Civil Writ Petition No.14797 of 1989 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.14797 of 1989 Date of decision:- 04th July, 2011 Hazara Singh (since deceased) through legal heirs ....Petitioner Vs. Collector-cum-Principal, Gram Panchayat Training Centre, Nabha and another ....Respondents CORAM: HON'BLE MR. JUSTICE A.N. JINDAL Present: Mr. Malkeet Singh, Advocate, for the petitioner. Mr. S.S. Rangi, Advocate, for respondent-Gram Panchayat. A.N.JINDAL, J. The petitioner has invoked the provisions of Article 226 of the Constitution of India for quashing the order dated 26.10.1989 (Annexure P-3) passed by respondent No.1, rejecting the application filed by the petitioner under Section 7 of the Punjab Village Common Lands (Regulations) Act, 1961 (hereinafter referred to as the Act), filed by the respondent-Gram Panchayat. Both the parties concede that principles of res judicata are not applicable to these summary proceedings under the Act. Similar observations were made in cases Ram Swaroop Vs. Commissioner, Gurgaon Division, 2009 (3) RCR (Civil) 541 and Ajit Singh Vs. State of Punjab, 2011 (3) RCR (Civil) 67. On perusal of the impugned order, it transpires that the Civil Writ Petition No.14797 of 1989 2 Collector has not passed the correct order. The relevant part of the order dated 26.10.1989 is reproduced as under:- “The counsel of the petitioner addressing argument on this preliminary objection of the respondent stated that vide order dated 18.03.1986 passed by the Collector-cum-D.D.P.O., it has been directed that the Gram Panchayat can institute an application under Section 7 only after getting declaration about the ownership of the land under Section 11 of the Act for which reason the doctrine of res judicata does not apply. Thus, the case may be decided on merits and the objection of the respondent may be rejected. The respondent's counsel during arguments submitted that a decision has been made on 18.03.1986 in regard to disputed land by the Collector-cum- D.D.P.O., Patiala on which account the application of the petitioner be dismissed on the doctrine of res judicata. He has drawn attention of the court towards Rulings of Hon'ble High Court-1984 PLJ 56, 1980, PLJ 103, 1988 PLJ 520. After hearing arguments of counsel of both the parties on the preliminary objections and examining the order dated 18.03.1986, I have come to the conclusion that Collector-cum- D.D.P.O., Patiala had made it clear that Gram Panchayat should get the title of the land decided under Section 11 of the Act, whereafter it can institute the case under Section 7 and the application of the Gram Panchayat then made under Section 7 ibid. had not been dismissed on merits, due to which the principles of res judicata are not applicable. Therefore, application dated 14.09.1989 preferred by the respondent relating to the preliminary objection is rejected. The file may be put up for 09.11.1989 for evidence of the petitioner.” The crux of the order is that the application filed by the petitioner for rejecting the application of the respondent-Gram Panchayat under Section 7 of the Act, on the ground of principle of res judicata has been dismissed and the case was allowed to proceed. The intention of Section 7 of the Act was never to place an obligation on the Gram Panchayat to move for establishing the title Civil Writ Petition No.14797 of 1989 3 before claiming vacation of the premises. Section 7 of the Act reads as under:- “7. Power to put Panchayat in possession of shamilat deh.- (1) The collector shall, on an application made to him by a panchayat, or by an officer, duly authorised in this behalf by the State Government by a general or special order, after making such enquiry, as he may think fit and in accordance with such procedure as may be prescribed put the panchayat in possession of the land or other immovable property in the shamilat deh of that village which vests or is deemed to have been vested in it under this Act and for so doing the collector may exercise the powers of a revenue court in relation to the execution of a decree for possession of land under the Punjab Tenancy Act, 1887; [Provided that if after receipt of the application and before the Panchayat is put in possession of the land or other immovable property in the shamilat deh, a question of right, title or interest in such land or property is raised by any person and a prima facie case is made out in support thereof, the Collector shall direct the person who has raised such question to submit his claim under Section 11 and till the question is so determined, the application shall remain pending; Provided further that if the person, who has raised the question of right, title or interest, fails to submit his claim under Section 11 within the time prescribed under that section, the Collector shall presume that no question of right, title or interest is involved and shall proceed further to put the Panchayat in possession of the land or other immovable property in the shamilat deh]. (2) An appeal against the order of the Collector under sub-section (1) shall lie to the Commissioner and the period of limitation for such an appeal shall be sixty days from the date of the order appealed against.” Proviso appended to Section 7 of the Act reveals that after the application for ejectment is filed by the Gram Panchayat and before it is put in possession of the land in dispute, on a question raised by the Civil Writ Petition No.14797 of 1989 4 objector, and after the Court is satisfied that the objection is tenable to some extent, then it could direct such objector to submit his claim under Section 11 of the Act and then the Collector would proceed to decide the said objection before the decision of the application under Section 7 of the Act on merits. Thus, on perusal of the aforesaid Section and in view of the admitted position that the principles of res judicata do not apply, though the Collector appears to be correct in his approach in proceeding with the application, yet he appears to be not aware of the correct procedure. It is made clear that in the application filed by the Gram Panchayat under Section 7 of the Act, if the objector raises any question of title and if the Collector records its satisfaction from the documents that the land does not vest in the Gram Panchayat, then he would invite the parties to file their claims and then, decide the title of the parties and till then he would keep the application under Section 7 of the Act pending. Similar observations were made in case Sewa Ram and Kanwar Bhan Vs. Gram Panchayat village Shergarh Tapu and others, 2010 (1) RCR (Civil) 118, wherein it was observed as under:- “12. Above being the position, now the short and significant question, though important, arises for determination in this petition, is that, at what stage and which authority will decide the question of title of the land in dispute between the parties. The Gram Panchayat invoked the provisions of Section 7 of the Act for the ejectment of the petitioners, which postulates that an Assistant Collector of the first grade on an application made to him by the Panchayat after making such summary enquiry as he may deem fit and in accordance with such procedure as may be Civil Writ Petition No.14797 of 1989 5 prescribed, eject any person who is in wrongful or unauthorized possession of the land or other immovable property in the shamilat deh of that village, which vests or is deemed to have been vested in the Panchayat under this Act and put the Panchayat in possession thereof. 13. Proviso to sub-section (1) of this section further posits that if in any such proceedings, the question of title is raised and proved prima facie on the basis of documents that the question of title is really involved, the Assistant Collector of the first grade shall record a finding to that effect and first decide the question of title in the manner laid down therein. According to sub-section (3) of section 7, the procedure for deciding the question of title under proviso to sub-section (1) shall be the same as laid down in the Code of Civil Procedure, 1908. 14. A co-joint reading of section 7 of the Act would reveal that it was incumbent upon and it is the statutory/mandatory duty of the Assistant Collector to decide the questions of title either way, before ordering the ejectment of the petitioners and without deciding the questions of title first, the Collector was not legally authorized to order their ejectment as has been done in this case.” Procedure to deal with the application under Section 7 of the Act has again been discussed by the learned Single Bench of this High Court in case Bant Singh and others Vs. The Joint Director, Panchayat, Punjab and others, 2010 (3) RCR (Civil) 724, wherein it has been observed as under:- “15. Proviso to sub-section (1) of this Section further posits that if after receipt of the application and before the Panchayat is put in possession of the land or other immovable property in the samilat deh, a question of right, title or interest in such land or property is raised by any person and a prima facie case is made out in support thereof, the Collector shall direct the person who has raised such question ot submit his claim under section 11 and till the question is so determined, the application Civil Writ Petition No.14797 of 1989 6 shall remain pending.” In view of the aforesaid legal position, this petition is dismissed with the further direction to dispose of the application for ejectment in accordance with procedure as laid down above. (A.N. JINDAL) JUDGE July 04, 2011 ajp