RSA No. 948 of 2001 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 948 of 2001 Date of decision: 14.1.2009 Mehar Singh and others. ...Appellants Versus Gram Panchayat/Gram Sabha, Sehjomajra and another. ...Respondents CORAM: HON'BLE MR.JUSTICE ADARSH KUMAR GOEL HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr. S.D. Sharma, Senior Advocate with Ms. Bindu Goel, Advocate for the appellants. Mr. G.S.Punia, Advocate for the respondents. -.- ADARSH KUMAR GOEL,J. (Oral) 1. This appeal has been placed for hearing before this bench in pursuance of order of learned Single Judge dated 7.12.2004. It would be appropriate to reproduce the aforesaid order passed by the learned Single Bench, which are as under:- “Learned counsel for the appellant has argued that before consolidation, which took place in the year 1955-56, the entry in the revenue record in respect of the suit land was Shamlat Deh Hasab Hissas Paimana Malkiat (the land belongs to the proprietor of the village) according to the pedigree table). However, after consolidation, the land was mutated in the name of Gram Panchayat on the discovery of the afore-mentioned entry in favour of Gram Panchayat. A petition under Section 42 RSA No. 948 of 2001 2 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation ) Act, 1961 (for brevity, 'the Act') was filed before the Director, Consolidation with a prayer for correction of the entries made after consolidation. The Director vide his order dated 15.7.1996 ordered the correction of entry because after perusal of the consolidation record, he found that there was no land in the name of Gram Panchayat before consolidation. The concluding para of order dated 15.7.1996 passed by Director, Consolidation reads as under:- “I have heard both the parties with their counsels and checked the record. The consolidation records shows that before the consolidation there was no land in the name of the Gram Panchayat and the land in question was rightly shown under the Maqbuja Malkan. So the judgment of Hon'ble Punjab and Haryana High Court cited as 1981 PLJ page 300 presented by the counsel for the petitioners is fully applicable to this case. It is also clear from the record that there is no order in favour of the Panchayat and the Panchayat never acquired the land by payment of compensation. The consolidation authorities are bound to partition the joint khattas,but in this case the property under the possession of Maqbuja Malkan, which has further been transferred in the name of the Gram Panchayat was not distributed by the consolidation department. As per provisions of Constitution of India and judgments of Hon'ble Punjab RSA No. 948 of 2001 3 and Haryana High Court cited by the counsel for the petitioners the transfer entry in the name of the Gram Panchayat is illegal, void and without jurisdiction and is liable to be ignored. Such illegal transfer entry cannot snatch the rights of the petitioners. The Authorities presented by the counsel for the petitioners are fully applicable in this case. The counsel for the respondent failed to show any law that show the transfer entry is valid and under which provision of law the land in question vest to the Panchayat. The judgments referred by the counsel of the respondent Gram Panchayat are not applicable to this case. The contention of limitation raised by the counsel of the respondent Panchayat is not acceptable in view of the judgment of Hon'ble Punjab and Haryana High Court cited 1984 PLJ page 222 which is very clear on this point, according to which the petitions against the re-partition and scheme can be challenged at any stage. The counsel for the respondent also failed to submit any record of lease of land. Even if the land of proprietors wrongly entered in the name of the Gram Panchayat has been leased out by some mistake committed by the consolidation department, that has no effect on the rights of the proprietors of the village. The judgment of Hon'ble Punjab and Haryana High Court cited as 1992 (1) PLR page 10 clarifies the matter that such lease cannot change legal position and RSA No. 948 of 2001 4 the same has no affect on the title of proprietors. Due to the above said reasons the mutation in the name of Gram Panchayat is ignored being null and void entry and the scheme is amended and the land reserved more than mentioned in the appendix attached with the consolidation act is de-reserved. In view of this the petition is accepted and the case is remanded to the Consolidation Officer (Tehsildar), Samrala with the direction that he should re-distribute the land of Khewat No. 583 of jamabandi for the year 1990-91 to the petitioners.” The afore-mentioned order of the Director was carried by the Gram Panchayat (respondent) to this Court and challenged under Article 226 of the Constitution of India by filing Civil Writ Petition No. 15306 of 1996. A Division Bench of this Court on 10.3.1997 dismissed that petition as it was found that there was no material on record to show that the suit land was being used for common purposes nor any revenue document was placed before the Division Bench in that regard. Thereafter, the matter was taken to Supreme Court. While dismissing the SLP on 6.3.1998, the Supreme Court permitted the Gram Panchayat to approach the Collector under Section 11 of the Punjab Village Common Lands (Regulation) Act, 1961 (for brevity `the Act') to get the nature and title of the land decided if the application was to be filed under Section 11 of the Act. Accordingly, an application was filed before the RSA No. 948 of 2001 5 Collector who passed an interim order on 1.4.1998, which reads as under:- “Heard in detail. Arguable points are involved in this case. Therefore, petition is admitted and be registered. The petitioner has also filed an application for stay alongwith the petition u/s 11 of the Act. The petitioner has prima facie case and balance of convenience in its favour. Affidavit is also filed by the petitioner in support of application of stay. Therefore, the respondents are restrained not to interfere in any manner in land in dispute mentioned in khewat no. 629 of jamabandi of 1995-96 and khewat no. 583 khatauni numbers 787 to 813 of jamabandi for the year 1990-91. The respondents are further restrained not to restrain the petitioner from auctioning, leasing, managing and controlling the land in dispute till further orders. Notice of the petition be issued to the respondents for 5.5.1998.” Apprehending that the Gram Panchayat is likely to alienate the property by making small plots, the plaintiff- appellant filed the suit from which the instant appeal has arisen seeking permanent injunction against Gram Panchayat from selling/alienating/transferring by way of carving out plots and also restraining the Gram Panchayat from cutting, emoving and selling the trees standing in the suit land. Learned counsel for the appellant has argued that the Collector under Section 11 or Section 13 of the Act has no RSA No. 948 of 2001 6 inherent power to issue any interim order and the interim order can only be passed by the Civil Court especially when the order of the Director, Consolidation dated 15.7.1996 has been upheld upto this Court and thereafter, even by the Supreme Court. According to the learned counsel permitting the Collector to invert the whole adjudication and determination of rights of both the parties upto Supreme Court, would cause manifest injustice to the plaintiff-appellant. He has also argued that the order of the Collector dated 1.4.1998 restraining the plaintiff- appellant is also without jurisdiction although the same has not been challenged by the plaintiff-appellant before the superior authorities. The learned counsel has also submitted that there is no provision in the Punjab Village Common Land (Regulation) Act, 1961 for grant of interim injunction vesting power with the Collector and in the absence of such a provision, no power can be assumed by him. Such a power can alone be exercised by a Civil Court. Mr. G.S.Punia, learned counsel for the Gram Panchayat has argued that as a matter of fact, the order of the Director, Consolidation dated 15.7.1996 has been nullified by the order of the Supreme Court dated 7.3.1998 passed in SLP No. 12487/1997 albeit upholding the same by this Court in CWP No. 15306 of 1996 on 10.3.1997. Mr. Punia has further argued that the Civil Court has no jurisdiction to grant any injunction in favour of a proprietor of the village because there is a complete bar under Section 13 of the Act. In support of the RSA No. 948 of 2001 7 submission, the learned counsel has placed reliance on a judgment of this Court in Jarnail Singh and another vs. Gram Sabha of village Sarabha and others 1987(2) PLR 459 wherein the injunction was sought and declined against Gram Panchayat for digging the drain on the land in respect of which a dispute has arisen whether it belonged to the proprietor of the village or Gram Panchayat. Mr. Punia has raised another contention that Director, Consolidation cannot decide the question as to whether the land was Shamlat deh or it belongs to proprietor. In support of the afore-mentioned submission, learned counsel has placed reliance on another judgment of this Court in the case of Balkar Singh and others vs. Director, Land Records, Punjab and others 2000(2) PLR 111, After hearing the learned counsel for the parties at a considerable length, I find that the following questions of law would arise for determination of this Court:- (a) Whether in the absence of any provision under the Act, the power to issue interim direction could only be exercised by a Civil Court or the Collector could also assume such powers while entertaining the application under Section 11 of the Act? (b) Whether the observations of the Supreme Court in its order dated 06.03.1998 would nullify the view of the Director, Consolidation taken in his order dated 15.7.1996 and that of this court upholding the order of the Director? Admitted. Stay to continue. RSA No. 948 of 2001 8 To be heard within one year.” From the above order, the facts are clear. 2. Before consolidation which took place in the year 1955-56, entry of land was Shamlat deh Hasab Hissas Paimana Malkiat. After consolidation, the land was mutated in the name of panchayat. The appellant challenged the said entry by filing a petition under Section 42 of the East Punjab Holding (Consolidation and Prevention of Fragmentation) Act, 1961. This said petition was allowed vide order dated 15.7.1996 in favour of the appellant. The Panchayat filed CWP No. 15306 of 1996 in this Court against the said order which was dismissed on 10.3.1997. In S.L.P. which was disposed of on 6.3.1998, Hon'ble the Supreme Court observed that question whether Shamlat deh land vested in the Panchayat could be determined under the provisions of Punjab Village Common Lands (Regulation) Act, 1961 and the Panchayat could approach the Collector under the provisions of the said Act. Accordingly, an application was filed before the Collector who vide order dated 1.4.1998 restrained the appellant from interfering with the land in dispute. Thereafter the appellant filed a suit in the civil court for restraining the panchayat from alienating the suit land. The suit was dismissed on the issue of jurisdiction. 3. In this second appeal the Panchayat defends the decree while the plaintiff-appellant submits that the Collector could not grant injunction and could not read the order of Hon'ble the Supreme Court dated 7.3.1998 as nullifying the order of Director Consolidation dated 15.7.1996 which was upheld by this Court. The learned Single Judge has thus framed questions of law which have been reproduced above. RSA No. 948 of 2001 9 4. We have heard the learned counsel for the parties and perused the record. 5. We are of the view that the questions framed have to be answered against the appellant and in favour of the respondents. 6. It is not disputed that jurisdiction to decide the right, title or interest in Shamlat deh is exclusively vested in the Collector to the exclusion of jurisdiction of the civil court. Reference to Sections 11 and 13 of the Punjab Village Common Lands (Regulation) Act, 1961 makes the position clear. The said provisions are as under:- “ Section 11 Decision of claims of right, title or interest in shamilat deh (1) Any person or a Panchayat claiming right, title or interest in any land, vested or deemed to have been vested in a panchayat under this Act or claiming that any land has not so vested in a Panchayat, may submit to the Collector, within such time, as may be prescribed, a statement of his claim in writing and signed and verified in the prescribed manner and the Collector shall have jurisdiction to decide such claim in such manner as may be prescribed. (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. RSA No. 948 of 2001 10 Section 13. Bar of Jurisdiction in civil courts:- No civil courts shall have jurisdiction:- (a) to entertain or adjudicate upon any question, whether any property or any right to or interest in any property is or is not shamilat deh vested or deemed to have been vested in a Panchayat under this Act; or (b) to question the legality of any action taken by the Commissioner or the Collector or the Panchayat, under this Act; or (c) in respect of any matter which the Commissioner or the Collector is empowered by or under this Act to determine” 7. Once that is so, the Collector could also have an incidental power including power to grant injunction. Learned counsel for the defendant-respondents, inter-alia, relied upon the judgments of Hon'ble the Supreme Court in M/s. Jaipur Mineral Development Syndicate, Jaipur v. The Commissioner of Income Tax, New Delhi, AIR 1977 SCC 1348, The Newabganj Sugar Mills Co. Ltd. and others v. The Union of India and others, AIR 1976 SC 1152 and Gram Panchayat Nurpur v. State of Punjab and others 1997(1) PLJ 269. 8. In M/s. Jaipur Mineral Development Syndicate's case (supra), it was observed as under:- “....There is nothing in any of the provisions of the Act which, either expressly or by necessary implication, stands in the way of the High Court from passing an order for disposal of the reference on merits. The courts have power, in the absence of any express or implied prohibition, to pass an order as may be RSA No. 948 of 2001 11 necessary for the ends of justice or to prevent the abuse of the process of the court. To hold otherwise would result in quite a number of cases in gross miscarriage of justice.” 9. In The Newabganj Sugar Mills Co. Ltd.'s case (supra), it was observed as under:- “6....The difficulty we face here cannot force us to abandon the inherent powers of the Court to do. “The inherent power has its roots in necessity and its breadth is coextensive with the necessity.” 10. In Gram Panchayat Nurpur's case (supra), it was observed as under:- “5. We are of the view that the Additional Director Consolidation, had no authority to go into the question whether the land in dispute was shamlat deh or not. This is a question which could not be decided by the authorities under the Regulation Act.” 11. The view taken hereinabove is also supported by the observations of the Hon'ble Supreme Court in Income Tax Officer, Cannanore v. M.K.Mohamad Kunhi, AIR 1969 SC 430, paras 4 to 8, Allahabad Bank, Calcutta v. Radha Krishna Maity, AIR 1999 SC 3426, Union of India v. Paras Laminates (P) Ltd., AIR 1991 SC 696, para 9, Mardia Chemicals Limited and others v. Union of India and others, (2004) 4 SCC 311, para 49 and Jamal Uddin Ahmad v. Abu Saleh Najmuddin, AIR 2003 SC 1917. 12. No contrary view has been shown on behalf of the appellants. 13. Thus, we are of the view that the Collector had the jurisdiction RSA No. 948 of 2001 12 to grant interim injunction in exercise of inherent powers. The Hon'ble Supreme Court while dismissing the Special Leave Petition made it clear that the Panchayat would be at liberty to approach the Collector. Even though this Court had upheld the order of Director and the SLP was dismissed, the Collector was at liberty to decide the matter in regard to title of the suit without treating the order of the Director dated 15.7.1998 fully binding to the parties. 14. In view of the above, this appeal is dismissed. (ADARSH KUMAR GOEL) JUDGE 14.1.2009 (JITENDRA CHAUHAN) mk JUDGE RSA No. 948 of 2001 13