CWP No. 3633 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 3633 of 2008 Date of decision: 12.3.2008 Gurmail Singh and others ...Petitioners Versus State of Punjab and others ...Respondents. CORAM:- HON'BLE MR. JUSTICE K.S.GAREWAL HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present: Mr. M.S. Rakkar, Senior Advocate with Mr. P.S. Baath, Advocate, for the petitioners. K.S.GAREWAL, J. This as well as five other connected petitions ( CWP Nos. 3645, 3646, 3654, 3678 and 3679 of 2008) have raised an unusual question of law. Can the petitioners challenge a judgment of this Court, affirmed in appeal by the Letters Patent Bench, and in respect of which review application has also been dismissed, on the basis of findings recorded a long time ago in their favour by Commissioner, Patiala Division. The order of the Commissioner dated February 6, 1979 categorically held that the land in question was not shamlat deh, was CWP No. 3633 of 2008 2 panchayat land on which the petitioners were tenants. The Commissioner further went on to conclude that the case did not fall within Section 4 of the Punjab Village Common Lands Act. The following is an extract from the Commissioner's order dated February 6, 1979. “...The combined effect of these documents is to prove that the Gram Panchayat was the owner of this land according to the jamabandi copies for the year 1972-73, and that the Panchayat was in possession of this land for the crops from kharif, 1972 to rabi 1973, through Babu Ram, who was a tenant under the panchayat on the land in question. The fact that the land in question was shamlat deh was not proved at all by attaching copies from any revenue/record. The fact that the land was, indeed, shamlat deh before it was mutated in favour of the Gram Panchayat, could have been very easily and successfully established by producing copies of the revenue record like the jamabandi, prior to year in which the land in question was mutated in favour of the Panchayat, or by attaching a copy of the mutation order, by which the land was thus mutated in the name of the panchayat. However, nothing of the sort has been done; and it has not been proved that the land was shamlat land before being mutated in the name of the Gram Panchayat. I want to emphasize at the cost of repetition that the mere fact that a particular piece of land has been shown to be in the ownership of the Gram Panchayat in the jamabandi does not satisfy the provisions of section 4, read with section 2 (g), of CWP No. 3633 of 2008 3 the Village Common Lands Act. The clear requirement of law is that the provisions of the Village Common Lands Act would apply to only that land, which was shamlat deh, and on that account fell within the scope of Section 2 (g) and if it is not established that the land, from where the eviction of the present appellant was sought, was shamlat deh, then the provisions of Section 7 would not be applicable to this land at all. This is a serious and grave lacuna in the case of panchayat. I am in fact surprised that no evidence has been led at all on this vital and essential point, and by not so doing, the case does not fall within the scope of section 7; and the proceedings in the courts below cannot but be quashed. The Commissioner had concluded by stating that the “Panchayat shall be within its competence to file a fresh application under Section 7 in accordance with law.” Thereafter, the Panchayat filed an application under section 7 in 1979 stating the Nagar Panchayat, Dudar, was the owner of the land in dispute as per jamabandi for the year 1977-78. The respondents were in illegal possession and had no right to remain in possession. The respondents had many times been asked to deliver possession but he had refused to do so. The Collector on December 10, 1980 concluded that the Commissioner had in her order dated February 6, 1979 observed that the Panchayat could file a fresh application under section 7, therefore, the principle of res-judicata did not apply. The respondents before him had not been able to establish possession since January 26, 1950. Consequently, it CWP No. 3633 of 2008 4 was held that the respondents were in possession in an unauthorized manner, without payment of rent, and since the disputed land belonged to the Panchayat, the application was accepted and the respondents were ordered to be ejected from the land. In the appeal filed before the Commissioner, the Commissioner upheld the order and dismissed the appeal on April 1, 1981. On July 25, 1988 in CWP 3080 of 1979 Gurnam Singh Versus Gram Panchayat etc. earlier proceedings under Section 7 were quashed. It was held, as already noticed and reproduced above that the findings in paras 23 and 24 were categoric that the Gram Panchayat had failed to prove that the land in dispute was shamlat Deh and vested in the Panchayat. Once a firm finding like this is recorded, no right vests in the Gram Panchayat to take proceedings under Section 7 and direction that Panchayat was competent to file a fresh application, was quashed. Nevertheless, the matter again came up for hearing before Hon'ble Single Judge of this Court in CWP 1723 of 1981 (decided on December 13, 1995), wherein the learned Single Judge upheld the jurisdiction of the Collector and the Commissioner under the Punjab Village Common Lands Act and dismissed the petition. Letters Patent Appeal 792 of 1996 was also dismissed on August 20, 2005. Review application was also declined on August 25, 2006. Whatever relief the petitioners could seek or whatever relief may have been available to them, they must file proper appeal or Special Leave Petition against the judgment of the LPA Bench which finally concluded the lis. Since the petitioners had not done so it is difficult for CWP No. 3633 of 2008 5 them to file a fresh petition to seek relief to quash the notice dated January 16, 2001 (Annexure P/1) or seek review of judgment of the Single Judge dated December 13, 1995, to seek to quash Judgment of LPA Bench dated August 10, 2005 and the order on the review application dated August 25, 2006. We find no merit in these petitions. Dismissed. (K.S. GAREWAL) JUDGE 12.3.2008 (DAYA CHAUDHARY) prem JUDGE