Harya (died) through his LRs vs Collector, Gurgaon

Harjit Singh Bedi, J. (Oral)

The petitioners herein claim to have been put in possession of 50 kanals 9 marlas of land situated in village Khedli Dosa, Tehsil Nuh, District Gurgaon since 193132 as Bhondedars. The Gram Panchayat Khedli Dosa passed a resolution on 29th March, 1975 requesting respondent No. 3 to initiate proceedings for the ejectment of the petitioners by resorting to the provision of Section 7 of the Punjab village Common Lands (Regulation) Act, 1961 (hereinafter called the ''Act'') Acting expeditiously on the resolution Annexure P1, respondent No. 3 filed an application under section 7 of the Act, a copy of which has been appended as Annexure P2. The said application was dismissed after contest between the present parties vide Annexure P3 dated 12th December, 1975. The order was made on the premise that the Bhondedari rights which had been conferred on the petitioners had been protected by virtue of provisions of section 4(3)(i) of the Act and, as such, ejectment could not be ordered under section 7 thereof. Admittedly no further proceedings were taken by the Gram Panchayat challenging the order Annexure P3. It has been averred that in the year 1981, respondent No. 3 i.e. the Social Education and Panchayat Officer, Nuh, filed another application under section 7 of the Act, a copy whereof has been appended as Annexure P4 with the petition. On consideration of the case the said application was allowed and the ejectment of the petitioners ordered vide order dated 12th November,1982, Annexure P6 to the petition. The petitioners aggrieved by the order Annexure P6 filed an appeal before respondent No. 1, though without success, and the order Annexure P6 was confirmed vide Annexure P7 dated 22nd August, 1983. The primary finding of the authorities in Annexures P6 and P7 recorded that the petitioners had forfeited their Bhondedari rights as they had ceased to render the service for which the rights had been conferred upon them. An argument was raised before the authorities that the proceedings initiated in the year 1981 were not maintainable as the order Annexure P3 which was in favour of the petitioners had become final and as such the subsequent proceedings were barred by the principles of res judicata. This argument was brushed aside by the authorities below holding that the question that was posed in the second set of the proceedings was different from the one which had been decided vide Annexure P3; that the question with regard to the Bhondedari rights could be raised at any time and that the fresh cause of action had accrued in favour of the respondentGram Panchayat after the order Annexure P3 had been made as the petitioners had subsequently ceased to render the service for which the rights had been granted to them.

The stand of the petitioners in the writ petition and also at the time of argument addressed by M.L. Sarin, learned Senior Advocate, was that the subsequent proceedings which culminated in the orders Annexure P6 and P7 were barred by the principles of res judicata in view of the order Annexure P3; that section 4(3)(i) of the Act excluded Bhondedars from the provisions of the Act; the rule 20 of the Punjab village common Lands Rules, 1964 (hereinafter referred to as ''Rules'') provided that before ejectment could be ordered, a notice to show cause giving full details of the grounds on which ejectment was sought were required to be set out and this not having been done, the subsequent proceedings were void. In the reply filed by the respondents, the broad facts have not been denied but the inferences sought to be drawn by the petitioners have been stoutly controverted. The stand of the respondents further is that the petitioner had, in fact, enroached upon the land in dispute in the year 1975 and that they had never been inducted as Bhondedars. On the question of res judicata it has been stated that the earlier and the second dispute were different and that in any case a fresh cause of action having accrued after the order Annexure P3 had been made, the present proceedings were not barred. It has also been argued by Mr. H.N. Mehtani that notice Annexure P5 admittedly did not strictly speaking contain the particulars that were required to be given, but in view of the contentions raised by the petitioners before the authorities concerned, it was clear that they were familiar with and had full knowledge of the nature of the dispute between the parties and in this situation had suffered no prejudice and they had defended their case with ability. It has also been urged that it had been founded on an appreciation of the evidence as a question of fact that as the petitioners had ceased to render the service for which the land in question had been given, this Court would not interfere with those findings.

After hearing learned counsel for the parties, I find that the petition deserves to succeed. It has now been well settled by a Division Bench of this Court reported as Jee Ram v. The State of Haryana and others, 1980 P.L.J. 103 that the general principles of res judicata would apply to proceedings under the Act. It will be seen that the application Annexure P2 dated 8th September, 1975, which culminated in the order Annexure P3 dated 12 the December, 1975 and the subsequent application Annexure P4 which culminated in the present proceedings are in fact carbon copies of each other. It is not the case of the respondentGram Panchayat in Annexure P4 that after the passing of the order Annexure P3 the petitioners had ceased to render the requisite services which could perhaps give rise to a fresh cause of action so as to entitle the Gram Panchayat to secure the eviction of the petitioners. The further stand of the respondents that from the order Annexure P6 it was clear that he petitioners had stopped rendering their services for the last 6 to 7 years and as such had forfeited their Bhondedari rights is also not tenable. It is to be noted that the order Annexure P6 was pronounced on 12th November, 1982, and the evidence in the case must have been recorded on a date prior to that date. As the petitioners are said to have ceased to offer their services 6 to 7 years prior to 12December, 1975 when the order Annexure P3 was passed. Despite having been asked repeatedly to do so, Mr. Mehtani has not been able to pinpoint any piece of evidence which could show that the petitioners had ceased to render service as Bhondedars after the order Annexure P3 had been made so as to avoid the bar placed by the principles of res judicata, as this would give rise to a first cause of action as held by this Court in Sohalu v. The State of Haryana and others,1981 PLJ 229.

In view of the what has been held above, the other points raised by the parties need not be gone into at this stage. The writ petition is accordingly allowed; Annexures P6 and P7 are quashed with liberty to the Gram Panchayat to move the authorities afresh so as to secure eviction of the petitioners. Before parting with this judgment, one other point needs to be disposed of. At the time when the petition was admitted to a hearing, an interim order was made protecting the possession of the petitioners. Thereafter Civil Misc. Application No. 519 of 1990 was moved by the respondentsGram Panchayat and the following order was passed by this Court :

"The stay is vacated. Mr. Mehtani, learned counsel for the Gram Panchayat undertakes that if the petition succeeds, they will level the land before handing over the possession to the petitioner. Subject to the observation made above, C.M. No. 519 of 1990 is also disposed of."

The order was made on the undertaking given by the counsel for the Gram Panchayat and also on the basis of the affidavit filed by the Sarpanch of the village. It is apparent, therefore, that the Gram Panchayat, is required to hand over the possession of the land after having it levelled. Mr. Sarin, learned counsel for the petitioners has, however, filed an affidavit of his clients in which it has been stated that they are willing to take possession of the land in the condition as it is today without getting the same levelled by the Gram Panchayat as per their undertaking. A direction is accordingly issued to the respondentGram Panchayat to hand over the possession of the land to the petitioners forthwith. No costs.