R.S.A. No. 1585 of 1985 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1585 of 1985 Date of decision: 15.07.2010 Gram Panchayt Jhurar Rohi ....Appellant Versus Mahan Singh and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: Mr. G.S. Bawa, Advocate, for the appellant. Ms. Kamalpreet, Advocate, for the respondents. ***** VINOD K. SHARMA, J (ORAL) This regular second appeal is directed against the judgment and decree dated 22.1.1985 passed by the learned appellate Court, vide which the learned Court accepted the suit qua relief of injunction, while dismissing the suit as not pressed for declaration of ownership. The plaintiff/respondents filed a suit for declaration that the plaintiffs were in cultivating possession of the suit land measuring 61 kanals 4 marlas out of the shamlat deh land without payment of rent since 1938, and that the plaintiffs were in possession of the suit land for more than 12 years before the commencement of Punjab Village Common Lands (Regulation) Act, thus, had become owner of the property and that the defendant had no right to evict the plaintiffs. The plaintiff/respondents also challenged the order of AC Ist Grade, Sirsa, dated 17.9.1979 vide which he imposed penalty and R.S.A. No. 1585 of 1985 -2- ordered eviction of the plaintiffs. The plaintiff/respondents also sought injunction against their dispossession from the property in dispute in view of long possession. The suit was contested by the defendant/appellant, wherein averments made in plaint were denied and the jurisdiction of the civil court to entertain the suit was challenged. On the pleadings of the parties, the learned trial Court framed the following issues: - “1. Whether plaintiffs are in cultivating possession of the suit land without payment of any rent? OPP 2. Whether the suit land was previously a part of the shamlat malkan and the plaintiffs were in possession of land equal to their share in the shamlat? OPP 3. Whether the possession of the plaintiffs is over twelve years old on the commencement of Punjab Village Common Lands Act and as such the plaintiffs have become owners of it? OPP 4. Whether the order dated 17.9.79 of the Assistant Collector Ist Grade, Sirsa imposing penalty on the plaintiffs and ordering their eviction is illegal, null and void and not binding on the plaintiffs? OPP 5. Whether the civil court has no jurisdiction to hear and decide the matter? OPD 6. Whether the plaintiff has no locus standi to file the present suit? OPD 7. Whether the plaintiff is estopped by act and conduct from filing the present suit? OPD 8. Whether the suit defective for non-service of notice? OPD R.S.A. No. 1585 of 1985 -3- 9. Whether the suit is not maintainable in the present from? OPD 10. Whether the defendant gram Panchayat is entitled to special costs? OPD 11. Relief.” On issue No.1, on appreciation of evidence, the learned trial Court held that the plaintiffs were in cultivating possession of the suit land without payment of any rent. Issue No.2 for want of evidence was decided against the plaintiff/respondents, and finding recorded that the suit land was not part of the shamlat malkan, and that the plaintiffs were not in possession of the land as per their shares in the shamlat. The learned trial Court also held that the plaintiff/respondents were in possession of the suit land since the year 1938 i.e. 12 years prior to coming into force of the Punjab Village Common Lands (Regulation) Act, therefore, had become owners of the property in dispute. In view of the finding on issues No.1 and 2, issue No.3 was decided in favour of the plaintiff/respondents. The learned trial Court held the order dated 17.9.1979 passed by Assistant Collector to be legal and binding on the plaintiffs, therefore, issue No.4 was decided in favour of the defendant and against the plaintiff/respondents. On issue No.5, the learned trial Court held that as the order challenged was not on record, therefore, not proved on record, that AC Ist Grade had not acted within his jurisdiction was also decided against the plaintiff/respondents. Issues No.6 to 9 were not pressed. R.S.A. No. 1585 of 1985 -4- Issue No.10 was also decided against the defendant/appellant and in favour of the plaintiff/respondents. In view of the finding on issue No.5, the suit filed by the plaintiff/respondents was ordered to be dismissed. The plaintiff/respondents preferred an appeal. Before the learned lower appellate Court, the learned counsel appearing on behalf of the plaintiff/respondents made a statement that the plaintiff/respondents did not claim any ownership qua the land and admitted that the gram panchayat concerned had become owner. The concession recorded in para 8 of the learned lower appellate Court order reads as under: - “Now coming to the ownership, in this appeal, at the time of arguments, the learned counsel for the appellants has made a statement that the appellants do not claim any ownership qua this land and further admitted that the gram panchayat concerned had become the owner thereof, as it has vested in it under the provisions of the Punjab Village Common Lands Act, 1953. Hence, it goes without saying that now there is no dispute regarding the vesting or non-vesting of this land, which is described as shamlat deh in the concerned gram panchayat, and in view of the same, it cannot be urged that in accordance with section 13-B of the Punjab Village Common Lands (Regulation) Act, 1961, the civil court has no jurisdiction to try this suit and as held above, the impugned order of Assistant Collector Ist Grade, Sirsa as passed on 17.9.79, with regard to the ejectment of the plaintiffs-appellants, on application under Section 7 of the Punjab Village Common Lands Act (Regulation) Act, 1961 is illegal. For the same, I have no hesitation to hold that the civil court has got the R.S.A. No. 1585 of 1985 -5- requisite jurisdiction to try the suit, thereby challenging such like an order of an authority, which is erroneous on facts, as well as on law. Resultantly, the findings recorded by the learned trial Court on issue Nos.4 & 5 are hereby reversed.” The learned lower appellate Court in view of the findings recorded by the learned trial Court, which were not under challenge, referred to Section 4(3)(ii) of the Punjab Village Common Lands (Regulation) Act, 1961, to hold that such persons who were in possession of the property before coming into force of the Act more than 12 years prior thereto were not liable to be evicted, as their possession was to be protected. The learned lower appellate Court came to the conclusion that the order passed by the Assistant Collector Ist Grade imposing penalty and ordering their eviction under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 was without jurisdiction being in violation of the provisions of the Act, therefore, liable to be set aside. The learned lower appellate Court also took note of the fact that the defect pointed out by the learned trial Court, that the impugned order was not placed on record stood cured in appeal, as it was placed on record by way of additional evidence as Ex.P-9. In view of the findings referred to above, the appeal was partly accepted by declining the plea of the plaintiff/respondents claiming declaration of ownership, the learned lower appellate Court set aside the order passed by the Assistant Collector Ist Grade, Sirsa, dated 17.9.1979 by holding it to be illegal, null and void and that the plaintiffs were not bound by it. The learned lower appellate Court also held that the R.S.A. No. 1585 of 1985 -6- plaintiff/respondents could not be evicted on the basis of order passed by the Assistant Collector Ist Grade. Mr. G.S. Bawa, learned counsel, appearing on behalf of the appellant, contends that this appeal raises the following substantial questions of law: - “1. Whether the finding of the learned lower appellate Court holding that the civil court had the jurisdiction to reverse the finding on issue No.5 is perverse? 2. Whether the learned lower appellate Court could interfere with the order passed by the Assistant Collector Ist Grade in exercise of powers under Section 7 of the Punjab Village Common Lands (Regulation) Act?” In support of the substantial questions of law, the learned counsel for the appellant contended, that once the jurisdiction of the civil court is barred, the learned lower appellate court committed an error in entertaining the suit and reversing the finding of the learned trial Court, which deserves to be set aside by answering the substantial questions of law in favour of the appellant. This contention of the learned counsel for the appellant, deserves to be noticed, to be rejected in view of the stand taken by plaintiff/respondents before the learned lower appellate Court giving up their claim of ownership. It is well settled that an order passed by authority under the Act, in violation of the provisions of the Act itself is void and can be challenged in civil court. It is also well settled law that the jurisdiction of the civil court to interfere with an order passed by authority is not barred when the R.S.A. No. 1585 of 1985 -7- authorities under the Act act in violation of the provisions of the Act itself. This is what has been done in the present case. The learned lower appellate Court was right in holding that the civil court had the jurisdiction to adjudicate qua the validity of the order passed by the Assistant Collector Ist Grade, Sirsa, on the ground of violation of principles of natural justice and violation of provisions of Act itself. On the second substantial question of law, the contention of the learned counsel for the appellant was, that the order passed by the authorities under the Act could not be challenged before the civil court and that the learned appellate Court had no jurisdiction to interfere with the order passed under Section 7 of the Act, is also devoid of any force. As already held in answer to first substantial question of law, the order passed by the Assistant Collector Ist Grade was in violation of provisions of Section 4(3)(ii) of the Punjab Village Common Lands (Regulation) Act, 1961, therefore, the civil court had the jurisdiction to interfere with the order, the learned appellate Court has granted limited relief by setting aside the order of the Assistant Collector Ist Grade, Sirsa, and protecting the possession of the plaintiff/respondents. The substantial questions of law are answered against the appellant. For the reasons stated, this appeal being devoid of any merit is dismissed, but with no order as to costs. (Vinod K. Sharma) Judge July 15, 2010 R.S.