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2014 DIGILAW 214 (PNJ)

Raja Ram v. Assistant Collector Ist Grade, Rewari

2014-01-27

FATEH DEEP SINGH, HEMANT GUPTA

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JUDGMENT Mr. Hemant Gupta, J.:- The challenge in the present writ petition is to an order passed by the Assistant Collector, Ist Grade on 17.01.1991; order dated 16.01.1992 passed by the Collector affirming the order passed by the Assistant Collector and the order in revision dated 21.01.1993 passed by the Commissioner, Gurgaon Division, Gurgaon, holding the petitioners to be unauthorized occupant of the property vesting in Gram Panchayat and therefore ordered eviction. It was ordered that common path and the street be restored to their original position. 2. In the present writ petition, the issue is short. A suit for declaration claiming title of the Panchayat was filed before the Assistant Collector under the provisions of the Punjab Village Common Land (Regulation) Act, 1961 by respondent No.4. At the time of filing of such proceedings, the Section 13-A of the Act was in force, introduced vide Haryana Act No.2 of 1981. It may be noticed that such Section 13A was omitted by Haryana Act No.9 of 1992 but reinserted vide Haryana Act No.9 of 1999. 3. Since the dispute in the present case was decided prior to its omission in the year 1992, the provision as is existed in the year 1981 and as applicable at the time of filing of the Petition and its decision reads as under:- “13. Bar of Jurisdiction.- No civil court shall have jurisdiction – (a) to entertain or adjudicate upon any question whether- (i) any land or other immovable property is or is not shamilat deh; (ii) any land or other immovable property or any right, title or interest in such land or other immovable property vests or does not vest in a Panchayat under this Act; (b) in respect of any matter which any revenue court, officer or authority is empowered by or under this Act to determine; or (c) to question the legality of any action taken or matter decided by any revenue court, officer or authority empowered to do so under this Act. 13A. 13A. Adjudication.- (1) Any person or in the case of a Panchayat, either the Panchayat or its Gram Sachiv, the concerned Block Development and Panchayat Officer, Social Education and Panchayat Officer or any other officer duly authorised by the State Government in this behalf, claiming right, title or interest in any land or other immovable property vested or deemed to have been vested in the Panchayat under this Act, may within a period of two years from the date of commencement of the Punjab Village Common Lands (Regulation) Haryana Amendment Act, 1980, file a suit for adjudication, whether such land or other immovable property is shamlat deh or not and whether any land or other immovable property or any right, title or interest therein vests or does not vest in a Panchayat under this Act, in the Court of Assistant Collector of the first grade having jurisdiction in the area wherein such land or other immovable property is situate. (2) The procedure for deciding the suits under Section (1) shall be the same as laid down in the Code of Civil Procedure, 1908.” 4. Learned counsel for the petitioners submits that the question regarding title of Gram Panchayat in a suit wherein the assertions are that the Gram Panchayat is the owner, two ingredients are required to be satisfied. Firstly, that there is an express claim either to include or exclude the land from Shamilat Deh and secondly, the Gram Panchayat is a party to such proceedings. Since there is a claim of vesting of land in Gram Panchayat but Gram Panchayat was not impleaded as a party, therefore, the present proceedings are non est. Therefore, the petition filed by Lala Ramrespondent No.4 herein is not maintainable. It is argued that the question whether the land is Shamilat and vested in Panchayat or not is a question which can be decided after giving an opportunity to Gram Panchayat only. Since the Gram Panchayat was never impleaded as a party in the present proceedings, therefore, the orders are not sustainable. The reliance is placed upon Full Bench judgment of this Court reported as 1979 PLJ 489 titled as “Munshi Ram and another Vs. State of Haryana and others”; Division Bench judgment of this Court reported as 1985 PLJ 366 titled as “Bhagu and others Vs. Ram Sarup and others” and 1987 PLJ 524 titled as “Baljinder Kumar Vs. The reliance is placed upon Full Bench judgment of this Court reported as 1979 PLJ 489 titled as “Munshi Ram and another Vs. State of Haryana and others”; Division Bench judgment of this Court reported as 1985 PLJ 366 titled as “Bhagu and others Vs. Ram Sarup and others” and 1987 PLJ 524 titled as “Baljinder Kumar Vs. Gurdas Ram and another”. Learned counsel for the petitioners has referred to the following findings from Bhagu’s case (supra) in support of his contention:- “5…….In other words, it is only when the contest is between the Panchayat and a private person for the determination or adjudication of the questions specified in clauses (a) and (b) of Section 13 that the jurisdiction of the Civil Court is barred. It is obvious that the right, title or claim of a private person to a particular land or immoveable property vis-à-vis the Gram Panchayat cannot factually and effectually be settled in the absence of the Panchayat being impleaded as a party to the litigation. Any decree obtained by an individual in his favour, collusively or after a contest, about the properties vesting or deemed to have vested in the Panchayat can never bind the Gram Panchayat in the absence of its being a party to the litigation. The very implication of the word adjudication is to finally determine the rights of the two contestants vis-à-vis the subject-matter of dispute judicially or in a judicial manner. One of the essential traits of “adjudication” is proprio vigore binding on and creates rights and obligations between the parties. This can never be done unless the dispute is between the Panchayat and a private individual qua the Shamilat Deh or any other land or immoveable property or any right, title or interest therein and unless the Panchayat is the real party to the litigation...........” 5. In the aforesaid case, a suit was filed claiming that there is a public street. It was found that the claim of the plaintiff that the suit property be declared as Shamilat Deh was included or excluded of Shamilat Deh was only a statement of fact that the suit land is Gali Sheh-re-aam. The observations, as extracted above, have to be read in that context. The finding is that an adverse order will not be binding on Panchayat, therefore, Panchayat is necessary party. The observations, as extracted above, have to be read in that context. The finding is that an adverse order will not be binding on Panchayat, therefore, Panchayat is necessary party. But in the present case, the order passed is favorable to Panchayat. Therefore, the situation considered in the case is different than in the present case. 6. The judgment in Munshi Ram’s case (supra) is distinguishable for the reason that in the aforesaid case, the suit was filed before the Civil Court which was transferred to the Court of Assistant Collector in view of the issue of vesting of land in the Panchayat as shamilat deh arose for consideration. It was a suit in which Gram Panchayat was a party. 7. A perusal of Section 13A shows that a right has been conferred on any person claiming right, title or interest on any land vested or deemed to have been vested in the Panchayat to claim such right in the Court of Assistant Collector Ist Grade having jurisdiction of the area wherein such land or other immovable property is situate. Therefore, the suit for declaration that the land vest in Panchayat, was a suit filed in exercise of the powers conferred under Section 13A of the Act as then in existence. 8. In the present case, the plaintiff has claimed that it is a common land reserved for common purpose and vests in Panchayat. After trial, the finding has been returned that it is the land vested in Panchayat. Therefore, Panchayat has not suffered any prejudice for the reason that it is not a party to the proceedings. It would have been different matter if the ultimate finding was that the land does not vest in Panchayat. In that eventuality, the Panchayat would not be bound by such decree for the reason that it was not a party but a beneficiary decree holding that the land vest in Panchayat cannot be disputed by a person who was party to the proceedings and has faced the trial wherein the finding was returned that the land vest in Panchayat and that is common land. 9. Therefore, we do not find that the petitioner cannot be permitted to dispute that in the absence of Panchayat, the orders passed by the authorities are not tenable in law. 10. Consequently, the writ petition is dismissed.