Jarnail Singh vs Joint Director, Panchayats

R.S. Mongia, J.

The petitioners are in possession of agricultural land measuring 34188 hectares, comprising in Khasra Nos. 328,329,331,332,333 and 334 situate in village Salimpur Jattan, Tehsil and District Patiala. According to the petitioners, the land was lying Banjar and the grandfather of the petitioners had reclaimed the land and since then they have been in possession of the land as owners.

It has further been averred that the Gram Panchayat of the village claimed that the land in dispute belonged to it and attempted to interfere with the possession of the Petitioners. The petitioners filed civil suit for declaration that they had become owners of the land by way of adverse possession and the Gram Panchayat be restrained from interfering in their possession. The suit was decreed on 6th February, 1979. The decree has been attached as Annexure P1 to the petition. The decree reads as under :

"It is hereby ordered that the suit of the plaintiff is decreed, and it has been also ordered that the plaintiffs have become the owners of the suit land by way of adverse possession and the defendants are also restrained from interfering in the possession of the plaintiffs."

No appeal etc. was filed by the Gram Panchayat against the above said Judgment and decree and the judgment became final. It has also been pleaded that the petitioners reported the matter to the Patwari regarding the judgment and a mutation was sanctioned on the basis of the said judgment in favour of the petitioners on 29th March, 1979, In the record of rights also correction was made and in the jamabandi of 198081; the petitioners were recorded as owners in possession of the land. This mutation was also not challenged by the Gram Panchayat.

On 13th October, 1980, the Gram Panchayat moved an application under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as the Act) before the Collector, Patiala, for ejectment of the petitioners from the land in dispute on the ground that the land vested in the Gram Panchayat and the petitioners were in unauthorised possession of the same. The Panchayat had also filed an application under Section 11 of the Act that it be declared owner since the land vested in it as Shamlat land. Both these applications were resisted by the petitioners.

The main plank of the petitioners resistance before the Collector was that they had been field to be the owners in possession of the land in dispute by virtue of their adverse possession by a decree of the Civil Court dated 6th February, 1979 and the land in dispute did not vest in the Gram Panchayat. The Collector held that the decree was collusive between the parties and was to be ignored under Section 13B of the Act as introduced by Act No. 19 of 1976 in the main Act. After ignoring the decree of the Civil Court, the Collector vide his order dated 12th October, 1982 (copy Annexure P.2) ordered the ejectment of the petitioners on the land in dispute. The appeal of the petitioners before the Appellate Authority (The Director, Panchayats, exercising the powers of the Commissioner) was also dismissed vide order dated 22nd July. 985 (Annexure P.3). These orders have been impugned by way of the present writ petitioner.

The primary argument of the learned counsel for the petitioners is that the Civil Court decree, which was obtained by the petitioners on 6th February, 1979, could not be ignored as it was binding between the parties and the same could only be set aside by a Civil Court. For this proposition, he relied upon a judgment of this Court in Tek Chand v. Jagmal, 1979 PLJ 244. He further argued that Section 7 and Section 11 applications have to be separately decided and the Gram Panchayat had no right to move an application under Section 11 of the Act. In other words, he submitted that the moment in an application under Section 7, a dispute regarding title was raised by the person in possession, the Collector had no jurisdiction to decide (he question of title at the instance of the Gram Panchayat. For this proposition, he relied upon a Division Bench judgment of this Court in Gurnam Singh v. District Development Officer (Collector), 1988(2) RLR 406.

On the other hand, learned counsel for the Gram Panchayat submitted that Section 13B of the Act is an overriding section and any decree passed by the Civil Court after the introduction of Section 13B in the Act by Act No. 19 of 1976 had to be ignored. According to him, whether it is a collusive decree or a decree obtained after contest, has to be ignored. Sections 13A and 13B which were introduced by Act No. 19 of 1976, are in the following terms :

"After Section 13 of the Principal Act as substituted by this Act, the following sections shall be inserted, namely.

13A. Penalties and procedure (1) No person shall, unless entitled or authorised so to do by law or by an instrument or an order executed or issued by a competent authority under law, enter into the possession of any land vested or deemed to have been vested in a Panchayat under this Act or having lawfully entered into possession of such land, unlawfully remain in possession thereof on or after the expiry of the term of such lawful possession if any.

(2) Any person who contravenes the provisions of subsection (1) shall notwithstanding anything contained in any other law, be punishable with imprisonment for a term which may extend to two years or with fine which may extend to one thousand rupees. or with both.

(3) Any person who abets an offence punishable under this Act shall be punishable with the punishment provided for the offence.

(4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 all offence under this Act shall be cognizable.

13B. Provisions of this Act to be overriding The provisions of this Act shall have effect notwithstanding anything to the contrary in any law, or any agreement, instrument. custom or usage, or any decree or order of any Court or other Authority."

It is apparent from the perusal of Section 13A and Section 13B of the Act that all decrees passed after the introduction of Sections 13A and 13B have to be ignored, in as much as after the introduction of these sections the Civil Court had no jurisdiction to decide any such matters between the parties, It the decree itself was without jurisdiction, it will have no binding effect on the parties and could be ignored by the Collector under Section 13B of the Act, It does not make any difference whether the decree has been obtained after the introduction of Sections 13A and 13B of the Act.

The contention of the petitioners'' counsel that in view of the judgment in Tek Chand''s case (supra), a Civil Court even after the introduction of Section 13B had the jurisdiction to set aside a decree, and therefore, the Civil Court decree had to be set aside by a Civil Court before it could be ignored under Section 13B of the Act, has no merit. It may be observed that in that case the observations were made in view of the fact that Section 13A of the Act, as introduced by the State of Haryana in the Act, stood struck down, which meant that the Collector had no power to go into the correctness of the decree. Under these circumstances, it was held that in view of Section 13A in Haryana being not there, the Civil Court still had the jurisdiction. That authority has no application to the facts of the case.

As far as the question of deciding separately the applications under Section 7 and Section 11 is concerned, it may be observed that the same have been decided separately. Moreover, Gurnam Singh''s case (supra) is for the proposition that Section 11 application on behalf of the Gram Panchayat is not maintainable. However, if in an application filed under section 7 by the Gram Panchayat, the person in possession raises a question of title, then the Collector can decide the same. However, this point does not arise in the present case, as Section 7 application was decided separately by the Collector.

For the forgoing reasons, I find no merit in this petition, which is dismissed. However, the parties are left to bear their own costs.