Gram Panchayat vs Collector and Others

V.K. Bali, J.—This order will dispose of Civil Writ Petition No. 2334 of 1986 and Civil Writ Petition No. 5907 of. 1986 as common questions of fact and law are involved in the same. The facts as extracted from Civil Writ Petition No. 2334 of 1986 reveal that an area measuring 8 Kanals 2 Marlas comprised in KhasraNos. 38(1-0), 39(5.9) and 40 (1-13) situate in the revenue, estate of village Chouli, Tehsil Jagadhri, District Ambala was reserved by the petitioner Gram Panchayat for the common purposes of a school in the village during consolidation operations which took place in, the year 1954-55. This piece of land was leased in the year 1959 to one Bakhtawar Singh and after the lease of Bakhtawar Singh terminated by efflux of time, the land in question was again auctioned this time, however, to one Jhandu at the rate of Rs. 50/- per year. This, lease was sanctioned in favour of Jhandu on 21.7.1964 The case of petitioner-panchayat is that the income so derived was used for the benefit of the inhabitants of the village.

In the year 1975-76, the petitioner-Panchayat filed an application u/s 7 of the Punjab Village Common Lands (Regulation) Act, (hereinafter referred to as the Act) for eviction of respondent Puran Singh in this petition and Gurdial Singh in Civil Writ Petition No. 5907 of 1986. The Assistant Collector 1st Grade after returning a finding that Gram Panchayat was owner and Puran Singh and Gurdial Singh respondents were in unauthorised occupation of the land in dispute ordered eviction of the latter. Aggrieved Puran Singh and Gurdial Singh carried an appeal before the Collector who vide his order dated 30 3.1979 reversed the order passed by the Assistant Collector by holding that the petitioner was not the owner of the land in dispute. Inasmuch as the Gram Panchayat was not satisfied with the findings recorded by the Collector as the findings with regard to title could not be returned in summary proceedings u/s 7 which was in the sole domain of the Collector in a regular civil suit u/s 13-A of the Act, it brought two suits u/s 13-A of the Act on iO.2.!9''l A decree for a declaration that the Gram Panchayat is the owner of the land in dispute was prayed in the aforesaid suits. The matter was contested and after resultant trial, the Assistant Collector 1st Grade Jagadhri vide his order dated 30.7.1983 Annexure P-3 decreed the suit. Respondent No. 3 filed an appeal against the aforesaid judgment before the Collector. The appeal of respondent No. 3 succeeded resulting into remand of the case before the Assistant Collector to determine the three points indicated by the Collector. After remand, the Assistant Collector decided all the issues in favour of Gram Panchayat and the suit was again decreed vide judgment dated 31.7.1985. Once again, respondent No. 3 carried an appeal against the aforesaid judgment which was allowed on 18.3.1986, (Annexure P-5) It is this order which has been challenged by the Gram Panchayat in this Writ Petition.

The petitions have been contested by respondent No. 3 and Gurdial Sngh and in the preliminary objection taken in the written statement, it has bee a pleaded that the petitioner has not disclosed that it had filed Civil Writ Petition No. 3242 in this Court in the year 1979 against the order dated 30.3.19"9 which was dismissed by a Division Bench of this Court on 16.10.1979. Not only the petitioner has concealed material fact but also the decision in the Writ Petition aforesaid operates as res judicata. It is also averred that the question as to ownership of the land was determined by the Additional Collector on 30.3.1979 and it was held that the panchayat could not prove itself to be the owner of the land to entitle it to seek ejectment. It is also averred that the provisions of the Village Common Lands (Regulations) Act, 1961 are not applicable to the lands reserved u/s 18 of the East Punjab Holding (Consolidation) and Prevention of Fragmentation Act, 1949. On merits it is pleaded that the Gram Panchayat is not the owner of the land as the same was reserved during consolidation operations and is described as "Shamlat Deh Hamb Hisas Paimana Haqiat". On account of entries in the revenue records, it is pleaded that the land vests with the proprietary body of the village, ft is also pleaded that the land in question has been in possession of the replying respondent and earlier to him his father Bakhtawar Singh was in possession since before the year, 1950, as is clearly borne out from the Jamabandi for the 1953-54. The possession of" the respondent and earlier of his father is described to be in the capacity of a co-sharer and since the possession was commensurate to the share of the respondent, the same was exempted binder Section 2 (g) (viii) of the Act. The fact that the land was earmarked for a school has been denied in the written statement. In so far as the background of the case culminating into order Annexure P-5 is concerned, the same is however, admitted.

Mr. R. S. Mittal, the learned Senior Advocate appearing for the petitioner Gram panchayat contends that the learned Collector while reversing the judgment passed by the Assistant Collector has clearly erred in holding that Shri Jyoti Ram had no right to file the suit u/s 13-A of the Act as also that the order passed by the Collector in proceedings initiated by the Gram Panchayat u/s 7 returning a finding against the petitioner panchayat that it was not the owner of the land in question would operate as res judicata. The learned counsel appearing for respondent No. 3, however, contests the claim of the petitioner and contends that inasmuch as only persons specified u/s 13-A have been authorised to institute suit on behalf of Gram Panchayat so as to claim declaration with regard to title, Jyoti Ram had no locus standi to institute the suit in question and that inasmuch as findings on merits of the controversy were recorded by the Collector in proceedings u/s 7 and the Writ Petition against which was also dismissed by this Court, there will be no escape from the conclusion that the present suit was barred u/s 11 of the Code of Civil Procedure. Before, however, the controversy involved in this petition is resolved, it shall be useful to mention that the learned Collector after noticing the rival contentions of the parties concluded the controversy as follows :-

"It have heard both the learned counsel for the parties and have also perused the file. On perusal of Section 13-A of the Punjab Village Common Lands Act, it is clear that only few persons have been authorised to file the suits. Under Rule 16 of the Punjab Village Common Land Rules and u/s 13-A of the Punjab Village Common Lands Act, Shri Jyoti Ram had no right to file this suit. Therefore, I agree with the contention raised by the appellant that respondent Jyoti Ram had no authority to file this suit legally in addition to this, on perusing Exhibit A-11 copy of the order of the Collector, Ambala dated JO 3.1979, it is clear that in this regard, decision has already been given that this land in dispute belongs to Panchayat or not. Although this order has been passed u/s 7 of the Punjab Village Common Lands Act but in the present case, decision on the main point has been given. Therefore, this decision in this case is res judicata between the parties, In view of above, I accept the appeal and set aside this impugned order."

The operative portion of the judgment extracted above would manifest that the learned Collector did not go into the core of controversy and, thus, did not determine the pivotal question between the parties as to whether the land in. question comes within the definition of Shamilat deh as provided u/s 2 (g) of the Punjab Village Common Lands (Regulation) Act, 1961 or the same comes under the exceptions provided under the said Section. On the other hand, the Chapter was closed by simply observing that Jyoti Ram had no right to file the suit as also that the earlier proceedings! between the parties culminating into an order passed by the Collector rejecting the application of the Gram Panchayat u/s 7 of the Act would operate as res judicafa.

After hearing the learned counsel for the parties and going through the records, I am of the considered view, that the finding on both the points taken by the Collector to non-suit the petitioners deserves to be set aside, thus, necessitating an order of remand for decision of the case on merits by the Collector alone. It is true that right title or interest in any land or in any other immovable property vested in the Panchayat can be raked through the Panchayat itself or its Gram Sabha or the concerned Block Development and Panchayat officer. Social Education and Panchayat Officer and not independently by a Panch. Section 13 A of the Act entitles the Panchayat and its officers to ask for the determination of the rights of the Panchayat many land or immovable property. Reading of Section aforesaid makes it abundantly clear that Panch or for that matter even a Sarpanch cannot either on his own name or by virtue of his office institute a petition u/s 13-A so as to claim right, title or interest in any land or other immovable property of the Panchayat However the Panchayat is not debarred from getting such rights determined and when a suit is to be instituted by the Gram Panchayat it can certainly be done by a resolution to be recorded in the proceeding book appointing Sarpanch or any other Panch to contest any suit filed by or against the Panchayat. As per the provisions contained in Section 15, the State Government by notification in official Gazette can make rules for carrying out the purposes of this Act and one of the purposes of the Act is with regard to determination of right title or interest of the Gram Panchayat in the land which may be Shamlat deh. The relevant extract of Section 15 reads thus : -

"15. Power to make Rules -(1) The State Government, may by notification in the Official Gazette, make rules for carrying out the purposes of this Act.

(2) In particular and without prejudice to the generality of the foregoing power, such rules provide for :-

(a) x x x x x x (b) x x x x x x (c) x x x x x x (d) x x x x x x (e) x x x x x x (f) x x x x x x (g) x x x x x x (h) the regulation of procedure where a panchayat (sues or is sued) in its representative capacity.

7 In pursuance of the provisions contained in Section 15 (7) Chit Rule 16 come into being which reads as follows :-

"16. Procedure where a Panchayat sues or is sued in its representative capacity (Section 15 (2) (h)).(1) The panchayat shall by a resolution to be recorded in the Proceeding Book, appoint its Sarpanch or any other Panch to contest any suit filed by or against the Panchayat. The Sarpanch or Panch so appointed shall file a copy of the resolution duly attested by the Sarpanch under the seal of the Panchayat in the Court alongwith other documents.

(2) The actual expenditure incurred in the defence of case shall be chargeable to the funds of the Panchayat

(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 bare reading of Section 15 (2) (h) would demonstrate that Rules can be made with regard to regulation of procedure where panchayat is sued in its representative capacity Thus, there cannot be any Rule where Panchayat is to take its cause in any Court of competent jurisdiction. The power to make Rules is spelled out from Section 15 of the Act. In pursuance to the provisions contained in Section 15 (2)(h), Rule 16 came into existence which talks of procedure where a Panchayat sues or is sued in its representative capacity. Mr. R. S. Mittal, Senior Advocate appearing for the petitioner rightly contends that to the extent Rule 16 militates against Section 15 (2)(h) of the Act, the same cannot hold the field and to that extent ...... it has to be held invalid. It is no doubt true that Rules are made with regard to matters so spelled out in the main Section and that too, to the extent mentioned therein Anything that goes beyond the same would be repugnant to the main Section of the Statute and to that extent would be void. It would, thus, follow that it is permissible for the Gram Panchayat to sue through its Sarpanch or Panch although where Gram Panchayat is being sued The procedure as spelled out in Rule 16 has to be gone into In the present case, it would be made .out from Annexure P 3, judgment passed by Shri M. P. Gupta, Assistant Collector 1st Grade, Jagadhari that Gram Panchayat had filed a suit u/s 13 (2) of Punjab Village Common Land Act through Shri Joti Ram wherein it has been specifically pleaded that he had been authorised by the Gram Panchayat to file the suit. Annexures P 4 and P. 5 also depict the same position.

In so far as the findings of the learned Collector with regard to res judicata are concerned, it is settled law that proceedings u/s 7 of the Act are only summary in nature and title is determined only u/s 13 A of the Act It is no doubt true that with a view to find out the nature of possession, some findings do necessarily come 10 be recorded but the same cannot be final and are subject to approval in a regular suit In fact it is only in the case of unauthorised occupation that Section 7 is applicable and whenever a serious question of title is involved, the Assistant Collector has to keep the proceedings in abeyance and direct the parties to move appropriate petition u/s 13-A of the Act. A Division Bench of this Court in "Tara Chand and Fateh Singh v. Gram Panchayat and Gram Sabha of Village Atail 1979 P. L. J. 1. held that the Assistant Collector trying an application u/s 7 has only to make summary enquiry and the language of Section 7 pre-supposes that the land about which application is made is shamilat answering the description of this word as given in the Act. It has been further held that the Assistant Collector u/s 7 is a Tribunal of very limited jurisdiction and, therfore, cannot enter into the enquiry as to whether the land is shamlat or not. The only question to be determined u/s 7 is whether the possession of the person, proceeded against, of the Immovable property is wrongful and unauthorised That being so, the findings recorded by the Collector u/s 7 on the question of title can be termed prima facie and do not assume finality. In so far as writ petition filed by the Gram Panchayat is concerned, the same was admittedly dismissed in limine and would not bind the Grain Panchayat to bring a regular suit particularly when findings recorded by Collector in proceedings u/s 7 with regard to title had not assumed finality.

For the reasons aforesaid, these petitions are allowed. Order Annexure P5 in both the petitions is set aside and the case is remanded to the Collector for decision on merits to decide whether the land in dispute is Shamilat Den as defined in Section 2(g) or the same is exempted under either of the exceptions provided in the same Section. Parties to appear before Collector Yamuna Nagar as the Village, on bifurcation of District Ambala and Yamuna Nagar now falls in District Yamuna Nagar on January 7, 1993. It may also be mentioned that it shall be open for the parties to seek for interim relief from the Collector. However, till January 7, 1993 status quo with regard to land shall be maintained. The parties are, however, left to bear their own costs