C.W.P.No.4485 of 1987 -1- In the High Court of Punjab and Haryana at Chandigarh C.W.P.No.4485 of 1987 Date of Decision: May , 2013 Gurdial Singh and others ---Petitioners versus Joint Director, Panchayats (exercising powers of Commissioner).Punjab, Chandigarh, and others ---Respondent Coram: Hon'ble Mr.Justice Rajive Bhalla Hon'ble MRS.Justice Rekha Mittal Present: Mr.Sarjit Singh, Senior Advocate with Ms.I.K.Pannu, Advocate for the petitioners Ms.Vandana Malhotra, Addl.
Advocate General, Punjab for respondent Nos.1 and 2 Mr.Ashok Sharma, Advocate, for respondent No.3 *** Rekha Mittal, J.
The petitioners pray for issuance of a writ of certiorari quashing orders dated 17.1.1983 (Annexure P-3) passed by the Collector (DDPO).Patiala and dated 30.4.1987 (Annexure P-4) passed by the Joint Director Panchayats, Punjab (exercising the powers of Commissioner) thereby allowing the petition filed by Jagir Singh under Section 11 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as “the 1961 Act”.) declaring Gram Panchayat village, Kachhwa, Tehsil and District, Patiala as owner of the land in dispute and dismissing the appeal filed by the petitioneRs.respectively.
Jagir Singh, member Panchayat of village Kachhwa filed a C.W.P.No.4485 of 1987 -2- petition under Section 11 read with Section 7 of the 1961 Act by alleging that the land in dispute, is shamlat deh and vests in the Gram Panchayat which is under unauthorized and illegal occupation of the petitioneRs.who are being helped by Sarjit Singh, Sarpanch of the Gram Panchayat.
The petitioneRs.in reply, raised a plea that the land is neither shamlat not does it vest in the Gram Panchayat.
The land has been mutated in their favour vide mutation No.52 dated 12.1.1976.
A civil court decree dated 23.7.1973 was passed in their favour as the petitioners are in possession of the land since long.
The land was banjar qadim before the petitioners came in possession and was not used for any common purpose.
The Collector (DDPO).Patiala after due consideration of the submissions made by the parties decided the petition holding that the Gram Panchayat is owner of the land in dispute.
It was further held that the collusive decree passed by the civil court has no effect on the ownership rights of the panchayat.
However, the Gram Panchayat was given liberty to file a separate application under Section 7 of the 1961 Act to recover possession of the land in dispute.
Feeling aggrieved from the order passed by the Collector, the petitioners filed an appeal before the Joint Director, Panchayats, Punjab, who dismissed the same vide impugned order dated 13.4.1987.
The Appellate Authority also refused to rely upon the civil court decree.
Counsel for the petitioners submits that the petitioners filed a suit for declaration of their ownership of the land in dispute, which C.W.P.No.4485 of 1987 -3- was decreed in their favour on 31.5.1974.
The Gram Panchayat did not file any appeal to challenge the aforesaid decree but one Gurcharan Singh filed a suit to challenge decree dated 31.5.1974.
The judgment and decree were set aside vide judgment dated 26.3.1982.
The petitioners filed an appeal against the judgment and decree dated 26.3.1982 which was set aside by the Court of Additional District Judge, Patiala on 13.5.1982 and the matter was remanded to the trial Court for decision afresh including decision on an additional issue framed by the Appellate Court.
After remand of the case, the Court of Additional Senior Sub Judge, Patiala stayed the proceedings of the suit and, therefore, the decree dated 31.5.1974 is in existence for all intents and purposes.
It is argued that as the matter with regard to the legality and validity of the decree dated 31.5.1974 is pending in a civil court, any finding by the authorities under the 1961 Act that the decree is the result of collusion is of no relevance and significance.
Counsel has strenuously argued that until decree dated 31.5.1974 is set aside by a court of competent jurisdiction, the petitioners are deemed to be owners of the land in dispute.
In support of his contention, he has relied upon a judgment of the Hon’ble Supreme Court of India Horil versus Keshav and another AIR 201.Supreme Court 1262.
Another submission made by counsel is that the petition under Section 11 of the 1961 Act was filed by Jagir Singh, who did not claim any right, title or interest in the land in dispute not he raised a plea that the land does not vest in the Gram Panchayat.
It is argued C.W.P.No.4485 of 1987 -4- that Jagir Singh had no locus standi to file the petition as he did not raise any issue contemplated under Section 11 of the aforesaid act.
Counsel for the contesting respondent-Gram Panchayat village Kachhwa contends that the petitioners failed to adduce any evidence to prove that the land in dispute is excluded from shamlat deh by virtue of any of the exclusion clauses provided under Section 2 (g) of the 1961 Act.
It is further argued that the reply filed by the petitioners in response to the petition under Section 11 of the 1961 Act does not refer to the date or period since when the petitioners have been in possession over the land in dispute.
As the petitioners failed to prove that they are in cultivating possession of the land in dispute prior to 26.1.1950, they have failed to establish their claim of ownership of the land in dispute.
With regard to the decree of the civil court, it is submitted that the decree is the result of collusion as has been held by the authorities.
The then Sarpanch of the Gram Panchayat had no authority to admit the claim of the petitioneRs.therefore, any decree passed by the civil court on the basis of the statement of a representative of the Gram Panchayat or on instructions given to counsel by such a representative is not binding to deprive the Gram Panchayat of land measuring 356 Kanals 9 marlas, which is in unauthorized possession of the petitioners for the last more than four decades without any right, title or authority.
It is further argued that as the jurisdiction of the civil court is barred by virtue of Section 13 of the 1961 Act to adjudicate as to whether any property or any right to or C.W.P.No.4485 of 1987 -5- interest in any property is or is not shamlat deh vested or deemed to have been vested in a Panchayat under the Act of 1961, the civil court has rightly refused to adjudicate upon this issue in the suit filed by Gurbachan Singh giving challenge to judgment and decree dated 31.5.1974.
It is further argued that as the authorities under the 1961 Act have been conferred the powers of civil court to decide whether the land in dispute vests or does not vest in a panchayat, the authorities exercising powers akin to a civil court are competent to decide legality or otherwise of a civil court decree, set up by one of the parties to the lis.
We have heard counsel for the parties, perused the impugned ordeRs.the judgment and decree dated 31.5.1974 of the civil court and other relevant documents.
Before we address the issues raised in accordance with submissions and counter submissions made by respective counsel, we would like to record that over the last few decades, a disturbing trend has emerged that a handful of people without any legal authority occupy public property using muscle power, money or political clout and while taking advantage of indifferent, callous and lackadaisical attitude of authorities entrusted with the task of management and control of public possession, are able to perpetuate their illegal possession.
Even land mafias, land grabbers etc.are not alien to the system.
We are dismayed and distressed at the manner and the concern with which public functionaries involved in the process of C.W.P.No.4485 of 1987 -6- administration and discharge of quasi judicial and even judicial functions, commit default resulting in loss of public property.
We cannot help but express our deep concern and anguish that in the State of Punjab, more so in the district of Patiala, during the period 1965 to 1975, a number of decrees were passed by civil courts in favour of illegal occupants either ex parte or on the basis of admission by a representative of the Gram Panchayat, without any authority.
It appears that Courts failed to consider that even if there is no contest to a suit or a representative of the panchayat has admitted the claim without any lawful authority, the Court is not helpless in checking such mischief rather a fraud.
The revenue authorities while sanctioning mutations did not care to examine these illegalities being committed by the office bearers of the panchayat, may be for the reason that they are privy to the illegality.
In our opinion, a Court has to act as a guardian/saviour of public property and every effort should be made, of course, within legal domain, to protect it from land grabbeRs.The petitioners have placed reliance upon decree dated 31.5.1974 passed by the Civil Court.
However, they have withheld the judgment, passed by the Court which is the basis of the decree.
The Gram Panchayat, along with its written statement, appended a copy of the judgment dated 31.5.1974 (Annexure R-1).An extract from the judgment is quoted hereinbelow:- “As per statement of the counsel for the defendants, the suit of the plaintiffs is decreed against the defendants.
Parties C.W.P.No.4485 of 1987 -7- to bear their own costs.
File be consigned.”
The petitioneRs.in our considered opinion, intentionally withheld the judgment so that it may not come to light that the civil court decision is based upon an admission made by counsel representing the Gram Panchayat.
We are aware that an ex parte decree or a decree passed on the basis of consent of the contesting party is as binding as a contested decree but where collusion and fraud is writ large on a decree, such a decree can be ignored in collateral proceedings even without getting it set aside by filing a separate suit.
We stand fortified, in this context, from a judgment of the Hon'ble Supreme Court Gram panchayat Naulakha versus Ujjagar Singh and others (2000) 7 SCC 543.
A perusal of Annexure R-1 reveals that Gram Sabha through its Sarpanch and Gram Panchayat village Kachhwa were arrayed as defendants No.1 and 2, respectively.
The petitioners have failed to adduce any evidence to prove that the Sarpanch or any other representative of the Gram Panchayat, was ever authorized to impart instructions to counsel to admit the claim of the petitioneRs.It is appropriate to notice that rule 16 of the Punjab Village Common Lands (Regulation) Rules, 1964 (hereinafter referred to as “the 1964 Rules”.) deals with the procedure where a panchayat sues or is sued in its representative capacity.
A relevant extract from Sub-Rule(3) of Rule 16 of the 1964 Rules reads as follows:- C.W.P.No.4485 of 1987 -8- “16.Procedure where a Panchayat sues or is sued in its representative capacity.
(1) xxxx xxxx xxxx (2) xxxx xxxx xxxx (3) The Sarpanch or panch so appointed shall not be competent to compound or admit claim of the party suing the Panchayat without prior authorization by the Panchayat by a resolution in writing passed in a meeting specifically called for the purpose.
If any decree or order is passed by the Court as a result of fraud, misrepresentation, concealment of facts or collusion with the opposite party, the Sarpanch or panch shall be personally liable for the loss caused to the Panchayat.
A perusal of Sub –Rule (3) of Rule 16 of the 1964 Rules reveals that a Sarpanch or a panch shall not be competent to compound or admit claim of the party suing the Panchayat without prior authorization by the Panchayat by a resolution to be passed in a meeting specifically called for the said purpose.
There is no material on record suggestive of the fact that any representative or counsel engaged by the Gram Panchayat was given authority to suffer a statement admitting the claim of the petitioneRs.adversely affecting the ownership rights of the Gram Panchayat, in regard to land C.W.P.No.4485 of 1987 -9- measuring 356 kanals 9 marlas.
Keeping in view the entire scenario, we have least hesitation in concurring with the findings of the authorities that the decree dated 31.5.1974 is the result of collusion to cause wrongful gain to the petitioners and, therefore, has been rightly ignored by authorities.
Counsel for the petitioners has raised another issue that the authorities under the 1961 Act are not competent to decide a question of collusion or fraud as they are not well equipped to decide such issues as has been held in Horli’s case (supra).It is further argued that even otherwise, a civil suit challenging the judgment and decree dated 31.5.1974 on the ground of collusion and fraud is already pending before a civil court which otherwise debars the revenue authorities from adjudicating disputed questions of fraud or collusion, as such and adjudication lies within the exclusive domain/jurisdiction of civil court.
Indisputably, one Gurbachan Singh filed a suit challenging the legality of judgment and decree dated 31.5.1974.
The decree dated 31.5.1974 was set aside by the civil court vide decision dated 26.3.1982 and held the decree dated 31.5.1974 to be the result of collusion.
The petitioners preferred an appeal against the decision dated 26.3.1982 and the Appellate Court (Additional District Judge, Patiala) set aside the decree dated 26.3.1982 and remanded the matter to the trial Court for decision afresh including decision on an additional issue “whether the land in dispute vests or does not vest in the Gram Panchayat”.The Additional District Judge, in our considered opinion, C.W.P.No.4485 of 1987 -10- overlooked the provisions of Section 13 of the 1961 Act which creates a clear bar against civil court entertaining and adjudicating any such dispute.
Nevertheless, the trial Court in its wisdom did not proceed further with the matter and adopted a safer couRs.to stay the proceedings, may be for the reason that any decision by the trial Court that it has no jurisdiction to decide additional issue, may be taken as a contempt of Court for violating an order passed by the Appellate Court.
In view of these facts, at the most, it can be said that there is no adjudication by the trial Court with regard to legality or otherwise of the decree dated 31.5.1974.
We are conscious that by virtue of Section 9 of the Civil Procedure Code, civil courts have the jurisdiction to try all suits of civil nature except suits of which cognizance is either expressly or impliedly barred.
It is also an established principle that a suit in which the right of property is agitated is purely one of a civil nature.
The claim of the petitioners against the panchayat was ordinarily triable by the civil court in accordance with the provisions of the Civil Procedure Code.
However, by Section 13 of the 1961 Act, the jurisdiction of the civil court was taken away.
The amending Act No.19 of 1976 substituted Sections 11 to 13 of the 1961 Act and as a result, the jurisdiction of civil courts is excluded to 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 and the jurisdiction has been conferred upon the Collector under Section 11(1) C.W.P.No.4485 of 1987 -11- of the 1961 Act.
Section 11 (1) of the 1961 Act provides that “Any person or a Panchayat 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.”
As the jurisdiction which earlier vested in the Civil Court has been conferred upon the Collector and the Collector exercises the powers of the civil court while adjudicating upon the question of title to land which vests or deemed to have been vested in a Panchayat, the Collector has the jurisdiction to examine and adjudicate the legality or otherwise of a decree of civil court set up by a party in defence.
In this view of the matter, we find no reason to accept the contention of the petitioners that the Collector has no jurisdiction to decide the evidential value of a decree or he is not competent to decide this issue during pendency of a civil suit which has been stayed by the civil court vide order dated 3.3.1983.
In Horli’s case (supra).the Hon’ble Supreme Court of India has held that revenue courts are neither equipped not competent to effectively adjudicate on allegations of fraud that has overtones of criminality and the Courts really skilled and experienced to try such issues are the Courts constituted under the Code of Civil Procedure.
The Hon'ble Supreme Court was dealing with power of a revenue officer conferred with C.W.P.No.4485 of 1987 -12- limited jurisdiction whereas in the present case, we are dealing with a Collector, conferred with power to decide a question of title, and as a consequence, all related questions, be of fraud and collusion.
It would also be appropriate to once again record that jurisdiction of civil courts to decide a question of title is barred by Section 13 of the 1961 Act.
The referred authority has no bearing on the present controveRs.as there is no allegation of fraud with overtones of criminality involved in this case.
This apart, the question whether a Collector competent to decide a question of title under Section 11 of the 1961 Act can judge the legality or otherwise of a decree of civil court was neither raised not answered in the referred authority.
The next issue which arises is the locus standi of Jagir Singh, a member panchayat, to file a petition under Section 11 of the 1961 Act.
Section 11 of the 1961 Act authorizes “any person”.
claiming right, title or interest in any land vested or deemed to have been vested in the Gram Panchayat under the Act or claiming that any land has not so vested in a panchayat under the Act, to file statement of his claim in writing.
A perusal of the order passed by the Collector (DDPO).Patiala reveals that Jagir Singh averred that he owns moveable and immovable property in the village and is interested in the welfare of the Gram Panchayat and Sarjit Singh, the present Sarpanch is the son of respondent No.1 (Gurdial Singh petitioner herein) and he is not taking any action against his father and uncles and is rather giving illegal help to them regarding the land in dispute.
C.W.P.No.4485 of 1987 -13- There is no challenge to these averments of Jagir Singh that the petitioners (respondents before the Collector) are the father and uncles of the then Sarpanch of the Gram Panchayat.
Even this is not denied that Jagir Singh was one of the members of the panchayat and is a proprietor of the village.
As per Section 11(1) of the 1961 Act, 'any person' may file a petition who has right, title or interest in panchayat land.
Jagir Singh being one of the residents of the village, a proprietor in the village and above all, a member of the panchayat, certainly had an interest in the land in dispute which is admittedly shamlat deh.
“Shamlat Deh”.
denotes common land of the village meant for the inhabitants of the village.
The residents of the village can call upon the Gram Panchayat not to use this land for a purpose other than welfare of the village community.
The nature of “shamlat Deh”.
and the use to which it can be put by the Gram Panchayat necessarily raises an inference that every resident of the village has an interest in such land.
A conjoint reading of expressions “any person”.
and “interest in any land vested or deemed to have been vested in a panchayat”.
calls for no debate or explanation to comprehend its true meaning and import.
The language of Section 11(1) of the 1961 Act is quite clear and unambiguous, therefore, do not require interpretation.
However, it is appropriate to note that a golden rule of interpretation is that in a statute dealing with the ordinary persons in every day life, the language is preferred to be used in its primary/ordinary sense unless C.W.P.No.4485 of 1987 -14- this stultifies the purpose of the statute.
As the provisions of Section 11(1) of the 1961 Act do not admit any ambiguity or possibility of interpreting in different manneRs.we find no force in the contention of counsel that Jagir Singh did not have the locus to file a petition under Section 11 of the 1961 Act.
No other issue has been raised before us.
In view of what has been discussed hereinabove, the writ petition is dismissed.
The orders impugned by the petitioners are affirmed.
No order as to costs.
( REKHA MITTAL) JUDGE (RAJIVE BHALLA) JUDGE May , 2013 PARAMJIT