Sarwan Singh vs State of Punjab

J.V. Gupta, J.

This order will also dispose of Civil Writ Petitions Nos. 3237 of 1987, 4498 of 1985 and 3787 of 1986 as the question involved is common in all the cases.

In Civil Writ Petition No. 2974 of 1985, the petitioners claim themselves to be the residents and inhabitants of village Ballpur, Tehsil Sirhind, District Patiala. According to the averments made in the writ petition, they have been cultivating the land under the Gram Panchayat, respondent No. 2, and the same has been described in the revenue record as shamilat owned by the Gram Panchayat. They being the lessees under the Gram Panchayat are challenging the order of the Director, Consolidation of Holdings, dated May 7, 1985, passed by him under Section 42 of the Punjab Holdings (Consolidation and Prevention of Fragmentation) Act (hereinafter called the Act). That was a petition filed by Hardev Singh and others against the Gram Panchayat of the village. According to Hardev Singh and others, they had their shares in the Shamilat deh and were entered in the cultivation column as maqbuza malkan which was of two kinds, banjar qadim and ghair mumkin. It was recorded in the wazibularz of the Jamabandi just before the consolidation proceedings started that the banjar qadim land is liable to be distributed according to the shares and the ghair mumkin area could not be distributed. Their contention before the Director was that the consolidation authorities were not competent to change the title of the rightholders and that whatever was entered in the wazibularz of the Jamabandi had to be made a part of the scheme of the village and had to be adhered to by the consolidation authorities during repartition proceedings. They also challenged the mutation No. 547 dated July 19, 1956. According to them, the transfer of the land of the right holders to the Gram Panchayat was non est and illegal. The learned Director, Consolidation, accepted their contention and found that the Panchayat cannot lay claim to this area because the area is mentioned in the Jamabandi to be in possession of the khewatdars, i.e the right holders. That being so, the Panchayat has no right to this land. It is clearly mentioned in the wazibularz that the banjar qadim is liable to be distributed. This fact has not been mentioned in the scheme and this is certainly an omission on the part of the consolidation authorities. Also mutation No. 547 dated 19.7.56 is non est and illegal as it is not based on any legal document and hence is ignored. Consequently, the plea of the petitioners was accepted and the case was remanded to the Consolidation Officer concerned with a direction that he should allow 20 acres of the area to Gram Panchayat and the rest of the banjar qadim area out of the total 3,287 kanals 8 marlas should be partitioned amongst the rightholders. According to the petitioners, since they were in possession of the suit land as the lessees under the Gram Panchayat, they were entitled to be heard before any other could be passed adversely affecting them. Since no such opportunity was given to them, nor they were parties to the petition under section 42 of the Act, the said order was liable to be quashed on this ground alone. In support of the contention, that the petitioners had the locus standi to file the petition, reference was made to Fertilizer Corporation Kamagar Union Regd. Sindri v. Union of India, AIR 1981 Supreme Court 344; Syedabad Tea Co. Ltd. v. State of Bihar, AIR 1983 Supreme Court 82, Gram Panchayat of village Serohi Behali v. Har Lal, 1971 Punjab Law Reporter 1009 and Narinder Sachdeva v. Bhajan Lal, 1982 Punjab Law Journal 243. According to the learned counsel the view taken by the Division Bench in Joginder Singh v. The Director, Consolidation of Holdings, 1989(1) Recent Revenue Reporters 154 : 1988 Punjab Law Journal 535, requires consideration as it is in conflict with the earlier Division Bench judgment of this Court in Narinder Nath Sachdeva''s case (supra).

It is no more disputed that this very contention was raised by the petitioners who claimed themselves to be the lessees under the Gram Panchayat and challenged the order of the Director, Consolidation, passed under Section 42 of the Act, which contention was replied by the Division Bench in Joginder Singh''s case (supra), with the observations :

"The dispute before the Director of Consolidation (Holdings) was between the proprietors and the Panchayat. They had no right to be impleaded as a party/respondent. They got the property on an annual lease for the Panchayat. If the Panchayat rights were in jeopardy it could defend them. The person who had got the property on lease for a year has no right or locus standi to become a party to those proceedings. This matter is not resintegra. It directly came up for consideration in CWP 2820/1986 (Nek Singh & others v. State of Punjab through Additional Director, Consolidation of Holdings and others) decided on August 12, 1986."

In Nek Singh''s case (supra), it has been reiterated as follows :

"As regards the petitioners not having been made parties to the petition under Section 42 of the Act, it may be observed that the petitioners had no right to impleaded as respondents to the petition in question. The matter was between the proprietors and the Gram Panchayat."

In view of these two Division Bench judgments directly on the point, in question, it could not be successfully argued that the petitioners being the lessees under the Gram Panchayat, had the locus standi to file the present petition or were entitled to be heard by the Director, Consolidation in a petition filed by the landowners under section 42 of the Act. As regards Narinder Nath Sachdeva''s case (supra) said to support the petitioner''s case, the same was duly noticed by the Division Bench deciding Joginder Singh''s case (supra). Therefore, it could be successfully argued that the said judgment was not brought to the notice of the Division Bench while deciding Joginder Singh''s case (supra). In that case, in paragraph 13 of the judgment, the Division Bench noticed Narinder Nath Sachdeva''s case and observed :

"These authorities have no bearing to the facts of the instant case."

It will not be out of place to mention that the Gram Panchayat Ballpur, Tehsil Sirhind, did file Civil Writ Petition No. 3377 of 1985, challenging the order of the Director Consolidation, which was dismissed in limine on February 12, 1986, a copy thereof has been filed as Annexure R.1 in C.W.P. No. 3237 of 1987. Not only that, the matter was taken to the Supreme Court by the Gram Panchayat and the special leave petition was dismissed vide copy, Annexures R.2. The learned counsel for the respondents landowners also produced the order dated May 9, 1989 whereby the writ petition No. 6110 of 1989 again filed on behalf of the Gram Panchayat village Ballpur was dismissed by this Court. It is, therefore, evident that twice the writ petitions filed by the Gram Panchayat challenging the order of the Director, Consolidation, have already been dismissed by this Court and the Supreme Court.

As regards Civil Writ Petition No. 3787 of 1986, the same has been filed on behalf of the Gram Panchayat challenging the order dated Sept. 17, 1985, passed by the Director, Consolidation, under Section 42 of the Act on similar facts. There also, it was held by the Director :

"From the record I find that the petitioners were landowners sitting in possession of the shamilat deh and their shares are described in the ownership column as `Hassab Hissas Manderja Sharja Nasab''. As such section 2(g) of the Village Common Lands Act was not applicable in this case and the petitioners were owners of the land in the question and were holding shares in the same according to their pedigreetable."

Consequently, it was directed that the land should be partitioned amongst the shareholders.

The learned counsel for the petitioners submitted that the Panchayat had no other remedy under the Village Common Lands Act, to approach the Collector and, therefore, the order of the Director is liable to be quashed in the writ jurisdiction. In support of the contention, reliance was placed on Gurnam Singh v. The District Development Officer, (Collector) Patiala, 1988 Punjab Law Journal 497 : 1989(1) R.R.R. 1, in which it was held that under section 11 of the Village Common Lands Act, the Panchayat could not move the Collector for getting the land declared as shamilat deh. Admittedly against similar orders passed by the Director under Section 42 of the Act, writ petition has been dismissed by this Court in limine which order has been maintained by the Supreme Court as well, as referred to above. That being so, the matter cannot be reopened now at the instance of another Gram Panchayat. Admittedly, the facts as given in the impugned order are the same as were given in the impugned order in the earlier writ petition filed on behalf of the other Gram Panchayat.

Moreover, question of title is involved in the case and the same could not be decided in writ jurisdiction. The petitioner Gram Panchayat will be at liberty to seek any other remedy in accordance withy law.

In the circumstances, all the writ petitions fail and are dismissed with no order as to costs.

Petitions dismissed.