IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Letters Patent Appeal No.864 of 2010(O&M) Date of decision: 26.7.2010 Joginder Singh and others …..Appellants Versus The Deputy Commissioner, Kurukshetra and others ……Respondents CORAM: Hon’ble Mr.Justice Jasbir Singh Hon’ble Mr.Justice Augustine George Masih Present: Mr.R.S.Mittal, Senior Advocate with Mr.Atul Gaur, Advocate for the appellants Jasbir Singh, J. This appeal has been filed against judgment passed by the learned Single Judge on 17.7.2007, dismissing CWP No.10418 of 2009, filed by the appellants/ petitioners. In the above said writ petition, the petitioners had laid challenge to an order passed by the Deputy Commissioner Kurukshetra (respondent No.1) on 12.6.2009, holding that the petitioners were liable to be ejected from the land measuring 378 acres 4 kanals 2 marlas, which is ownership of the gram Panchayat. It is claim of the petitioners that through their predecessor- in –interest, they were inducted in the land in dispute as perpetual lessees @ Rs.5 per acre per year under the grow more food campaign by the then State of Punjab. The said land was Banjar in nature, the petitioners through their dint of hard work, made it cultivable, Letters Patent Appeal No.864 of 2010(O&M) capable of yielding two crops. It was stated that the land in question is the only means of livelihood for the petitioners and their families. They have been depositing the lease amount in a bank at Kurukshetra in the account of the gram Panchayat. In the Seventies, the gram Panchayat and the original proprietors of the village became greedy and asked the petitioners to vacate the land. The gram Panchayat also stopped accepting the lease amount. This case has a long and chequered history. It is an admitted fact that as per revenue records, land is shamlat deh in nature and is under the ownership of the gram Panchayat of village Karah, tehsil Pehowa, district Kurukshetra. In the year 1978, the gram Panchayat filed an application under section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (in short, the Act) for ejectment of the petitioners from the above said land. They were ordered to be ejected by the Assistant Collector first grade Kaithal vide order dated 30.1.1979. The petitioners went in appeal, which was dismissed by the Collector Kurukshetra on 8.5.1979. The alleged lessees filed civil writ petition which was disposed of by this Court by passing an order on 14.11.1979(P2) in CWP No. 1707 of 1979 (Mohinder Singh and another v. Collector Kurukshetra and others). In that writ petition, it was case of the petitioners that they are perpetual lessees and lease in their favour has not been terminated, as such their ejectment was not justified. It was observed by a division bench of this Court that it is for the gram Panchayat to show as to how and with effect from which point of time the possession of the petitioners therein had become unauthorized. The writ petition was allowed, the impugned orders of ejectment were quashed. It was further observed that order passed would not preclude the gram Panchayat from 2 Letters Patent Appeal No.864 of 2010(O&M) initiating any fresh proceedings for eviction of the petitioners therein in accordance with law. The gram Panchayat thereafter filed another application for ejectment of the petitioners in the year 1981. The said application was allowed holding that the lease was only for a period of 20 years and thereafter possession of the petitioners over the land in dispute is unauthorized. The petitioners failed in appeal. They came to this Court by filing CWP No. 3486 of 1981 (Tara Singh and others v. State of Haryana and others). By placing reliance upon ratio of judgment in Mohinder Singh’s case (supra), the above said writ petition was allowed on 6.11.1990 (P3) and the orders passed by the authorities below were quashed. In the year 1992-93 again, the gram Panchayat filed an application for ejectment of the petitioners. The petitioners by raising preliminary objection of res judicata, in view of earlier order passed, opposed that application. However their objection was negatived by ordering their ejectment from the land mentioned above. Their appeal failed. Thereafter the petitioners again came to this Court by filing CWP No. 9785 of 1993 (Anup Singh and others v. Gram Panchayat and others), which was disposed of by this Court on 5.4.1994 (P4). It was specifically held by this Court that there is no written instrument of lease. The alleged lease was created by the State Government before coming into force of the Act. It was further held that the petitioners are the lessees and lease in their favour has not been terminated. By stating that findings mentioned above had become final between the parties, it was further observed as under:- 3 Letters Patent Appeal No.864 of 2010(O&M) “if the gram panchayat wants to proceed for the eviction of the petitioners, it is necessary for them:- (a) to ascertain the terms of the lease deed granted by the State government. (b) To ascertain whether the State government was competent to grant lease in respect of the land vesting in the gram Panchayat; and (c) To determine the lease in accordance with law before applying for ejectment of petitioners under Section 7 of the Punjab Village Common lands (Regulation) Act. Unless the Gram Panchayat takes action as spelt out above, the decisions rendered by this Court will continue to operate as res judicata and it will not be possible for the authorities under the Punjab Village Common lands (Regulation) Act to evict the petitioners. The present petition is accordingly disposed of with the above observations making it clear that it is open to the gram Panchayat to determine the lease according to law and then take further appropriate action in accordance with the provisions of the Punjab Village Common lands (Regulation) Act, 1961.” The gram Panchayat again made an attempt is to eject the petitioners by filing an application under section 7 of the Act in the year 1996. That application was disposed of by the Collector by observing as under:- “I have carefully perused the file and after hearing the arguments of both the counsels, have reached at the conclusion that there is force in the arguments of the counsel for the 4 Letters Patent Appeal No.864 of 2010(O&M) respondents and the Hon’ble High Court has clearly directed in its order dated 5.4.94 that until the Gram Panchayat do not settle the conditions of the lease, till then resjudicata in this case be treated as applicable and it will not be possible for the concerned officers to eject the respondents under the Punjab Village Common Land Act. Therefore, in these circumstances, the present application is not maintainable which may be rejected, because after compliance of the High Court orders, the gram Panchayat can file suit for eviction against the respondents. Therefore, the gram Panchayat Karah Sahib is directed that they file the suits for eviction after compliance of the High Court directions. The file be consigned to the record room.” On account of non-compliance with the orders passed by this Court in Darshan Singh’s case (supra), and by the Collector on 6.2.1996, another application filed by the Gram Panchayat for ejectment of the petitioners was dismissed by the Assistant Collector first grade Pehowa on 25.10.2002. Thereafter when the gram Panchayat failed to take any action, right holders of the village filed CWP No. 16665 of 1997 (Molu Ram and others v. State of Haryana and others), with a prayer that the directions be issued to the gram Panchayat to initiate action against the petitioners for their ejectment in terms of the directions issued by this Court and also by the Assistant Collector first grade in the year 1996. The division bench of this Court by taking note of the observations made earlier in the case of Mohinder Singh (supra), Tara Singh (supra) and Darshan Singh (supra) and also by the authorities below, specifically held that contention of the petitioners (respondents in that writ petition) that 5 Letters Patent Appeal No.864 of 2010(O&M) lease is for unlimited period, cannot be accepted. The writ petition was disposed of on 27.2.2009 by observing as under:- “It is common ground that nothing was done by the Gram Panchayat after the above. It is a case of total inaction on the part of the members of the Gram Panchayat, including Sarpanch etc. not to make any effort to safeguard the interest of the Gram Panchayat. By order dated 5.4.1994, it was specifically observed by this Court that after ascertaining terms of the lease granted in favour of the private respondents, whether the State government was competent to grant lease in regard to land of the Gram Panchayat and after terminating the lease in favour of the private respondents as per law, the Gram Panchayat may move an application for their ejectment. No effort was however made in that regard. It has also come on record that without paying any rent, whatsoever the private respondents are occupying over the land, in dispute, since the year 1975. Contention of counsel for the private respondents, that the lease is for unlimited period, cannot be accepted. The private respondents have failed to place on record the terms and conditions of the lease deed in their favour, which are not even known to the Gram Panchayat. It is an admitted fact that possession of the land, belonging to the Gram Panchayat, was transferred to the private respondents by the then State of Punjab under the “grow more food campaign”. In the circumstances, therefore, we feel that it is a case where directions are required to be issued to the Deputy 6 Letters Patent Appeal No.864 of 2010(O&M) Commissioner, Kurukshetra to look into the matter and to ascertain as to what were the terms and conditions under which possession of the land was transferred in favour of the private respondents and whether State government was justified in transferring by way of a lease of land, which was under the ownership of the Gram Panchayat, to the private respondents. After ascertaining the facts, if the Deputy Commissioner is satisfied that a lease was created in favour of the private respondents, he shall ask the Gram Panchayat to terminate / determine that lease in accordance with the provisions of law. After terminating the lease, if any, the Gram Panchayat be directed to file an ejectment application against the private respondents. This exercise be started by making a reference to the official documents in possession of the State government. The private respondents be also directed to produce any document in proof of creation of the lease in their favour. The Deputy Commissioner is directed to do the needful within a period of three months from the date of receipt of a copy of this order. Gram Panchayat and the private respondents, through their counsel, are directed to appear before the Deputy Commissioner concerned on 12.3.2009.” In terms of the order passed in Molu Ram’s case (supra), the Deputy Commissioner vide order dated 12.6.2009, ordered ejectment of the petitioners from the land in dispute. To negative contention raised by the petitioners that they are the perpetual lessees, it was observed as under:- 7 Letters Patent Appeal No.864 of 2010(O&M) “According to the jamabandi for the year 1956-57 available on the file, there are three chunks of disputed land measuring 817 kanal 15 marle, 1298 kanal 10 marla, 911 kanal 17 marla comprising in Khewat No.163 totaling to 3028 kanal 02 marla i.e. 378 Acre 4 Kanal 2 Marla. According to the said jamabandi the private respondents have been shown as lessee @ Rs.4 & 13 Anna per acre and further @ Rs.5/- per acre per year in the jamabandi for the year 1965-66 till 1975. It has been found that name of the most of private respondents as cultivator has been changed in subsequent jamabandi for the year 1965-66 and 1970-71. It has also been found that neither the gram Panchayat nor the petitioners or the private respondents have produced any document with regard to creation of lease in favour of private respondents. Further according to report submitted by Tehsildar Pehowa there is no entry in revenue record with regard to creation of any lease of 20 years or mutation with regard to leasing out the Panchayat land. Further, according to the provisions of Punjab Village Common land Act 1053 and 1961, nor gram panchayat is empowered to lease out its land for 20 years or for indefinite period. Therefore, on the basis of these facts and record it is evident that there is no document of creation of any right by way of these for 20 years or indefinite period in favour of private respondents by the gram Panchayat. Since, there was no lease; hence no question arises to ascertain that what were the terms and conditions of lease and whether State government was justified in transferring by way of a lease of 8 Letters Patent Appeal No.864 of 2010(O&M) land, which was under the ownership of gram Panchayat, to the private respondents. As discussed above, name of the most of the private respondents/cultivators have been changed in subsequent jamabandi and they never remained in continuous possession of land. No right has been created in favour of the private respondents to be in possession of Panchayat land by way of lease by the gram Panchayat or by the State government for a period of twenty years or indefinite period. Thus it is proved beyond doubt that they were not lessees of twenty years or indefinite period. With regards to entries of Rs.4 & 13 Anna and further Rs.5/-, there is no evidence or revenue record on the basis of which, such entries have been incorporated in revenue record rather it is evident that the land was not leased out for twenty years. Hence, it is concluded that the private respondents are cultivating the panchayat land without any right or title and thus they are liable to be ejected from the land in dispute.” The petitioners impugned the above said order in this Court. Civil writ petition filed by them was dismissed on 17.7.2009. Hence, this appeal. Mr.R.S.Mittal, learned Senior Advocate appearing for the petitioners, by making reference to the observations made by this Court in the cases of Mohinder Singh (supra) and Darshan Singh (supra), vehemently argued that the findings given earlier by this Court would constitute res judicata between the parties and by fresh application, the petitioners’ ejectment cannot be ordered by the authorities 9 Letters Patent Appeal No.864 of 2010(O&M) below, as has been done in this case. He further argued that the petitioners were the perpetual lessees and lease in their favour was never terminated. They had been paying rent continuously, however, in the Seventies, the gram Panchayat stopped receiving the rent. He submitted that the learned single Judge has gone in error in dismissing the writ petition filed by the petitioners. After hearing Mr Mittal, we are not inclined to interfere in favour of the petitioners, in view of the following admitted facts:- a) alleged perpetual lease deed in favour of the petitioners, executed by the then State of Punjab, had not seen light of the day till today. What were the terms and conditions of that lease, are unknown to anybody including the gram Panchayat. b) Since after the year 1976 none of the petitioners had deposited any rent with the gram Panchayat. It is also not their case that when the gram Panchayat refused to receive rent, they moved any application before the competent authority to deposit the same. c) In the case of Anup Singh (supra) vide judgment dated 15.4.1994, liberty was granted to the gram Panchayat to initiate fresh eviction proceedings against the petitioners subject to some conditions. That order had become final as it was not challenged by the petitioners in the Hon’ble Supreme Court. d) The Assistant Collector first grade vide order dated 6.2.1996 (P5) again permitted the gram Panchayat to first 10 Letters Patent Appeal No.864 of 2010(O&M) comply with the directions given by this Court in order dated 5.4.1994 and then initiate proceedings for ejectment of the petitioners. That order had also become final between the parties. Similar directions were also issued by the Assistant Collector in order dated 30.9.2002 (P6), which also was not challenged by the petitioners. e) A division bench of this Court in Molu Ram (supra) (P7) specifically rejected contention of the petitioners that they were lessees for the unlimited period. It was further observed that petitioners had failed to place on record terms and conditions of the lease deed in their favour which were also not known to the gram Panchayat. It was also opined that possession of the gram panchayat’s land was transferred in favour of the petitioners by the then State of Punjab. By taking note of above said facts, directions were issued to the Deputy Commissioner to look into the facts of this case, verify existence of the lease deed and authority of the State of Punjab to lease out gram panchayat’s land and then pass an order. This order has also become final as it was not challenged by the petitioners before the Hon’ble Supreme Court. In view of above situation, once the petitioners have allowed the orders passed by this Court in the cases of Anup Singh (supra) and Molu Ram (supra) to become final, it is not open for the petitioners to allege that the earlier orders passed would constitute res judicata between the parties. The Collector Kurukshetra vide the impugned orders has given a firm 11 Letters Patent Appeal No.864 of 2010(O&M) finding that no lease was ever executed in favour of the petitioners. It was so said when the petitioners, despite opportunity given, failed to produce copy of the lease deed. It was also noticed that no such entry, regarding lease, exists in the revenue records. It was also stated that as per the provisions of the Act, the gram Panchayat cannot lease out its land for the period of 20 years what to talk of an unlimited period. Before this Court also, when we asked counsel for the petitioners to produce any document showing that lease deed was ever executed in favour of the petitioners, he failed to do so. By looking at the revenue records, the Collector has further rightly held that possession of the petitioners in the land in dispute is not continuous. It has also come on record that the petitioners had not paid any rent for the last more than 20 years. It appears that in the past, somebody in the gram Panchayat was conniving with the petitioners and allowed the findings to come that petitioners are the perpetual lessees. The facts become clear when in Molu Ram’s case (supra), the Deputy Commissioner Kurukshetra was directed to look into the entire matter threadbare and pass an order, after hearing both the parties so that this prolonged litigation can be put to an end. The Deputy Commissioner has perused the matter from all angles and then ordered that the petitioners be ejected from the land in dispute. We are of the opinion that the order passed is in consonance with the directions issued by this Court in Molu Ram’s case (supra) and also is based on record. No case is made out for interference. Dismissed. (Jasbir Singh) Judge 26.07.2010 (Augustine George Masih) 12 Letters Patent Appeal No.864 of 2010(O&M) gk Judge 13