Devi Ditta vs The Gram Panchayat Umri and others

This order will dispose of Civil Writ Petitions Nos. 72, 73. 74, 75 and 76 of 1990. The facts as stated in Civil Writ Petition No. 72 of 1990 may be noticed.

The petitioner was granted land on lease for a period of 20 years in the year 1955. In spite of the fact that the period of lease had expired in 1975, the petitioner continued to remain in possession of the land. After the expiry of the lease in the year 1975, the Panchayat which had become the owner of the land moved an application under S. 7(2) of the Punjab Village Common Lands (Regulation) Act 1961 (hereinafter referred to as ''the Act''). During the pendency of this application, the Panchayat passed a resolution on January 27, 1977 in which it was contemplated that three acres of land be sold to each of the respective lessees so that the remaining land became available to the Panchayat. In pursuance to this resolution, the Assistant Collector vide order dated Nov. 11, 1977, order the application under S. 7 to be consigned to record. Ultimately, the proposal of the Panchayat for sale of land was annulled by the authorities under the Act. As a result, the Panchayat was unable to sell the land. Copy of order dated Dec. 19, 1983 passed by the Director Panchayat communicating the annullment of the resolution of the Panchayat has been produced on the record as Annexure R1. Thereafter, the Gram Panchayat through the Social Education and Panchayat Officer moved a fresh application under S. 7 of the Act on August 11, 1988. Notice of this application was given to the present petitioner and after hearing him, the Assistant Collector by his order dated March 9, 1989 directed the ejectment of the petitioner from the land. An appeal to the Collector having failed, the petitioner has approached this Court through the''present petition.

The orders passed by the Assistant Collector and Collector have been challenged on two grounds, namely (i) that the application under S. 7 was not competent as the question of title was involved and (ii) that the petition was also barred by the principles of res judicata.

A written statement has been filed on behalf of respondent No. 1 in which the claim made by the petitioner has been controverted.

Even though these five petitions had originally been disposed of along with Civil Writ Petition No. 2945 of 1938 decided on June 8, 1991, the matter was reviewed in view of the assertion) made on bahalf of the petitioners that the facts of the two cases were different. The matter has now come up again for disposal.

I have heard Mr. Dinesh Ghai, counsel for the the petitioner and Mr. Ajay Mittal, counsel for the respondent.

Learned counsel for the petitioner has raised a two-fold contention. He submits that the application under S, 7 of the Act was wholly incompetent as the question of title had been raised and the Assistant Collector was not competent to dispose of the matter in those proceedings. Secondly, it has been submitted that the original application filed by the Panchayat u/s 7 of the Act having been dismissed on Nov. 11, 1977 the present proceedings were barred by the principle of res judicata.

The claim has been controverted by Mr. Ajay Mittal, learned counsel for the respondent.

The claim of ownership of the land is based on resolution dated January, 27, 1977 passed by the Panchayat. It is suggested that by this resolution, the Panchayat had agreed to sell three acres of land to each of the lessees including the petitioner. According to the counsel, after the passing of the resolution, the petitioner had become owner of the land in question.

The sale of land is governed by the provisions of Section 5 and Rule 12. Sections inter alia provides as under :

"All lands vested or deemed to have been vested in Panchayat under this Act, shall be utilised, or disposed of by the Panchayat for the benefit of the inhabitants of the village concerned in the manner prescribed.".

A perusal of the above provision would show that all lands vested in a Panchayat can be disposed of for the benefit of the inhabitants of the village only in the manner prescribed. The manner has been provided for in Rule 12 which inter alia provides that the Panchayat can sell the land only "with previous approval of the Government". There was no approval of the Government prior to the passing of the resolution dated January 27, 1977. After the resolution, the proposal was sent to the Government and the decision was conveyed by the Director vide letter dated December 19, 1983 (Annexure R1 with the written statement) by which the approval was declined. Accordingly, the Panchayat was never permitted to sell the land to any person. As a result, no sale could have ever taken place. In fact there was none. Accordingly, it is apparent that the land was never sold to the petitioner. It is also not disputed that in fact the petitioner has never paid any price of the land as none had been demanded. Learned counsel has also clearly stated that the possession of the petitioner is unauthorised. In this situation, it is apparent that no question of title ever arose. Accordingly, the petition moved by the Panchayat u/s 7 of the Act was competent.

As far as the plea of res judicata is concerned the case was never heard and decided. A compromise which was in the nature of contingent compromise had been arrived at. The proposal having not been approved by the competent authority, the land could not be sold. In such a situation, when there was no decision by a competent authority, the principle of res judicata cannot be invoked.

Even otherwise, the lease was only for a period of 20 years expired in the year 1975. Thereafter, even the rent has not been paid by the petitioner. As such, there is no equity in favour of the petitioner. In the circumstances of the case, I am not inclined to exercise my discretionary jurisdiction in favour of the petitioner.

Accordingly, all the five writ petitions are dismissed. However, in the circumstances of the case, the parties are left to bear their own costs.

Petitions dismissed.