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2013 DIGILAW 1040 (PNJ)

Harbhajan Singh v. Gram Panchayat of village Ottu

2013-08-13

G.S.Sandhawalia, Jasbir Singh

body2013
JUDGMENT Mr. Jasbir Singh, J. (Oral):- Petitioners are facing litigation since from the year 1979. They are in possession of 71 kanal and 17 marla of land, which is claimed in its ownership by respondent No.1 (the Gram Panchayat). In the year 1979, the Gram Panchayat filed an application under Section 7 of the the Punjab Village Common Lands (Regulation) Act, 1961 (in short, the Act) to eject the petitioners from the above land. After a gap of about nine years, final order was passed by the Assistant Collector 1st Grade on 28.10.1988 and the Gram Panchayat’s application was dismissed. It was specifically observed that the Gram Panchayat has failed to prove its ownership in the property in dispute and as such it has no right to get the petitioners ejected from the land in dispute. Relevant portion of the order reads thus:- “Facts of this case are that a petition under section 7(2) of the Punjab Village Common Lands Act was filed for ejectment before Assistant Collector First Grade Sirsa on behalf of Gram Panchayat Ottu, Shri Bishan Dass, Assistant Collector First Class, Sirsa give a decision on this petition on 27.11.79 that first question of title in relation to land in dispute be decided in terms of section 13-B of the Village Common Lands Act and thereafter petition for ejectment be heard. Appeal against this order was filed before the learned Collector who vide his order dated 7.10.1980 remanded the case holding that there is no question of title involved in the case, this case be decided on merits. After the order of remand Shri Krishan Mohan, Assistant Collector, First Class, Sirsa passed an order dated 13.1.1981, ejecting the respondent with fine from the land in dispute. Against this order, again appeal was filed and the learned Collector vide his order dated 12.4.1982 again remanded the case to Assistant Collector First Class with a direction that question of title be decided in terms of section 13-A of the Village Common Lands Act by the revenue court before taking recourse to the ejectment proceedings. Thereafter Assistant Collector First Class dismissed the application of the Gram Panchayat on the point that the land does not vest in the Panchayat. Against this order, learned Collector has passed this order in appeal. I have heard the arguments of both the learned counsel for the parties and have carefully perused the records. Thereafter Assistant Collector First Class dismissed the application of the Gram Panchayat on the point that the land does not vest in the Panchayat. Against this order, learned Collector has passed this order in appeal. I have heard the arguments of both the learned counsel for the parties and have carefully perused the records. Land in dispute in this case is not the ownership of Gram Panchayat Ottu but is the ownership of Jumla Mustarka Malkan and this land does not vest in the Panchayat under village Common Lands Act. Therefore, Panchayat is not found to be owner of this land and it has no right to get the respondent ejected. As far as absence of khasra nos in the land in dispute despite khewat and khatoni numbers in the mutation no.34, is concerned, it is evident from Ex.P PX that only those numbers have been transferred in the name of Panchayat which comes under Mustarka Agraj (common purposes). Land under cultivation has not been transferred. Because of this reason numbers of land in dispute do not figure in the mutation. It is evident from this that Panchayat is not the owner of this land. Therefore Panchayat is not entitled for getting any tenant ejected from this land. Due to the reason of dismiss this application of the Panchayat. Order announced. File be consigned to record room.” 2. Gram Panchayat went in appeal which was dismissed by the appellate Court on 11.3.1989. Gram Panchayat – respondent No.1 came to this Court by filing CWP No.268 of 1990, which was disposed of by a Division Bench of this Court in the month of July 1990 on a ground that without exhausting remedy under Section 13B(2) of the Act, the Gram Panchayat had approached this Court. It was observed as under:- “The petitioner can approach the Commissioner under the said provision by way of a revision petition is filed within one month from today, the objection of limitation, if any, will not be raised by the respondent. All the objections raised in the writ petition will not be raised by the respondent. All the objections raised in the writ petition will be available to the petitioner before the Commissioner. This writ petition is disposed of accordingly.” 3. Liberty was granted to the Gram Panchayat to approach the Commissioner against order referred to above. It was not done. All the objections raised in the writ petition will not be raised by the respondent. All the objections raised in the writ petition will be available to the petitioner before the Commissioner. This writ petition is disposed of accordingly.” 3. Liberty was granted to the Gram Panchayat to approach the Commissioner against order referred to above. It was not done. Revision petition was not filed within the stipulated time as given by this Court. 4. Gram Panchayat remained mum for a period of seven years and in the year 1997 filed an application for ejectment of the petitioners by invoking the provisions of the Haryana Common Purposes Land Eviction and Rent Recovery Act, 1985 (in short 1985 Act). That application was dismissed by the competent authority after noting earlier orders passed against the Gram Panchayat and also orders passed by this Court in the year 1990. Relevant portion of the order passed by the Collector on 30.8.2000 reads thus:- “I have heard both the learned counsel for the parties and have also gone through all the facts which have come on the face. On the perusal of the records it has been found that the owner of the disputed land was Thakur Kushal Singh and in the year 1962 the disputed land was transferred to Mustarka Malkan. At the time when the disputed land was trasnferred Mustarka Malkan, at that time the respondents were in possession of the land. The mutation of the land has been recorded in the name of Mustarka Malkan and the land which was given in return, mutation of that land was in the name of Thakur Kushal Singh. On 22.9.1964 the mutation of the land of Mustarka Malkan was done in the name of Panchayat and this was also effected in the Jamabandi but the Panchayat never had the possession of the land and the respodnents have been in the possession till today. The Gram Panchayat Ottu in the year 1975 filed an application for eviction under Section 7 of the Village Common Land Act, the court of Assistant Collector 1st Grade, Sirsa that the respondents have taken illegal possession of the shamlat land of Panchayat. Lastly made the demand for eviction. Which was decided on 27.11.79 by Assistant Collector 1st Grade, Sirsa and ordered that a question of title arises of the disputed land. Lastly made the demand for eviction. Which was decided on 27.11.79 by Assistant Collector 1st Grade, Sirsa and ordered that a question of title arises of the disputed land. So first of all the dispute regarding question of title be decided and till that time the application of the Gram Panchayat was stayed. Against this order the Gram Panchayat Ottu filed an appeal before the court of Collector, Sirsa and the Collector, Sirsa in his order dated 7.10.79, remanded the case back to Assistant Collectort 1st Grade, Sirsa on the instructions that there is no question of title involved about the disputed land. So the case be decided according to the legal procedure on merits. The Assistant Collector 1st Grade Sirsa on 13.1.1981, evicted respondents from the disputed land against which the respondents filed an appeal before the Collector Sirsa. The Collector Sirsa, on 12.4.1982 again remanded back the case with the instructions that first of all the question of title be decided and after that the application of Gram Panchayat be decided. On 31.5.1985 the Assistant Collector Ist Grade, Sirsa dismissed the application of the applicants and decided that merely by attestation of the mutation, the title of the disputed land does not confers and Gram Panchayat has not presented any proof regarding the ownership of the disputed land. The Gram Panchayat Ottu on 31.5.1985 have filed an appeal before Collector against this order and the Collector Sirsa on 14.3.1989 dismissed the appeal of the respondents and upheld the order dated 31.5.85 passed by the Assistant Collector 1st Grade Sirsa. The respondent Gram Panchayat have filed a writ petition in the Hon’ble Punjab and Haryana High Court against the order dated 14.3.89 passed by the Collector Sirsa and the Hon’ble High Court in July 1990 have instructed the Gram Panchayat Ottu to file revision petition in the court of Commissioner, Hisar Division, Hisar within one month. But the respondents have not filed any revision petition in the court of Commissioner, Hisar Division, Hisar, for the last about 7 years. After that petitioner Gram Panchayat have filed a new application under the Haryana Common Purpose Land Eviction and Recovery Act 1985. The petitioner Gram Panchayat could not prove that the disputed land was left for the common use and the control and supervision of the land was with the Panchayat. After that petitioner Gram Panchayat have filed a new application under the Haryana Common Purpose Land Eviction and Recovery Act 1985. The petitioner Gram Panchayat could not prove that the disputed land was left for the common use and the control and supervision of the land was with the Panchayat. I am completely satisfied with the counsel of the respondents that the petitioner Gram Panchayat Ottu never had the possession of this land and never had given this land on Patta etc. So, the statement of the counsel for the petitioner is not proved that the control and supervision of the disputed land was with the Gram Panchayat. I am completely satisfied with the statement of counsel that the Collector 1st Grade Sirsa have already decided about the disputed land on 31.5.85 and the order is final. In the present petition the petitioner and respondents of the disputed land are the same persons who were present in the order dated 31.5.85 passed by Assistant Collector 1st Grade Sirsa. So in the present case the doctrine of res-judicata is applicable and the application dated 3.11.97 of the Gram Panchayat Ottu is dismissed. The order has been proncounced in the open court today on 30.8.2000.” 5. It was noticed by the competent authority that once the Gram Panchayat has failed to prove its ownership before the Assistant Collector 1st Grade, without getting the question of title decided, it is not open to the Gram Panchayat to file an application for ejectment of the petitioners. The Gram Panchayat went in appeal, which was allowed by the Commissioner on 26.10.2006. 6. We have perused the orders passed. 7. Without making any reference to the earlier litigation and in a very arbitrary manner, simply by making reference to a copy of the jamabandi for the year 1991-1992, it was said that the Gram Panchayat is owner of the land in dispute and petitioners’ ejectment was ordered. It was further wrongly said that because earlier application for ejectment was filed under the provisions of the Act and now application having been filed under the provisions of 1985 Act, the same is not barred by principle of resjudicata. 8. After hearing counsel for the parties, we are of the opinion that when ordering their ejectment, the Commissioner has committed an error in law and on facts. 9. 8. After hearing counsel for the parties, we are of the opinion that when ordering their ejectment, the Commissioner has committed an error in law and on facts. 9. It is on record that earlier also, ejectment proceedings were initiated by the Gram Panchayat against the petitioners, after routing through the process of appeal etc., final order was passed by the Assistant Collector 1st Grade on 28.10.1988, holding that the Gram Panchayat has failed to prove its ownership in the land in dispute, on account of that ejectment of the petitioners was declined. Gram Panchayat failed in appeal on 14.3.1989. Thereafter, CWP No.268 of 1990 filed by the Gram Panchayat was also dismissed in the month of July 1990, giving liberty to the Gram Panchayat to file a revision petition against orders referred to above within 30 days. However, it was not done. Gram Panchayat kept on sleeping for a period of seven years and then by invoking the provisions of 1985 Act, ejectment proceedings again were initiated. Gram Panchayat’s application was rightly rejected by the Collector. However, the Commissioner, by passing a non-speaking order, without referring to the above said facts, allowed appeal filed by the Gram Panchayat. Order passed is not as per law and against facts on record. 10. Under the circumstances, we allow this writ petition, order passed by the Commissioner dated 26.10.2006 (P6) is set aside. However, taking note of entries in the Jamabandis etc., liberty is granted to the Gram Panchayat to get the question of title decided and in case decision goes in favour of the Gram Panchayat, it may move an application for ejectment of the petitioners. 11. At the time of arguments, it is stated that as on today, petitioners are not in possession of the land in dispute, which has been disputed by counsel for the petitioners. If the Gram Panchayat files an application under Section 13A of the Act within 30 days, parties are directed to maintain status quo. Thereafter suitable application can be moved by either of the parties for interim direction before the Court of Collector. If the application, to get the question of title decided, is filed within above mentioned time, the authority concerned is directed to dispose of the same within nine months from the date of its filing after giving three opportunities each to the parties, to lead evidence. --------0.B.S.0------------