Mohd. Khan vs Isa and Others

V.K. Jhanji, J.—The petitioner in this writ petition is challenging the order of the Collector as well as of the Commissioner whereby he has been ordered to he ejected u/s 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (briefly ''the Act'').

In brief, the facts are that Isa son of Badlu, resident of village Nimka, filed an application u/s 7 of the Act against the petitioner on the ground that he is in unauthorised possession of land measuring 30 kanals 13 marlas, owned by Gram Panchayat and therefore, is liable to be ejected. This application was contested by the petitioner inter-alia on the ground that he is a tenant and cannot be ejected in proceedings u/s 7 of the Act. The Assistant Collector Ist Grade vide his order, Annexure P-l, dismissed the application on finding that the petitioner is a tenant and cannot be ejected u/s 7 of the Act. For this, the Assistant Collector Ist Grade also relied upon civil Court decree dated 28.10.1976 passed by the Sub Judge Palwal. Isa repreferred an appeal before the Collector, who allowed the same on the ground that the Assistant Collector Ist Grade should not have based his decision on the decree of the Civil Court, and therefore, remanded the case to the Assistant Collector Ist Grade for decision afresh. This order was challenged by the petitioner before the Commissioner, who dismissed his revision petition on the ground that there is no provision for filing of a revision petition. The petitioner has now challenged the order of the Collector as well as of the Commissioner in the present writ petition.

Learned counsel for the petitioner contended that the Assistant Collector Ist Grade had no jurisdiction to proceed with the application u/s 7 of the Act as in Civil Suit No. 284 of 28.4.1975 as well as in Civil Suit No. 171 of 22.7.1976, the petitioner was held to be tenant and therefore, neither the petitioner could be ejected nor proceedings could be initiated against him. For this, the counsel has placed reliance upon a Full Beach judgment of this Court in Sarwan and Rati Ram v. The Joint Director, Panchayats, Punjab and Ors. (1985) 88 P.L.R. 184 (F.B.). In reply, Mr. Deepak Sibal, Advocate, counsel for the respondents, argued that Civil Court decree dated 28.10.1976 (Annexure P- 4) was rightly not taken into consideration as the Civil Court had no jurisdiction to entertain the suit against an order passed u/s 7 of the Act. He also submitted that at one time, the uncle of the petitioner was a Sarpanch of the Panchayat and he gave the land to the petitioner in a clandestine manner. He thus maintained that the land was never given on lease of the petitioner.

Having heard the learned counsel for the parties at length, I am of the view that this writ petition deserves to succeed. On 28.4.1975, the petitioner filed civil suit against the Gram Panchayat, alleging therein that he is a tenant at will and is in possession for the last more than 12 years. The petitioner therefore, prayed that Panchayat be restrained from dispossessing him forcibly. This suit was contested by the Gram Panchayat, who apart from others, also raised the plea of jurisdiction of the Civil Court. Gram Panchayat denied that the petitioner was a tenant or in possession. On the pleadings of parties, as many as 4 issues were framed and one of the issues framed was ''whether the plaintiff is a tenant over the suit land''. On this issue, the Civil Court returned the finding that the plaintiff is in possession of the suit land as tenant at will and Panchayat etc. have no right to take possession of the suit land forcibly. Civil Court also found that it has the jurisdiction to try the suit- Consequently, a decree for injunction was passed against the Gram Panchayat, restraining it from dispossessing the petitioner except in due course of law. This decree became final as no appeal was preferred by the Panchayat against the judgment and decree. On 1.11.1975, the Panchayat filed an application before the Assistant Collector Ist Grade u/s 7 of the Act, against the petitioner, which was decided in favour of panchayat. This order was challenged by the petitioner in Civil Suit No. 171 of 22.7.1976 on the ground that the Assistant Collector Ist Grade had no jurisdiction to pass an order of ejectment against him as it had already been held in civil suit that he is tenant at will. The order of the Assistant Collector Ist grade was declared to be illegal and void. This judgment and decree also became final as no appeal was preferred by the panchayat. In August, 1985, Isa, respondent No. 1, filed an application before the Assistant Collector Ist grade u/s 7 of the Act, for the ejectment of the petitioner, in which Panchayat was also impleaded as respondent. On contest by the petitioner, the said application was dismissed on the ground that the Civil Court vide judgment and decree dated 28.10.1976 has declared the petitioner to be tenant and, therefore, no proceedings can be taken against the tenant who hat been declared as such by the Civil Court. On appeal, the Collector set aside the order of the Assistant Collector Ist grade only on the ground that the Assistant Collector should not have based his decision on the decree of the Civil Court, but he ought to have determined as to how respondent No. 1 took this land on patta. Accordingly the case was remanded to the Assistant, Collector Ist grade for deciding it afresh after giving opportunity, to the parties to lead evidence. In my view, this finding of the Collector cannot be sustained for the reason that u/s 7 of the Act, the Assistant Collector Ist grade has the jurisdiction to proceed against a person who is in wrongful or unauthorised possession of the land or Immovable property in the Shamlat Deh of a village. The petitioner cannot be said to be in wrongful or unauthorised possession because he was already declared as tenant-at-will by virtue of Civil Courts'' judgments and decrees dated 23.1.1976 and 28.10.1976. Thus, he could not be proceeded against u/s 7 of the Act. On identical facts, the Full Bench of this Court in Sarwan And Rati Ram''s case (supra) held that no order of ejectment can be passed against a person who was held to be tenant-at-will and when there was no allegation or proof to prove that the tenancy of such person at any time was terminated by the Gram Panchayat. In this case also, there is no allegation or proof on the file which would show that tenancy of the petitioner at any stage was terminated. In this view of the matter, proceedings u/s 7 of the Act against the petitioner are absolutely without jurisdiction. ,

Faced with this situation, Mr. Deepak Sibal, Advocate, counsel for the respondents, submitted that decree dated 28.10.1976 was obtained by the petitioner in collusion with his uncle and, therefore, this should not be taken into consideration. He also contended that u/s 13 of the Act jurisdiction of the Civil Court is barred and, therefore, any decision or decree of Civil Court will be of no consequence. I find no merit in this argument as well. Civil Suit NO. 284 of 18.4.1975 was a contested suit and on contest, it was held that the petitioner is in occupation as tenant. As far as the second suit, i.e. Civil Suit No. 171 of 22.7.1976, is concerned, suffice it to say, Section 13 of the Act was substituted by Haryana Act No. 2 of 1981, amending the Principal Act, w.e.f. 4.5.1961, This amendment will have no effect on the Civil Court decree be cause the Supreme Court in The State of Haryana v. The Kamal Co.op. Fanners ''Society Ltd. etc.. 1993 P.L.J. 446 : (1993) 105 P.L.R. 220 (S.C.), held that "the provisions of the Amendment Act of 1981, insofar as they are intended to operate retrospectively for nullifying the adjudications made by civil Courts prior to that Amendment Act, are invalid, inoperative and unconstitutional. However, the provisions in the Amendment Act of 1981, can undoubtedly operate prospectively for adjudicating upon claims to ''shamilat deh'' in proceedings initiated subsequent to the commencement of that Act, if they do not, in an way, disturb the finality of adjudications made earlier." The other argument of learned counsel for the respondents that the decree was obtained by fraud or in collusion, cannot also be gone into in these proceedings because a decree obtained by fraud or in collusion can be set aside only by a competent Civil Court, if collusion or fraud is established on record. For this, see Full Bench decision reported as Gram Panchayat Village, Bathoi Kalan, Patiala Vs. Jagar Ram and others, . wherein it was held that "though there was no such provision in the Act as applicable to the State of Punjab, but it is evident that the decree passed by the competent civil Courts between the parties could not be ignored by the authorities under the Act, prior to the amendment of the Act by Punjab Act No. 19 of 1976. However, it may be made clear that the parties will always be at liberty to get those decrees set aside on the grounds of collusion, fraud etc., or otherwise by a competent Court. Unless the said decree passed by the Civil Courts, are held to be collusive or obtained by fraud, by a competent civil Court, the same could not be ignored by the authorities under the Act in view of the judgment rendered by the Division Bench in Baljinder Singh''s case (supra), the correctness of which was not challenged before us."

No other point was urged.

For the reasons recorded above, the writ petition is allowed and Annexure P-2 is quashed. However, it shall always be open to the Gram Panchayat to proceed against the petitioner in accordance with law. No costs.