IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Civil Writ Petition No.14801 of 2008 Date of Decision: February 23, 2011 Balwinder & others .....PETITIONER(S) VERSUS Commissioner, Rohtak Division, Rohtak & others .....RESPONDENT(S) . . . CORAM: HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: - Mr. Harkesh Manuja, Advocate, for the petitioners. Mr. Sukhvinder Singh Nara, Senior Deputy Advocate General, Haryana, for respondent Nos.1 to 3. Mr. H.N. Sahu, Advocate, for respondent No.4. . . . AJAI LAMBA, J (Oral) 1. This civil writ petition has been filed under Article 226 of the Constitution of India, praying for issuance of a writ in the nature of certiorari, quashing Order dated 8.11.2007 (Annexure P-3) passed by the City Magistrate –cum- Assistant Collector 1st Grade, CWP No.14801 of 2008 [2] Panipat; order dated 29.2.2008 (Annexure P-4) passed by the Collector, Panipat; and Order dated 18.7.2008 (Annexure P-6) passed by the Commissioner, Rohtak Division, Rohtak. 2. Facts in seriatim of events in brief are that respondent No.4, Gram Panchayat, Sodapur, Tehsil Madlauda, District Panipat, filed an application under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (as applicable to Haryana) (for short, ‘the Act’), in the year 1997 against the petitioners seeking possession of the land while claiming that the land is shamilat deh. The petition/application was decided by the Assistant Collector 1st Grade, Panipat, vide 25.2.1997 (Annexure P-8). 3. Order dated 25.2.1997 (Annexure P-8) reads as under:- “File has been put up. Case was called. Counsel for the respondent is present. No one has appeared on behalf of the petitioner. After perusal of the file, it revealed that the petitioner has failed to produce any evidence for a sufficient long time and despite imposing cost the evidence has not been completed. Now the court time is over. Case was called again but neither the petitioner nor any counsel has appeared. So, it appears that the petitioner does not want to pursue the present case. So, the case is dismissed for non-prosecution. File be consigned to the record room after due compliance. Sd/- Assistant Collector 1st Grade, Panipat.” 4. The respondent Gram Panchayat filed a second application under Section 7 of the Act CWP No.14801 of 2008 [3] on 28.9.2005 against the petitioners. On behalf of the petitioners, a specific ground was taken in Para 7 of their reply that Gram Panchayat is estopped from filing the second petition/ application. Principle of resjudicata would apply in view of order already passed on 25.2.1997 (Annexure P-8), as extracted above. Although argument has been noticed while dealing with the issue, however no adjudication has been made by the authority in the impugned order Annexure P-3 passed by respondent No.3. 5. The petitioners claim to have purchased the land in the year 1991 from proprietors of the village. On facts, the prescribed authority under Section 7 of the Act has held that the land was Gair Mumkin Johar Rafai Aam (Annexure P-3, running page 41). The petitioners had taken illegal possession of the land. The land was in the ownership of Gram Panchayat/ Panchayat deh as per revenue record. 6. The petitioners filed an appeal. Collector, Panipat, vide Order dated 29.2.2008 (Annexure P-4) has dismissed the appeal. The petitioners filed a revision before the Commissioner, Rohtak Division, Rohtak, under Section 13-B of the Act which has also been dismissed vide Order dated 18.7.2008 (Annexure CWP No.14801 of 2008 [4] P-6). 7. Learned counsel for the petitioners has argued that Order Annexure P-3 passed by the Assistant Collector 1st Grade, Panipat, allowing the application filed by the Gram Panchayat under Section 7 of the Act; Order Annexure P-4 passed by the Appellate Authority; and Order Annexure P-6 passed by the Revisional Authority, are illegal in so much as under Section 11 of the Code of Civil Procedure, Principal of Resjudicata applies and the respondent Gram Panchayat is estopped from filing a second petition/ application. Prescribed authority had no jurisdiction to deal with the issue. In this regard, learned counsel has relied on Division Bench judgment of this Court, reported as 1997 (1) PLR 363, Naurang Singh (Dead) through LRs vs. State of Punjab. 8. Learned counsel for the respondent Gram Panchayat has argued that the proceedings under Section 7 of the Act are summary in nature. In such circumstances, Principle of Resjudicata or Estoppel cannot be invoked. It has been contended that Section 11 CPC even cannot be applied in view of the language of earlier order passed on 25.2.1997 (Annexure P-8). The earlier application filed by the Gram Panchayat had not CWP No.14801 of 2008 [5] been heard and finally decided by the authority. Learned counsel has relied on 2004(2) RCR (Civil) 191, Mohinder Singh & others vs. State of Punjab & another; and 2002(3) RCR (Civil) 319, Brahma Vart Sanatam Dharm Mahamandal vs. Kanhyalal Bagla & others. 9. I have heard the learned counsel for the parties and have taken note of the arguments addressed. 10. Language of the earlier order (Annexure P-8), in context of which it has been pleaded that respondent Gram Panchayat is estopped from filing a second petition/ application and Principle of Resjudicata would be attracted, shows that the application was dismissed for non-prosecution. The Gram Panchayat had failed to produce any evidence despite opportunities having been given to the Gram Panchayat. Language of the order itself indicates that the issue raised subsequently in the proceedings under challenge had not been earlier heard and finally decided by the prescribed authority. There is no adjudication on the issue and findings of facts have not been returned. 11. So far as reliance by the petitioners on Naurang Singh’s case (supra) is concerned, the facts are clearly distinguishable. CWP No.14801 of 2008 [6] To take into account the facts that were being considered by the Division Bench of this Court, reference may be made to Para 2, 3, 22 (relevant portion), 23, 24, 25, 26, 27, 28 and 33:- “2. Respondent-Gram Panchayat sought to be put in possession of the land in dispute in 1967, under Section 7 of the Act, as was then applicable. It was contended that the land in dispute vested in Gram Panchayat, and predecessor-in-interest of the petitioner who was none else than his father, was claimed to be in un-authorised possession of the said land and so the petitioner continued as such. consequently, the Gram Panchayat claimed to be put in possession. the Assistant Collector vide his order dated 4.5.1967 dismissed the petition observing that from the evidence produced by Shri Naurang Singh, it is evident that he bought land on 15th Jeth 1966 BK along with share of Shamlat land which falls as 12 bighas 13 biswas, so acquired this land prior to the enforcement of this Act and has been in continuous cultivating possession of the land which none has been given to him. So, according to rules, he acquired this land prior to the enforcement of this Act. As the notice is withdrawn and the land is excluded from the definition of “shamilat deh”. No further action was taken. 3. The Act was amended in 1976 though no substantial change was brought about in Section 7 of the Act. The Gram Panchayat again sought to be put in possession of the land in dispute on the same averments as referred to above. The petition was dismissed as withdrawn for non- prosecution by Gram Panchayat on 6.11.1981. xx xx xx xx xx xx xx xx 22. xx xx xx xx xx xx xx In view of the observations made above and putting a purposive construction on principle of res judicata as understood by ordinary mortals for whom it is meant, the conclusion arrived at in the order dated 5.4.1967 by the competent authority are to the effect that the land in dispute did not fall within the definition of Shamlat deh. It did not vest in the Gram Panchayat. Petitioner was in cultivating possession of the same before 26.1.1950 i.e. before the Act came into force. Petitioner came in possession of the Shamlat deh of the share of co-sharer not more than his share by purchase. The order became final between the parties now as the same was never challenged in the hierarchy of higher authorities provided under the Act to correct errors, if any, in the order nor the question of title was got determined by the respondent-Gram Panchayat from the civil Court. The statute then prevalent did not oust jurisdiction of civil Court to determine the question of title having been decided in summary CWP No.14801 of 2008 [7] proceedings against the respondents. Even if it is assumed that question of title was decided summarily, the respondent Gram Panchayat was entitled to get the same determined from the civil Court which course, the Gram Panchayat never adopted. 23. We find force in the submission of the learned counsel for the petitioner that the respondent-Gram Panchayat cannot be permitted to relitigate the issue under the same provisions of the Act under which it has lost the first round of litigation particularly when there is neither any change much less substantial provided in Section 7 of the Act conferring jurisdiction on the authority to put Gram Panchayat in possession of the land in dispute at the time of proceedings initiated in 1967, later after the amendment of 1976 Act and still later till date, nor any new facts or change in facts, or grounds for ejectment or to put the Panchayat in possession came into being. 24. The respondent-Gram Panchayat’s further attempt to relitigate the issue resulted in fiasco because of there having lack of evidence and leading no evidence inspite of number of opportunities given and resultantly because of which the Gram Panchayat got the petition dismissed as not interested for prosecution of the same any further, for reasons best known to it. It is just after a lapse of 21 days from bringing down the curtain on the same round of litigation on the same cause of action between the same parties, before the same forum, under same statutory provisions on same facts or cause of action preferred another application by articulating an addition of Section 11 of the Act in the application with a prayer to determine the question of title. In our considered view, the Gram Panchayat cannot be permitted to keep the lis alive for times immemorial by mere articulating the petition and thus frustrate the very principle not only embibed in the principle of res judicata, equitable res judicata, estoppel, even otherwise recognised by the Constitution of India to the effect that a person cannot be vexed twice over for the same cause of action i.e. a cause of action cannot be put to trial time and again much less in the peculiar facts and circumstances of the case in hand. 25. The impugned order of the Appellate Authority cannot be sustained as the observations made to the effect that since the order dated 6.11.1981 which is the second application for ejectment, did not decide the matter on merits nor it was heard on merits, the petitioner had not raised any objection with respect to its withdrawal, the only appropriate remedy available to the Gram Panchayat was to get their application decided under Section 11 of the Act, thus rejecting the plea of res judicata. The authorities below have lost sight of the judgment dated 5.4.1967 which meets all the requirements spelled out by the Appellate Authority. Consequently, in our considered view, the reasons recorded by the Appellate Authority in the impugned order cannot be sustained for the reason that Section 7 before amendment of 1976 Act, did not debar the Assistant Collector to determine the question whether CWP No.14801 of 2008 [8] the land in dispute falls within the definition of Shamlat deh or not and whether it vests in Gram Panchayat or not. 26. The questions determined by the Authority were squarely within the parameter of its jurisdiction and the finding recorded in the judgment dated 5.4.1967 became final inter se the parties. Even the second application was dismissed as withdrawn not simpliciter in default, rather it was dismissed as withdrawn on account of non- availability of evidence with express desire on the part of the respondent-Gram Panchayat not to prosecute. Resultantly, the principle of res judicata, equitable res judicata, estoppel on the causes of action as observed in the earlier part of the judgment would squarely be attracted in the facts and circumstances of this case. The parties cannot be permitted to litigate and relitigate indefinitely much less in a different forum, in the same forum with the same powers on the pari material of statutory provisions of Section 7, on the same facts with no fresh cause of action or grounds for ejectment thrown up or one becoming trespasser subsequently or the land getting vested under the Act in the Gram Panchayat, with no material difference brought about by the amendment. Taking any other view would result in draconian rule of law and would result in chaotic situation i.e. the rights of the parties will never be determined finally. Articulation cannot be permitted to denude the final adjudication to the lis, in order to deprive a person to enjoy fruit of his success in the lis particularly an illiterate village-folk who is usually ignorant of finer technicalities and articulation of law for whose benefit the Legislature enacted the village Common Lands Act. 27. The facts and circumstances of this case judged from any angle or principle enunciated above precisely or percintly fall within the four corners of principle of res judicata or analogous thereto. 28. For the reasons recorded above, we are of the considered view that the order dated 5.4.1967 would operate as res-judicata inter se the parties or in the alternative it would operate as estoppel for the respondent- Gram Panchayat to re-litigate the same cause of action before the same forum between the same parties. We may hasten to add that subsequent application cannot be termed something more than review of the earlier decision in the facts and withdrawn as circumstances of this case. Since the authorities have not been conferred with any statutory power of review, they are estopped from reviewing the order dated 5.4.1967 and taking any other contrary view. On the pari-materia reasoning given above, the order dated 6.11.1981 again re-litigating the same cause of action before the same forum on the same facts and circumstances and the Gram Panchayat did not want to prosecute the same any further in view of the lack of evidence led by it, if not strictly speaking operates as res- judicata would definitely debar the respondent – Gram Panchayat on the principle of equitable estoppel to reagitate the matter on the same cause of action on the CWP No.14801 of 2008 [9] same facts and circumstances before the same forum after having two rounds of litigation. xx xx xx xx xx xx xx xx 33. The order dated 5.6.1987 rejecting the petition for ejectment and putting Gram Panchayat in possession by a competent authority having become final, no change either in facts or law or new cause of action having arisen, operates as res judicata or at least operates equitable estoppel inter se the parties.” 12. While considering the facts as would be noticed from above extracted portion, the following has been held in law (Para 16, 18 and 19):- “16. The point adumbrated during the course of the arguments on which emphasis has been laid is on the principle of res judicata i.e. to the effect that the matter could not have been re-agitated for innumeral times and the question determined was determined finally and the same having become final, cannot be redetermined. Although strict principle of res judicata may not be invoked yet the principles termed as ‘equitable res judicata’ or ‘cause of action estoppel’ do arise in this case and are squarely applicable. xx xx xx xx xx xx xx xx 18. The basic quintessence of the principle of res- judicata whether equitable, statutory or cause of action estoppel may be culled out and is available from various pronouncements of the Apex Court as well as the High Court is to the effect: (i) that the order must be between the same parties or their successors claiming through them in which the matter has been finally decided by the competent Court or authority in earlier proceedings and the same question between the same parties or their successors on the same subject matter under the same statute by the same authority has again arisen. The fair and expedient adjudication is the elementary need precluding relitigating on the same issues time and again with the obvious object of obliterating the miscarriage of justice, contradictory results, inconsistent decisions on the same question between the same parties on the same subject matter especially by the same authority, keeping in view to bring about conclusiveness of the decision on an issue, rather keeping the sword of democles hanging and the litigation unending in successive suits or in successive forums leading to conflict of decisions, thus permitting people to take chance of fortuitous circumstances in the arena of litigation by changing the forums time and again. CWP No.14801 of 2008 [10] Permitting otherwise would introduce disorder, confusion, chaos relating to Courts, which would instead of becoming forums for setting the rights of the parties to enable them to enjoy the same would become mere adornment and the rights would always remain in transitory form, apart from the fact that it would result in dilatory and wasteful litigation. As observed earlier in view of the public policy to promote predictability, certainty, suitability and providing guide to the people to conduct themselves or to plan their affairs with assurance against surmises apart from expeditious adjudication by eliminating the need to re-litigate over the same proposition between the same parties. The Courts are meant to do justice and not to reck this end on the altar of technicalities. 19. Provisions in this statute are made for the rights to be enforced and hierarchy for correcting the errors in appeal or other forums are provided. In spite of all human frailties, it is expedient that this must come to an end in a finally authoritative decision inspite of impossibility to provide a perfect judgment or means for Courts for every imaginable breach of rule. It is well established that when hierarchy is provided for challenging the order, it cannot be assumed that challenge to them collaterally is forbidden.” 13. A perusal of the above would show that the Division Bench of this Court was considering a set of facts that indicated that the issue was raised at the instance of the Gram Panchayat in the year 1967. Between the same parties, the case was heard and finally decided by the authority. Subsequently, however, Gram Panchayat again moved an application for same relief in the year 1981 which was dismissed as withdrawn for non-prosecution by the Gram Panchayat on 6.11.1981. The respondent Gram Panchayat again 3rd time moved a petition for same relief on the same ground(s) just after 20 days, by virtue of application filed on 26.11.1981. The Division Bench has held that CWP No.14801 of 2008 [11] because the matter had been heard, adjudicated and decided in the year 1967, Principle of Estoppel and Resjudicata could be invoked. In view of the above, I find that the judgment relied on by learned counsel for the petitioners would be of no help to the cause of the petitioners. Rather the judgment clarifies and holds that an order such as Annexure P-8 extracted above would not be an impediment for initiating proceedings at a subsequent stage. 14. The judgment relied upon on behalf of the respondent Gram Panchayat in Mohinder Singh’s case (supra) holds in following terms:- “10. Insofar as, contention of learned counsel, based upon the eviction petition filed under Section 7 of the Act of 1961, being barred by the principle of res judicata, as earlier two such petitions were dismissed, is concerned, all that needs to be mentioned that the petitioners themselves plead that none of the two petitioners filed earlier, was disposed of on merits. The admitted position, being as mentioned above, neither the provisions of Section 11 of the Code of Civil Procedure nor the general rule that no one can be vexed twice for the same cause of action, would apply to the facts of the present case.” 15. Likewise, in Brahma Vart Sanatam Dharm Mahamandal’s case (supra), the Hon’ble Supreme Court of India has held in the following terms in Para 21 and 22:- “21. On the question of res judicata, we would only refer to the decision rendered by this Court in Sajjadanashin Sayed MD. B.E. EDR. (D) by LRs. Vs. Musa Dadabhai Ummer and others, 2000 (3) SCC 350. The Court in paragraph 12 observed as under:- “It will be noticed that the words used in Section 11 CPC are directly and substantially in issue. If the matter was in issue directly and CWP No.14801 of 2008 [12] substantially in a prior litigation and decided against a party then the decision would be res judicata in a subsequent proceeding. Judicial decisions have however held that if a matter was only collaterally or incidentally in issue and decided in an earlier proceeding, the finding therein would not ordinarily be res judicata in a latter proceeding where the matter is directly and substantially in issue.” 22. In paragraph 18, the Court has further considered in which case, it could be said that the issue was directly and substantially raised and decided and held as under: - “In India, Mulla has referred to similar tests (Mulla, 15th Edn., p. 104). The learned author says : a matter in respect of which relief is claimed in an earlier suit can be said to be generally a matter directly and substantially in issue but it does not mean that if the matter is one in respect of which no relief is sought it is not “directly or substantially” in issue. It may or may not be. It is possible that it was “directly and substantially” in issue and it may also be possible that it was only collaterally or incidentally in issue, depending upon the facts of the case. The question arises as to what is the test for deciding into which category a case falls? One test is that if the issue was “necessary” to be decided for adjudicating on the principal issue and was decided, it would have to be treated as “directly and substantially” in issue and if it is clear that the judgment was in fact based upon that decision, then it would be res judicata in a latter case (Mulla p. 104). One has to examine the plaint, the written statement, the issues and the judgment to find out if the matter was directly and substantially in issue [Ishwer Singh v. Sarwan Singh, AIR 1965 SC 948 and Syed Mohd. Salie Labhai v. Mohd. Hanifa, (1976) 4 SCC 780]. We are of the view that the above summary in Mulla is a correct statement of the law.” 16. Considering the facts and circumstances of the present case in context of the law as noticed above, I am of the considered opinion that the earlier order passed on 25.2.1997 (Annexure P-8) as extracted above, would not operate as resjudicata. It would not CWP No.14801 of 2008 [13] estop the respondent Gram Panchayat from filing the second application in context of which orders have been passed and impugned in this petition. 17. In the year 1997, the matter was not determined finally and therefore, it cannot be said that it has been re-determined after filing of second application. It is not re-litigating on the same issue with the obvious object of causing miscarriage of justice, contradictory results, inconsistent decisions on the same question between the same parties on the same subject matter by the