Gurnam Singh vs The District Development Officer (Collector) Patiala and another

S.P. Goyal, J.—This judgment will dispose of two petitions (Civil Writ Petitions Nos. 272 and 325 of 1983, in which similar facts and questions of law are involved

The Gram Panchayat, Respondent No. 2, filed an application u/s 7 of the Punjab Village Common Lands. (Regulation) Act, 1961 (hereinafter called ''the Act'') for ejectment of the Petitioner from the land in dispute alleging that the same was Shamilat Deh within the meaning of Section 2(g) of the Act and has, as such, vested in the Panchayt. The Petitioner in his reply 1o the application contended that an earlier application filed by the Panchayat for the same purpose having been dismissed, the present one was not competent. The Collector upheld the objection and rejected the application. He, however, further observed that the Panchayat. if so desires, may pet the ownership question decided u/s 11 of the Act and then move an application for ejectment. Aggrieved by the latter observations of the Collector the Petitioner has come up in this petition under Article 226 of the Constitution of India for quashing the same.

At the motion hearing, the principal contention raised the learned Counsel for the Petitioner was that the Panchayat is not competent to institute a suit u/s 11 of the Act and the observation made by the Collector that the panchayat may if so desires, get the question of title decided under that Section, is wholly unwarranted and liable to be quashed. There being some anomaly in the provisions of Sections 7 and 11 of the Act, the motion Bench admitted the petition to D.B. with the following order:-

It has been held by this Court that in any proceedings u/s 7 of the Punjab Village Common Lands (Regulation) Act. 1961 (hereinafter called the Act), if the person in possession raises a question of title, the Collector cannot proceed unless the same is decided u/s 11 of the Act. u/s 11 of the Act, it is contended that the Panchayat has no right to institute a suit. In these circumstances, the Panchayat would be without any remedy because it cannot be said that for the same purpose Panchayat has to go to the Civil Court whereas the private person can institute the proceedings u/s 11 of the Act. To resolve this anomaly, this petition is admitted to D. B. and ordered to be heard in the month of March, 1983. Passing of the final order by the Collector is stayed meanwhile.

The two Sections of the Act which need consideration read as under:-

Section 7. Power to put the Panchayat in possession of shamilat deh (1) The Collector shall, on an application made to him by a Panchayat or by an officer duly authorised in this behalf by the State Government by a general or special order, after making such enquiry as he may think fit and in accordance with such procedure as may be prescribed, put the Panchayat in possession of the land or other immovable property in the shamilat deh of that village which vests or is deemed to have been vested in it under this Act and for so doing the Collector may exercise the powers of a revenue court in relation to the execution of a decree for possession of land under the Punjab Tenancy Act, 1887.

(2) An appeal against the order of the Collector under Sub-section (1) shall lie to the Commissioner and the period of limitation for such an appeal shall be sixty days from the date of the order appealed against.

Section II.-Decision of claims of right, title or interest in shamilat deh.-(I) 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 signed and verified in the prescribed manner and the Collector shall have jurisdiction to decide such claim in such manner as may be prescribed

(2) Any person or a Panchayat aggrieved by an order of the Collector made under Sub-section (1), may, within sixty days from the date of the order, prefer an appeal to the Commissioner in such form and manner as may be prescribed and the Commissioner may, after hearing the appeal, confirm, vary or reverse the order appealed from and may pass such order as he deems fit.

Section 13 of the Act bars the jurisdiction of the Civil Court to entertain and adjudicate upon any question whether any property is or is not shamilat deh vested or deemed to have been vested in a Panchayat under this Act.

It appears that the observations of the admitting Bench that in any proceedings u/s 7 of the Act if the person in possession raises a question of title, the Collector cannot proceed unless the same is decided u/s 11 of the Act, were based on a D. B. decision of this Court in Tara Chand v. Gram Panchayat of village Atail and Ors. 1979 P. L. J. 1. But that case related to the Act as applicable in the State of Haryana where by amendment a proviso has been added to Section 7, according to which if in any proceedings under the said Section the question of title is raised and proved prima facie, the Assistant Collector is bound to decide the question of title first u/s 13-A as enacted in that State.

No decision of this Court except some observations by J. V. Gupta, J in The Gram Panchayat village Salem Shah v. Sadhu Ram (1987) 92 P.L.R. 136, has been brought to our notice wherein it may have been held that if the person in possession raises any question whether any property or any right to or interest in any property is or is not shamilat deh vested or deemed to have been vested in a Panchayat, the Collector acting u/s 7 has to stay the proceedings till the question is got decided u/s 11 Gupta, J., in Sadhu Ram''s case (supra), however, observed that the if suit land is shown in the ownership of the Gram Panchayat as per the revenue record, it will be deemed to have been vested in the Gram Panchayat and any person who wants to challenge the same, may approach the Collector u/s 11 of Act. If the shamilat deh as defined in the Act was confined to the lands situated outside the abadi deh or gorah deh, the anomaly noticed above could be solved by adopting the view expressed by Gupta, J., but the shamilat deh also includes the streets, lanes, playgrounds schools, drinking wells or ponds within the abadi deh or gorah deh. No revenue record is maintained regarding the lands or sites situated within the abadi deh or gorah deh Consequently, if an application is made by the Panchayat for seeking possession of any site within the abadi deh claimed to be used by the village community as street, lane, or playground etc. and the person in possession denies such a claim, the Collector has to take a decision after summary enquiry on the respective claims of the parties. Such a decision, if goes against the Panchayat, it will have no forum to challenge it because the jurisdiction of the Civil Court to go into such a question is barred by Section 13 and the suit u/s 11 by it not competent. So the view expressed by Gupta, J would not be a complete remedy to remove the anomaly noticed above.

After thorough consideration of the matter, we have come to the conclusion that the anomaly, could be removed, if at all, only by striking down the provisions of Section 11 being discriminatory but as there is no challenge to the vires of the said Section, it is not open to us to consider this matter in detail and express our opinion thereon. So we have no option but to leave the matter for Government to take necessary steps and remove the anomaly by proper amendment.

In view of our finding that the Panchayat has no right to take proceedings u/s 11 of the Act the last part of the order of the Collector wherein a right has been reserved that the Gram Parchayat, if so chooses, may again file application under the Act after getting the ownership question decided u/s 11 of the Act, is quashed. No costs.

Sd/- A.L. Bahri, J.