Dalbir Kaur Vs. Gram Panchayat, Hirawan Kalan and anr. - Court Judgment

Excerpt:
property - unauthorized possession - eviction - section 7 of the punjab village common lands (regulation) act, 1961 - petitioner was in unauthorized possession of gram panchayat's land - respondent no.3 filed application under section 7 of act before collector seeking eviction of petitioner - allowed - being aggrieved, petitioner filed appeal before commissioner - dismissed - hence, present petition - whether respondent no. 3 has locus to file application under section 7 of act? - held, locus is to be seen on basis of cause and relief sought - any resident of village would have interest and locus to seek eviction of person from land meant for common use of all - in present case, as petitioner has unauthorizedly possessed village land which is meant for common use of villagers, respondent no. 3 has right to file application for seeking eviction of same - if some persons are specifically authorized by section 7 of act to file application for seeking eviction of same, it does not mean that third person have no locus to file application under said section - thus, no infirmity in impugned order - petition dismissed - hindu law -- custom: [vijender jain, c.j., m.m. kumar, jasbir singh, rajive bhalla & rajesh bindal, jj] alienation of ancestral property - punjab and haryana - held, in respect of state of punjab by virtue of punjab amendment act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. in punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by hindu law except to the extent it is regulated by sections 6 and 30 of the hindu succession act. in haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. parties can fall back upon hindu law in case they fail to establish that rule of decision is custom. therefore, in haryana both under hindu law and the customary law, the alienation would be open to challenge. custom was given precedent over uncodified hindu law presumably for reason that custom has been consistently replacing the hindu law. however, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst jats of punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. it was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. accordingly, the punjab custom (power to contest) act, 1920 (act no.2 of 1920) was enacted. the hindu succession act was extended to the state of punjab. act 2 of punjab act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. a further provision was made by section 3 that hindu succession act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. whereas section 4 declared that hindu succession act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the succession act was to come into force. in other words, act, no.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. it also preserved the rights of any alienation or appointment of an heir made by a family. after section 7 was inserted in act of 1920 by the punjab amendment act of 1973 right of contest being contrary to custom had been totally effaced and taken away. therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after january 23, 1973. in haryana, the situation as enunciated by act no.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to punjab as brought by amendment act of 1973, had been enacted although right to pre-emption has been substantially abolished in haryana also. no steps even have been taken in that regard. therefore, situation in haryana have to be regarded as it existed under act no. 2 of 1920. hindu succession act,1956[c.a.no.30/1956] -- sections 6 & 30: [vijender jain, c.j., m.m.kumar, jasbir singh, rajive bhalla & rajesh bindal, jj] alienation of coparcenary property - law laid down by full bench in joginder singh kundha singh v kehar singh dasaundha singh [air 1965 punjab 407] and pritam singh v assistant controller of estate duty, patiala [1976 punj lr 342] -whether there is any conflict? - held, the basic controversy in the full bench decision of joginder singhs case was regarding constitutional validity of section 14 of hindu succession act and as to whether it infringes article 14 of constitution. it was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. the full bench held that section 14 of hindu succession act postulates that estate held by a hindu female before enforcement of succession act either by inheritance or otherwise, was enlarged and on date of enforcement of succession act, she became a full owner. likewise, if she has inherited any estate after the commencement of the act, she was to be regarded as absolute owner rather than a limited owner. consequently, the limitations on power of alienation automatically vanished. this was the necessary result of the provisions made in section 14 of the act. the full bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. however, it noticed section 30 and observed that it only deals with power of his share in coparcenary property by will, which prior to enforcement of the act, he had no right to do. the only provision made in respect of male proprietor regarding alienation of property was his power of alienation by will. in so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the act. likewise, other restriction on alienation other than disposal by will also continued. the full bench, thus, recognized the superior right of hindu females by virtue of section 14 and upheld the provision as intra vires. the argument that reversioners have ceased to exist after enactment of provisions of section 14 of succession act, was rejected as there was no provision pointed out to that effect. the proposition laid down by the full bench in pritam singhs case was that the hindu succession act has not abolished joint hindu family with respect to rights of those who were members of mitakshara coparcenary, except in the manner and to the extent mentioned in sections 6 and 30 of the act, this statement should also imply, though it does not say so expressly, the succession act to this extent does not affect the rights of the members governed by dayabhaga coparcenary. the full bench in pritam singh;s case expressly noticed the judgment of earlier full bench in joginder singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by customary law and constitutional validity of section 14 of hindu succession act. thus there is no real conflict between the two full bench judgments. both the full bench judgments have been delivered on the assumption that joginder singhs case dealt with question of alienation whereas pritam singhs case had decided the question concerning succession. even on fact in joginder singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in pritam singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. in pritam singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. therefore, there was no question of alienation in pritam singhs case. - 3, under section 7 of the punjab village common lands (regulation) act, 1961 (for short, the act'), notice was issued to the petitioner as well as gram panchayat. as per the commissioner, the sarpanch should have defended on behalf of the gram panchayat, who not only failed to defend but filed reply favouring the petitioner. the respondent as such, in my view, had clearly shown locus in this case to maintain this application. 1966 supreme court 828, it was observed that anybody who has been prejudicially affected by the act or omission complained of, can apply, even though he may not have a proprietary or even a fiduciary interest in the subject matter.ranjit singh, j.1. the issue raised in the present petition is in regard to the locus of respondent no. 3 to file an application seeking eviction of the petitioner from the land of gram panchayat, which was allegedly in an unauthorised possession of the petitioner.2. on an application filed by respondent no. 3, under section 7 of the punjab village common lands (regulation) act, 1961 (for short, 'the act'), notice was issued to the petitioner as well as gram panchayat. the petitioner raised a plea that respondent no. 3 had no right to file an application under section 7 of the act and that he was a coowner of khasra no. 922 and 923 where his father had constructed a house. on the request of respondent no. 3, a local commissioner was appointed, who submitted his report on 8.8.2005. the petitioner filed objections against this report and mainly contended that he had constructed a house for the last 60 years. the assistant collector came to the conclusion that the land in dispute was in the ownership of gram panchayat and was reserved for gair mumkin chappar. as per the demarcation report, the petitioner had encroached upon the disputed land i.e. 6 marlas by raising construction. the appeal filed by the petitioner before the commissioner is also dismissed. the commissioner also observed that the petitioner and the sarpanch were conniving with each other. as per the commissioner, the sarpanch should have defended on behalf of the gram panchayat, who not only failed to defend but filed reply favouring the petitioner. the petitioner has accordingly impugned these orders through the present writ petition and has primarily raised submission that respondent no. 3 was not competent to file this application under section 7 of the act and that such application was not maintainable.3. while issuing notice of motion, no stay was granted in favour of the petitioner. written statement has been filed on behalf of the official respondents. by way of preliminary submissions, it is pointed out that the sarpanch of the gram panchayat was in connivance with the petitioner and that is why he did not take any step to get the gram panchayat land vacated. respondent no. 3, being resident of the village, had filed this application, which was reserved for gair mumkin chappar, being used for common purpose of all the villagers. accordingly, it is prayed that no interference may be called for in exercise of writ jurisdiction. the action of the block development and panchayat officer in directing action against the sarpanch is also justified.i have heard the learned counsel for the parties.4. by referring to the provisions of section 7 of the act, counsel for the petitioner submits that only panchayat or an officer duly authorised in this behalf by the state government by general or a special order can file application before the collector under this section. section provides that the panchayat and the officer duly authorised by the state government can file the application before the collector for putting the panchayat into the possession of a land or other immovable property in shamlat deh of the village. ordinarily, the persons mentioned in the section may be held entitled to file the application under the section, but this provision may not fully regulate those cases where panchayat or a person authorised to file application are seemed to have connived with the person in illegal or unauthorised possession of the land or immovable property. in other words, this provision cannot be read to mean that the persons mentioned therein alone would have locus to file application seeking eviction and removal of encroachment. this conclusion may be inescapable when the provisions of section 7 are read with the provisions of section 11 of the act. these two sections apparently regulate and operate in the same field. proviso to section 7 can be referred to seek support in this regard. it is provided in the proviso that if after receipt of the application and before the panchayat is put in possession of the land, a question of right, title or interest in such, land or property is raised by any person and prima facie case is made out in support thereof, then the collector shall direct the person who has raised such question to submit his claim under section 11 of the act. it can, thus, be safely taken that both the sections basically operate in the same field.5. section 11 entitles any person or panchayat claiming right, title or interest in any land to submit to the collector a statement of his claim in writing etc. when sections 7 and 11 of the act are read together, then these would apparently show that any person may have a locus to file such application though section 7 is apparently restricting right to panchayat or an officer specified therein. it may need a mention that application under section 7 is for putting the panchayat in possession of the land and so the purpose of giving right to the panchayat or the officer duly authorised in this regard by the state government. so far as removal of encroachment is concerned or putting the panchayat in possession of land in shamlat deh is concerned, locus may have to be seen from the angle of an inhabitant of the village. this court in shankar and ors. v. joint director, panchayats, punjab and ors. : (2004-2) 137 p.l.r. 345 has held as under:the use of different phraseologies and expressions in the two sections, which largely operate in the same field shows that where the question of title of public land is involved, the legislature did not want to restrict the locus standi to the gram panchayat or an officer authorized by the state. instead, it has been considered proper to confer locus standi on any person interested in the land of the gram panchayat. if section 11(1) is read with other provisions of the act, which was enacted to consolidate and amend the law regulating the rights in shamlat deh and abadi deh, it becomes clear that a wider locus standi has been conferred upon the villagers to see intervention of the collector and/or of the appellate authority to protect the public land vested or deemed to have been vested in the gram panchayat.6. thus, a person filing an application under section 7 of the act can always show his locus and a right to seek eviction of a person, who has encroached upon a common land meant for use of the entire village. locus will have to be seen from the angle of relief claimed. in the present case, respondent no. 3 had not claimed the relief of putting the panchayat in possession, but had made a grievance that 18 marlas of land was encroached by the petitioner and the prayer was made to direct the petitioner to vacate the possession of the land. this prayer was made in the context that the sarpanch of the gram panchayat had refused to make a move in the matter to get the encroachment removed and so respondent no. 3 had moved an application in the interest of the village community. respondent no. 3 in this application had prayed before the collector to direct the sarpanch to initiate proceedings by stepping into the shoes of the applicant as he was not doing so being in league with the petitioner. the prayer accordingly was made before the collector either to direct the sarpanch or the panchayat officer etc. to take cognizance of the matter without any technical objection. the respondent as such, in my view, had clearly shown locus in this case to maintain this application.7. locus otherwise is to be seen on the basis of cause and the relief sought. any resident of the village would have interest and the locus to seek eviction of a person from land meant for common use of all. a resident of a village, who has an interest in a property, which is meant for common use of the villagers, can certainly have a grievance, if the property is unauthorisedly occupied or encroached upon by any person. this court in shankar's case (supra), has held that any villager can approach the collector to protect the interest of shamlat land vested in gram panchayat. in gadde vendateswara rao v. government of andhra pradesh and ors. : a.i.r. 1966 supreme court 828, it was observed that anybody who has been prejudicially affected by the act or omission complained of, can apply, even though he may not have a proprietary or even a fiduciary interest in the subject matter. in jasbhai motibhai desai v. roshan kumar, haji bashir ahmed and ors. : a.i.r. 1976 supreme court 578, it was observed that the petitioner must be a person prejudicially affected by the act or omission, which is under challenge. since the land under the occupation of the petitioner was meant for common use, respondent no. 3 can be said to be a person who could be prejudicially affected. in large number'of cases, the person has been allowed to maintain petitions, which are in public interest as when public interest is affected by the action, an organisation, which has a special interest in the subject matter or member thereof, should be allowed to apply. where a public injury is committed by an act or omission, which is contrary to law or constitution, any member of the public can maintain an action for redressing that public injury provided only he acts bonafide and riot for personal or private gain or out of political motivation. though may not be applicable but reference here can be made to the provisions of section 7 of the act as applicable to state of haryana, where an inhabitant of the village, apart from the panchayat, block development and panchayat officer and social education and panchayat officer are held entitled to file application, seeking eviction of a person who is in an unauthorised or wrongful possession of a land or other immovable property in shamlat land.8. the panchayat, as is seen in this case, is a conniving party. the situation can not be rendered as helpless as is being made out that a person in such a case can be allowed to encroach upon or remain in unauthorized possession of the shamlat land as he has managed the panchayat. section 7 of the act may be relevant to see locus on the part of a person to file application but to restrict the provision in straight jacket would lead to unjust consequences. this is a provision authorizing some of the persons or authorities to file an application under section 7 of the act and can not be read to mean that all others having locus in the cause are dis-entitled to file application or make a move seeking eviction of an unauthorized occupant over a shamlat land, when reasonably the provision is to be read in conjunction with section 11 of the act. the interpretation put by the petitioner on this provision to say that respondent no. 3 would not have locus to file this application appears stretched keeping in view the factual position and, thus, can not be accepted. in any event, now this action of respondent no. 3 seems to have received the stamp of approval of the authorities who have found that the sarpanch was seen conniving with the petitioner, for which an action has also been taken against him. this is in the context of prayer made in the petition before the collector to direct the sarpanch or the officer to move such an application. the issue of locus, thus, would not be attracted in the case in strict sense. this is not a fit case to exercise writ jurisdiction to interfere in the impugned order passed on this technical ground, which is otherwise also not fully made out. the writ petition is accordingly dismissed.