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2012 DIGILAW 507 (PNJ)

Gurnam Singh v. State of Punjab

2012-03-28

RAJIVE BHALLA, RAKESH KUMAR JAIN

body2012
JUDGMENT Mr. Rakesh Kumar Jain, J.: - The petitioner prays for issuance of a writ of certiorari for quashing order dated 12.2.1982 (Annexure P-9) passed by respondent No.3 and order dated 24.1.1986 (Annexure P-10) passed by respondent No.2, and for declaration of Section 13-B of the Punjab Village Common Lands (Regulation) Act, 1961, as applicable to the State of Punjab (for short ‘the Act’), to be ultra vires of the Constitution of India. 2. The case set up by the petitioner is that he is a right-holder of village Bathoi Kalan, Tehsil and District Patiala, in the land in dispute comprising in Khasra Nos.70//4 (8-0), 5 (8-0), 6 (8-0), 8 (9-0), 13 (8-0), 14 (8-0), 15 (8-0), 16 (8-0), 17 (8-0) and 18 (8-0). On 2.1.1973, Jaswant Kaur etc. the other right-holders of the village filed a civil suit No.2 against the Gram Panchayat and Gram Sabha of Bathoi Kalan, for declaration to the effect that the suit land was Banjar Qadim when the Shamilat law came into force, Shamilat deh is more than 25% of the total land of the village and the land, in dispute, was never put to use for common purposes as the Khewatdars and right-holders were using it to the extent of their respective shares. The said suit was not properly defended by the Gram Panchayat as neither the written statement was signed nor verified. Despite many opportunities, the Gram Panchayat did not properly file the written statement, as a result of which, its defence was struck off and then nobody appeared for the Gram Panchayat. The said suit was decreed ex parte to the effect that, the land involved in the said suit, did not vest in the Gram Panchayat and the plaintiffs in the said suit were held to be the co-shares. It is further alleged that before passing of judgment and decree Annexure P-1 and P-2, the other right-holders, namely, Bhagwan Kaur, Niranjan Singh and Labh Singh etc. had also filed a civil suit to the same effect, which was also decreed on 3.7.1972, on the statement made by Niranjan Singh, the then Sarpanch of the Gram Panchayat, that the Shamilat deh is more than 25% of the total land of the village, never utilized for common purposes before the formation of the Panchayat and the right-holders of the villager were its owners. 3. 3. It is further alleged that the petitioner/Gurnam Singh filed a suit bearing No.109/243/T of 8.5.1974, which was clubbed with another civil suit No.237 of 8.5.1974, but in that case, decree was passed to the effect that “it is ordered that while dismissing the suit of the plaintiff regarding the grant of declaration of his title to the suit property, a decree is hereby passed in his favour against the defendant from dispossessing him from the land mentioned in the suit, otherwise than in due course of law.” It is also alleged that the said decree (Annexure P-6) has become final as having not been challenged further by the defendant herein. 4. It is averred that despite the decree (Annexure P-6), respondent No.4/Gram Panchayat was trying to dispossess the petitioner from the land in dispute, therefore, he was compelled to file a suit for permanent injunction on 24.8.1979, which was decreed on 10.12.1980. It is alleged that respondent No.4 filed an application under Section 7 of the Act against the petitioner, which was allowed by the Collector, Patiala vide impugned order dated 12.2.1982 (Annexure P-9) and the appeal filed by the petitioner was dismissed by the Commissioner vide impugned order dated 24.1.1986 (Annexure P- 10). 5. Although, in the writ petition, the vires of Section 13-B has been challenged but during the course of hearing, learned senior counsel appearing on behalf of the petitioner, has candidly conceded the said issue and has rather argued the case on merits considering the provisions of Section 13-B of the Act to be intra vires. 6. It is submitted by him that Section 13-B of the Act was inserted in the Act by virtue of Act No.19 of 1976 and it provides that the provisions of the Act shall have effect, in anything to the contrary in any law, any agreement, instrument, custom or usage or any decree or order of any Court or other authority. He has argued that the decree in favour of the petitioner (Annexure P-6) is of 18.12.1975, which is prior in time to the Act No. 19 of 1976 by which Section 13-B of the Act was inserted in the Act and shall enure. In this regard, he has relied upon Division Bench judgments of this Court in the case of “Bajinder Singh and another Vs. In this regard, he has relied upon Division Bench judgments of this Court in the case of “Bajinder Singh and another Vs. The Assistant Collector, Ist Grade, Guhla and others” 1983 PLJ 116, “Gurnam Singh and others Vs. Joint Director Panchayats, Punjab and others” 1984 PLJ 580 (DB) and a Full Bench decision of this Court in “Gram Panchayat, Village Batholi Kalan Vs. Jagar Ram and others” 1991(1) PLR 260 (FB). He has further submitted that the decree in favour of the petitioner in Civil Suit No. 109/243/T of 8.5.1974 dated 18.12.1975 (Annexure P-6) cannot be ignored as it is prior in time to the amendment of Section 13-B of the Act. However, the said decree can be ignored only on the ground of fraud as held by the Full Bench in the case of Gram Panchayat, Village Batholi Kalan (Supra) and since the petitioner is in possession as owner, therefore, application filed under Section 7 of the Act is not maintainable. 7. In reply, counsel for the respondents has submitted that decree (Annexure P-6), heavily relied upon by the petitioner, does not confer any title upon him because the suit for declaration of title was dismissed and only a decree for permanent injunction was passed not to dispossess otherwise than in due course of law. Hence, the petitioner cannot claim protection of this decree (Annexure P-6) as the Civil Court has itself observed that the petitioner can be dispossessed in due course of law, therefore, Gram Panchayat had filed application under Section 7 of the Act because the petitioner has been found to be a lessee, who had not returned possession of the leased land, despite the expiry of the lease. Moreover, it has been observed by the Revenue Authorities that the land in dispute was initially leased out to the petitioner in the year 1971-72 for five years but when it was again leased out to one Amar Singh, the petitioner did not vacate the land and dispute. It has also been observed that the title of the land in dispute, has already been decided by the Collector under Section 11 of the Act, vide its order dated 27.7.1980, and the petitioner is not found to be the owner, moreover, there is no provision for holding over, after the expiry of the lease, in case of Panchayat property. It has also been observed that the title of the land in dispute, has already been decided by the Collector under Section 11 of the Act, vide its order dated 27.7.1980, and the petitioner is not found to be the owner, moreover, there is no provision for holding over, after the expiry of the lease, in case of Panchayat property. Thus, the Civil Court decree relied upon by the petitioner is of no help to him because his claim for declaration of title was specifically declined and only injunction was granted, that too, till he is proceeded against in due course of law. The petitioner has also led no evidence that the land in dispute is more than 25% of Shamilat deh. 8. In view of the above discussion, we do not find any merit in this petition and the same is hereby dismissed. No costs.