CWP No.20716 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No.20716 of 2008 Date of Decision: 20.8.2010 Mohinder Singh .....Petitioner Vs. State of Punjab and others .....Respondents .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr. S.D. Sharma, Sr. Advocate with Mr.Harsh Bunger, Advocate for the petitioner. Mr. C.S. Brar, DAG, Punjab, for respondents no.1 to 3. Mr. T.P. Singh, Advocate for respondent no.4. .... RAJIVE BHALLA, J This order shall dispose of CWP Nos.20716, 20715, 20713, 6611, 6583 and 8266 of 2008, as they involve adjudication of identical questions of law and facts. The petitioner filed an application under Section 11 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as `the 1961 Act') for a declaration that he is owner in possession of the land in dispute, on the basis of jamabandis for the years 1986-87, 1991-92, 1996-97 and Khasra Girdawari for the year Sauni 1997 to Sauni 2001. It was pleaded that revenue entries recording the Gram Panchayat as owner are incorrect. The petitioner's ancestors made the land cultivable. The land has never been leased out by the Gram Panchayat or remained in its CWP No.20716 of 2008 2 possession. The Gram Panchayat cannot be permitted to take advantage of wrong entries in the revenue record and dispossess the petitioner. The Gram Panchayat filed a reply denying the averments in the petition, pleaded its ownership and asserted that the land was leased out regularly by the Gram Panchayat. Balkar Singh, the then Sarpanch of the Gram Panchayat made a statement that the Gram Panchayat is the owner but it could not be leased out, as the petitioner refused to vacate the land. The Collector-cum-Divisional Deputy Director, Panchayat Jalandhar and Amritsar, passed an order dated 4.12.2003 holding that the petitioner is owner of the land in dispute. The Gram Panchayat filed an appeal before the Director, Rural Development and Panchayats, Punjab (exercising the powers of the Commissioner) on 24.10.2007, accompanied by an application for condonation of delay. On 25.10.2007, the Commissioner condoned the delay, stayed operation of the order dated 4.12.2003, called for the record and issued notice to the petitioner. The Director, accepted the appeal, set aside the order passed by the Collector and held that the Gram Panchayat is owner of the land in dispute, as it is recorded as Shamilat Deh in the jamabandis for the years 1943-44, and 1960-61 and the ownership of the Gram Panchayat in the jamabandis for the years 1966-67, 1971-72,1976-77, 1981-82, 1986-87, 1991-92, and 1996- 97. It was further held that as the petitioner has failed to produce any evidence that he was in possession before 26.1.1950, the Collector erred in declaring that the petitioner is owner of the land in dispute. The Director also recommended to the Financial Commissioner and Principal Secretary, Rural Development and Panchayat Department that as the order passed by the Collector is malafide, disciplinary proceedings should be initiated the CWP No.20716 of 2008 3 Collector. Counsel for the petitioner submits that as per jamabandi for the years 1937-38, the land is Shamilat Deh Bet, Hasab Hissas Mundarja, Shajra Nasab. The jamabandi records Jawand Singh, Nand Singh, Ujagar Singh, Chanchal Singh and Mst.Karmo in cultivating possession as co- sharers, in equal shares. The jamabandi for the years 1943-44, reiterates this entry. It is argued that the expression “Shamilat Deh Bet, Hasab Hissas, Mundarja, Shajra Nasab establishes that the land was owned by and in possession of the proprietors, in accordance with their shareholding. The recording of ownership in the name of the Gram Panchayat on the basis of a letter issued by the Government, does not confer ownership upon the Gram Panchayat. It is further argued that on the coming into force of the Shamilat Law and the enactment of the 1961 Act, only such Shamilat Deh vested in a Gram Panchayat, as was used for common purposes of the inhabitants of the village. The land in dispute having been recorded in cultivating possession of the petitioner's predecessors prior to 26.1.1950, is excluded from Shamilat Deh by virtue of Section 2(g)(iii) of the Act. The jamabandis for the years 1937-38 and 1943-44 clearly prove the cultivating possession of the petitioner's predecessors in accordance with their shareholding thereby fulfilling the ingredients of Section 2(g)(iii) and consequently excluding the land from Shamilat Deh. It is also contended that in view of Section 3(i) of the Act, the land in dispute, being neither used nor reserved for common purposes is excluded from the expression “Shamilat Deh” Another argument pressed into service is that the appeal was filed, before the Director, Rural Development and Panchayats, Punjab, on CWP No.20716 of 2008 4 24.10.2007 after a delay of more than four years. The application for condonation of delay was allowed on the next day, without issuing any notice to the petitioner or assigning any reason. It is further argued that this error apart, delay could not be condoned as the application for condonation of delay does not contain any explanation for delay much less a delay of more than three years, in filing the appeal. Counsel for the respondent Gram Panchayat submits that the petitioner is an unauthorised occupant, who seeks to perpetuate his possession and appropriate panchayat property. It is argued that with the enactment of the “Shamilat Law” in the year 1953, the land in dispute being Shamilat Deh vested in the Gram Panchayat. The words “Hasab Hissas, Mundarja, Shajra Nasab” following the words “Shamilat Deh” are irrelevant, as they merely refer to the extent of shareholding, prior to the enactment of “Shamilat Law” and the “1961 Act”. Before the enactment of these statutes Shamilat Deh vested in the proprietors, but with the enactment of these statutes, proprietors were divested of their proprietary and possessory rights. It is further argued that as the petitioner has failed to establish the ingredients of proviso (iii) to Section 2(g) of the Act, he is even otherwise not entitled to any relief. It is submitted that the jamabandis for the years 1937-38 and 1942-43 do not record the separate cultivating possession of the petitioner's predecessors. It is further submitted that as per the jamabandis, the petitioner's predecessors were in possession of 4 kanals 14 marlas but the petitioner is in possession of 13 kanals or more. In the absence of any evidence of their individual cultivating possession, the extent of their shareholding or any document to establish their status as proprietors/co-sharers, the writ petition should be dismissed. Insofar as the CWP No.20716 of 2008 5 order condoning delay, it is admitted that no notice was issued to the petitioner but it is argued that as the order passed by the Collector was vitiated by fraud, the appellate authority rightly condoned the delay, took notice of the malafide order passed by the Collector and restored the ownership of the Panchayat. I have heard counsel for the parties, perused the impugned orders but as I propose to decide the writ petition on the legality or the order condoning delay, it would be inappropriate to record any opinion on arguments relating to the question of title. Section 11 (2) of the Act reads as follows :- “11. Decision of claims of right, title or interest in Shamilat deh - (1) XX XX XX (2) Any person or a Panchayat aggrieved by an order of the Collector made under sub-section (1) may, within sixty days from the date of the order, prefer an appeal to the Commissioner in such form and manner as may be prescribed and the Commissioner may after hearing the appeal, confirm, vary or reverse the order appealed from and may pass such order as he deems fit.” Section 11(2) prescribes a period of 60 days, for filing an appeal, from the date of the order passed under Section 11(1) of the Act. Section 11(2) of the Act, however, does not confer power to condone delay. This anomalous situation can, however, be overcome by invoking the provisions of Section 29(2) of the Limitation Act. Section 29(2) CWP No.20716 of 2008 6 provides that provisions of Sections 4 to 24 of the Limitation Act, shall apply to a special statute, except to the extent they are excluded by the special statute. The Punjab Village Common Lands (Regulation) Act, 1961, is a special statute but does not exclude the applicability of Sections 4 to 24 of the Limitation Act. Section 29(2) of the Limitation Act reads as follows :- “29. Savings – (1) XX XX XX (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.” (emphasis provided) A perusal of the latter part of Section 29(2) of the Limitation Act makes it abundantly clear that Sections 4 to 24 (inclusive of Section 5) shall apply to an appeal filed under Section 11(2) of the Act. The Commissioner may, therefore, condone delay in the filing of an appeal, by invoking the provisions of Section 5 of the Limitation Act. Section 5 of the Limitation Act, prescribes the procedure for condonation of delay and reads as follows :- CWP No.20716 of 2008 7 “5. Extension of prescribed period in certain cases – Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.” Section 5 of the Limitation Act, clearly postulates that delay in filing an appeal can only be condoned, if sufficient cause is pleaded and proved. In addition, delay can only be condoned after notice is issued to the opposite party granting him an opportunity to oppose the application for condonation of delay. The pre-requisites of the exercise of power to condone delay are : (a) an application filed under Section 5 of the Limitation Act read with Section 11(2) of the Act; (b) the application should disclose “sufficient cause” for the delay; (c ) a prior notice should be issued to the opposite party and (d) delay has to be condoned by passing a speaking order showing a due consideration of the sufficient cause disclosed by the applicant. The fact that there may have been fraud or negligence on the part of the predecessor Sarpanch, in filing an appeal is a relevant factor for establishing “sufficient cause”, does not absolve an applicant of his responsibility, of pleading sufficient cause or of the Commissioner in serving a prior notice upon the opposite party. The plea that delay should be liberally condoned, though true, can only be considered after notice is issued to the opposite party. Admittedly, the appeal filed on 24.20.2007 was accompanied CWP No.20716 of 2008 8 by an application under Section 5 of the Limitation Act. The application for condonation of delay filed alongwith the appeal reads as follows :- “ That the accompanying appeal is being filed in this Hon'ble Court and the same is very likely to succeed on the grounds mentioned therein which may be read as part of this application. 2. That as a matter of fact the order was not pronounced on the same day so the appellant were not aware of the decision. The counsel for the appellant informed the appellant about the decision and immediately applied for the copy and the same was given to them on 19.10.2007 and after obtaining the certified copy of the order the appellant engaged the present counsel immediately and the appeal is being filed. The delay in filing the appeal is neither intentional nor willful but due to the above said reason. It is, therefore, respectfully prayed that the delay in filing the present application may kindly be condoned in the interest of justice.” The delay was condoned on 25.10.2007 by recording the following order :- “ Arguments on limitation point heard, delay condoned. Arguments on stay matter also heard, Operation of the impugned order is stayed. Call for record and summon the respondents to come up on 30.11.2007.” CWP No.20716 of 2008 9 A perusal of the above order leaves no manner of doubt that delay was condoned without issuing notice to the petitioner (respondent in the appeal) and then also without assigning any reason. It is true that courts tend to lean towards a liberal exercise of their power to condone delay, but this alone does not absolve a court or a quasi judicial forum of its duty to afford an opportunity of hearing to the opposite party and thereafter pass a speaking order. It is,therefore, apparent that as no notice was issued to the petitioner and the order condoning delay was passed without assigning any reason, it is null and void. As a consequence, all subsequent proceedings and orders passed by the Commissioner must necessarily meet the same fate. In view of what has been stated herein above, the writ petitions are allowed, the orders dated 25.10.2007 and 14.3.2008 are set aside and the matter is remitted to the Commissioner, to decide the application for condonation of delay, after affording an opportunity to file reply, address arguments and if deemed appropriate after affording an opportunity to the Gram Panchayat to file a detailed application setting out reasons for delay in filing the appeal. During the pendency of the appeal, parties shall maintain status-quo with respect to ownership and possession of the land in dispute. Parties are directed to appear before the Director, Rural Development and Panchayat Department, Punjab,on 28.9.2010. 20.8.2010 (RAJIVE BHALLA) GS JUDGE