Bhagwan Singh vs Chief Judicial Magistrate, Rupnagar and others

J.M. Tandon, J.

Bhagwan Singh petitioner is a resident of village Chintgarh, Tehsil Kharar, District Rupnagar. The Gram Panchayat, Chintgarh, initiated proceedings against him in 1972 under Section 21 of the Punjab Gram Panchayat Act on the ground that he had made encroachment on the public passage by constructing Pucca Khurlies, verandah and kitchen. The proceedings against the petitioner were got transferred by him from Gram Panchayat Chintgarh to Gram Panchayat Akalgarh in 1973, to Gram Panchayat, Solempur in 1976, to Gram Panchayat, Fatehgarh in 1979 and thereafter to Gram Panchayat, Niholka. The Gram Panchayat, Niholka, vide order dated February 1, 1981, (P.2) held that the petitioner had made the encroachment on the public passage. He was directed to remove the encroachment within 30 days. He was also fined Rs. 50/ for having made illegal encroachment. The petitioner assailed the order P.2 before the Chief Judicial Magistrate, Roopnagar under section 51 of the Punjab Gram Panchayat Act which was dismissed vide order dated March 3, 1982. The petitioner filed a petition under Article 227 of the Constitution read with Section 482, Criminal Procedure Code assailing the orders of the Gram Panchayat, Niholka, (P.2), and the Chief Judicial Magistrate, Roopnagar, dated March 3, 1982. This petition was disposed of vide order dated October 31, 1983, (P.5). The relevant part of this order reads :

"In aid of the petition the petitioner has relied on two judgments of the Civil Court, one the original and the other the appellate. There are annexures P.2 & P.5 to the petition. It appears that a few rightholders of village Chintgarh filed a suit against the petitioner and two others for permanent injunction claiming the above referred to property as having been reserved for common purposes for the common use of the residents of the village. The petitioner and those other two disputed the factum. Thereupon a suitable issue was struck by the civil court as to whether the disputed site was reserved and meant for common use of the residents of village. The first Court nonsuited the plaintiffs and the appellate Court affirmed that decision. The concurrent finding was that the disputed site was not reserved for common purposes. Now the claim of the petitioner is that the suit having been fought by the villagers for the benefit of all, was in sence binding on the Panchayat also. And further if a property was not meant for use for common purposes the Panchayat had no jurisdiction over the matter. These points, the petitioner did not take either before the Panchayat or before the Chief Judicial Magistrate, Rupnagar. But the material in the form of the judgment of the civil court is so important to the cause that to shut ones eyes to them would be bordering on injustice. Having that in view, learned counsel for the parities are agreed that their impact must be examined by the Chief Judicial Magistrate, Rupnagar, who shall formally admit these judgments on the record and pronounce on the cause taking these into consideration. On a consent of the parties this petition allowed, the order of the Chief Judicial Magistrate, Rupnagar, is set aside and the matter is remitted back to him for reconsideration in the light of the observations heretofore."

The Chief Judicial Magistrate, Rupnagar, has decided the revisions filed by the petitioner against the order of Gram Panchayat, Niholka, (P.2) afresh vide order dated March 30, 1984, (P.1). The revision has been dismissed. It is against this order that the present petition under Article 227 of the Constitution read with Section 482, Criminal Procedure Code, has been filed by the petitioner.

The learned counsel for the petitioner has argued that the Chief Judicial Magistrate, Rupnagar, while passing the impugned order has not followed the direction of the High Court in order dated October 31, 1983. (P.5). The contention is without merit. The Chief Judicial Magistrate has followed the direction given by the High Court in order P. 5 and has given good and sound reasons for not following the two judgments of the civil court detailed in order P.5. The petitioner, therefore, cannot make a grievance against the impugned order P.2 on this ground.

The learned counsel for the petitioner has contended that the Chief Judicial Magistrate has taken notice of the order passed by the Collector dated June 22, 1981, in a petition filed by Rachan Singh and Sital Singh against the petitioner and his brother under section 11 of the Punjab Village Common Lands (Regulation) Act, 1961, (hereafter the Act), holding that the site in dispute is used for common purposes. An appeal against this order has been preferred by Bhagwan Singh petitioner and the same is pending before the Joint Director, Panchayats, Punjab. The argument proceeds that no petition can be filed under section 11 of the Act for seeking such a declaration for the benefit of the Panchayat. The order of the Collector dated June 22, 1981, being ultra vires has been wrongly taken notice of by the Chief Judicial Magistrate. The contention of the learned counsel for the petitioner must prevail. Subsection (1) of section 11 of the Act reads :

"Any person 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 singed and verified in the prescribed manner and the Collector shall have jurisdiction to decide such claim in such manner as may be prescribed."

A person can file a claim under section 11(1) for his own benefit but not for the benefit of the Panchayat. The Collector, therefore, was not competent to entertain the petition filed by Rachan Singh and Sital Singh under section 11 of the Act wherein the prayer made was that the site in dispute be held to have vested in the Panchayat. The learned Chief Judicial Magistrate has erred in taking notice of the order of the Collector dated June 22, 1981.

Another point urged by the learned counsel for the petitioner is that the Chief Judicial Magistrate wrongly held that the order of the Gram Panchayat Niholka, dated February 1, 1981, (P.2) has assumed finality because no appeal against it under section 23A of the Punjab Gram Panchayat Act had been filed. This contention is also correct. It has been held in Gram Panchayat Ponnarwas, Bhiwani v. Chandi Ram and another, 1981 P.L.R. 603, that the Chief Judicial Magistrate has jurisdiction to grant relief to an aggrieved party in revision under section 51 of the Punjab Gram Panchayat Act irrespective of the fact that no appeal under section 23A had been filed against the order of the Gram Panchayat. The learned Chief Judicial Magistrate again erred in recording a finding contrary to the ratio of this authority.

The last contention of the learned counsel for the petitioner is that the order of the Gram Panchayat dated February 1, 1981, (P.2) is composite and such an order could not be passed. This point was raised by the petitioner before the Chief Judicial Magistrate as it has not been taken notice of in the impugned order.

The Chief Judicial Magistrate wrongly held that the order of Gram Panchayat, Niholka, P.2 has assumed finality because an appeal against it under Section 23A of the Punjab Gram Panchayat Act had been filed and the revision was liable to be dismissed on this ground. The Chief Judicial Magistrate also erred in taking notice of the order of the Collector dated June 22, 1981, referred to above. Under these circumstances, the impugned order the Chief Judicial Magistrate cannot be sustained.

In the result, the petition is allowed and the impugned order of the Chief Judicial Magistrate, Rupnagar, dated March 30, 1984, set aside. The Chief Judicial Magistrate, Rupnagar, shall decide the revision filed by the petitioner against the order of the Gram Panchayat, Niholka dated February 1, 1981, afresh in the light of the observation made above. It will be open for the petitioner to raise the objection before the Chief Judicial Magistrate that the order of Gram Panchayat Niholka is bad being composite.

The parties through their counsel are directed to appear before the Chief Judicial Magistrate, Rupnagar, on January 21, 1985.