CWP No. 6857 of 1988 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.6857 of 1988 Date of decision:- 04.02.2011 Jit Singh son of Ghisu (dead) through legal representatives ....Petitioners Vs. Joint Director, Panchayat and others ....Respondents CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA Present Mr. Balbir Singh, Advocate, for the petitioners. Mr. P.S. Thiara, Addl. AG, Punjab, for respondent Nos. 1 and 2. Mr. Dhirender Chopra, Advocate for respondent No.3. HEMANT GUPTA, J. The challenge in the present writ petition is to the order passed by the learned Collector on 27.06.1984 (Annexure P-2) and the order in appeal passed by the Joint Director, exercising the powers of Commissioner, on 07.06.1988 (Annexure P-4) affirming the order passed by Collector. The petitioners claiming themselves to be proprietors in village Isapur, filed a suit for joint possession of land measuring 11 Bighas 8 Biswas out of 457 Bighas 15 Biswas before the civil court. The Petitioners claim to be in individual cultivating possession of the suit land before 26.01.1950 and not in excess of their share over the shamlat land, therefore, the suit land vests in the plaintiffs. It is alleged therein 1 CWP No. 6857 of 1988 that the suit land vested in Gram Panchayat in accordance with the provisions of Pepsu Village Common Lands (Regulation) Act, 1953 and the mutation was sanctioned in favour of Gram Panchayat. In the said suit, learned Trial Court recorded the following findings in its judgment dated 30.11.1971:- “After 1958-59, Gram Panchayat took possession of the disputed land and started leasing it out to third persons. It would, therefore, appear that at that time of coming into force of the Punjab Village Common Land (Regulation) Act, the plaintiffs were not in possession. For this reason, the protection of Section 4(3) (ii) of the Punjab Act No.18 of 1961 is not available to the plaintiffs. However, an area equal to 7 Bighas 18 Biswas out of the shamlat land which is equal to the plaintiff’s share in the shamlat land and is assessed to land revenue had divested from the Gram Panchayat on coming into force of Punjab Act No.18 of 1961 and came to revest in the plaintiffs. In these terms, Issue No.1 is partly found in favour of the plaintiffs. As a consequence of the said finding on issue No.1, the Court granted a decree for joint possession of 7 Bighas 18 Biswas out of entire land in favour of the plaintiffs. It was on 30.12.1982, Panchayat filed a petition under Section 11 read with Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (for short, “the Act”) for deciding the claim and ejectment of the respondents i.e. present petitioners from the land comprising in Khewat No. 115/213, Khasra No. Min 54/7-18, as per the Jamabandi for the year 1977-78. It was pleaded therein that the filing of the petition is necessitated on account of denial of title of the Panchayat on the basis of judgment dated 30.11.1971. It is the said petition, which was decided by the Collector on 27.06.1984 (Annexure P-2) and the appeal dismissed on 07.06.1988 (Annexure P-4). Learned Collector has inter-alia held that the name of the present petitioner is not mentioned in the Jamabandi for the year 1962-63 Ex.R-3 and Jamabandi for the year 1967-68 Ex.R-4, as cultivators, 2 CWP No. 6857 of 1988 therefore, the petitioners have not been able to show continuous possession since before 26.01.1950. In appeal, it was found that the Panchayat is recorded as owner of the disputed land in the Jamabandis for the years 1962-63, 1967-68, 1977-78 and that in the Jamabandis for the years 1962-63 and 1967-68, the Khewatdars have been shown to be in joint possession of the land described as ‘gair mumkin abadi’. It is only in the Jamabandi for the year 1977-78, the petitioner is reflected to be in possession. It was, thus, found that the possession of the appellant started from the year 1977-78. Before this Court, the learned counsel for the petitioners has vehemently argued that the Collector was not competent to decide the petition under Section 11 of the Act prior to its amendment vide Punjab Act No.25 of 1993. The learned counsel relies upon by the Division Bench of this Court in Gurnam Singh Vs. The District Development Officer (Collector) Patiala and another, 1988 PLJ 497 and Raja Ram (dead) through his legal representatives Vs. Joint Director, Panchayats, Chandigarh and others, CWP No. 1786 of 1985, decided on 05.07.2010. It is also contended that the decree of the Civil Court recognizes the possession of the petitioner prior to 20.01.1950, therefore, such Civil Court decree cannot be ignored by the revenue authorities. Reliance is placed upon a Full Bench judgment of this Court reported as Gram Panchayat, village Batholi Kalan Vs. Jagar Ramand and Ors, AIR 1991 Pb & Hy 159. It is, thus, contended that since the petitioners have proved their possession prior to 26.01.1950, therefore, the order of ejectment passed by the authorities is not sustainable. Mr. Dhirender Chopra, learned counsel for the Gram 3 CWP No. 6857 of 1988 Panchayat, has vehemently argued that the Civil Court decree does not help the petitioners, in as much as the Civil Court itself has recorded that the Gram Panchayat is in possession after 1958-59 and that petitioners were not in possession when Punjab Village Common Lands (Regulation) Act, 1961, came into force. The Civil Court has granted decree assuming that the shamlat land equal to the plaintiff’s share in such land stands divested from the ownership of Panchayat and vests in the plaintiffs. The said finding recorded by the Civil Court is contrary to the express provisions of the Act, therefore, the petitioners who were not in possession at the time of commencement of the Act cannot claim title in the disputed land. It is also contended that Section 11 of the Act, as inserted vide Punjab Act No. 19 of 1976, conferred right on any person claiming right, title or interest in any land vested or deemed to have been vested in Panchayat to invoke jurisdiction of the collector. The expression ‘any person’ in Section 11 of the Act, will include Gram Panchayat keeping in view the definition of person contained in Section 2 (40) of the Punjab General Clauses Act, 1898. It is contended that the Division Bench judgment in Gurman Singh’s case (supra) has not examined the vires of Section 11 of the Act nor considered the matter in detail, therefore, the order striking down liberty granted by the Collector to the Panchayat to take proceedings under Section 11 of the Act would be confined to the facts of the aforesaid case and does not lay down any binding precedent. It is further pointed out that in Raja Ram’s case (supra) the Court has followed Gurnam Singh’s judgment (supra) giving liberty to the Panchayat to file a petition under Section 11 of the Act. The said judgment is not independent of the findings recorded in Gurnam Singh’s case and therefore, it cannot be said that Panchayat could not file 4 CWP No. 6857 of 1988 a petition under Section 11 of the Act in the year 1981. The learned counsel also relied upon the judgment of this court in Ishar Singh and another Vs. The Joint Director, Panchayats, Civil Writ Petition No.6745 of 1986, decided on 29.10.2010, wherein a bunch of writ petitions in respect of similar claim made by the proprietors of the same village was dismissed. I have heard learned counsel for the parties at some length, but do not find any merit in the present petition. The provisions of Section 11 of the Act as inserted by Act No.19 of 1976, prior to its amendment in the year 1993 read as under:- “11. Decision of claims of right, title or interest in shamlat deh.-(I) Any person 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.” In Gurman Singh’s case (supra), Gram Panchayat has filed an application under Section 7 of the Act. The same was dismissed. The Collector granted liberty to the Panchayat to get the question of ownership decided under Section 11 of the Act. While deciding the said petition, the Court held to the following effect:- “8. After thorough consideration of the matter, we have come to the conclusion that the anomaly, could be removed, if at all, only by striking down the provisions of Section 11 being discriminatory but as there is no challenge to the vires of the said section. It is not open to us to consider this matter in detail and express our opinion thereon. So we have no option but to leave the matter for Government to take 5 CWP No. 6857 of 1988 necessary steps and remove the anomaly by proper amendment. (emphasis supplied) 9. In view of our finding that the Panchayat has no right to take proceedings under Section 11 of the Act the last part of the order of the Collector wherein a right has been reserved that the Gram Panchayat, if so chooses, may again file application under the Act, after getting the ownership question decided under Section 11 of the Act, is quashed. No costs.” The said part of the order has been followed in Raja Ram’s case (supra). The Division Bench of this Court has set aside the liberty granted by the Collector to file petition under Section 11 of the Act, but it also observed that vires of Section 11 are not in challenge and that the Bench has not considered the matter in detail and has not expressed opinion thereon. As a matter of fact, Section 2 (40) of the Punjab General Clauses Act, 1898 defines “person” to include any company or association or body of individuals, even if not incorporated. The relevant provision of this Section reads as under:- “2. Definitions:- In this Act and in all Punjab Acts unless there is anything repugnant in the subject or context.- xx xxx xxxx xxxxx (40) “person” shall include any company or association or body of individuals, whether incorporated or not.” The Gram Panchayat is a juristic entity in terms of Punjab Gram Panchayat Act, 1952, the Act applicable at the time of filing of the petition under Section 11 of the Act. The relevant Section 6 of the said Act read as under:- “6. Constitution of Gram Panchayats and disqualification to be member thereof-(1) Every Sabha shall in the prescribed manner, elect from amongst its members a Gram Panchayat bearing the name of its Sabha consisting of a Sarpanch and such number of Panches not being less than four and more than ten, as the Government may determine taking into account the population of the Sabha area: Provided that the number so determined shal be exelusive of the number of women Panches deemed to have been elected under sub-section 94) or co-opted under that sub-section. (2)Every Gram Panchayat constituted under this section shall be 6 CWP No. 6857 of 1988 notified by its name in the Official Gazette and it shall, by the name so notified, be a body corporate having perpetual succession and a common seal, and subject to any restriction by or under this Act or under any other law, shall have power to acquire, hold administer and transfer property moveable or immoveable, and to enter into contracts and shall by the said name sue and be sued. The aforesaid Gram Panchayat Act has been repealed by Punjab Panchayati Raj Act, 1994. The relevant extract from Section 10 of the said Act reads as under:- “10. Constitution of Gram Panchayat.—(1) Every Gram Sabha shall elect from amongst its members a Gram Panchayat for the Gram Sabha area bearing the name of its Gram Sabha and consisting of a Sarpanch and such number of Panches as indicate below against each slab of population taking Gram Sabha to be a multi-member single constituency, namely:- xx xxx xxxx xxxxx (2) Every Gram Panchayat constituted under this section shall be notified by its name in the Official Gazette and it shall by the name so notified come into office with effect from the date of its first meeting at which quorum is present and be a body corporate having perpetual succession and a common seal, and subject to any restriction by or under this Act or any other law, shall have power to acquire, hold, administer and transfer property movable or immovable, and to enter into contracts and shall by the said name sue and be sued.” Though Section 11 has been subsequently amended vide Act No.25 of 1993 and for the expression “any person”, the words “any person or Panchayat” have been substituted, but such amendment is only to clarify the existing position in law. Therefore, I do not find any merit in the arguments raised by the learned counsel for the petitioners that the petition by the Panchayat under Section 11 of the Act was not maintainable prior to the amendment of Section 11 vide Punjab Act No 25 of 1993. The expression “person” as it existed in Section 11 of the Act would include a statutory entity that is Gram Panchayat. The primary claim of the petitioner is based upon Civil Court judgment dated 30.11.1971 (Annexure P-1). The said judgment, as mentioned above, arises out of the claim of the petitioners for joint possession. In the said suit a finding has been returned that the plaintiffs 7 CWP No. 6857 of 1988 were not in possession since the year 1958-59 and the land vested with the Panchayat. In view of the finding that the petitioners were not in possession since the year 1958-59 as per the judgment of the Civil Court and as per the finding recorded by the Collector and the Commissioner prior to 1977-78, the petitioners cannot claim title over the suit property as petitioners have to be in continuous possession prior to 26.01.1950 in terms of Section 2 (g) (viii) of the Punjab Village Common Lands (Regulation) Act, 1961 to exclude the land being ‘shamlat’. The Civil Court decree is to revert land measuring 7 Bighas 18 Biswas in favour of the petitioners. But the petitioners were not found to be in possession of such land. The arguments that the Civil Court judgment is binding unless the same is set aside by Civil Court, is based upon the Full Bench judgment of this Court in Jagar Ram’s case (supra). 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 overruled the said judgment, when it held:- “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 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 8 CWP No. 6857 of 1988 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 o the above observations.” Following the aforesaid judgment, in Radha Singh Vs. The Assistant Collector, Ist Grade, Pehowa etc., Civil Writ Petition No.5765 of 1991, decided on 07.01.2011, it has been held by this Court that Collector in proceedings under Section 7 of the Act is competent to examine the legality and validity 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. Still further, in Ishar Singh’s case (supra), the claim of other villagers claiming title in the ‘shamlat land’ was negated. It was inter alia held to the following effect:- “Before the appellate authority and also before this Court, reliance has been placed on a judgment passed in the year 1973 (Annexure-P-1), facts regarding which has already been explained in preceding paras of this order. The appellate authority to the extent was not justified to say that the judgment has no bearing so far as the rights of the parties, inter se, are concerned. However, at the same time, on the basis of evidence, relief could not be given to the petitioners. The decree was passed for joint possession qua 4 Bighas 5 Biswas of land. Admittedly, there is no proof on record that it was ever executed. The Gram Panchayat is owner of 100 Bighas of land, whereas the Khasra No. 69//38 consists of 176 Bighas and 18 Biswas. In the judgment mentioned above, there is no finding as to in which portion the petitioners shall be deemed to be in possession. After consolidation, the land was not shown in the name of petitioners. They were shown in possession of land, for the first time, in the Jamabandi for the year 1977-78. Prior thereto, other 9 CWP No. 6857 of 1988 right holders were shown in possession as lessees of the Gram Panchayat. Thus, Orders passed by the courts below are held justified. No interference is called for by this Court.“ In view of the above, the orders passed by the Collector on 27.06.1984 (Annexure P-2) and Joint Director Panchayat, exercising the powers of Commissioner, on 07.06.1988 (Annexure P-4), do not warrant any interference in writ jurisdiction of this Court. Dismissed. (HEMANT GUPTA) 04.02.2011 JUDGE ajp 10