Biru vs Gram Panchyat and Others

Jawahar Lal Gupta, J.—This case represents the third round of litigation. The petitioner who claims to be a carpenter by vocation is aggrieved by the order dated March 13, 1991. By its order the Assistant Collector 1st Grade accepted the application filed by the Gram Panchayat, village Shergarh u/s 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter to be referred to as the Act). His appeal before the Collector having been dismissed, he has approached this court through the present proceedings. A few facts relevant for the disposal of this case may be briefly noticed.

The peitioner claims that he came to village Shergarh more than 30 years back. He used to work as a carpenter. In the year 1972, claiming himself to be a biswadar of the village, he filed a civil suit for a declaration that he was owner of the land measuring 36 kanals 15 marlas. The petitioner''s claim was conceded by the Sarpanch of the village and accordingly the civil court passed a decree in his favour on March 31, 1973. The Lagislature enacted Act No. 2 of 1981 by which section 13-A was added to the 1961 Act. It was provided that "the provisions of this Act shall have effect, notwithstanding anything to the contrary, contained in any law agreement, instrument, custom, usage, decree or order of any Court or other authority". Presumably, on account of the above provision, the petitioner filed an application u/s 13-A of the Act before the Assistant Collector 1st Grade claiming ownership of the land. Vide order dated May 31, 1982, a copy of which has been placed on record as Annexure P-3, the Assistant Collector accepted the petitioner''s claim. This order was challenged by the Gram Panchayat. The Collector set aside the order passed by the Assistant Collector on October 12, 1982. Aggrieved by the order of the Collector, the petitioner filed a revision petition before the Commissioner which was accepted by him vide order dated December 6, 1983. A copy of this order has been produced on record as Annexure P-4. A perusal of this order shows that the learned Commissioner accepted the petitioner''s revision petition only on the ground that the civil court had declared him as the owner of the land by virtue of the civil Court''s decree.

It appears that the claim of the petitioner was accepted solely on the ground of decree dated March 31, 1973 and therefore the Panchayat felt the necessity of challenging that decree. Accordingly; it appears that the Panchayat instituted a suit for a declaration that the decree was null and void and for the possession of the suit land. Learned counsel for the parties are agreed that this suit was instituted on January 2, 1984. This suit was initially dismissed by the learned trial court. However, the appeal filed by the Gram Panchayat was accepted by the learned District Judge vide his Judgment and decree dated January 23, 1989. A copy of this Judgment has been produced on record as Annexure P-5. It may also be mentioned here that the petitioner then filed RSA No. 1078 of 1989 against the order of the learned Addl. District Judge which was dismissed by this Court vide order dated December 6, 1989 with the following observations:-

"Kishna Sarpanch having consented to the passing of decree against the Gram Panchayat without any authority from it, the learned lower appellate court was wholly justified in reversing the decree. There is thus no merit in RSA No. 1078 of 1989. Dismissed."

Thereafter, the Panchayat moved the application u/s 7 of the Act before the Assistant Collector 1st Grade, Kaithal. The application was contested by the petitioner. However, the Collector found that the present petitioner had "not produced any evidence from which it may be proved that the Panchayat is not the owner of the land in dispute and the respondent "the writ petitioner has taken this land from the Gram Panchayat on Patta or Batai and he is paying any amount of Patta or Batai to the Gram Panchayat. In these circumstances, the illegal possession of the respondent is proved on the land in dispute and the Gram Panchayat has a right to get the respondent ejected from the land in dispute u/s 7(2) of the Punjab Village Common Lands Act." With these observations the petition of the Gram Panchayat was allowed. The petitioner filed an appeal. This appeal has been dismissed vide order dated May 18, 1992. A copy of this order is on record as Annexure P-2. Aggrieved by these orders, the petitioner has approached this Court through the present writ petition. These orders have been challenged on the ground that in view of the finding recorded by the Commissioner in his order dated December 6, 1983 (Annexure P-4) the petitioner could not have been ordered to be ejected from the land. It has been further averred that the petitioner had got a declaration of his title u/s 13-A of the Act and was as such the owner of the property in dispute and the Panchayat had nothing to do with the land in dispute. Reference has also been made to a clerical error in the order of the Collector wherein a reference has been made to the order of the Commissioner instead of to that of the Collector. On these premises the petitioner has challenged the orders passed by the two authorities.

In the written statement filed on behalf of the respondents, the petitioner''s claim has been contested. It has been averred that the respondent-Gram Panchayat had taken possession of the land on May 28, 1992. It has been further stated that a decree in favour of the petitioner having been set aside, he is not the owner of the house or land and consequently, he has no right to stay in possession. The claim of the petitioner has been controverted.

I have heard learned counsel for the parties. Mr. S.K. Goyal, learned counsel for the petitioner has raised a two-fold contention. Firstly, he submits that the petition u/s 13-A of the Act having been allowed by the Commissioner, Ambala Division vide his order dated December 6, 1983, a copy of which has been produced on record as Annexure P-4, he is the owner of the property and in view thereof, the findings recorded by the Assistant Collector and the Collector cannot be sustained. Seconary, the learned counsel has contended that the petitioner had become the owner of the property by virtue of the provisions of section 5-A of the Act, whereunder the Panchayat was competent to make a gift of the property to a member of the Backward classes. According to the learned counsel, the gift was made to the petitioner vide resolution dated February 3, 1956 passed by the Panchayat and in view thereof, he is the owner of the property. The claim made on behalf of the petitioner has been controverted by the learned counsel for the respondents.

For appreciating the first contention raised by the learned counsel for the petitioner, it is apt to notice the relevant portion of the order passed by the Commissioner. He, interalia, observed as under:-

"The short argument of the petitioner is that the land already stands declared as his land by virtue of a civil court decree. This point is conceded by the counsel for the State and the counsel for the respondent-Gram Panchayat. In view of the interpretation of law by the High Court that the retrospective nullification of civil court decrees in respect of Panchayat lands is void and the decrees are good, I have no option but to accept the revision. The civil court decree shall prevail. Orders of lower courts are quashed."

A perusal of the above shows that the order of the Commissioner was based only on the decree passed by the civil court. This decree of the civil court till December 6, 1983 was the one which had been passed on March 31, 1973. Admittedly, the said decree was declared to be null and void by the order of the Addl. District Judge passed on January 23, 1989 (Annexure P-5 with the writ petition). Once the decree of March 31, 1973 was declared null and void by the civil court itself, which order has been affirmed by this court in RSA No. 1078 of 1989, the very basis of the order passed by the Commissioner was non-existent. In fact the petitioner got the benefit to which he was not entitled. Consequently, this order can be of no assistance to the petitioner. No right or title can be said to have vested in the petitioner by virtue of the decree.

This brings me to the second plea raised by the learned counsel. Section 5-A of the Act reads as under: -

"5-A. Disposal of lands vested or deemed to have been vested in Panchayat:-

(1) A Panchayat may give the land in shamilat deh vested in it under this Act to the members of Schedule castes and Backward Classes of the Village in which such land is situate on such terms and conditions as may be prescribed.

(2) The gift of land in shamilat deh already made, shall be deemed to have been made u/s (1)."

The above provision was inserted by Haryana Amending Act 25 of 1976. A perusal of the above provision shows that the Panchayat is competent to make a gift of the land in shamilat Deh which has vested in it under the Act of the members of the Schedule Castes or Backward Classes. It is also competent to lay down the terms and conditions in the prescribed manner. This obviously means that the gift has to be made in accordance with such rules as may be framed. Rules have in fact, been framed. Rule 13-A contains the terms and conditions on which the land can be gifted. Sub-clauses (a) to Clause (1) provides that "the donee shall not sell, mortgage or dispose of the land in any other manner, whatsoever before the expiry of a period of twenty years." Sub-Clause (b) provides that "the donee shall construct a house on the land within a period of two years on the land within a period of two years from the date of gift." Sub-Clause (c) provides that "the donee shall use the land for residential purposes and for no other purpose." Various other conditions have also been laid down. Clause (2) of Section 5-A contemplates that a gift made before the insertion of section S-A shall also be deemed to have made under Sub-section (1).

A gift is a question of fact. It has to be pleaded and proved. In the present writ petition there is no averment to the effect that the Pancyayat had gifted the land vested in it under the Act to the petitioner. Furthermore, even the pleadings of the suit filed by the petitioner in the year 1972 have not been produced. However, the reference to the Judgment of the learned Addl. Additional Judge in the civil suit filed by the respondent-Panchayat indicates that even in the revenue record like Jamabandi for the year 1950-51 the petitioner was shown to be in possession of land as a tenant. In the Khasra Girdawaris pertaining to the years 1950 to 1956, the entry was - Bashare Malkana Billa Malkana Bawaza Kamin. Even after consolidation of holdings when the record of rights was prepared, the petitioner was shown as tenant. It has been further stated in the Judgement that the petitioner" was only badai (carpenter) and the land was given to him by the village proprietors simply because of his rendering the services." Still further, the petitioner has not even produced a copy of the resolution alleged to have been passed on February 3, 1956, so as to establish his claim with regard to the gift. It is well-settled that it is the case pleaded which has to be proved. The petitioner having not raised any specific plea to the effect that there was a gift in his favour and he had become the owner of the land by virtue of the provisions of section 5-A, he cannot be permitted to raise this contention.

Still further, on a perusal of section 5-A alongwith the rules, it appears that the Panchayat had not been given the right to gift away any part of the shamilat deh for whatever purpose it likes. The rules regulate the discretion of the Panchayat. Without expressing any opinion finally on the point, I am prima facie of the view that the provision has been made primarily for providing land for the construction of a house, so that the person has reasonable accommodations. Such is not the situation in the present case. The petitioner claims that land measuring 36 kanals 15 marlas which is fairly significant area, was given away to him by way of gift. The claim does not appear to be wholly in consonance with the provisions contained in the rules.

Mr. S.K. Goyal, however, submits that the Assistant Collector by his order dated May 31, 1982 (Annexure P-3) had found as a fact that the land had been given to the petitioner by way of a gift. A perusal of this order indicates that the petitioner had produced a copy of the resolution before the learned officer. On that basis, a contention was raised by the learned counsel that "Ex. P-14 is the resolution of the Deodi Dehi of the Gram Panchayat in 1956--". According to Mr. Goyal, Deodi Dehi means all the land holders of the village. It is on this basis that the Assistant Collector had found that "this land has been gifted u/s 5-A to the plaintiff as he belongs to the Backward Classes--". The body of land holders in the village is not the authority contemplated u/s 5-A. The landholders have no right to give away the land which has come to vest in the Panchayat by virtue of the provisions of the Act, to any person by way of a gift. Still further, it may be noticed that the order of the Assistant Collector was reversed" by the Collector vide order dated October 12, 1982. A copy of this order is on the record as Annexure Rule 1 with the written statement filed on behalf of the respondents. Further, when the petitioner filed the revision petition before the Commissioner, the decision was based solely on the decree passed on March 31, 1973 and not on the basis that the land had been gifted to the petitioner.

Taking the facts cumulatively, I find firstly, that the petitioner having not raised the plea with regard to the gift having been made to him by the Panchayat specifically in a writ petition, he cannot be permitted to raise such a plea. Secondly, it appears that there is no evidence whatsoever on the record on the basis of which it may be possible to hold that the Panchayat had made a gift to the petitioner of the land measuring 36 kanals 15 marlas as a result of which he may have become the owner of the land. The contentions raised by the learned counsel for the petitioner have no merit and are rejected.

In view of the above, there appears to be no infirmity in the impunged orders. The writ petition is lacking in merit. It is dismissed. In the circumstances of the case, I make no order as to costs.