C.W.P v. The State of Haryana & Ors.

Mr. A.K.Gupta, Addl. A.G Haryana for respondents No.1, 3 and 5. Mr. R.S.Tacoria, Advocate and Mr. Sumeet Sheokand, Advocate for respondent No.2. ***

1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? *** AJAY TEWARI, J (Oral) On 24.8.2010, the following order was passed :- The Gram Panchayat-respondent No.2 filed an eviction application under Section 7 of the Punjab Village Common Lands(Regulation) Act, 1961 as applicable to the State of Haryana seeking eviction of the petitioners from the land in dispute. The petitioner raised a question of title in his reply to the eviction C.W.P No. 1131 of 1987 (O&M) ::2:: application. Without deciding the question of title, the Assistant Collector passed an order of eviction allowing the application of the Gram Panchayat on 31.7.1979. An appeal filed by the petitioners was dismissed by the Collector. Consequently, the petitioners filed CWP No. 3205 of 1980,which was allowed by a Division Bench of the High Court vide order dated 8.10.1980 Annexure P- 4,wherein a specific direction was given to the effect that there being a serious dispute with regard to determination of the title before the prescribed authority under Section 13-B of the Act, the Assistant Collector, Ist Grade shall first decide this question afresh in accordance with law and then decide the eviction application. Sh. Verma, learned counsel for the petitioners has brought to my notice Gram Panchayat did not pursue the application under Section 7 thereafter, which was consequently dismissed. The Gram- Panchayat-respondent No.2 thereafter filed a fresh eviction application under section 7 of the said Act on

29.8.84. On this point, there is a dispute raised by Sh. Tacoria, learned counsel for the Gram Panchayat. According to him after the matter was sent back to the Assistant Collector, the eviction application was adjourned sine die ad and the application of the petitioners under Section 13-B of the Act was taken up for adjudication but they absented themselves and consequently the said application was dismissed in default. Learned counsel for the petitioners has vehemently argued that even if the application of the petitioners under Section 13-B of the Act was dismissed on the ground of default of appearance, the petitioners would still have the right to move a fresh application under Section 13-B. Prays for an adjournment to show law on the point. C.W.P No. 1131 of 1987 (O&M) ::3:: Adjourned to 23.09.2010.” Counsel for the petitioners has argued that once this Court had given a specific direction to decide the question of title, then that order could not be sidestepped and it was incumbent upon the statutory authority to proceed to decide the question as a regular suit. To develop this argument further, counsel for the petitioners has stated that even if the statutory authority had decided the question of title he would have no grouse but in the present proceedings the statutory authority has firstly not at all decided the question of title and secondly even if he has given some conclusions, they have been arrived in a manner completely foreign to the requirement of the Punjab Village Common Lands (Regulation) Act, 1961 (for short “the Act”). As per the learned counsel, question of title could only be decided by framing of issues and not in summary fashion in which the present proceedings have gone on. He has further argued that the original application filed by the Panchayat (in which the direction was given by this Court) was abandoned by the Panchayat and, therefore, the second application, under Section 7 of the Act, could not lie. Counsel for the petitioners has relied upon a decision of this Court in Jee Ram v. The State of Haryana and others, 1980 PLJ 103, wherein a Division Bench held that general principles of res judicata are applicable to the proceedings under the Act. Before proceeding further, it would be profitable to re-produce Section 13A of the Act as under :- “13-A. Adjudication.- (1) Any person or in the case of a Panchayat, either the Panchayat or its gram Sachiv, the concerned Block Development and Panchayat Officer, C.W.P No. 1131 of 1987 (O&M) ::4:: Social Education and Panchayat Officer or any other officer duly authorised by the State Govt. in this behalf, claiming right, title or interest in any land or other immovable property, vested or deemed to have vested in the Panchayat under this Act, may within a period of two years from the date of commencement of the Punjab Village Common Lands (Regulation) Haryana Amendment Act 1980, file a suit for adjudication, whether such land or other immovable property or any right, title or interest therein vests or does not vest in Panchayat under this Act, in the Court of the Assistant Collector of the first Grade having jurisdiction in the area wherein such land or other immovable property is situate.” Counsel for respondent No.2-Gram Panchayat has argued that once a direction was issued by this Court to decide the question of title, it would be deemed that the petitioners were plaintiffs and, thus, it was incumbent upon them to proceed for establishing their case. As per the learned counsel, it was for this reason that the respondent-Gram Panchayat was not enjoined to prosecute its application under Section 7 of the Act because as per the direction of this Court, the question of title had to be decided. Learned counsel points out that instead of proceeding in accordance with the directions of this Court, the petitioners filed an independent suit under Section 13A of the Act and that suit was dismissed in default. An application for restoration was also filed therein, which was dismissed. The said order has become final. As per the learned counsel, C.W.P No. 1131 of 1987 (O&M) ::5:: once that happened it would have to be deemed that the petitioners had abandoned their claim of ownership under Section 13 of the Act. He has further argued that the decision in Jee Ram's case (supra), does not enure to the benefit of the petitioners but in fact enures to the benefit of the respondent-Gram Panchayat. As regards the argument that the second application by the Gram Panchayat was also barred by the principles of res judicata, learned counsel has argued by extending his earlier argument that once the matter was remanded back by this Court, after quashing the order of ejectment, and since thereafter the petitioners would be deemed to be plaintiffs for the purpose of decision of the question of title, the abandonment of that application by the petitioners could not have the effect of dis-entitling the respondent-Gram Panchayat from filing a fresh application, more-so when during the interregnum, the petitioners had filed a fresh suit under Section 13-A of the Act. As per the learned counsel, at that stage the only option left before the Panchayat was to move a fresh application for ejectment. In my opinion, the arguments of counsel for respondent No.2 are more weighty. It cannot be lost sight of that in the application for ejectment which was originally filed, the petitioners had raised a question of title. That question of title was not decided. On that account, this Court had quashed those eviction proceedings and had remanded the case back for fresh decision of question of title. In my considered opinion, the question of title raised by the petitioners in that suit would be in the nature of counter claim and the petitioners would be deemed to be the plaintiffs. Thus, the onus would be on them to prosecute those proceedings. It is not disputed that the petitioners never appeared on the date fixed by this Court C.W.P No. 1131 of 1987 (O&M) ::6:: viz 4.11.1980. Thus, having not only abandoned those proceedings but also thereafter filing a suit and allowing it to be dismissed in default, the petitioners cannot be now heard to urge that they had raised a question of title which was not considered. If this is accepted it would result in unending litigation. The next argument of counsel for the petitioners that in any case the petitioners are entitled to protection under Section 4(3) (ii) of the Act. A perusal of the record reveals that only the father of petitioners No.1, 2, 5 and 6 i.e Chuni Ram was shown to be in possession of 10 biswas of land as per jamabandi for the year 1933-34. However, even to establish this, or to urge it or to take benefit thereof, would have been possible if the aforesaid petitioners had appeared before the statutory authority and urged this. A perusal of Annexure P-1 clearly reveals that the said petitioners chose to remain ex-parte before the statutory authority. Thus, in my opinion, they cannot now be heard to claim this protection. Even otherwise, the possession of their father Chuni Lal over 10 biswas of land was only reflected in the jamabandi for the year 1933-34 and was not reflected thereafter. Consequently, finding no merit in this writ petition, the same is dismissed with no order as to costs. As the main petition has since been dismissed, all the pending civil miscellaneous applications, if any, also stand disposed of. October 05, 2010. `kk' ( AJAY TEWARI ) JUDGE