Civil Writ Petition No. 11820 of 1990 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Writ Petition No. 11820 of 1990 Date of decision:- 29.04.2011 Surinder Singh ....Petitioner Vs. The Additional Director Panchayats and another ....Respondents CORAM: HON'BLE MR. JUSTICE A.N. JINDAL Present:- Mr. Onkar Rai, Advocate and Mr. R.P.S. Cheema, Advocate, for the petitioner. None for respondent No. 1. Mr. Dhirender Chopra, Advocate, for respondent No.2. ***** A.N. JINDAL, J (ORAL) Surinder Kumar-petitioner has invoked the provisions of Article 226/227 of the Constitution of India for quashing the order dated 31.05.1990 (Annexure P-7) passed by the Additional Director Panchayats, Punjab, exercising the powers of Commissioner, vide which the appeal filed by the Gram Panchayat, Issapur, was accepted and remitted the case back to the Collector-cum-District Development and Panchayats Officer with a direction to reconsider the application of the Gram Panchayat under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as 'the act'). Civil Writ Petition No. 11820 of 1990 2 It has been contended that the Gram Panchayat had filed an application under Section 7 (2) of the Punjab Gram Panchayat Act, 1952 (for short 'the Act') before the Assistant Collector, Ist Grade, Rajpura, for eviction of the petitioner from the shamlat land, which was dismissed on 14.01.1975. Another application filed by the Gram Panchayat under Section 7 of the Act was also dismissed by the Collector-cum-District Development and Panchayats Officer, Patiala, vide order dated 17.06.1981. Thereafter, respondent No.2-Gram Panchayat again filed a petition under Section 11 read with Section 7 of the Act for eviction of the petitioner, which was also dismissed by the Collector-cum-District Development and Panchayat Officer, Patiala, on 17.12.1982. Against the order dated 17.12.1982, the Gram Panchayat filed an appeal on 27.06.1983 before the Additional Director Panchayats-respondent No.1, who set aside the order dated 17.12.1982 of the Collector vide his order dated 31.05.1990, which is now under challenge in this petition. Learned counsel for the petitioner contends that earlier the forefathers of the petitioner and now the petitioner himself is cultivating the land in dispute since long and the land in dispute does not vest in the respondent No.2-Gram Panchayat. It has been further urged that a Civil Court decree was also passed in favour of Teja Singh, predecessor-in-interest of the petitioner qua 17 Bighas of land on 31.11.1971, therefore, the impugned order (Annexure P-7) could not have been passed. In support of his contentions, he has relied upon a judgment in case Amarjit Singh Vs. State of Punjab and others, 1988 (2) PLR 450. Further reliance has been placed on a Full Bench judgment of this Court Civil Writ Petition No. 11820 of 1990 3 in Gram Panchayat, Village Batholi Kalan Vs. Jagar Ram and others, AIR 1991 Pb. 159; 1991 (1) PLR 260 in order to contend that the judgment and decree passed by a Court of law, though collusive, is as good as passed after until it is set side by a competent Court. To the contrary, Mr. Dhirender Chopra, learned counsel for respondent No.2-Gram Panchayat, has stated that the land in question being owned by the Gram Panchayat, vests in the Gram Panchayat. The jurisdiction to decide any question of title by the Civil Court is barred. The judgment delivered in Jagar Ram's case has been overruled by the Hon'ble Supreme Court in a later judgment delivered in Gram Panchayat of Village Naulakha Vs. Ujagar Singh and others, (2000) 7 Supreme Court Cases 543, wherein it has been held as under:- “We may state that the view taken by the Full Bench of the Punjab and Haryana High Court in Jagar Ram case (AIR 1991 P&H 159) is not correct and in fact, it runs contrary to the provisions of Section 44 of the Indian Evidence Act. That section provides that: 44. Any party to a suit or proceeding may show that any judgment, order or decree which is relevant under Section 40, 41 or 42, and which has been proved by the adverse party, was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion. “6. ……thus, in order to contend in a later suit or proceeding that an earlier judgment was obtained by collusion, it is not necessary to file an independent suit as stated in Jagar Ram case for a declaration as to its collusive nature or for setting it aside, as a condition precedent. In our opinion, the above cases cited in Sarkar’s Commentary are correctly decided. We do not agree with the decision of the Full Bench of the Punjab and Haryana High court in Jagar Ram case. The Full Bench Civil Writ Petition No. 11820 of 1990 4 has not referred to Section 44 of the Evidence Act or to any other precedents of other courts or to any basic legal principle.” Sections 13 and 13-B of the Act completely bars the jurisdiction of the Civil Court to entertain the suit, which is reproduced as under:- “13. Bar of Jurisdiction in Civil Courts- No Civil Courts shall have jurisdiction- (a) to entertain or adjudicate upon any question, whether any property or any right to or interest in any property is or is not shamlat deh vested or deemed to have been vested in a Panchayat under this Act; or (b) to question the legality of any action taken by the Commissioner or the Collector or the Panchayat, under this Act; or (c ) in respect of any matter which the Commissioner or the Collector is empowered by or under this Act to determine.” Similarly, Section 13-B of the Act reads as under:- “13-B. Provisions of this Act to be overriding- The provisions of this Act shall have effect, notwithstanding anything to the contrary in any law or any agreement, instrument, custom or usage or any decree or order of any court or other authority.” Following the judgment delivered in Ujagar Singh's case (supra), this Court in a case Radha Singh Vs. The Assistant Collector, Ist Grade, Pehowa etc. Civil Writ Petition No.5765 of 1991, decided on 07.01.2011, held that Collector in proceedings under Section 7 of the Act is competent to examine the legality and validity of the judgment and decree passed by the Civil Court and that it is not necessary for the Gram Panchayat to file a separate civil suit before the Civil Court to seek avoidance of the Civil Court decree. Civil Writ Petition No. 11820 of 1990 5 Still further, in Ishar Singh and another Vs. The Joint Director, Panchayat, Civil Writ Petition No.6745 of 1986, decided on 29.10.2010, this Court has observed as under:- “Before the appellate authority and also before this Court, reliance has been placed on a judgment passed in the year 1973 (Annexure-P-1), facts regarding which has already been explained in preceding paras of this order. The appellate authority to the extent was not justified to say that the judgment has no bearing so far as the rights of the parties, inter se, are concerned. However, at the same time, on the basis of evidence, relief could not be given to the petitioners. The decree was passed for joint possession qua 4 Bighas 5 Biswas of land. Admittedly, there is no proof on record that it was ever executed. The Gram Panchayat is owner of 100 Bighas of land, whereas the Khasra No. 69//38 consists of 176 Bighas and 18 Biswas. In the judgment mentioned above, there is no finding as to in which portion the petitioners shall be deemed to be in possession. After consolidation, the land was not shown in the name of petitioners. They were shown in possession of land, for the first time, in the Jamabandi for the year 1977- 78. Prior thereto, other right holders were shown in possession as lessees of the Gram Panchayat. Thus, Orders passed by the courts below are held justified. No interference is called for by this Court.“ In the instant case also, the petitioner claims decree for joint possession of 17 bighas out of 457 bighas 15 biswas of agricultural land. The said judgment dated 30.11.1971 (Annexure P-2), does not indicate the khasra numbers, qua which, the decree was passed and which are the khasra numbers, over which, the petitioner claims his right. The said decree appears to have not been executed after 30.11.1971. Though the judgment and decree is for 17 bighas (without recording any khasra numbers), yet the Gram Panchayat had filed an application under Civil Writ Petition No. 11820 of 1990 6 Section 7 (2) of the Punjab Gram Panchayat Act with regard to specific khasra numbers i.e. Khasra No. 15//16 (0-3), 25//6 (0-11), 7 (3-18), 8/1 min (0-19), 15 (0-7), 38 min (10-0) situation in village Issapur, Tehsil Rajpura. The copy of jamabandi pertaining to 17 Bighas (Annexure P-1) does not indicate if the petitioner or his predecessor-in-interest was ever in possession of the land. The column of ownership as per this jamabandi indicates 'Shamlat Deh Hassab Rassad Khewat. The petitioner is also not proved to be the khewatdar of the village. Thus, it would also be difficult to connect the judgment dated 15.11.1970 with the land in question. It appears that the petitioner wants to grab the land under the garb of the decree passed by the Court, which was not competent to pass the same. Therefore, the said decree is liable to be ignored. However, it would be suffice to say that the order of remand passed by the Commissioner did not affect the rights of the parties, as Collector was firstly to decide about the rights of the parties. Therefore, the same could not be quashed. Before parting with the judgment, it is also noticed that the Hon'ble Apex Court has taken serious view regarding the illegal encroachment/possession over the Gram Panchayat Lands and issued mandate for vacating the same in Jagpal Singh and others Vs. State of Punjab and others, 2011 (2) Scale 42, and observed as under:- “13. We find no merit in this appeal. The appellants herein were trespassers who illegally encroached on to the Gram Panchayat land by using muscle power/money power and in collusion with the officials and even with the Gram Panchayat. We are of the opinion that such kind of blatant illegalities must not be condoned. Even if the appellants Civil Writ Petition No. 11820 of 1990 7 have built houses on the land in question they must be ordered to remove their constructions, and possession of the land in question must be handed back to the Gram Panchayat. Regularizing such illegalities must not be permitted because it is Gram Sabha land which must be kept for the common use of villagers of the village. The letter dated 26.09.2007 of the Government of Punjab permitting regularization of possession of these unauthorized occupants is not valid. We are of the opinion that such letters are wholly illegal and without jurisdiction. In our opinion such illegalities cannot be regularized. We cannot allow the common interest of the villagers to suffer merely because the unauthorized occupation has subsisted for many years.” This pleas raised by the petitioner are not maintainable. The Additional Director Panchayats, exercising the powers of Commissioner, was well within his powers to set aside the orders dated 17.06.1981 and 17.12.1982. Resultantly, having examined the case from all the angles and corners, the petition being without any merit, is hereby dismissed. (A.N.JINDAL) 29th of April, 2011 JUDGE ajp