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2010 DIGILAW 1692 (PNJ)

Municipality, Tarari v. Mansa Ram

2010-05-17

MAHESH GROVER

body2010
Judgment Mahesh Grover, J. 1. This Regular Second Appeal is directed against judgments and decrees dated 27.2.1984 and 24.9.1984 passed respectively by the Additional Senior Sub Judge, Karnal (hereinafter described as the trial Court) and the District Judge, Karnal (referred to hereinafter as the first appellate Court) vide which the suit of the plaintiffs-respondents was decreed and the appeal of the defendant nos.1 & 2 - appellants was dismissed. 2. The plaintiffs filed a suit for possession of agricultural land measuring 720 kanals and 12 marlas situated in the revenue estate of village Taraori and fully detailed in the jamabandi for the year 1970-71 as well as in paragraph 2 of the plaint. It was pleaded that the plaintiffs were proprietors of shamlat deh of revenue estate of Taraori; that they are numerous in number; that they have common interest in the suit land; that the suit is being filed in representative capacity; that the land in dispute being shamlat deh vested in the Gram Panchayat under the provisions of the Punjab Village Common Land (Regulation) Act,1953 (for short, the 1953 Act); that Taraori was declared to be a municipal area and resultantly, the Gram Panchayat ceased to exist and, therefore, the provisions of the 1953 Act, as amended by the Punjab Village Common Land (Regulation) Act, 1961 (for brevity, the 1961 Act) did not have any application; that rather the suit land was vested in the Municipal Committee, Taraori in view of the provisions of the Haryana Municipal Common Lands Regulation Act,1974 (called hereinafter as the 1974 Act) and an Administrator was appointed; that the 1974 Act was declared as null & void and inoperative by a Full Bench judgment in Rajinder Parshad and others v. State of Haryana and others, (1979)81 P.L.R. 723 and, therefore, the land in disputed vested in Municipality, Taraori, reverted back to the proprietors, the original owners of the shamlat deh; that defendant nos.1 & 2 had, without any authority, had leased out the suit land to defendant nos.3 to 8; that the defendants were asked to admit the claim of the plaintiffs, but to no effect and hence, the suit. 3. 3. In their written statement, defendant nos.l & 2 contested the suit while taking a number of preliminary objections and pleaded that the plaintiffs had no right over the suit land; that the land in dispute cannot revert back to the proprietors as the same was reserved during consolidation and every kind of property belonging to the Gram Panchayat vested in the Municipality and that there is no provision of law at all under which the land in dispute reverts back to the plaintiffs. 4. Defendant nos.3 to 8 did not put in once appear and they were proceeded against ex parte. On the pleadings of the parties, the following issues were framed by the trial Court:- 1. Whether the plaintiffs are the owners of the suit land as alleged? OPP 2. If issue no.1 is proved, whether the plaintiffs are entitled to the decree for possession of the suit land? OPP 3. Whether the plaintiffs have no locus standi to file the suit? OPD 4. Whether the civil court has no jurisdiction to try and entertain the suit? OPD 5. Whether the suit is barred by principle of resjudicata? OPD 6. Relief. 5. Under issue nos.l & 2, the trial Court held that the plaintiffs are owners of the suit land and the same did not vest in the Municipal Committee and as there is no Gram Panchayat, they were entitled for possession thereof. Accordingly, the suit of the plaintiffs was decreed. The appeal filed by defendant nos.l & 2 was dismissed by the first appellate Court, who affirmed the findings recorded by the trial Court. Hence, this Regular Second Appeal. 6. Learned counsel for the appellants has contended that the matter in hand is squarely covered in favour of the appellants by the judgment of the Supreme Court in Notified Area Committee and another v. Des Raj and others, (1995)5 S.C.C. 317. On the other hand, learned counsel for the plaintiffs respondents has contended that since the 1974 Act by which the suit land belonging to proprietors of the village was vested in the Municipality was annulled by the Full Bench in Rajinder Parshads case (supra), the same reverted back to the proprietors in the absence of the Gram Panchayat losing its entity. 7. I have thoughtfully considered the rival contentions and have gone through the impugned judgments, as also the record. 7. I have thoughtfully considered the rival contentions and have gone through the impugned judgments, as also the record. In Notified Area Committee and another v. Des Raj and others (supra), their Lordships of the Supreme Court observed in paragraphs 5, 6, 7 and 8 of the judgment as under:- "5. The respondents first contention is that for the appellant to claim vesting of the land in it, the first requirement is that the whole of the Sabha area must have been included in it. It is then urged that even if this part of the requirement be held to be satisfied, because of what has been stated in the aforesaid proviso, the land did revert to them. The further leaf of this argument is that the omission of the proviso by notification dated 22.12.1976 cannot alter the position inasmuch as the area of Village Gudha, in which the land is admittedly situate, had been declared to be part of notified area on 6.10.1975; and so, the proviso operated by its own force on that date, because of which its omission later on could not after the legal position. 6. Insofar as the first contention is concerned, Shri Ashri, learned counsel appearing for the appellants, brings to our notice what has been stated in sub-section (2) of Section 8 of the Panchayat Act, which is in the following language: 8(2). "If the whole of the area of a Gram Panchayat is included in municipality, cantonment, notified area or small town area, the Gram Panchayat shall cease to exist and its assets and liabilities shall be disposed of in the manner prescribed. If a part of such area is so included, its jurisdiction shall be reduced by that part." (Emphasis added) This shows that the only effect of non-inclusion of the whole of the area of a Gram Panchayat is that the jurisdiction of the Notified Area Committee concerned shall get reduced and would be confined to the part included. As in the present case there is nothing to show that the part of the Gram Panchayat in which the suit land is situate had not been included in the territorial area of the appellant-committee, the first contention advanced on behalf of the respondents, which had found acceptance with the courts below, cannot be regarded as legally sound. 7. As in the present case there is nothing to show that the part of the Gram Panchayat in which the suit land is situate had not been included in the territorial area of the appellant-committee, the first contention advanced on behalf of the respondents, which had found acceptance with the courts below, cannot be regarded as legally sound. 7. The second question is whether the aforesaid proviso can be called in aid by the respondents. It is apparent that the proviso deals with the land which had come to be vested in the panchayat under the Punjab village Common Land (Regulation) Act, 1961, whereas the lands at hand came to be vested in the panchayat concerned by the force of 1953 Act. It is because of this that a submission was advanced on behalf of the appellants before the learned Additional District Judge that the proviso has no operation. This contention was,however, not upheld because of what has been provided in Section 16 of the 1961 Act which reads as below: "16. Repeal and Saving.- The Punjab Village Common Lands (Regulation) Act,1953 and the Pepsu Village Common Lands (Regulation) Act,1954 are hereby repealed: Provided that anything done or any action taken under any law so repealed shall be deemed to have been done or taken under the corresponding provision of this Act, and shall continue to be in force accordingly, unless and until superseded by anything done or any action taken under this Act." 8. The learned Additional District Judge took the view that as the 1953 Act was repealed, vesting of the land in the appellant can be said to be only under the 1961 Act because of the proviso to Section 16. According to us, this was a wrong view to be taken because the proviso speaks of things done or action taken under the 1953 Act and allows them to continue in force unless and until superseded by anything done or any action taken under the 1961 Act. This proviso does not apply to rights which got vested by operation of the 1953 Act. These are protected by Section 4(c) of the Punjab General Clauses Act, 1898, according to which, the repeal of an enactment does not affect, inter alia, any right acquired under the repealed enactment. This proviso does not apply to rights which got vested by operation of the 1953 Act. These are protected by Section 4(c) of the Punjab General Clauses Act, 1898, according to which, the repeal of an enactment does not affect, inter alia, any right acquired under the repealed enactment. As in the present case the Gram Panchayat had acquired the right under the 1953 Act, its repeal by 1961 Act did not in any way affect the right which the Gram Panchayat had acquired over the lands in question. So, the proviso did not operate qua the lands at hand." 8. To appreciate the controversy further, the facts of the case before the Supreme Court which were detailed in paragraph 2 of the judgment, may also be extracted below:- "2. The facts lie in narrow compass and are not disputed. The same are that the lands with which this appeal is concerned were being used, to start with, for common purposes like gair mumkin rasta and gao charand, but were shown as shamilat deh afterwards and came to be vested in the Gram Panchayat concerned pursuant to what has been provided in Section 3 of the 1953 Act. Pursuant to what was provided in Haryana Municipal Common Land (Regulation) act, 1974, the land was mutated in the name of the appellant. As that Act, however, came to be declared void by a Full Bench of Punjab and Haryana High Court, the respondents, who were the owners of the lands earlier, filed a suit seeking declaration that the said land got reverted to them because of what has been mentioned in the aforesaid proviso. The suit was dismissed by the trial court, whereupon the plaintiffs preferred an appeal which came to be allowed by the Additional District Judge, Karnal. On the appellant approaching the High Court in second appeal, the same came to be dismissed in limine. Hence, this appeal under Article 136 of the Constitution of India." 9. The suit was dismissed by the trial court, whereupon the plaintiffs preferred an appeal which came to be allowed by the Additional District Judge, Karnal. On the appellant approaching the High Court in second appeal, the same came to be dismissed in limine. Hence, this appeal under Article 136 of the Constitution of India." 9. Now, if the facts of the instant case are to be seen, they are identical to the ones which were dealt with by the Supreme Court in the above referred case and, thus, I am of the opinion that the questions involved herein are identical to the ones which were answered in the said case and, therefore, I have no hesitation to say that the matter is squarely covered by the ratio of the aforesaid judgment. The substantial question of law which arises for consideration of this Court is as to "whether the proviso to Section 16 of the 1961 Act would apply to the acts done under the 1953 Act or whether such actions would be protected by Section 4 of the Punjab General Clauses Act, 1898 (for short,the 1898 Act)?" 10. For the reasons which form the basis of the decision of the Supreme Court in Notified Area Committees case (supra), the aforesaid questions are answered to say that Section 4 of the 1898 Act would apply and proviso to Section 16 of the 1961 Act would not, in any way, affect the right of the appellant implying thereby that the land would not revert back to the landowners and they would not be entitled to the possession thereof. The instant appeal is, accordingly, accepted and the impugned judgments and decrees are set aside.