C.W.P.No. 9974 of 1988. 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P.No. 9974 of 1988. Date of Decision:- 29.10.2010 Municipal Corporation,Ludhiana Petitioner. VERSUS Gurdwara Sahib, Dhandari Kalan, Tehsil and District Ludhiana and others Respondents. CORAM : HON'BLE Ms. JUSTICE RITU BAHRI. Present: Mr.Harsh Aggarwal, Advocate, for the petitioner. Mr.G.S.Punia, Advocate, for the respondent(s). 1. To be referred to the Reporters or not ? 2. Whether the judgment should be reported in the Digest ? RITU BAHRI,J. The petitioner has filed the writ petition under Articles 226/227 of the Constitution of India challenging the order dated 6.3.1986 (Annexure P-2) and order dated 24.11.1987 (Annexure P-3) passed by the respondent under the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as “the Act”). Respondent No.1 Guirdwara Sahib, Dhandari C.W.P.No. 9974 of 1988. 2 Kalan, Tehsil and District Ludhiana, filed a suit (No.81) of 1980) in the Court of Sub Judge Ist Class, Ludhiana, for declaration that the plaintiff/respondent is the owner in possession of the land measuring 37K-18M comprised in Khewat No. 469, Khatauni No.542 and Khasra Nos. 65//21,22,26, 66//25, 69//5, 70//1,2/1,3/1 as per jamabandi of village Dhandari Kalan for the year 1976- 77. This suit was dismissed by Sub Judge Ist Class, Ludhiana, vide his order dated 3.9.1981 (Annexure P-1). The respondents filed an appeal against this order and the same was decided by the Additional Sessions Judge, Ludhiana vide his order dated 30.4.1984, who directed respondent No.1 to file an application under Section 11 of the Act, for deciding the matter. Accordingly, respondent No.1 filed an application under Section 11 of the Act before the Collector (DDPO, Ludhiana), who vide his order dated 6.3.1986 (Annexure P-2) held that this land was not shamlat deh. The possession of the Gurdawara has been proved for the period prior to 26.1.1950 and, therefore, the Gurdawara was held to be owner in possession of the land mentioned in para No.1 of the petition. This order was challenged in appeal before the Joint Director, Panchayats, Punjab, (Exercising the powers of C.W.P.No. 9974 of 1988. 3 Commissioner under the Act), who dismissed the appeal vide his order dated 24.11.1987 (Annexure P-3) on the ground that this land is not covered in the definition of Shamlat Deh is given in 5 (2) (g) of the Act. As per entries contained in the jamabandi for the year 1981-82, the ownership of the land in dispute is with Municipal Corporation, Ludhiana. The provisions of the Act are not applicable to the present case. Mr.Harsh Aggarwal, appearing for the petitioner and Mr.G.S.Punia, appearing for the respondents have placed on record the judgment passed in Municipal Corporation, Amritsar Vs. Jaswant Singh and others, R.S.A.No. 3256 of 1986 decided on 12.1.2004. The issue before the Court was that after the land has been transferred to the Municipal Corporation, whether the jurisdiction of the Civil Court is barred under Section 13 of the Act or not? The learned Single Judge has held that whether the land is shamlat deh or not, is required to be adjudicated upon by the authority in exercise of the jurisdiction conferred under Section 11 of the Act. The learned Single Judge while placing reliance on a Supreme Court Judgment in Ram Singh and others Vs. Gram Panchayat Mehal Kalan and others, 1986 PLJ 636 in which held as under:- C.W.P.No. 9974 of 1988. 4 “ It is no doubt true that the plaintiffs who claimed to be the owners along with some others of the suit land had avoided to seek a declaration that the suit land was not shamlat deh. They had, however, questioned the correctness of the entries in the revenue records which showed that the Panchayat was entitled to the suit land. The plaintiffs cannot be drawing their plaint cleverly by not claiming a declaration that the land in question was snot shamlat deh confer jurisdiction on the civil court when by virtue of Section 13 of the Act the jurisdiction of the Cilvil Courts to try such suits had been taken away. In the instant case the suit had been filed against the Panchayat and the Panchayat had expressly claimed that the land in question belonged to it as shamlat deh. It will not be possible in the circumstances for the civil Court to make a declaration in favour of the plaintiffs without deciding the question whether the property in question was shamlat deh or not and whether it belonged to the Panchayat or not .....” C.W.P.No. 9974 of 1988. 5 In view of the above, writ petition is allowed. Order dated 24.11.1987 (Annexure P-3) is set aside and the matter is remanded back to the Joint Director, Panchayats, Punjab, (Exercising the powers of Commissioner) to decide the appeal afresh after giving due notice to the parties. (RITU BAHRI) JUDGE 29.10.2010 Anoop