Malkhan and Others vs State of Haryana and Others

Surya Kant, J.—This order shall dispose of CWP Nos. 2079, 2351, 2352, 2445, 2446, 2447, 2448 of 1998; 12573 of 1999 as the point in issue which arises for consideration in these cases is common in nature. The parties are also common in the sense that inhabitants of Village Surmi, Tehsil Pehowa, District Kurukshetra are the writ petitioners whereas the Gram Panchayat of their village is the sole contesting respondent. For brevity, the facts are being extracted from CWP No. 2079 of 1998. The petitioners besides challenging the mutation sanctioned way back on 17.07.1954 (Annexure P6), assail the orders dated 20.05.1997 (Annexure P3) whereby the Assistant Collector, First Class, Pehowa accepted the eviction petition filed by the Gram Panchayat - respondent No. 5 under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 as applicable to State of Haryana (in short, ''the 1961 Act'') and rejected their contention that the question of title was involved, as well as the orders dated 07.07.1997 & 26.11.1997 (Annexure P4 & P5) whereby their appeal and revision petition against the eviction orders have been dismissed.

The three petitioners who are sons of Harphool along with one Sultan s/o. Shishu had earlier filed a petition under Section 13A of the 1961 Act claiming proprietorship on the subject land in their possession for more than 12 years prior to the commencement of 1961 Act. The said land formed part of the total land measuring 562 kanals 6 marlas, details whereof find mention in the orders under challenge. The Assistant Collector vide order dated 04.08.1992 (Annexure P1) accepted the petition and declared the petitioners owner of the land in dispute.

It appears that the Collector, namely, the Appellate Authority vide order dated. 27.01.1993, remanded the case to the Assistant Collector for fresh adjudication. The Assistant Collector, however, vide order dated 17.01.1994 again accepted the claim of petitioners. Unfortunately, the order dated 17.01.1994 has not been placed on record.

The Gram Panchayat filed an appeal against the order dated 17.01.1994 which was allowed by the Appellate Authority, namely, the Collector, Kurukshetra vide self-speaking order dated 29.07.1994, the relevant part whereof reads as follows:-

"...Thus as per this mutation the owner of the disputed land is Gram Panchayat and the possession of the respondent except in khasra No. 1295 measuring 1 bigha 1 biswas is unauthorized. According to the jamabandi for the year 1953-54 the old possession of the respondent is not proved except the said khasra No. 1295. The respondents have failed to prove their possession on the disputed land before Jan. 26, 1950. Thus the possession of the respondents on the disputed land is unauthorized. Thus the order of the lower court is against the record and illegal. Thus leaving the possession of 1 bigha 2 biswas comprised in khasra No. 1295 the impugned order/decree dated 17.1.1994 of the lower court is set aside and the present appeal is accepted."

The petitioners have chosen not to place on record copy of the above-stated order though the respondents have appended the same as Annexure R4. The above-mentioned order of the Appellate Authority was challenged by petitioners in revision petition before the Commissioner, Ambala Division who vide order dated 08.11.1994 (Annexure P2) dismissed the revision petition though on a different ground observing that the Assistant Collector''s order dated 17.01.1994 whereby the claim petitions were accepted, was against law, void ab initio and non est in the eyes of law as it was passed by an incompetent authority. The revisional authority also observed that the said order was "rightly set aside" by the Collector and that even the revision petition was not maintainable before it.

Petitioners thereafter challenged the appellate and revisional orders dated 29.07.1994 and 08.11.1994 before this Court in CWP No. 2057 of 1995 which was dismissed by a Division Bench vide order dated 26.08.1996 (Annexure R1). This Court while dismissing the writ petition reproduced the finding of fact returned by the Collector, Kurukshetra (as reproduced by us in para-5) and thereafter observed as follows:-

"The aforesaid findings of the learned Collector were upheld by the Commissioner, Ambala Division by his judgment dated 8th November, 1994 (Annexure P. 3).

The learned counsel for the petitioner could not refer to any document on record which could show that the findings given by the Collector which were upheld by the Commissioner, Ambala Division, were contrary to the record. Accordingly, we do not find any merit in this writ petition and dismiss the same."

It is the conceded position that review application moved by the petitioners was also dismissed and in the absence of further challenge, the order dated 26.08.1996 has attained finality.

Meanwhile, the Gram Panchayat initiated eviction proceedings under Section 7 of the 1961 Act against the petitioners.

The petitioners raised the question of title in the eviction proceedings but the Assistant Collector rejected their objection observing that the title suit filed under Section 13A had already been dismissed by the appellate and revisional authorities and those orders having been approved by the High Court, hence no prima facie case of title dispute was made out.

The appellate and revisional authorities have also concurred with the Assistant Collector while dismissing the appeal and revision petition preferred by the petitioners.

Since the Assistant Collector while deciding the eviction petition has relied upon the mutation sanctioned in favour of the Gram Panchayat on 17.07.1954, the aggrieved petitioners have laid challenge to that mutation also, in addition to the order of eviction along with appellate and revisional orders.

We have heard learned counsel for the petitioners and the State counsel at a considerable length and gone through the record.

The solitary question that arises for consideration is whether the petitioners have been able to raise a prima facie question of title to obligate the Assistant Collector to first decide that question in the manner as prescribed under proviso to Section 7(1) of the Act?

The petitioners rely upon the proviso to Section 7(1) to submit that once ''Title Dispute'' was raised by them, the eviction proceedings ought to have been deferred to await decision on that issue. The said proviso reads as follows:-

"7. (1) An Assistant Collector of the first grade having jurisdiction in the village may, either suo motu or on an application made to him by panchayat or an inhabitant of the village or the Block Development and Panchayat Officer or Social Education and Panchayat Officer, or any other Officer authorised by the Block Development and Panchayat Officer, after making such summary enquiry as he may deem fit and in accordance with such procedure as may be prescribed, eject any person who is in wrongful or unauthorised possession of the land or other immovable property in the shamlat deh of that village which vests or is deemed to have been vested in the panchayat under this Act and Put the panchayat in possession thereof and for so doing the Assistant Collector of the first grade 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:

Provided that if in any such proceedings the question of title is raised and proved prima facie on the basis of documents that the question of title is really involved, the Assistant Collector of the first grade shall record a finding to that effect and first decide the question of title in the manner laid down hereinafter."

It may be seen that an Assistant Collector, First Grade is empowered to remove wrongful or unauthorized possession of the Gram Panchayat land and put the Panchayat in possession through summary eviction proceedings. However, if the question of title is raised and proved prima facie on the basis of the documents, the Assistant Collector is required to record the finding to that effect and first decide the question of title in the prescribed manner.

It is vehemently contended on behalf of the petitioners that since the revisional authority vide order dated 08.11.1994 (Annexure P2) had held that the order of Assistant Collector dated 17.01.1994 passed in their favour in a suit under Section 13-A was void ab initio as it was passed by an authority not competent to decide the title suit, the petitioners are entitled to re-agitate the said question and re-claim interest and title in the suit land notwithstanding the dismissal of their earlier suit, appeal(s) or writ petition.

We are, however, not impressed by the contention. We say so for the reason that the Collector, Kurukshetra vide his order dated 29.07.1994 (Annexure R4) unequivocally held that the petitioners failed to prove their title qua the disputed land rather the Gram Panchayat was continuously shown as its owner in the jamabandi for the year 1953-54 onwards (except khasra No. 1295 measuring 1 bigha 2 biswa). The petitioners also failed to prove their possession on the disputed land before January 26, 1950, hence they were not entitled to raise title claim qua the subject land. The said finding of fact was, in no uncertain terms, approved by this Court while dismissing CWP No. 2057 of 1995 filed by the petitioners. That finding of fact indeed constitutes res judicata as it was a finding of fact returned on a specific issue between the same parties.

The revisional authority vide its order dated 08.11.1994 (Annexure P2) neither reversed the finding of fact recorded by the Collector nor it impliedly or expressly disagreed with it. The revisional authority at best can be said to have assigned an additional reason to reject the petitioners'' claim. Be that as it may, this Court while dismissing the writ petition placed reliance upon the appellate order and not on the revisional order therefore, the petitioners cannot wriggle out of the previous decision of this Court, that too passed at their instance.

Faced with this learned counsel for the petitioners vehemently argued that the change of mutation in favour of Gram Panchayat was totally illegal and contrary to the principles laid down by the Full Bench of this Court in Jai Singh and Others Vs. State of Haryana, . In our considered view, the aforesaid contention too is wholly misplaced and misdirected. The Full Bench in Jai Singh''s case considered the legality of amendment carried out by State of Haryana vide Act No. 9/92 notified on 11.02.1992 adding sub-Clause (6) of Section 2(g) of the 1961 Act along with Explanation appended thereto, whereby all those lands which were proportionately taken out of the holdings of the proprietors of the village at the time of Consolidation proceedings and were earmarked for ''common purposes'' of the village, were statutorily ordered to be vested in Gram Panchayat. The question that arose for consideration was whether such land could be vested in the Gram Panchayat without payment of compensation to the proprietors who contributed their share towards the land reserved for common purposes''?

The Full Bench held that since those lands were reserved for ''common purposes'' and their ''management'' was handed over to the Gram Panchayat, such land whether utilized or not, shall continue to be vested and earmarked for common purposes of the Gram Panchayat. In other words, the Full Bench held that even though the Gram Panchayat cannot treat the land reserved for common purposes as its own immovable property but the proprietors also have no claim to that land and the same shall be utilized only for the common purposes of the village. The Full Bench in this regard held that:-

"46. The land reserved for common purposes under Section 18(c), which might become part and parcel of a scheme framed under Section 14, for the areas reserved for common purposes, vests with the Government or Gram Panchayat, as the case may be, and the proprietors are left with no right or interest in such lands meant for common purposes under the scheme. There is nothing at all mentioned either in the Act or the rules or the scheme, that came to be framed, that the proprietors will lose right only with regard to land which was actually put to any use and not the land which may be put to common use later in point of time. In none of the sections or rules, which have been referred to by us in the earlier part of the judgment, there is even slightest inkling that the scheme envisage only such lands which have been utilised. That apart, in all the relevant sections and the rules, words mentioned are ''reserved or assigned''. Reference in this connection may be made to Sub-section (3) of Section 18 and Section 23-A. The provisions of the statute, as referred to above, would, this, further fortify that reference is to land reserved or assigned for common use, whether utilised or not."

The mutation, in the instant case, was sanctioned in favour of Gram Panchayat on 17.07.1954. The said mutation has thus nothing to do with the amendment carried out in the year 1992 by State of Haryana which was subject matter of consideration Jai Singh''s case. That apart, the ratio decidendi of Jai Singh also does not advance the petitioners'' claim in any manner. The second contention is also thus rejected.

It may also be mentioned here that the Block Development and Panchayat Officer, Pehowa as well as the Gram Panchayat in the respective written statements have taken a categoric stand that the possession of the land in question has already been taken by the Gram Panchayat in accordance with law on 23.06.1997 and handed over to the Forest Department for plantation. For the reasons afore-stated, we do not find any merit in these writ petitions which are accordingly dismissed.