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2002 DIGILAW 716 (PNJ)

Subha Chand v. Gram Panchayat

2002-07-26

JAGDISH SINGH KHEHAR, VINEY MITTAL

body2002
Judgment Viney Mittal, J. 1. The present Civil Writ Petition has been filed by Subha Chand under Articles 226/227 of the Constitution of India praying therein for the issuance of a writ of certiorari for quashing the order dated April 14.2002 passed by the Commissioner, Rohtak Division, Rohtak. The aforesaid order has been appended as Annexure P/3 with the writ petition. 2. The petitioner has stated that he is in cultivating possession of land measuring 16 kanals situated in the revenue state of village Deepalpur. It has further been stated by the petitioner that he is tenant of the Gram Panchayat, Deepalpur which the owner of the land. The respondent-Gram Panchayat filed an application under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter called the "Act") before the Assistant Collector, I Grade, Sonepat for the eviction of the petitioner. The eviction order was passed against the petitioner on November 30, 1993. The appeal preferred by him was also dismissed by the Collector, Sonepat on April 7, 1994. It has now been averred by the petitioner that in the year 1990, the petitioner had filed a civil suit against Gram Panchayat Deepalpur seeking a decree for permanent injunction restraining the Gram Panchayat from dispossessing the petitioner from the said land. The aforesaid suit was ultimately decreed, after a contest by the Gram Panchayat, vide judgment dated may 31, 2000. A copy of the aforesaid judgment dated May 31, 2000 has been attached as Annexure P/1 with the petition. It has been stated in the petition that the aforesaid decree had become final since no appeal had ever been filed by the respondent-Gram Panchayat. 3. On the finalisation of the proceedings under Section 7 of the Act and the dismissal of the appeal of the petitioner, the respondent-Gram Panchayat took out the execution proceedings seeking the actual possession from the petitioner. In the aforesaid execution proceedings the petitioner filed an objection petition claiming that the aforesaid eviction order dated November 30, 1993 passed by the Assistant Collector, 1 Grade Sonepat was a nullity in the face of the decree dated May 31, 2000. The objection was taken before the Assistant Collector that since the petitioner was a tenant, therefore, he could not be presumed to be an unauthorised occupant and eviction order against him could not be executed. The objection was taken before the Assistant Collector that since the petitioner was a tenant, therefore, he could not be presumed to be an unauthorised occupant and eviction order against him could not be executed. Vide an order dated December 14, 2000, Assistant Collector I Grade, Sonepat accepted the objection petition filed by the petitioner. It was held by the Assistant Collector, I Grade as under:- "After hearing arguments of both the parties and after going through the material on record and the rulings cited by counsel for objector, it is revealed that in the suit decreed on 31.5.2000, copies of orders passed by ACIG and the Collector were produced and inspite of that the civil court decreed the suit in favour of objector, and old possession of objector over disputed land was accepted. The rulings cited by counsel for the objector in support of his contentions are fully applicable on facts and law in this case. Keeping in view these rulings and the decree dated 31.5.2000 of civil court, it is ordered that Gram Panchayat will file regular suit and will get the tenancy of Subha Chand terminated, in case Subha Chand does not pay rent, and thereafter, Gram Panchayat could take possession of the disputed land from Subha Chand according to law." 4. Aggrieved against the aforesaid order dated December 14, 2000, the Gram Panchayat filed a revision petition before the Commissioner, Rohtak Division, Rohtak who after hearing both the parties accepted the said revision petition and set aside the order dated December 14, 2000 passed by the Assistant Collector. A copy of the order dated June 14, 2000 has been attached as Annexure P/3 to the present petition. It is this order Annexure P/3 passed by the Commissioner, Rohtak Division, Rohtak which has been impugned in the present writ petition. 5. We have heard Shri B.R. Vohra, learned counsel for the petitioner and with his assistance have also perused the record of the case. 6. The main argument of Shri B.R. Vohra learned counsel for the petitioner is that since the decree dated May 31, 2002 has been passed by the Civil Court and has attained finality between the parties, therefore, the petitioner could not be dispossessed from the disputed land being a tenant under the respondent-Gram Panchayat. 6. The main argument of Shri B.R. Vohra learned counsel for the petitioner is that since the decree dated May 31, 2002 has been passed by the Civil Court and has attained finality between the parties, therefore, the petitioner could not be dispossessed from the disputed land being a tenant under the respondent-Gram Panchayat. He has fur- ther submitted that since a finding had been returned by the Assistant Collector, I Grade, Sonepat while passing order dated December 14, 2000 (Annexure P/2) that the Gram Panchayat could get the tenancy of the petitioner terminated by filing a regular suit and then seek possession from Subha Singh the present petitioner, in accordance with law, therefore the mere execution petition filed by respondent-Gram Panchayat was not maintainable. Lastly it has been submitted that the Commissioner, Rohtak Division, Rohtak had no jurisdiction to entertain and decide the revision petition since under Section 13-B of the Act, the Commissioner could not exercise the power of revision and set aside the orders passed by the Assistant Collector on the objection petition filed by the petitioner. 7. We are unable to accept any of the submissions of learned counsel for the petitioner. We have perused the judgment dated May 31, 2002 passed by the Civil Court in the suit filed by the petitioner. The aforesaid judgment has been attached as Annexure P/1 with the petition. In the aforesaid judgment, learned counsel for the petitioner has nowhere been able to point out any finding in favour of the petitioner where he has been held to be a tenant on the disputed land under the Gram Panchayat. The only injunction which has been issued in favour of the petitioner (who was plaintiff in the suit) and against the respondent-Gram Panchayat is that the petitioner could not be dispossessed from the disputed land forcibly and illegally except in due course of law. Apparently respondent-Gram Panchayat has taken out the execution proceedings to execute the orders dated November 30, 1993 passed under Section 7 of the Act which was upheld in appeal by the Collector on April 7, 1994. Thus, the execution proceedings taken out by the Gram Panchayat are for seeking possession of the land in dispute from the petitioner in accordance with law. Thus, the execution proceedings taken out by the Gram Panchayat are for seeking possession of the land in dispute from the petitioner in accordance with law. No fault what-so-ever can be found with the aforesaid procedure and nothing has been pointed out by the learned counsel for the petitioner which is contrary to the aforesaid judgment passed by the civil Court. 8. Even the second submission made by the learned counsel for the petitioner with regard to a finding having been recorded by the Assistant Collector, 1 Grade in the order Annexure P/2 with regard to the Gram Panchayat having filed a regular suit to get "tenancy" of Subha Chand terminated and thereafter to seek possession is totally without any basis and is contrary to the orders dated November 30, 1993 passed by the Assistant Collector Ist Grade under section of the Act and upheld in appeal by the Collector on April 7, 1994. 9. We are satisfied that the aforesaid order passed by the Assistant Collector was totally against the orders of eviction passed by the Assistant Collector and upheld by the Collector under Section 7 of the Act ordering eviction of the petitioner being in unauthorised occupation. 10. Even otherwise being an executing court, the Assistant Collector could not go behind the decree and return a finding which was contrary to the main judgment. As an executing Court it was not within its jurisdiction to reopen the controversy with regard to the status of the parties which was finally settled in the main petition under Section 7 of the Act. 11. Lastly with regard to the contention of the learned counsel for the petitioner that the Commissioner had no revisional power under Section 13-B of the Act to set aside the order of Assistant Collector, I Grade is also without any basis. Section 13-B of the Act reads as under. "(2) The Commissioner may, suo motu or an application made to him by any person aggrieved by an order passed under the proviso to Sub-section (1) of Section 7 at any time call for the record of any proceedings pending before, or orders passed by any authority subordinate to him for the purpose of satisfying himself as to the legality or propriety of the proceedings or order and pass such order in relation thereto as he may deem fit. Provided that no order adversely affecting any person shall be passed unless he has been afforded an opportunity of being heard. 12. A perusal of the aforesaid provision shows that the Commissioner has the jurisdiction to call for the record of any proceedings pending before or orders passed by any authority subordinate to him for the purpose of satisfying himself as to the legality or propriety of the proceedings or order and pass such order in relation thereto as he may deem fit and this power can be exercised by the Commissioner even suo-motu. 13. Thus, it cannot be suggested that the order Annexure P/3 passed by the Commissioner setting aside the order of the Assistant Collector dated December 14, 2000 was in any manner without any jurisdiction. 14. Be that as it may, there is another aspect of the matter from which the matter can be viewed. A writ of certiorati, being a writ of discretion is issued only in cases where the order sought to be quashed has occasioned a failure of justice. It is not every error of law that would induce this court to excise extraordinary jurisdiction under Article 226 of the Constitution of India. 15. In the present case we are satisfied that nothing has been done by the Commissioner which could be said to have caused an injustice to the petitioner. In fact the order passed by the Commissioner has removed the injustice caused to the Gram Panchayat and has thwarted the efforts made by the petitioner to perpetuate his unauthorised possession. Therefore, the challenge to the order of the Commissioner made by the petitioner in the present writ petition must fail on this short ground also. Thus we find that the present writ petition has no merit and deserves to be dismissed in limine . 16. In the result, this petition is dismissed in limine with no order as to costs.