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2005 DIGILAW 166 (PNJ)

Rameshwar Etc. v. State Of Haryana

2005-02-01

N.K.SUD, SATISH KUMAR MITTAL

body2005
Judgment Satish Kumar Mittal, J. 1. The petitioners, who claim themselves as proprietors of village Sangoha, have filed this writ petition under Articles 226/227 of the Constitution of India for quashing the resolution dated 24.3.1990 passed by the Gram Panchayat, Sangoha; order dated 3.9.1990 passed by the Deputy Commissioner, Karnal vide which the dispute regarding division of Gram Panchayat properties between two Panchayats was referred to the Block Development and Panchayat Officer, Karnal for the decision and implementation; order dated 19.9.2002 passed by the Deputy Commissioner, Karnal: Mutation No. 2769 dated 25.10.2002 vide which mutation was sanctioned regarding the properties received in partition by both the Gram Panchayats; and the order dated 5.5.2004 passed by the Tehsildar and Assistant Collector IInd Grade, Karnal compliance of the order dated 15.1.2004 passed by the Court in C.W.P. No. 2121 of 2003. 2. The brief facts of the case are that Gram Panchayat known by the name of Sangoha, consisting of two villages i.e. villages Sangoha and Sangohi. On the demand of respective villages, separate Gram Panchayats were created by the Government for each village i.e. Gram Panchayat of village Sangoha and Gram Panchayat village Sangohi vide notification published in the Government Gazette on 11.7.1988 under Section 4(1) & (2) read with Section 5 of the then existing Punjab Gram Panchayat Act, 1952. Consequently, the property of Gram Panchayat, Sangha was also divided in equal shares among the two Gram Panchayats vide order dated 3.9.1990. 3. The Gram Panchayat, Sangoba challenged the creation of the new Gram Panchayat as well as the order of the Deputy Commissioner dated 3.9.1990 by way of C.W.P. No. 4629 of 1991. The said writ petition was dismissed vide order dated 10.7.1991. 4. Therefore, on the basis of the order dated 19.9.2002 passed by the Deputy Commissioner, the land of the Panchayat was partitioned and consequently Mutation No. 2769 was sanctioned by the Revenue authorities on 25.10.2002. Again, Gram Panchayat, Sangoha challenged the above-said order and Mutation by filing C.W.P. No. 2121 of 2003 in this Court. This Court vide order dated 15.1.2004 remanded the matter to the Tehsildar, Karnal to inquire into whether equal and reasoned partition among two Panchayats was made or not and then decide the matter. 5. Again, Gram Panchayat, Sangoha challenged the above-said order and Mutation by filing C.W.P. No. 2121 of 2003 in this Court. This Court vide order dated 15.1.2004 remanded the matter to the Tehsildar, Karnal to inquire into whether equal and reasoned partition among two Panchayats was made or not and then decide the matter. 5. After the remand, the Tehsildar-cum-Assistant Collector IInd Grade passed the order dated 5.5.2004 while observing that the partition was equally effected between both the Panchayats and observed as under: - "After perusing the facts on file very carefully, hearing both the parties and inspecting the spot, it is found that the land which has been partitioned is a same kind of land. To say that some land is fertile and some is unfertile is wrong. There are trees , and bushes existing on the entire land on the spot. While partitioning the land, this fact has been kept in view that the land, which situates adjacent to the particular village, has been given to the same village. The land has been partitioned rightly, The land on which the Bhatta is existing i.e. Killa No. 15 & 16 of Khasra No. 11 has already been given to village Sangohi in partition. Both the Gram Panchayats have admitted that the income incurred from the Bhatta is/was being shared of half and half between two Panchayats. The period of Patta of this Bhatta will be completed in June, 2004. As the period of Patta has been completed, then the question of giving compensation do not arise. If otherwise, the patta is kept to be continue, then any of the Panchayat can give its land on patta for Bhatta, because the land of both the Panchayats is adjacent to Bhatta. Therefore, the question of giving compensation does not arise. Hence, the partition of land, which was effected as per Mutation No. 2769 dated 25.10.2002, has been rightly effected. There, the question of re-partition does not arise." 6. The Gram Panchayat, Sangota challenged the afore-said order dated 5.5.2000 in C.W.P. No. 9510 of 2004 and the said petition was dismissed by this Court on 29.8.2004, while observing as under:- "Through this petition, the petitioner, seeks to challenge the aforesaid order on the ground that through the same killa Nos. 15 and 16 of Khasra No. 11, on which the brick-kiln is situated. 15 and 16 of Khasra No. 11, on which the brick-kiln is situated. Sangohi, it has been given to gram Panchayat Sangohi and this has resulted in loss of income to the petitioner. This submission does not stand to closer scrutiny as it is evident from the order passed by the Deputy Commissioner, Karnal on 9.9.1990 that 14 acres of land, which included the land on which the brick kiln was situated were to remain joint till such time as the lease of the brick kiln, which at that point of time, was to end on 18.1.1993, came to an end. The partition did not take place immediately upon expiry of the lease and the same was apparently extended from time to time and the lease period ultimately came to and end in June, 2004. The petitioner had in Civil Writ Petition No. 2121 of 2003 pressed for the partition of the land and the order dated 5.5.2004 has been passed by the Tehsildar-cum-Assistant Collector, IInd Class, Karnal only on the direction of the Court. Nothing has been brought on the record, from which it could be inferred that the land on which the brick kiln was situated, was in any way different from other land, which had been kept joint by the parties. In this view of the matter, since the partition is sought to be challenged only on the ground that the land, on which the brick kiln was being operated, has fallen to the share of Gram Panchayat, Sangohi and the uncontroverted averments in the written statement to the effect that for setting up a brick kiln, the lessee alone is responsible for providing requisite infrastructure, no equity exists in favour of the petitioner, which would warrant interference by this court as it would always be open to the successor panchayats to offer the land falling to their share as they may deem necessary for lease to a brick kiln owner for setting up a brick kiln. In view of this, it could not be open to the petitioner to challenge the order passed in proceedings, which have been carried out in its presence. For the reasons recorded above, this petition fails and the same is dismissed." 7. Now the same order has been challenged by the petitioners, who are the residents of village Sangoha and claim themselves to be the proprietors. For the reasons recorded above, this petition fails and the same is dismissed." 7. Now the same order has been challenged by the petitioners, who are the residents of village Sangoha and claim themselves to be the proprietors. Their contention is that being proprietors of village Sangoha, they are also interested parties and entitled to challenge the said order. 8. We have heard the counsel for the parties. As far as the order of creation of the new Gram Panchayat and the order of Deputy Commissioner dated 3.9.1990 are concerned, the same were challenged by Gram Panchayat, Sangoha in C.W.P. No. 2121 of 2003 and the said writ petition was dismissed by this Court on 15.1.2004, therefore, those orders cannot be challenged now in view of the principle of res-judicata. As far as the partition of the land and the mutation are concerned, the matter was referred by this Court for re-decision by the Tehsildar and thereafter vide order dated 5.5.2004, the Tehsildar has found the partition of the properties among the two Gram Panchayats as equal and reasonable. The said order was challenged by the Gram Panchayat. Sangoha by filing C.W.P. No. 9510 of 2004 and the said writ petition was dismissed by this Court on 29.8.2004. In view of the said fact, the petitioner, who claim themselves to be proprietors of village Sangoha, in our view, cannot challenge the same order again. Since the Gram Panchayat had already challenged the said order and its writ petition has been dismissed, therefore, the petitioners being residents of the same Gram Panchayat cannot challenge the same order and the principle of res-judicata will also be applicable on them. Dismissed.