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2011 DIGILAW 29 (PNJ)

Ajit Singh v. State Of Punjab

2011-01-05

HEMANT GUPTA

body2011
Judgment Hemant Gupta, J. 1. The challenge in the present petition is to an order passed by the learned Commissioner under the Punjab Village Common Lands (Regulation) Act, 1961 (for short the Act), whereby the matter was/remitted to the Collector to ascertain, whether the land in dispute was in continuous cultivating possession of the petitioner before 26.01.1950 and to examine whether land in possession of the petitioner is more than his share in shamlat land. 2. The Gram Panchayat (present respondent No.4) filed a petition under Section 11 of the Act before the Collector in respect of the land described in such application. The learned Collector dismissed the aforesaid application holding the present petitioner to be in possession of the land in dispute prior to 26.01.1950. In an appeal against the said order, the learned Commissioner returned a finding that in the Jamabandi for the year 1954-55 the land has been shown as banjar qadim, therefore, it cannot be in possession of the present petitioner. After giving such finding, the matter was remitted back to the Collector to determine as to how much land is in possession of the petitioner and if the possession is prior to 26.01.1950. 3. Learned counsel for the petitioner has vehemently argued that earlier Panchayat filed a petition under Section 7 of the Act for eviction of the petitioner, but the said petition was dismissed on 24.02.1965. Therefore, the Gram Panchayat is estopped to seek eviction of the petitioner under Section 11 of the Act. It is contended that the order passed under Section 7 of the Act will operate as res judicata in proceedings under Section 11 of the Act. 4. Sections 7 and 13 of the Act as it originally stand prior to its substitution by Punjab Act No. 19 of 1976 read as under:- "7. It is contended that the order passed under Section 7 of the Act will operate as res judicata in proceedings under Section 11 of the Act. 4. Sections 7 and 13 of the Act as it originally stand prior to its substitution by Punjab Act No. 19 of 1976 read as under:- "7. Power to put panchayats in possession of lands vested or deemed to have been vested in it- (1) An Assistant Collector of the first grade having jurisdiction in the village shall, on an application made to him by a Panchayat, after making such summary enquiry as he may think fit and in accordance with such procedure as may be prescribed, put the Panchayat in possession of the land or other immovable property in the shamlat deh of that village which vests or is deemed to have been vested in it under this Act and for so doing the Assistant Collector may exercise the powers of a revenue court in relation to the execution of a decree for possession of land under the Punjab Tenancy Act, 1887. (2) An Assistant Collector of the first grade having jurisdiction in the village may, either suo motu or on an application made to him by a Panchayat or an inhabitant of the village, eject in the manner and in accordance with the procedure referred to in sub-section (1), any person who is in wrongful or unauthorised possession of any land or other immovable property in the shamlat deh of that village which vests or is deemed to have been vested in the Panchayat under this Act. 13. Bar of jurisdiction of civil courts.- No civil court shall have any jurisdiction over any matter arising out of the operation of this Act." 5. Punjab Act No. 19 of 1976 substituted Section 7, 11, 12 and 13 and also inserted Section 13-A and 13-B. The relevant provisions of Section 7,11, 12 and 13 of the Act as substituted by the aforesaid Act read as under:- "7. Punjab Act No. 19 of 1976 substituted Section 7, 11, 12 and 13 and also inserted Section 13-A and 13-B. The relevant provisions of Section 7,11, 12 and 13 of the Act as substituted by the aforesaid Act read as under:- "7. Power to put the Panchayat in possession of shamlat deh.- (1) The Collector shall, on an application made to him by a Panchayat or by an officer duly authorised in this behalf by the State Government by a general or special order, after making such enquiry as he may think fit and in accordance with such procedure as may be prescribed, put the Panchayat in possession of the land or other immovable property in the shamlat deh of that village which vests or is deemed to have been vested in it under this Act and for so doing the Collector may exercise the powers of a revenue court in relation to the execution of a decree for possession of land under the Punjab Tenancy Act, 1887. 2. An appeal against the order of the Collector under sub-section (i) shall lie to the Commissioner and the period of limitation for such an appeal shall be sixty days from the date of the order appealed against. 11. Decision of claims of right, title or interest in shamlat deh.- (1) 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. 12. 12. Finality of orders.- Save as the otherwise expressly provided in this Act, every order made by the Collector or the Commissioner shall be final and shall not be called in question in any court by way of appeal or revision or in any original suit, application or execution proceedings. 13. Bar of jurisdiction of civil courts.- No civil court shall have jurisdiction- (a) to entertain or adjudicate upon any question whether any property or any right to or interest in any property is or is not shamlat deh vested or deemed to have been vested in a Panchayat under this Act; or (b) to question the legality of any action taken by the Commissioner or the Collector or the Panchayat under this Act; or (c) in respect of any matter which the Commissioner or the Collector is empowered by or under this Act to determine." 6. Thereafter, vide Punjab Act No. 25 of 1993, proviso to Sub Section 1 has been inserted and for the word "Any person", the words "Any person or a Panchayat" has been substituted in Section 11 of the Act. The proviso inserted reads as under:- "Provided that if after receipt of the application and before the Panchayat is put in possession of the land or other immovable property in the Shamlat Deh, a question of right, title or interest in such land or property is raised by any person and a prima facie case is made out in support thereof, the Collector shall direct the person who has raised such question to submit his claim under section 11 and till the question is so determined, the application shall remain pending; Provided further that if the person, who has raised the question of right, title or interest, fails to submit his claim under section 11 within the time prescribed under that section, the Collector shall presume that no question of right, title or interest is involved and shall proceed further to put the Panchayat in possession of the land or other immovable property in the Shamlat Deh." 7. A Division Bench of this Court in judgment reported as Naurang Singh (Died) v. The State of Punjab and others, l (1997-1)115 PLR 363, was seized of a controversy where the Assistant Collector has dismissed the eviction petition filed by the Gram Panchayat on 04.05.1967 i.e. prior to the substitution of Section 7 of the Act in the year 1976. The Court held that prior to 1976, there was no special forum to determine the question with respect to vesting of the land in Gram Panchayat, though the questions were to be determined summarily by the Assistant Collector. It was held to the following effect:- "24. Prior to 1976 there was no special forum to determine the question with respect to vesting of the land in dispute in the Gram Panchayat or with respect to the nature of the land. Reading of the Section makes it incumbent that before a Gram Panchayat could be put in possession either vesting of land in dispute in it or nature of the land is not in dispute. In the alternative, the authority was required to determine the nature of possession, vesting of the land in the Gram Panchayat and only then the Authority assumes jurisdiction to put Gram Panchayat into possession, although the questions were to be determined summarily yet the parties adversely affected by the decision could get their right, title or interests determined from the Civil Court. 32. For the reasons recorded above, we are of the considered view that the order dated 05.04.1967 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." 8. The judgment in Naurang Singhs case does not advance the case of the petitioner. In the aforesaid case, the order was passed by the Collector prior to substitution of Section 7 of the Act and prior to adjudication process established under Section 11 of the Act. 9. The issue, whether the order passed in proceeding under Section 7 of the Act will operate as res judicata or as an estoppel in proceeding under Section 11 of the Act, is not res-integra. 9. The issue, whether the order passed in proceeding under Section 7 of the Act will operate as res judicata or as an estoppel in proceeding under Section 11 of the Act, is not res-integra. A Division Bench of this Court in judgment Tara Chand and Fateh Singh v. Gram Panchayat and Gram Sabha of village Atail and others,2 1979 PLJ 1, considered the similar argument as is raised in the present case. It was held that the Assistant Collector trying an application under Section 7 of the Act has to make only summary enquiry and that the language of Section 7 of the Act presupposes that the land about which application is made is shamlat answering the description given in the Act. The Assistant Collector under Section 7 of the Act is a Tribunal of limited jurisdiction and therefore, cannot enter into the enquiry as to whether the land is shamlat or not Therefore, the question of title decided by the Assistant Collector is prima facie and does not assume finality. It was held to the following effect: "11....the purpose and scope of section 7 is limited only for holding a summary enquiry for the eviction of a person, who is in an unauthorized possession of the immovable property in the shamlat deh which vests or is deemed to have vested in the Panchayat. By no stretch of imagination, this enquiry can include the proceedings for the exclusion of the land from the shamlat deh. That is why a provision in section 13-B for this purpose had to be made separately and independently. The question of title is a civil right and that is why it was not subjected to the summary procedure provided in section 7, but has to be determined by following the procedure of the Code of Civil Procedure as applicable to the revenue Courts. It is true that the Assistant Collector Ist Grade acting under section 13-B does not have the trapping of Civil Court as under section 9 of the Civil Procedure Code, but at least he cannot proceed in a summary manner under section 7 to decide the question of title involved in the proceedings before him for the exclusion of the land from the shamlat. Section 7 cannot have precedence over section 13-B if the person proceeded against under this provision raises a plea for the exclusion of the land in question from the shamlat but it will come later after the matter has been finally adjudicated upon in favour of the Panchayat under section 13-B of the Act. It is well settled that the decision of a Tribunal which does not have jurisdiction to adjudicate upon a particular point, in spite of the party subjecting to its jurisdiction and leading evidence, cannot operate as res judicata on the same matter between the parties. The Assistant Collector Ist Grade deciding the application in summary enquiry, traveled beyond the scope of jurisdiction to give a finding on the title of the petitioners. The finding even when affirmed in appeal so far as the title is concerned, has to be treated as non est. Mere filing of an application under section 7 cannot deprive the party of his right to have recourse to the provisions of section 13-B. He can show cause against his eviction on any plea available to him. He is to move under section 13-B only when his possession is threatened. He can wait to approach the Assistant Collector Ist Grade under section 13-B until an order to evict is passed. It may be quite possible that his plea for resisting the eviction may be unheld by the Assistant Collector deciding the application under section 7. The party failing to invoke the aid of section 13-B during the pendency of the proceedings under section 7 is not estopped to approach the appropriate authority under section 13-B. Any such decision under section 7, as in this case, is neither a res judicata nor the proceedings act as an estoppel against the affected party. 13. The Assistant Collector Ist Grade conducting proceedings under section 13-B is a Tribunal of wider jurisdiction as compared with the same officer under section 7. The latter is a Tribunal of comparatively limited jurisdiction. The Tribunal of limited jurisdiction cannot oust the jurisdiction of a Tribunal with wider jurisdiction even if both the Tribunals are manned by the same person. The Assistant Collector Ist Grade conducting proceedings under section 13-B is a Tribunal of wider jurisdiction as compared with the same officer under section 7. The latter is a Tribunal of comparatively limited jurisdiction. The Tribunal of limited jurisdiction cannot oust the jurisdiction of a Tribunal with wider jurisdiction even if both the Tribunals are manned by the same person. The separate statutory provisions are made for achieving the interest of justice and the parties cannot be denied their right to have their claims adjudicated from the proper forum by the officers manning such Tribunals, by adopting short-cut methods of summary enquiry." 10. Following the aforesaid judgment, the learned Single Judge of this Court in a judgment reported as Gram Panchayat Pirthipur v. Collector, District Ambala and others,3 (1993-2)104 PLR 43, held to the following effect:- "9. In so far as the findings of the learned Collector with regard to res judicata are concerned, it is settled law that proceedings under Section 7 of the Act are only summary in nature and title is determined only under Section 13-A of the Act. It is no doubt true that with a view to find out the nature of possession, some findings do necessarily come to be recorded but the same cannot be final and are subject to approval in a regular suit. In fact, it is only in the case of unauthorised occupation that Section 7 is applicable and whenever a serious question of title is involved, the Assistant Collector has to keep the proceedings in abeyance and direct the parties to move appropriate petition under Section 13-A of the Act. A division Bench of this Court in "Tara Chcmd and Fateh Singh v. Gram Panchayat and Gram Sabha of Village Atail" held that the Assistant Collector trying an application under Section 7 has only to make summary enquiry and the language of section 7 pre-supposes that the land about which application is made is shamlat answering the description of this word as given in the Act. It has been further held that the Assistant Collector under Section 7 is a Tribunal of very limited jurisdiction and, therefore, cannot enter into the enquiry as to whether the land is shamlat or not. The only question to be determined under Section 7 is whether the possession of the person proceeded against, of the immovable property is wrongful and unauthorized. The only question to be determined under Section 7 is whether the possession of the person proceeded against, of the immovable property is wrongful and unauthorized. That being so, the findings recorded by the Collector under Section 7 on the question of title can be termed prima facie and do not assume finality." 11. Another Division Bench of this Court in Rama Sarup and others v. State of Haryana and others, 4 2006 (4) RCR(Civil) 350, again examined various provisions of the Act. It was held that the doctrine of res judicata is not applicable to the summary proceedings unless the statute expressly applies to such proceedings. It was held to the following effect:- "Another contention that has been raised by the learned counsel for the petitioners is with regard to the petition under Section 7 being barred. This is more so in respect of Ram Sarups case (CWP No.19211 of 2004) and Darya Singhs case (CWP No. 244 of 2005) in view of the earlier petitions, being dismissed, In this respect, it may be noticed that the Honble Supreme Court in Inder Singh Vs Financial Commissioner, Punjab, 1997 (1) PLJ 52 held that the doctrine of res judicata is not applicable to summary proceedings unless the statute expressly applies to such order. It was held that the authorities under the Pepsu Tenancy and Agricultural Land Act are not civil Courts and nor the petition a plaint. No issues were framed nor tried as a civil suit and the orders passed by the authorities without any elaborate trial like any civil suit but in a summary manner would not make the principle of res judicata applicable. Therefore, merely because an earlier petition filed by the Gram Panchayat before the authorities under the 1961 Act has been dismissed would in the circumstances of the case not bar the filing of another petition by the Gram Panchayat. Therefore, this objection of the petitioners is also without any basis." 12. Though, a Division Bench of this Court in a judgment reported as Gram Panchayat, Surewala v. Commissioner, Ferozepur and others, 5 (1998-2)119 PLR 125, was examining the plea of res judicata in proceedings under the Punjab Public Premises (Eviction and Rent Recovery) Act, 1973, but the finding recorded therein are applicable to the facts of the present case in full force. 13. 13. Recently, the judgment in Rama Sarups case, mentioned above, has been examined by the iearned Single Judge of this Court in a judgment reported as Ram Sawroop v. Commissioner, Gurgaon Division, Gurgaon and others, 6 (2009-4)139 PLR 458, wherein again finding has been returned that the proceedings under Section 7 of the Act are summary in nature and therefore, the doctrine of res judicata is not applicable to the summary proceedings. In the aforesaid case, it was held thai the second application filed under Section 7 of the Act would not be barred by the principle of res judicata. 14. In view of the aforesaid judgment and the nature of Section 7 of the Act, as inserted vide Act No.19 of 1976, the Collector is empovyered to pass an order to put Panchayat in possession of the land which vests and is deemed to have been vested in it under the Act. Such provision pre-supposes the title of the Panchayat over the said property. The jurisdiction of the Collector under Section 7 of the Act is analogous to the execution proceedings. The disputed question of title over any land claimed to be shamlat or otherwise, is required to be adjudicated upon under Section 11 of the Act as sub-stituted by Act No.19 of 1976. While providing alternative mode of adjudication of question of title of the land as shamlat or not, the jurisdiction of the Civil Court was specifically barred. Therefore, in proceedings under Section 11 of the Act, the question of title is adjudicated upon in substitution of the proceedings before the Civil Court and the order passed in such proceeding alone is final and binding on the parties. 15. In view of the above, I do not find any patent error in the order passed by the learned Commissioner, which may warrant any interference by this Court in exercise of its writ jurisdiction. 16. Dismissed. The petitioner shall be at liberty to raise all other questions in respect of right of Panchayat to seek eviction of the petitioner before the Collector in accordance with law.