08.2010 Raghbir Singh and another State of Punjab & Ors. v. (II) Jagjit Singh

CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE MOHINDER PAL Present: Mr. Deepak Thapar, Advocate, for the appellants (in LPAs No. 437, 438, 439, 760 of 2009 and 699 of 2010) Mr. Deepak Thapar and Mr.Raman Walia, Advocates, for the appellants (in LPAs No. 598 and 599 of 2009) Mr. Arun Jain, Senior Advocate, with Mr. Amit Jain, Advocate, for the appellants (in LPAs No. 313, 339, 341, 385, 850 of 2009 and 688 of 2010) Mr. P.K. Gupta, Advocate, for the appellants (in LPAs No. 489, 492, 511 and 512 of 2009) Ms. Rita Kohli, Addl. A.G., Punjab. Mr. Sukhjinder Singh and Mr. V.K. Sandhir, Advocates, for respondent-Gram Panchayat (in LPAs No. 438, 492, 511, 512, 598, 599, 313, 341, 385, 850 339 and 760 of 2009) Ms. Sushma Chopra, Advocate, for respondent-Gram Panchayat (in LPAs No. 437, 439 and 489 of 2009) * * * LPA No. 437 of 2009 -6- SATISH KUMAR MITTAL , J. This order shall dispose of Letters Patent Appeals No. 437, 313, 339, 341, 385, 438, 439, 489, 492, 511, 512, 598, 599, 760, 850 of 2009, 688 and 699 of 2010, which are arising out of a common judgment dated January 30, 2009, passed by the learned Single Judge, whereby several writ petitions, filed by the appellants and others were disposed of. Letters Patent Appeals No. 688 and 699 of 2010 are barred by limitation. However, we are also deciding these appeals on merits. In the present case, four sets of writ petitions, filed by the appellants and others, came for consideration before the learned Single Judge. One set of the writ petitions was filed challenging the applications filed by the Gram Panchayat against the petitioners under Section 11 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as `the Act') on the ground that such applications would not be maintainable being barred by the principle of res judicata. Therefore, it was prayed that those applications be quashed and the Collector, before whom those applications were filed by the Gram Panchayat, be restrained from proceeding with those applications. The second set of writ petitions was filed against the orders, whereby the ex-parte orders/decrees were set aside by the Collector subject to payment of ` 500/- per acre as mesne profits. Those orders were also challenged on the ground that under the provisions of the Act, the Collector LPA No. 437 of 2009 -7- could not have entertained the application filed by the Gram Panchayat under Section 11 of the Act, because earlier the controversy was decided by the civil court as well on an application filed by the Gram Panchayat under Section 7 of the Act. The third set of writ petitions was filed against the orders, whereby on account of non-payment of mesne profits at the rate of ` 500/- per acre in terms of the order of the Collector, the aforesaid ex-parte order was upheld. Those orders were challenged by the petitioners before the Appellate Authority, who remanded the case maintaining the ex-parte order, unless the mesne profits were paid. Those orders also have been challenged on the ground that the applications filed by the Gram Panchayat under Section 11 of the Act are not maintainable being barred by the principle of res judicata. The fourth set of writ petitions was filed by the Scheduled Caste residents of the village, who came forward to claim that the land be declared as Panchayat land and be auctioned to them. In the fourth category, no Letters Patent Appeal has been filed. All these 17 appeals are arising from the first three categories. It is the case of the appellants that they are proprietors of the village. They had partitioned the shamilat land of the village and are in possession of the land according to their share. It is alleged that the civil court vide its judgment dated 25.6.1959 had already decided that the land in question is not the shamilat deh. It is further alleged that the applications LPA No. 437 of 2009 -8- filed by the Gram Panchayat under Section 7 of the Act seeking summary proceedings for eviction of the appellants were dismissed, therefore, the said order will operate as res judicata against the respondent-Gram Panchayat. The case of the appellants is that in view of the earlier decision, the applications filed by the Gram Panchayat under Section 11 of the Act for declaring its title on the disputed land would be barred by the principle of res judicata, therefore, those applications are liable to be quashed, as the Collector has no jurisdiction to proceed with such applications. The learned Single Judge rejected the contention of the appellants, while coming to the conclusion that claim of the appellants was pre-mature, as merely on filing of the application under Section 11 of the Act by the Gram Panchayat, the same cannot be quashed at the thrash-hold by the High Court under Article 226 of the Constitution of India on the ground that claim of the Gram Panchayat would have been barred by the principle of res judicata. It has been held that an application under Section 11 of the Act is a title suit filed by the Gram Panchayat regarding the land in question and if the appellants have any grouse, they have liberty to raise the plea of res judicata before the concerned authority, who would decide that issue after hearing the parties. Consequently, petitioners in the first set of writ petitions, who had directly approached the High Court for quashing of the application under Section 11 of the Act, filed by the Gram Panchayat, have been directed to go back before the Collector, where the application is pending, to file reply with all the possible pleas, including the plea of res LPA No. 437 of 2009 -9- judicata, and to contest the same before the concerned authority. Regarding the second and third sets of writ petitions, the learned Single Judge has set aside the ex-parte order as well as the subsequent orders regarding deposit of mesne profits and remanded the matter back to the Collector to take fresh decision on merits, by providing proper opportunities to the petitioners/appellants and after taking their reply and hearing them. It has been further held that the petitioners/appellants would be at liberty to take all the pleas before the Collector, including the plea of res judicata. It has also been observed that if the Collector passes an adverse order against the petitioners/appellants, it will be open for them to avail their further remedy as per law. After hearing learned counsel for the parties, we do not find any illegality in the aforesaid order, passed by the learned Single Judge. The main argument of learned counsel for the appellants is that since on earlier occasion, it was decided by the civil court as well as the Collector under Section 7 of the Act that the land in question does not fall within the definition of shamilat deh and the petitioners/appellants were not entitled to be ejected, therefore, no application under Section 11 of the Act, filed by the Gram Panchayat, should have been entertained by the Collector on the principle of res judicata. Learned counsel argued that the learned Single Judge has committed grave illegality while remanding the case, without determining the issue of res judicata, as taken by the appellants. We do not find any merit in this contention. As per the Scheme of the Act, the Gram LPA No. 437 of 2009 -10- Panchayat can move an application before the Collector under Section 7 of the Act for putting the Panchayat in possession of shamilat deh. The proceedings under Section 7 of the Act are summary in nature and if the Collector finds that any person is in illegal and unauthorised possession of shamilat deh, which vests in the Gram Panchayat or is deemed to have been vested in it, after making such enquiry as he may think fit, he can put the Gram Panchayat in possession of such land. Proviso to this Section further provides that in such proceedings, if a question of right, title or interest with regard to the land in question is raised by any person and a prima facie case is made out in support thereof, the Collector shall direct the person who has raised such question to submit his claim under Section 11 of the Act. This proviso was added by Act No. 25 of 1993. Prior to that, there was no such provision. It is to be mentioned here that in the instant case, the ejectment application filed by the Gram Panchayat, which was dismissed, was prior to the aforesaid amendment. Therefore, in those proceedings, there was no occasion for the Gram Panchayat to raise the question of title with regard to the land in question. It is pertinent to mention here that prior to the amendment made in Section 11 of the Act vide Act No. 25 of 1993, the Gram Panchayat could not have filed an application under Section 11 of the Act, raising the issue of title in the land, which vests or is deemed to have been vested in the Panchayat. That is why, after the aforesaid amendment, the Gram Panchayat filed the application under Section 11 of the Act. Section 11 of the Act provides for filing of an application by a person or LPA No. 437 of 2009 -11- Gram Panchayat, claiming right, title or interest in any land, vested or deemed to have been vested in a Gram Panchayat under the Act. The nature of the proceedings under Section 11 of the Act is like a regular suit, where the question of title is to be decided by the authority. While deciding the issue of title or interest in any land, vested or deemed to have been vested in a Gram Panchayat, the Collector is to provide not only the opportunity of hearing to the party concerned, but also an opportunity to lead evidence and thereafter, a final order is to be passed, against which the aggrieved party can file an appeal to the Commissioner. Rule 21-A of the Punjab Village Common Lands (Regulation) Rules, 1964, provides the procedure for entertaining and filing of such applications. This Rule is being re-produced below : 21-A. Decision of claim of right, title or interest in Shamilat Deh - (1) Any person claiming a right, title or interest in any land vested or deemed to have been vested in the Panchayat may submit an application in the form of a statement duly signed and verified in the manner provided in the Code of Civil Procedure, 1908, supported by a copy of the revenue record within thirty days from the date of accrual of cause of action to the Collector. (2) The Collector shall, after receiving the application, send notice to the Panchayat concerned alongwith the copy of the application directing it to appear before him on the date fixed for the purpose. The Collector shall decide the matter, after affording a reasonable opportunity to the parties to LPA No. 437 of 2009 -12- substantiate their respective claims. In the instant case, the Gram Panchayat filed application under Section 11 of the Act before the Collector, who was having the jurisdiction under the Act to entertain the application, like a title suit. After receiving notice of the application, instead of filing reply to the same, the appellants straight-way filed the writ petitions. In the first set of writ petitions, they prayed for quashing of the application itself. In the second set, they did not appear and were proceeded against ex-parte and their application for setting aside the ex-parte proceedings was allowed subject to payment of ` 500/- per acre as mesne profits. In the third set of writ petitions, even the order of setting aside the ex-parte proceedings was challenged in appeal before the Commissioner, who upheld that order. In all these cases, contention of the appellants is that the application filed by the Gram Panchayat under Section 11 of the Act was not maintainable, therefore, all the proceedings on such application before the Collector should be quashed. This contention of the appellants could not be accepted, because the proceedings under Section 11 of the Act are like a regular civil suit. On receipt of notice of such application, the appellants were entitled to file reply by taking all the possible pleas, including the plea of res judicata. The Collector is competent to take decision on all such pleas raised by the appellants by framing issues in this regard. If a particular issue is decided by the Collector against the appellants, they have the remedy to challenge such order by filing an appeal before the Commissioner, and thereafter, to challenge the order before this LPA No. 437 of 2009 -13- Court in writ jurisdiction. But at the thrash-hold, an application filed by the Gram Panchayat under Section 11 of the Act cannot be said to be without jurisdiction and not maintainable on a ground, which was to be pleaded and established before the Collector. The plea/issue of res judicata contains the mixed questions of facts and law and it can be effectively decided by the courts having original jurisdiction, after taking evidence and after hearing the parties. Such questions cannot be effectively decided by this Court under Article 226 of the Constitution of India. Since the appellants had straight-way approached this Court to quash such proceedings under Article 226 of the Constitution of India, without choosing to file reply to the application under Section 11 of the Act before the Collector and contesting the said application on all possible grounds, including the ground of res judicata, therefore, the learned Single Judge, without going into the issue of res judicata, has rightly rejected the prayer of the appellants. However, the ex-parte orders passed by the Collector have been set aside and even the condition imposed by the Collector to deposit ` 500/- per acre as mesne profits has also been set aside and all the appellants have been provided opportunity to appear before the Collector and contest the application filed by the Gram Panchayat under Section 11 of the Act, by taking all the possible pleas, including the plea of res judicata. Thus, in our opinion, most of the appellants have already been granted relief by the learned Single Judge. We do not find any force in the contention of learned counsel for the appellants that this Court should have gone into the question of res judicata LPA No. 437 of 2009 -14- and decided the same, instead of remanding the case to the Collector. In our opinion, the Collector while dealing with the application under Section 11 of the Act has the jurisdiction to decide the issue of res judicata also. Therefore, the learned Single Judge was very much right while directing that the Collector will pass fresh order in the cases where the ex-parte order was passed, after providing an opportunity of hearing to all the concerned, and while taking into consideration the pleas raised by them, including the plea of res judicata. Thus, we do not find any illegality in the impugned judgment, passed by the learned Single Judge. Resultantly, all the appeals are dismissed. ( SATISH KUMAR MITTAL ) JUDGE August 11, 2010 ( MOHINDER PAL ) JUDGE