Civil Revision No. 5940 of 2007 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 5940 of 2007 (O&M) Date of decision: 22.12.2008 Amarjeet Singh ....Petitioner Versus Gram Panchayat Kambheri ....Respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: -Mr. D.V. Sharma, Sr. Advocate, with Ms. Shivani Sharma, Advocate, for the petitioner. Mr. R.K. Malik, Advocate, for the respondent. ***** VINOD K. SHARMA, J (ORAL) This order shall dispose of Civil Revision No. 5940 of 2007 titled Amarjeet Singh Vs. Gram Panchayat Kambheri and Civil Revision No. 5941 of 2007 titled Karnail Singh Vs. Gram Panchayat Kambheri, as common questions of law and fact are involved. For brevity sake, facts are being taken from Civil Revision No. 5940 of 2007. This revision petition under Article 227 of the Constitution of India is directed against the orders dated 6.8.2007 and 23.10.2007 passed by the learned Courts below dismissing an application moved by the petitioner under Order 39 Rules 1 and 2 of the Code of Civil Procedure. The petitioner-appellant filed a suit for declaration and permanent injunction on the plea that there is a land/bara/gitwar within the phirni and outside abadi deh or gorah deh situated at village Kambheri as shown in red colour in the site plan. The plaintiff further claimed that there had been a johar within the phirni prior to consolidation as well as after the consolidation of Civil Revision No. 5940 of 2007 (O&M) -2- holdings in khewat No. 186 khatauni No. 372 khasra No. 76 and land measuring 9 kanals 9 marlas was wrongly and illegally shown as johar in the revenue record. It was claimed that the pond has never been used as johar or for any other common/public purpose. The plaintiff-petitioner further claimed that the village pond towards northern side of the site in dispute is only about 4 kanals 5 marlas, which was wrongly recorded as 9 kanals 9 marlas as gair mumkin johar. It is further the case of the petitioner that the site being outside abadi deh was being used as gitwar/bara/manure pit/house cottage industry immediately before commencement of the Act. As such it was not owned and possessed by the defendant because such land stood excluded from shamlat deh by amendment made vide Act No. 2 of 1981. A petition under Section 7(2) of the Punjab Village Common Lands (Regulation) Act, 1961 was filed against the petitioner in the Court of learned Assistant Collector, 1st Grade, Ghula which was allowed on 4.10.2006. A penalty of Rs.10,000/- (Rupees ten thousand only) per hectare was also imposed on the petitioner. The appeal filed against the order was also dismissed by Collector, Kaithal, on 28.11.2006 and revision also stands dismissed on 10.1.2007. The plaintiff-petitioner claims that the orders are without jurisdiction, illegal, null and void and not binding upon his right. It was claimed that the suit property did not come within the definition of 'shamlat deh' and, therefore, does not vest in the panchayat. The suit was contested and written statement filed. A preliminary objection was raised that the petitioner had no locus standi and cause of action to file and maintain the present suit. It was also pleaded Civil Revision No. 5940 of 2007 (O&M) -3- that the Civil Court had no jurisdiction to entertain and try the suit. It was further pleaded that the petitioner had not come to Court with clean hands as he had concealed true and material facts from the Court. On merit, it was asserted that the suit land was shamlat deh as defined under Section 2(g) of the Punjab Village Common Lands (Regulation) Act, 1961 and that the petitioner was in illegal and unauthorised possession of the suit property and he was rightly ordered to be evicted by the authorities under the Punjab Village Common Lands (Regulation) Act. The learned Courts below recorded a finding that the injunction can be granted on proof of prima facie case, balance of convenience, irreparable loss and injury to the person seeking injunction. The learned Courts observed that the suit land comprised in khasra No. 76 is shown to be gair mumkin johar and the same vests in Panchayat of village Kambheri and, therefore, the contention that the land was reserved as gorah deh during consolidation and did not come within the definition of 'shamlat deh' was held to be not acceptable. The learned Courts further observed that the land used or reserved for the benefit of the village community as playground, drinking well or pond etc. situated within the sabha area as defined in Section 3 of the Punjab Gram Panchayat Act, 1952, excluding the land reserved for the common purposes of a village under Section 18 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, management and control of which vests in State Government under Section 23(a) of the aforesaid 1948 Act. The learned Courts further observed that no such document was placed on record. The learned Courts observed that in the present case, ejectment order was passed against the petitioner under Section 7(2) of the Civil Revision No. 5940 of 2007 (O&M) -4- Punjab Village Common Lands (Regulation) Act, 1961 and thus legal process was adopted by the panchayat for his eviction. The learned Courts observed that as the order of eviction has been passed by a Court of competent jurisdiction, no injunction could be granted in favour of the person who was in illegal possession. The findings recorded by the learned trial Court have been affirmed by the learned appellate Court. Mr. D.V. Sharma, learned senior counsel, appearing on behalf of the petitioner has not controverted the findings recorded by the learned Courts below that the petitioner has no prima facie case as he has failed to show his ownership over the property in dispute. The learned Courts below have non-suited the petitioner by observing that he was not entitled to injunction against true owner as also in view of the fact that there was an order of competent authority ordering eviction. The injunction was not denied on the ground of jurisdiction of the Civil Court to entertain the suit. However, learned senior counsel vehemently argued that the Civil Court has the jurisdiction to try the case even though the jurisdiction of Civil Court is barred under Section 13 of the Punjab Village Common Lands (Regulation) Act. In support of his contention, learned counsel for the petitioner has placed reliance on the judgment of this Court in the case of Sunder Singh Vs.The State of Punjab and others 1973 P.L.J. 701. The judgment is not remotely applicable to the facts of the present case. This Court in the case of Sunder Singh Vs. The State of Punjab (supra) has been pleased to lay down that the authorities exercising summary jurisdiction under Section 7 of the Punjab Village Common Lands (Regulation) Act cannot decide the question of title which Civil Revision No. 5940 of 2007 (O&M) -5- is required to be adjudicated only by the Civil Court. The reliance on judgment is thus totally mis-conceived as subsequent to the passing of judgment referred to by the learned counsel for the petitioner, Section 13 of the Punjab Village Common Lands (Regulation) Act was amended and as per Section 13 of the Act, the question of title is also to be decided by the Collector by acting as Civil Court and the jurisdiction of the Civil Court is specifically barred. The learned senior counsel for the petitioner thereafter referred to the judgment of the Hon'ble Supreme Court in the case of Dhruv Green Field Ltd Vs. Hukam Singh 2002(2) PLJ 287: 2002(3) RCR (C) 690 to contend that in spite of bar contained under Section 13, the Civil Court still has jurisdiction to entertain and try the suit. The contention of the learned senior counsel is that the impugned order being totally without jurisdiction and nulity can be challenged before the Civil Court. However, this contention of the learned senior counsel for the petitioner is also mis-conceived. The Hon'ble Supreme Court in the case of Dhruv Green Field Ltd Vs. Hukam Singh (supra) has been pleased to interpret the provisions of Section 13 the Punjab Village Common Lands (Regulation) Act and it has been held that the Civil Court has no jurisdiction to entertain and try the question whether a particular land is shamlat deh or not. Nor it is permissible to challenge the order passed by the authorities under the Act by invoking the jurisdiction of the Civil Court. The order of the Hon'ble Supreme Court, on which strong reliance has been placed, in fact, reads as under: - “It would be apt to refer to Section 13 of the Act which bars the suit. The said provision reads as under: - Civil Revision No. 5940 of 2007 (O&M) -6- 13. Bar of Jurisdiction. - No civil Court shall have jurisdiction: - (a) To entertain or adjudicate upon any question whether- (i) any land or other immovable property is or is not shamlat deh. (ii) any land or other immovable property or any right, title or interest in such land or other immovable property vests or does not vest in a Panchayat under this Act. (b) in respect of any matter which any revenue court, officer or authority is empowered by or under this Act to determine; or (c) to question the legality of any action taken or matter decided by any revenue court officer or authority empowered to do so under this Act. A perusal of the section, quoted above, would show that the jurisdiction of a civil Court stands ousted : (a) to entertain or adjudicate upon any of the following questions : (i) any land or other immovable property is or is not shamlat deh; (ii) any land or other immovable property or any right, title or interest in such land or other immovable property vests or does not vest in a Panchayat under the Act: (b) in respect of any matter which any revenue court, officer or authority is empowered by or under this Act to determine; or (c) to question the legality of any action taken or matter decided by any revenue court, officer or authority empowered to do so under the Act. Clauses (b) and (c),noted above, are Civil Revision No. 5940 of 2007 (O&M) -7- relevant for our purpose. In respect of any matter which any revenue court, officer or authoirty is empowered by or under the Act to determine the issue, the jurisdiction of the civil Court in respect of that matter is barred. So also, where the Act empowers any revenue court, officer or authority to decide the legality of any action taken or matter decided by such court or authority such a question cannot be entertained or adjudicated upon by a civil court.” In view of the judgment of the Hon'ble Supreme Court in Dhruv Green Field Ltd Vs. Hukam Singh (supra), the suit filed by the petitioner itself is not competent before the Civil Court. At the sake of repetition, it may be mentioned that the petitioner has been non-suited by holding that he does not have prima facie case nor balance of convenience in his favour. No merit. Dismissed. (Vinod K. Sharma) Judge 22.12.2008 R.S.