The Grampan Chayat of Village Kultham vs Shri Charan Singh and Another

Gopal Singh, J.—This is petition under article 227 of the Constitution filed by Gram Panchayat of village Kultham in Jullundur district against Charan Singh and Bhagat Singh.

The facts giving rise to this petition are as follows. Common land including public places in village Kultham vested in and was managed by the, petitioner-Panchayat. In the village abadi, there is a site of land in front of the joint house of the two respondents, who are brothers. They are said to have encroached upon a portion of the site by constructing a wall on it.

On October 15, 1965, the Panchayat of Kultham passed resolution and issued a notice u/s 21 of the Grarri Panchayat Act, 1952 (hereinafter called the ''Act'') to Charan Singh for demolition of the wall and removal of the encroachment. His brother Bhagat Singh was also impleaded and both the brothers claimed that the house to which the encroached area had been added was jointly owned by both of them. An application was made u/s 41 of the Act by the respondents to Shri G.S. Bains, Judicial Magistrate 1st Class, Jullundur that the Panchayat of village Kultham was a party to the proceedings and the case should not be determined, by that Panchayat but by some other independent Panchayat, Shri G.S. Fains, by his order dated November 29, 1965 transferred the case to Gram Panchayat, Pharala. The Gram Panchayat, Pharala recorded the evidence and inspected the site said to have been encroached upon be the respondents. The Gram Panchayat of Pharala, by its order dated march 5, 1967, held that the respondents had made an encroachment on the land in dispute and that the encroachment be lifted by them. On March 21 1967, the respondents filed a revision u/s 51 of the Act; against the above order of the Panchayat with Shri G.S. Bains, Judicia1 Magistrate 1st Class, Jullundur. By his order dated August 14, 1967, Shri H.L. Randev, Judicial Magistrate held that u/s 21 of the Act, the Panchayat could issue notice for the encroachment being removed only if the land in dispute was public lard and not common land other than public land. He held that the Panchayat could exercise jurisdiction u/s 21 in respect of public land and not in respect of common land as found by the Panchayat. The older of the Panchayat was held to be without jurisdiction and illegal. In result. he set aside 1he order of the Gram Panchayat of Pharala. The present petition is directed against the said order of the Magistrate.

The only question raised on behalf of the Counsel for the petitioner Panchayat is that the view taken by tie Magistrate in the impugned order as to the site in dispute having not been found to be a public place and consequently the Gram Panchayat having no jurisdiction to proceed against the respondents u/s 21 of the Act is untenable.

The Gram Panchayat of village Kultham, by its resolution dated October 15, 1965 found that the place in dispute is a ''common place''. In the notice, which was issued by the Gram Panchayat to the respondents on the date of the resolution, it is stated that a pucca wall had been constructed on the common place. When the case came before the Gram Panchayat of Kultham, Batan Singh and Bhagat Singh appeared as witnesses on behalf of the Gram Panchayat. Batan Singh Stated that the place of dispute is a common place and is used for common purposes. Bhagat Singh stated that the place in dispute is a vacant taur. Thereafter, the case was transferred to the Gram Panchayat of Pharala by order of the Judicial Magistrate dated November 29, 1965. Before the Gram Panchayat of Pharala, the respondents produced evidence of Karam Singh, Walaiti Ram and Beant Singh showing that the site in dispute belonged to the respondents. Batan Singh, Shera and Harbans were examined on behalf of the Gram Panchayat of Kultham. They stated that the place in dispute is common for the whole village. On the basis of the oral and documentary evidence produced on behalf of the Gram Panchayat of Kultham in the form of copies of Aks Shajra Kishtwar and jamabandi, it has been held by the Gram Panchayat of Pharala, by its order dated March 5, 1967, that the respondents encroached'' upon the land in dispute. That finding of fact cannot be re agitated in the present proceedings. I am concerned only with the question, which was raised before the Judicial Magistrate and which has been reiterated here as to whether the site in dispute is a public place so as to determine the issue whether the Gram Panchayat of Kultham could exercise jurisdiction in issuing notice against the respondents u/s 21 of the Act.

The Gram Panchayat of village Kultham exercised jurisdiction against the respondents for removal of their encroachment upon the site in dispute u/s 21 (1) (a) (i) of the Act. According to that provision, a Gram Panchayat can make an order to remove any encroachment on a public place. In order that proceedings may be initiated and order passed by a Gram Panchayat under that provision, it must be shown by the Panchayat that the place in dispute is a public place- The definition of the expression, ''public place'' given in Section 3 (k) of the Act runs as follows:

any place, building or structure situated within the jurisdiction of a Gram Panchayat area to which the public has free access.

The only question to be determined is whether public has free access to the place in dispute. This definition implies that a place is freely accessible to the public in general. The evidence produced in the case has been referred to above. There is nothing in that evidence to suggest that public in general have free access to that place. All the witnesses have said that the place is a common place. There is, however, no evidence, oral or documentary, that the place in dispute is either freely accessible to the public or has been used by the public in general. It is a vacant site without any evidence to indicate that public had ever resort to it or is otherwise accessible to the public in general. The learned Counsel contended that the expression ''common place'' employed in the resolution and notice of the Panchayat both dated October 15, 1965, meant ''public place''. ''Common land'' is defined in Section 3(d) of the Act. The definition runs as follows :

land, which is not in the exclusive use of any individual and has by usage, custom or prescription been reserved for the common purpose of village community or has been "acquired for such purposes.

The site in dispute falls within the above definition. That expression refers to every kind of land reserved for common purposes of village community or acquired for such purposes but not in the exclusive possession of any particular individual. In order that a place falling within the definition of expression, ''common land'' may be covered by the definition of ''public place'', the additional requisite of its so falling within the scope of the latter as to the public in general hating free access to it has to be satisfied. ''Public place'' may be covered by the definition of ''common land'' but to canvass that every piece of common land is a public place will not be true. It is only in respect of those pieces of land, which not only satisfy the test of definition of the expression ''common land'' but also satisfy the test of sine qua non of the definition of the ''Public place'' of free access to such land by public in general that the place could be covered by the definition of ''public place? If common land'' is genus ''public place'' is a species.

Unless it is shown on behalf of the Gram Panchayat that the site in despite is a public place, the Gram Panchayat has no jurisdiction to proceed against the respondents on the ground of the site in dispute being the public place. In other words, existence of public place is a condition precedent for exercise of jurisdiction on the part of Gram Panchayat. In the present case, the Gram Panchayat have failed to show that the site in dispute is a public place. No jurisdiction could thus be exercised by the Gram Panchayat to proceed against the respondents. In the order of the Gram Panchayat of Pharala dated March 5, 1967, it is nowhere given that the site in dispute is a public place. What has been stated is that the encroachment has been made by construction of a wall upon a place belonging to the Gram Panchayat of Kultham. In the absence of a finding that the place in dispute is a public place, the order of Gram Panchayat is ultra vires its authority and consequently ineffective against the respondents.

In the result, the petition is dismissed.