IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision : January 07, 2011 C.W.P.No.5765 of 1991 Radha Singh ...Petitioner Versus The Assistant Collector, Ist Grade, Pehowa etc. ...Respondents C.W.P.No.5861 of 1991 Santokh Singh etc. ...Petitioners Versus The Assistant Collector, Ist Grade, Pehowa etc. ...Respondents C.W.P.No.5862 of 1991 Santokh Singh ...Petitioner Versus The Assistant Collector, Ist Grade, Pehowa etc. ...Respondents C.W.P.No.5912 of 1991 Dalip Singh ...Petitioner Versus The Assistant Collector, Ist Grade, Pehowa etc. ...Respondents C.W.P.No.5913 of 1991 Sarain Singh etc. ...Petitioners Versus The Assistant Collector, Ist Grade, Pehowa etc. ...Respondents C.W.P.No.5915 of 1991 Balkar Singh ...Petitioner Versus CWP No.5765 of 1991 The Assistant Collector, Ist Grade, Pehowa etc. ...Respondents CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present : None for the petitioners. Mr. R.S.Tacoria, Advocate, for respondent No.2. HEMANT GUPTA, J. This order shall dispose of aforementioned writ petitions raising identical question of law and facts. Respondent No.2-Gram Panchayat filed a petition under Section 7 of the Punjab Village Common Land (Regulation) Act, 1961 (hereinafter referred to as ‘the Act’). In such proceedings, the petitioners herein submitted replies relying upon civil court decree dated 01.02.1974 and 30.01.1974 to contend that the Gram Panchayat has no concern with the suit land and the validity of the aforesaid decree cannot be gone into by this Court in view of the judgment of this Court reported as Bajinder Singh Vs. Assistant Collector, Ist Grade, Guhla 1983 PLJ 116. Considering the said reply, the Assistant Collector, Ist Grade, Pehowa, passed an order on 27.03.1991 holding that the petition is competent and maintainable. It was found that the petitioners were inducted as a lessee, but after the Civil Court decree, the petitioners have stopped paying the lease money. The Assistant Collector also observed that the Civil Court decree is based on mala fide act and, therefore, the same is not binding on the Panchayat. In the writ petitions, the petitioners have placed reliance upon the Full Bench judgment of this Court reported as Gram Panchayat, 2 CWP No.5765 of 1991 Village Bathoi Kalan Vs. Jogar Ram and others 1991 (1) PLR 260. In the aforesaid judgment, it has been held that the decree of Civil Court is binding on the Panchayat and the same can be set aside only by the Civil Court. Relying upon the aforesaid Full Bench judgment, it is sought to be contended that the proceedings under Section 7 of the Act are not maintainable before the Authorities under the Act till such time the decree of the Civil Court is operative and binding. It was also pleaded that the Division Bench of this Court in a judgment reported as The Karnal Co- operative Farmers Society Ltd., Pehowa Vs. Gram Panchayat, Pehowa, 1976 PLJ 237 has held that the amendment in the Act by Haryana Act No.2 of 1981 substituting Section 13 of the Act retrospectively cannot lead to the decrees of the Civil Court as without jurisdiction. I have gone through the records of the cases carefully as well as the judgments mentioned in the petition and cited at the Bar by learned counsel for the Gram Panchayat. Section 7 of the Act as originally enacted vide Punjab Act No.18 of 1961 empowered the Assistant Collector to put Panchayat in possession. Section 13 of the Act barred Civil Court jurisdiction only over matters which arose out of the operation of the Act. The provisions of the Act were utilized by the several persons to have recourse to civil courts and to obtain decrees therefrom in their favour and against the concerned Panchayats pleading that their land and other immovable properties were excluded from ‘shamlat deh’ either under clause (g) of Section 2 or sub- section (3) of Section 4. Since large numbers of decrees were granted by the Civil Court, the Act was amended in the State of Haryana by Act No.34 of 1974 w.e.f. 12.11.1974. By such amendment, the decrees obtained from the Civil Court could be set aside by the Assistant Collector on an 3 CWP No.5765 of 1991 application submitted to the Authorities within two years of the amending Act. The said amendment was set aside by the Division Bench of this Court in The Karnal Co-operative Farmers Society’s case (supra). During the pendency of appeal before the Hon’ble Supreme Court, the State amended the Act vide Act No.2 of 1981 and inserted proviso to Section 7 of the Act as well as substituted Section 13, 13-B and 13-D of the Act. The amendments carried out in 1974 were nullified by the aforesaid amending Act. The validity of such amendment was considered by this Court. A Division Bench of this Court in Bajinder Singh’s case (supra) set aside the amendment in the Statute, which has the affect of nullifying the Civil Court decree. In an appeal before the Hon’ble Supreme Court in a judgment reported as State of Haryana and others Vs. Karnal Co-operative Farmers’ Soceity Limited and others (1993) 2 SCC 363, it was held that the provisions empowering the Assistant Collector to disregard or disobey the earlier civil Courts’ decrees or judicial orders are unconstitutional. Consequently, the provisions of the Act insofar as they are intended to operate retrospectively for nullifying the adjudications made by civil courts prior to that Amendment Act were declared inoperative, invalid and unconstitutional. The provisions in the Amendment Act were found to be valid to operate prospectively for adjudicating upon claims to ‘shamlat deh’ in proceedings initiated subsequent to the commencement of the Amending Act. It was held to the following effect: “38. In the instant case, the Haryana State Legislature, by the Amendment Act of 1981, has not made any provision to include the lands and immovable properties – the subject of the civil court’s decrees, in ‘shamlat deh’ so as to bring them 4 CWP No.5765 of 1991 within the purview of the principal Act. But the provision made therein merely directs the Assistant Collector of first grade, in effect, to disregard or disobey the earlier civil courts’ decrees and judicial orders by which it had been held that certain lands and immovable properties fell outside ‘shamlat deh’ regulated by the principal Act. Such provisions inserted by the Amendment Act of 1981 in the principal Act by a legislature are clearly unconstitutional for they are to be regarded as provisions made by encroaching upon the judicial power. Hence, the view of the High Court that the provisions of the Amendment Act of 1981 which merely authorize the Assistant Collector of first grade to decide the claims to be made before him claiming certain lands or immovable properties as ‘shamlat deh’ vesting in Panchayats ignoring the judicial orders or decrees, by which any right, title or interest of private parties in such lands or immovable properties are recognized, are unconstitutional, requires to be upheld. Consequently, the provisions of the Amendment Act of 1981, insofar as they are intended to operate retrospectively for nullifying the adjudications made by civil courts prior to that Amendment Act, are invalid, inoperative and unconstitutional. However, the provisions in the Amendment Act of 1981, can undoubtedly operate prospectively for adjudicating upon claims to ‘shamlat deh’ in proceedings initiated subsequent to the commencement of that Act, if they do not, in any way, disturb the finality of adjudications made earlier.” Prior to the aforesaid judgment of the Hon’ble Supreme Court, a Full Bench of this Court in Jagar Ram’s case (supra), relying upon the Division Bench judgment of this Court in The Karnal Co-operative Farmers Society and Bajinder Singh’s cases (supra), has held that unless the decrees passed by the Civil Courts are held to be collusive or obtained by fraud by a competent Civil Court, the same cannot be ignored by the Authorities under the Act. It was held to the following effect: 5 CWP No.5765 of 1991 “7. Though there was no such provision in the Act as applicable to the State of Punjab, but it is evident that the decree passed by the competent Civil Courts between the parties could not be ignored by the authorities under the Act, prior to the amendment of the Act by Punjab Act No.19 of 1976. However, it may be made clear that the parties will always be at liberty to get those decrees set aside on the grounds of collusion, fraud etc. or otherwise, by a competent Court. Unless the said decrees passed by the Civil Courts are held to be collusive or obtained by fraud, by a competent Civil Court, the same could not be ignored by the authorities under the Act in view of the judgment rendered by the Division Bench in Bajinder Singh’s case (supra), the correctness of which was not challenged before us.” The Hon’ble Supreme Court in a judgment reported as Gram Panchayat of Village Naulakha Vs. Ujagar Singh and others (2000) 7 SCC 543 has held that the view taken by the Full Bench in Jagar Ram’s case (supra), is not correct and is contrary to the provisions of Section 44 of the Indian Evidence Act. It was held to the following effect: “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 has not referred to Section 44 of the Evidence Act or to any other precedents of other courts or to any basic legal principle. 9. Further property of a public institution cannot be allowed to be jeopardized by persons who, at an earlier point of time, might have represented it and who were expected to effectively defend public interest and community property. Persons representing public bodies are expected to discharge their 6 CWP No.5765 of 1991 functions faithfully and in keeping with the trust reposed in them. 10. We may also add one other important reason which frequently arises under Section 11 CPC. The earlier suit by the respondent against the Panchayat was only a suit for injunction and not one on title. No question of title was gone into or decided. The said decision cannot, therefore, be binding on the question of title. See in this connection Sajjadanashin Sayed Vs. Musa Dadabhai Ummer (2000) 3 SCC 350, where this Court, on a detailed consideration of law in India and elsewhere held, that even if, in an earlier suit for injunction, there is an incidental finding on title, the same will not be binding in a later suit or proceeding where title is directly in question, unless it is established that it was “necessary” in the earlier suit to decide the question of title for granting or refusing injunction and that the relief for injunction was founded or based on the finding on title. Even the mere framing of an issue on title may not be sufficient as pointed out in that case. 11. Thus, it was open to the statutory authorities under the 1961 Act to go into the collusive nature of the suit in the proceedings under Section 7 of the 1961 Act, as stated above. The High Court has not gone into the merits of the decision of the Collector and the appellate authority but has allowed the writ petition solely based on the Full Bench decision in Jagar Ram. We have now overruled the Full Bench decision. We, therefore, set aside the judgment of the High Court and remit the writ petition to the High Court for disposal in accordance with law, in the light of the above observations.” In view of the aforesaid Hon’ble Supreme Court judgment, reliance of the petitioners on the Full Bench judgment of this Court in Jagar Ram’s case (supra) is not sustainable. The Collector in proceedings under Section 7 of the Act is competent to examine the legality and validity 7 CWP No.5765 of 1991 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 on which reliance is placed by the petitioners. In view of the above, I do not find any illegality in the order passed by the learned Assistant Collector, Ist Grade, Pehowa, which may warrant any interference by this Court in exercise of its writ jurisdiction. Dismissed. (HEMANT GUPTA) JUDGE January 07, 2011 Vimal 8