Dalip Singh vs State of Haryana

S.S. Kang, J.

Dalip Singh and two others have filed this writ petition under Article 226/227 of the Constitution of India for issuance of a writ of certiorari quashing the judgment dated December 9, 1975, of District Judge, Karnal order dated October 21, 1976, passed by the Assistant Collector, Panipat, and the order dated May 4, 1978, passed by the Collector, Karnal.

The facts giving rise to the filing of this writ petition may briefly be stated thus :

Gram Panchayat Vaiser, Tehsil Panipat, District Karnal issued two notices dated February 8, 1969 and May 5, 1969 to Tala father of the present petitioners (who has since died) under section 21 of the Punjab Gram Panchayat Act, 1952, stating therein that the site in dispute mentioned therein was a public place and that Tala was in illegal possession thereof. Tala filed a suit on October 4, 1969, for permanent injunction in a Civil Court, at Panipat, for restraining the respondents from interfering with his possession on the land, in dispute. The Civil Court held that Tala was in possession of the disputed site in the capacity of a coshare and was not a trespasser and that the defendants had failed to prove that the site, in dispute, was a public place. Since the plaintiff was a proprietor of the village and was a cosharer in the abandi deh, he was entitled to retain the possession of the disputed land. He, therefore, decreed the suit and passed a decree on June 7, 1972, for permanent injunction restraining the defendants from interfering with the plaintiff''s possession over the site, in dispute.

The Gram Panchayat went up in appeal and vide his judgment and decree dated December 9, 1975 (copy, Annexure P1) the District Judge allowed the appeal and set aside the judgment and decree of the trial Court holding that during the pendency of the suit the Civil Courts have been debarred from entertaining or adjudicating upon any question as to whether any land or other immovable property or any right or interest in such land or other immovable property vests or does not vest in a Panchayat. He, therefore, held that the Civil Court had ceased to have jurisdiction to decide the suit. He accepted the appeal and set aside the decree passed by the trial Court and sent back the case to the trial Court for taking action under section 13B of the Punjab Village Common Lands (Regulation) Act, 1961. There after the case was remitted for decision to the Assistant Collector 1st Grade, Panipat, who dismissed the suit vide order dated October 21, 1976 (copy, Annexure P3). Aggrieved by these orders, the petitioners have filed the present writ petition.

It is urged by the learned counsel for the petitioners that the judgment of the learned District Judge, Karnal, dated December 9, 1975, was without jurisdiction and was a nullity because section 13B, ibid, provided only for a transfer of pending suits and not pending appeals. In support of this contention he relied upon a Division Bench decision of the Court in The Karnal Cooperative Farmers Society Ltd. v. Gram Panchayat, Pehowa and others, 1976 PLJ 237. This decision indeed fully supports the petitioners'' contention. The case was not covered under sections 13A and 13B of the Punjab Village Common Lands (Regulation) Act as applicable to the State of Haryana. Section 13A was struck down in Karnal Cooperative Farmers Society''s case (supra) as being unconstitutional. In order to meet the situation created by the decision, the Haryana Legislature enacted the Punjab Village Common Lands (Regulation) Haryana Amendment Act No. 2 of 1981, thereby substantial changes in the existing section 13, ibid, were made. In fact section 13 was substituted by a new section 13. Old sections 13A and 13B were omitted from the Statute Book with effect from November 12, 1974, and new sections 13A, 13B, 13C and 13D were inserted retrospectively with effect from May 4, 1961. So, Act No. 2 of 1981 had been given retrospective effect with effect from May 4, 1961. This amendment was challenged in Bajinder Singh and another v. The Assistant Collector 1st Grade, Gukla and others, 1983 PLJ 116, wherein it was held :

".........the retrospective abrogation of the jurisdiction of civil Courts validly exercised by them from 1961 onwards by the impugned section 4 of the Punjab Village Common Lands (Regulation) Haryana Amendment Act 2 of 1981, clearly amounts to a trenching upon the judicial power by the legislature. Consequently, the relevant part of the aforesaid section fictionally substituting section 13 with effect from the 4th day of May, 1961 and thereby giving retrospectivity thereto from the said date, is held to be unconstitutional and is hereby struck down."

The result was that there was no bar to the entertainment of civil suit filed by Tala.

Since the order of the learned District Judge remanding the case to the learned Subordinate Judge for transmitting it to the Assistant Collector was wholly without jurisdiction and was a nullity, the same can be challenged in these proceedings. The consequent orders passed by the Assistant Collector 1st Grade and the Collector dismissing the suit and appeal respectively of the petitioners were also nullity. This conclusion of mine is fully supported by the ratio of the Full Bench decision in Subedar Munshi Ram v. State of Haryana and others, 1979 PLJ 489, wherein it was held :

"Faced with this situation, it was contended by the learned Additional Advocate General that the petitioners are not entitled to any relief as the order by which learned subordinate Judge transferred the suit to the Assistant Collector 1st Grade, has not been challenged by the petitioners.

To me, this objection appears to be untenable. Under the Act, the Assistant Collector had no jurisdiction to try the suit which was transferred by the learned Subordinate Judge and in this situation, the order of the Assistant Collector 1st Grade would be a nullity. Further, it is wrong to say that the order of transfer passed by the learned Subordinate Judge has not been questioned by the petitioners. In the petition, besides challenging the constitutional validity of section 13B, it has been specifically pleaded that the suit could not legally be transferred from the Court of the Subordinate Judge because in the suit, no relief had been claimed by the plaintiffs against the Gram Panchayat on the ground that the immovable property concerned was excluded form the shamilat deh under section 2(g) of the Act or on any other grounds mentioned in subsection (3) of section 4 of the Act."

Shri Vinod Sharma, the learned counsel for respondents 2 to 4, tried to contend that since the learned District Judge had jurisdiction to decide the appeal and even he had decided it wrongly that judgment could be challenged by the aggrieved party only by way of an appeal and the same could not be challenged in the present writ petition. This contention of the learned counsel cannot prevail in view of the observations made by the Full Bench that the order of the learned Subordinate Judge transferring a suit to the Assistant Collector 1st Grade would be a nullity. In that case also the order impugned was passed by the Subordinate Judge exercising his power as a Court, still it was allowed to be challenged before the Full Bench in writ proceedings. The same principle will apply to the judgment of the learned District Judge (copy, Annexure P1). The Assistant Collector 1st Grade had no jurisdiction to decide the suit because the orders transferring the same to him were without jurisdiction and a nullity. Since the Revenue Authorities had no jurisdiction to try the suit the orders of the Assistant Collector 1st Grade and of the Collector are unsustainable.

For the foregoing reasons, I allow this writ petition and set aside the judgment dated December 9, 1975 of the District Judge, Karnal, order dated October 21, 1976, passed by the Assistant Collector and the order dated May 4, 1978, of the Collector, Karnal, and remand the case to the learned District Judge, Karnal, with the direction to decide the appeal afresh in accordance with law and after affording adequate opportunity to the parties. It is needless to say that the case shall be decided in accordance with law invoked at the time of the filing of the suit. There shall be no order as to costs.