the Acting Chief Justice/Chief Justice for constituting a larger Bench, if deemed appropriate.
(RAJIVE BHALLA)
JUDGE
July 6th , 2012 (RAKESH KUMAR JAIN)
nt JUDGE