Mehar Singh and Others vs The Joint Director and Others

Rekha Mittal, J.—By way of this order, we shall dispose of Civil Writ Petition No. 2255 of 1987 titled "Mehar Singh and others v. The Joint Director, Panchayats, and others" and Civil Writ Petition No. 12183 of 1990 titled "Sardara Singh v. The Director, Rural Development and Panchayats, Punjab and others," as they involve adjudication of common questions of law and fact. For the sake of convenience, the facts are being taken from Civil Writ Petition No. 2255 of 1987. The petitioners pray for issuance of a writ of certiorari quashing order dated 20.2.1987 (Annexure P-8) passed by the Joint Director Panchayats, Punjab (Exercising the powers of ''Commissioner'') under the Punjab Village Common Lands (Regulation)Act, 1961 (hereinafter referred to as "the 1961 Act") whereby the appeal filed by the Gram Panchayat, Ratta Khera, has been allowed and the order passed by the Collector (D.D.P.O.) Patiala, dismissing tile petition of the Gram Panchayat u/s 11 of the 1961 Act, has been set aside and the Gram Panchayat has been declared owner of the land in dispute. Counsel for the petitioners submits that the petitioners and respondent Nos. 4 to 6 are in continuous cultivating possession of the land in dispute prior to 1950, is not in excess of their respective shares in Shamlat Deh. The petitioners filed a petition u/s 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter referred to as "the 1948 Act"). The Additional Director, Consolidation of Holdings, Punjab, vide its order dated 30.9.1965 (Annexure P-1) held that the land in dispute does not vest in the Gram Panchayat and should remain with the petitioners. The Consolidation Officer, in pursuance of order passed by the Additional Director Consolidation, passed order dated 30.4.1966 in favour of the petitioners. The appeal filed by the Gram Panchayat against the order of the Consolidation Officer was dismissed by the Settlement Officer, vide order dated 18.5.1968 and, therefore, the order passed by the Consolidation Officer has become final between the parties.

The petitioners filed a suit for declaration of ownership which was decreed by the civil court, vide judgment and decree dated 4.2.1974. The decree passed by the civil court was never challenged by the Gram Panchayat and the decision of the civil court has also attained finality whereby the petitioners have been held to be owners of the land, in dispute.

It is further argued that the mutation proceedings, after contest by the Gram Panchayat have been decided in favour of the petitioners and the mutation of the land in dispute has been sanctioned in favour of the petitioners. The proceedings u/s 7 of the 1961 Act have also been decided against the Gram Panchayat by the Assistant Collector, Ist Grade, Patiala vide order dated 19.3.1975 (Annexure P-5). It is argued that despite several rounds of litigation before different authorities, the respondent-Gram Panchayat did not desist and filed a petition u/s 11 of the 1961 Act, claiming ownership of the suit land. The petition filed by the Gram Panchayat was dismissed by the Collector (DDPO) Patiala, vide order dated 26.9.1984 (Annexure P-7) thereby holding that the petitioners are the owners of the land in dispute and the same does not vest in the Gram Panchayat. The Gram Panchayat preferred an appeal against the order of the Collector and the same was wrongly and illegally allowed by the Appellate Authority i.e. the Joint Director, Panchayats, Punjab (exercising the powers of ''Commissioner'') vide order dated 20.2.1987, impugned in the writ petition.

Counsel for the petitioners has strenuously argued that as the petitioners are in individual cultivating possession of the land in dispute prior to 1950 being co-sharers in shamlat deh which is not in excess of their share in such shamlat deh, the Collector rightly dismissed the petition filed by the Gram Panchayat but the Appellate Authority has wrongly held in favour of the Gram Panchayat. The petitioners place reliance on the orders passed by the consolidation authorities as well as the decree passed by the civil court wherein the petitioners have been declared owners of the land in dispute.

Counsel for the contesting respondent contends that the Appellate Authority has rightly ignored the judgment and decree of the civil court by holding that the decree is the result of collusion between the petitioners and the Gram Panchayat village Maghar. It is further submitted that admittedly, the petitioners and respondent Nos. 4 to 6 are residents of village Devigarh @ Mehtabgarh and the land in dispute is situated within the revenue estate of village Ratta Khera. The petitioners plea that they are proprietors/co-sharers of the land in dispute, is otherwise not available to them. It has been argued that the Additional Director of Consolidation and Holdings has no jurisdiction to decide the question of title much less after the conclusion of the consolidation proceedings. The petitioners, therefore, cannot take any advantage of an illegal order passed by the Additional Director of Consolidation and Holdings by assuming jurisdiction where he has none. The order passed by the Addl. Director Consolidation and Holdings is totally illegal, null and void and not binding upon the rights of the Gram panchayat. The last submission made by counsel is that as the petitioners have failed to adduce any evidence to substantiate their plea of cultivating possession of the land in dispute prior to 26.1.1950, the Appellate Authority has rightly set aside the order passed by the Collector and held the Gram Panchayat as owner of the land in dispute, admittedly described as shamlat deh in the revenue record.

We have heard counsel for the parties and perused the records.

Before adverting to the plea of the petitioners based upon orders passed in earlier proceedings before different forums, it is appropriate to mention that the Gram Panchayat filed petition u/s 11 of the 1961 Act for declaration of its title to the land, in dispute, on the plea that the land is shamlat deh and the same vests in Gram Panchayat. Section 2(g) of the 1961 Act defines shamlat deh. Section 2(g)(1) to (5) provide for land which is included in shamlat deh and Sections 2(g)(ii) to (ix) deal with the land, that is excluded from shamlat deh. The petitioners contested the claim of the Gram Panchayat by raising a categoric plea that they are in cultivating possession of the land prior to 26.1.1950 and, therefore, the Gram Panchayat is divested of its ownership u/s 2(g)(viii) of the 1961 Act. A relevant extract of Section 2(g)(viii) of the 1961 Act is quoted herein under:-

2(g) "Shamlat deh" includes-

(1) xxxx xxxx xxxx

(2) xxxx xxxx xxxx

(3) xxxx xxxx xxxx

(4) xxxx xxxx xxxx

(5) xxxx xxxx xxxx

but does not include land which-

(i) [-]

(ii) xxxx xxxx xxxx

(ii-a) xxxx xxxx xxxx

(iii) xxxx xxxx xxxx

(iv) xxxx xxxx xxxx

(v) xxxx xxxx xxxx

(vi) xxxx xxxx xxxx

(vii) xxxx xxxx xxxx

(viii) was shamtat deh, was assessed to land revenue and has been in the individual cultivating possession of co-sharers not being in excess of their respective shares in such shamilat deh on or before the 26th January 1950; or.

A perusal of Section 2(g)(viii) of the 1961 Act would reveal that to claim ownership of shamlat deh, a person has to prove (i) cultivating possession as a co-sharer on or before 26.1.1950, (it) the land being assessed to land revenue and (iii)possession of a co-sharer not in excess of his share in such shamlat deh. The petitioners, before authorities did not produce any revenue document to establish their plea of cultivating possession prior to 26.1.1950. The order passed by the Collector in favour of the petitioners does not refer to any jamabandi recording the petitioners in cultivating possession of the land in dispute. The petitioners did not append any jamabandi recording their possession of the land, in dispute. They have produced Annexure P-9, copy of khasra girdawari from the year 1949-50 up till October 1964. No presumption of truth is available to the entries in khasra girdawari. A perusal of this document reveals that a part of the land recorded in possession of Teja Singh is banjar qadim. Banjar qadim is land that has remained fallow for the last eight or more harvests. The petitioners have not produced any document of consolidation totally the pre and post consolidation khasra numbers to connect the land mentioned in Annexure P-9 with the land in dispute.

The petitioners have miserably failed to adduce any evidence to substantiate their plea of cultivating possession of the land prior to 26.1.1950. The petitioners have pressed into service the orders passed by the consolidation authorities and the judgment and decree passed by the civil court. The consolidation authorities exercise the powers of revenue officers as conferred by the Punjab Land Revenue Act, 1887. A Full Bench of this Court has held in Ajit Singh Vs. Smt. Subaghan and Others, Punjab & Haryana, 93, after considering the provisions of the 1948 Act and the Punjab Land Revenue Act, 1887, that as consolidation authorities exercise powers of revenue officers, they are not empowered to decide a question of title. In this view of the matter, any decision by an authority under the 1948 Act with regard to a declaration of title does not bind parties or the authority exercising power to decide a question of title. The only authority empowered to decide whether land vests or does not vest in a Gram Panchayat is the Collector exercising power u/s 11 of the 1961 Act. The petitioners, therefore, cannot seek any aid to their case from orders passed by the consolidation authorities.

The petitioners have placed on record a copy of the decree sheet passed in a civil suit filed by Mehar Singh and others in which respondent Nos. 4 to 6 were impleaded as defendants. A perusal of the decree sheet would reveal that it is an ex parte decree passed by the civil court. Gram Panchayats (Gram Sabha) village Maghar and Ratta Khera Tehsil and District, Patiala through its Sarpanch or any member of the panchayat was arrayed as defendant No. 1. The suit pertains to land measuring 287 Kanals 01 marla. We are aware that an ex parte decree is as binding as a contested decree but where collusion and fraud is writ large on a decree, such a decree can be ignored in any collateral proceedings even without getting it set aside by filing a separate suit. Reference in this context can be made to judgment of the Hon''ble Supreme Court Gram Panchayat of Village Naulakha Vs. Ujagar Singh and Others, . The fact that the Sarpanch or any member of the Gram Panchayat did not come forward to contest the claim of the petitioners in regard to a huge chunk of land measuring 287 kanals 1 marla, the fact that no appeal was filed or application to set aside ex parte decree, is sufficient to show that the civil court decree is nothing but an abuse and misuse of the process of law and is a result of collusion. The Appellate Authority has rightly ignored this decree by holding that the decree is the result of collusion and the same is illegal. A relevant extract from the order passed by the Appellate Authority in this regard reads as follows:-

From this order of the learned Senior Sub Judge Patiala it is evident that the present respondents had filed a suit for declaration. In this suit the Gram Panchayat Maghar and Ratta Khera was made party and some of the present respondents had become plaintiffs and the others were made defendants alongwith the Gram Panchayat Maghar. From the decree it is also clear that this decree has been passed ex-parte. The order shows that this order has been obtained by the respondents in collusion with the Gram Panchayat Maghar which was not interested with the land relating to Gram Panchayat Ratta Khera. Moreover this Gram Panchayat was also not heard by the Senior Sub Judge, the decree was passed ex-parte. From these facts it may be concluded without doubt that this decree was illegal and a collusive one, it has no value in the eyes of law and it cannot be a binding decree on the Gram Panchayat Ratta Khera. The land in dispute is 287 kanals 1 marla. The Gram Panchayats which are local bodies and the property of such local bodies is the property of the public. The public cannot be deprived of their properties with such collusive and illegal decree.

The petitioners have, since 1964, made repeated efforts before different authorities to divest the Gram Panchayat of its ownership of the land in dispute. They initially approached the consolidation authorities, who had no jurisdiction in the matter. Subsequent thereto, they were successful in getting an ex parte decree from the civil court knowing fully well that the land is shamlat deh which vests in the Gram Panchayat and is not excluded from shamlat deh under any exclusion clause u/s 2(g) of the 1961 Act. The petitioners cannot be permitted to appropriate public property merely on the ground that the Sarpanch of the Gram Panchayat colluded with the petitioners and allowed an ex parte decree to be passed by a civil court. The Appellate Authority has rightly held that the decree of the civil court is illegal and is collusive having no value in the eyes of law. In the circumstances of the present case, we find no reason to differ with these findings of fact recorded by the Appellate Authority.

During the course of hearing various writ petitions pertaining to shamlat land in villages of district Patiala, we have come across scores of similar ex parte decrees or decrees passed on the basis of consent or where the Gram Panchayat did not deliberately adduce any evidence to counter the case of the persons in possession of land resulting in loss of huge tracts of land belonging to the Gram Panchayat. It appears to us that the saviours of the Gram Panchayat land either colluded or otherwise adopted an indifferent and casual attitude to help a handful of big landlords and unauthorised occupants of panchayat land, resultantly, adversely affecting the ownership rights of the Gram Panchayat. We feel dismay and distress at the manner in which this litigation was dealt with by the civil courts without sense of responsibility and without realizing that a Court should, where possible, act as a guardian of public property more so in a country like ours where a large section of the population is still rural and dependent on agriculture.

In Civil writ Petition No. 12183 of 1990, the petitioner has pressed into service a decree passed in a suit for injunction against dispossession wherein the question of title is only incidental and, therefore, any finding by the civil court with regard to ownership cannot bind the parties in proceedings where the question of title is specifically agitated. Even otherwise, a perusal of the findings of the civil court on Issue No. I relating to question of vesting of land would reveal that the civil court has recorded inconsistent and contradictory findings by holding that according to the revenue record, the disputed land is shamlat deh due to river action and consequently does not fall within the ambit of shamlat deh as defined in Section 2(g) of the 1961 Act. The petitioners, therefore, cannot derive any benefit from the decree of the civil court.

Another plea of the petitioners that mutation, after contest, was sanctioned in their favour by revenue authorities is of no significance. There cannot be any dispute about legal position that mutation neither confers nor divests the rights of ownership. This apart, a perusal of orders passed in mutation proceedings would reveal that the Revenue Officers passed these orders to give effect to an ex parte decree dated 4.2.1974 passed by the civil court. The decree of the civil court, in view of the discussion made hereinabove, cannot entitle the petitioners to claim their ownership. The mutation sanctioned on the basis of the aforesaid decree is not at all sufficient to establish the petitioner''s claim of ownership of the land in dispute.

So far as the plea of the petitioners regarding dismissal of an application for ejectment, the proceedings u/s 7 of the 1961 Act are summary in nature and any decision in these summary proceedings do not constitute res judicata for decision on the question of title. The proceedings u/s 7 of the 1961 Act were dropped by the Assistant Collector, Ist Grade, Patiala, again on the basis of civil court decree dated 4.2.1974 and, therefore, the contention of the petitioners merits outright rejection. In view of what has been discussed hereinabove, the petitions are dismissed. Order dated 20.2.1987 (Annexure P-8) passed by the Appellate Authority is affirmed.