Harbans Singh & Ors. vs State Of Punjab & Ors.

Rupinderjit Chahal, J.

The present Letters Patent Appeal is directed against the judgment dated 21.02.2025 passed by the learned Single Judge in CWP No.3934 of 2025, whereby the writ petition filed by the appellants challenging the issuance of show cause notices under Section 172-A(1) of the Punjab Municipal Act, 1911 (for short ‘the Act’) came to be dismissed.

Succinctly stated, the facts leading to the filing of the present appeal are that the appellants claim to be owners in possession, by inheritance or under registered sale deeds, of residential houses, baras and allied structures situated within the lal lakir or abadi deh of village Khamano Kalan, Tehsil Khamano, District Fatehgarh Sahib, comprised in Khewat No. 478/467, Khatoni No. 517, rectangle/Khasra No. 41 as per jamabandi for the year 2016-117. The Nagar Panchayat, Khamano, asserts on the contrary that those structures stand raised upon the land of ponds falling within its area. The dispute is thus, at its core, one of title to and possession over a defined parcel of land, and of whether that parcel forms part of a pond.

A connected matter, being CWP No. 8850 of 2022 came up for hearing before the Division Bench of this Court. Vide order dated 13.12.2024, the petitioners were afforded an opportunity to avail the appropriate remedy before the Civil Court, and the demolition was directed to be deferred till the next date of hearing. Subsequently, vide order dated 18.12.2024, the petition was disposed of with a direction that, in the event the remaining encroachers failed to obtain and produce an interim order of stay or restraint passed by any competent judicial or quasi-judicial authority within a period of three weeks, the official respondents were directed to evict the remaining encroachers from the land in question and report compliance latest by 21.01.2025.

Feeling aggrieved by the aforesaid order, the same was assailed before the Hon’ble Supreme Court by way of Special Leave Petition (Civil) Nos. 920-922/2025. Vide order dated 09.01.2025, the Hon’ble Supreme Court declined to interfere with the impugned order passed by this Court.

Thereafter, the petitioners approached this Court by filing CWP-3934-2025. The said petition came to be dismissed by the learned Single Judge vide order dated 21.02.2025. The learned Single Judge held that the petitioners, having failed to avail the liberty granted by the Division Bench and extended by the Hon’ble Supreme Court to seek interim protection from the competent Civil Court or any competent judicial/quasi-judicial authority, could not once again invoke the writ jurisdiction of this Court to challenge the notices, demolition order and the consequential proceedings. It was further held that the filing of the said petition amounted to an abuse of the process of law.

Feeling aggrieved by the aforesaid order, the appellants have preferred the present Letters Patent Appeal.

Learned counsel appearing for the appellants submitted that Section 172-A(1) of the Act merely prescribes the punishment upon conviction and does not confer any substantive power upon the authorities to identify or remove an alleged encroachment. Consequently, the notice issued thereunder and the consequential action of eviction/demolition were wholly without jurisdiction. Learned counsel further contended that no demarcation whatsoever was carried out prior to the demolition, particularly when the revenue authorities had declined to undertake demarcation for want of any record evidencing the existence of a pond at the site in question. It was submitted that even the revenue record pertaining to the Abadi Deh does not reflect the existence of any pond at the site in question. Learned counsel further submitted that the appellants are the owners in possession of the property; their houses have been duly numbered and assessed to property tax and were constructed on the basis of maps duly approved by the Nagar Panchayat itself. It was also argued that the expression “judicial authority” appearing in the order dated 18.12.2024 ought to be construed as including this Court, being the highest judicial authority within the State. Learned counsel further submitted that the order dated 18.12.2024 stood merged with the order passed by the Hon’ble Supreme Court and, therefore, the appellants could not be held disentitled from invoking the jurisdiction of this Court. Learned counsel accordingly prayed that the present appeal be allowed.

Learned State counsel, duly assisted by learned counsel appearing for respondent Nos. 7 to 10, opposed the appeal and submitted that the course of action prescribed by the Division Bench and left undisturbed by the Hon’ble Supreme Court had attained finality. It was contended that, instead of availing the remedy before the forum so indicated, the appellants had instituted successive proceedings with the sole object of delaying and obstructing the process of their eviction. It was further submitted that the appellants’ claim of ownership is not supported by any cogent or credible material and, in any event, raises disputed questions of fact, which can be adjudicated only upon appreciation of evidence by the competent forum. Learned State counsel further submitted that an efficacious statutory remedy of appeal is available to the appellants before the learned District Judge under the Act. It was, therefore, contended that the appellants, having an equally efficacious alternative remedy available in law, could not be permitted to invoke the extraordinary writ jurisdiction of this Court, particularly when the issues sought to be raised involve disputed questions of fact. Learned State counsel accordingly prayed for dismissal of the appeal.

We have heard learned counsel for the parties and have perused the material available on record.

At the outset, we find that the present appeal is liable to be dismissed on the ground of maintainability alone. In substance, the appellants seek to reopen the very controversy which had already fallen for consideration before this Court in CWP-8850-2022 and was thereafter carried by them before the Hon’ble Supreme Court. The present proceedings, therefore, constitute a second round of litigation in respect of the same subject matter and arise out of the same notices and the underlying dispute concerning the appellants’ claim of ownership and the alleged encroachment upon the pond land.

The controversy had earlier been brought before the Division Bench of this Court. Upon consideration of the nature of the dispute, this Court, vide order dated 18.12.2024 did not adjudicate upon the disputed questions of title or possession, but relegated the concerned persons, including the appellants, to the appropriate Civil Court or competent judicial/quasi-judicial authority for seeking appropriate relief, including interim or restraining protection. The relevant part of the said order is reproduced below:

The aforesaid course adopted by this Court was thereafter specifically considered by the Hon’ble Supreme Court in SLP (C) Nos. 920-922 of 2025, vide order dated 09.01.2025. The Hon’ble Supreme Court declined to interfere with the order passed by this Court and, while extending the time granted by this Court by a further period of four weeks, expressly permitted the petitioners to institute appropriate proceedings before the appropriate judicial/quasi-judicial forum. The Hon’ble Supreme Court further clarified that the petitioners would be at liberty to raise all their contentions before such forum. The operative part of the said order is reproduced below:

A perusal of the aforesaid order leaves no manner of doubt that the petitioners were granted an opportunity to avail the remedy in terms of the directions issued by the Division Bench of this Court, namely, to approach the Civil Court/competent judicial or quasi-judicial authority and seek interim protection, as they claimed ownership over the land in question. The period of three weeks granted by the Division Bench was extended by the Hon’ble Supreme Court by a further period of four weeks, which has since expired. The petitioners, admittedly, did not avail the remedy within the extended period. Instead, they instituted the subsequent writ petition seeking to question the notices issued under Section 172-A(1) of the Act and the consequential demolition proceedings.

The contention of learned counsel for the appellants that the expression “judicial authority” appearing in the earlier order would include this Court itself, and that the subsequent writ petition was consequently instituted in exercise of the liberty granted to them, cannot be accepted. Such an interpretation would render the directions contained in the earlier order wholly redundant. The reference to the Civil Court/competent judicial or quasi-judicial authority was made in the context of relegating the appellants to a forum competent to adjudicate the disputed questions of title, possession and identification of the land on the basis of evidence. The Hon’ble Supreme Court, while extending the period granted by this Court, also required the appellants to institute appropriate proceedings before the appropriate forum. It was never contemplated that the appellants could once again approach this Court under its writ jurisdiction and re-agitate the very issues which had already been considered, with a specific course of remedy having been prescribed. In this context, the relevant portion of the impugned order is apposite and is reproduced hereunder:

The petitioners did not avail the remedy so made available to them and have instead instituted the subsequent writ proceedings seeking to question the notices issued under Section 172-A(1) of the Act and the consequential demolition proceedings. Once the petitioners had approached this Court upon being served with the aforesaid notices under Section 172-A(1) of the Act, and the Division Bench, upon consideration of the matter, had afforded them liberty to approach the Civil Court/competent judicial or quasi-judicial authority for appropriate relief, including interim restraint, in view of their claim of ownership and possession, the said order having attained finality upon the order passed by the Hon’ble Supreme Court, it was not open to the petitioners to once again invoke the writ jurisdiction of this Court by challenging the very same notices, the consequential demolition order and the proceedings incidental thereto as being illegal, null and void.

The plea of merger also does not advance the case of the appellants. The order passed by the Hon’ble Supreme Court did not confer upon the appellants any unrestricted right to institute a fresh writ petition before this Court on the same cause of action. On the contrary, the Hon’ble Supreme Court expressly preserved the liberty of the parties to raise all their contentions in the appropriate proceedings to be instituted pursuant to the order passed by this Court. The appellants, therefore, cannot invoke the doctrine of merger so as to overcome the finality attaching to the course of remedy prescribed in the earlier proceedings.

The contentions advanced by learned counsel for the appellants with regard to the alleged absence of demarcation, the entries in the revenue record, their claim of ownership, assessment of the properties to house tax, approval of the building plans and the interpretation and applicability of Section 172-A(1) of the Act essentially pertain to the merits of the underlying dispute. We are not inclined to examine these questions in the present proceedings for the reason that the appellants had already been relegated to the appropriate forum for adjudication of such questions. Despite the opportunity granted by the Division Bench and the further period subsequently extended by the Hon’ble Supreme Court, the appellants did not avail the remedy within the stipulated period.

It is also significant that an efficacious statutory remedy of appeal is stated to be available under the Act. Even apart from the availability of such statutory remedy, the present appeal cannot be sustained for the fundamental reason that the appellants are seeking, in a second round of proceedings, to reopen the very controversy which had already been considered by this Court and thereafter carried by them before the Hon’ble Supreme Court. The subsequent writ petition and, consequently, the present intra-Court appeal arising therefrom cannot be permitted to operate as a means of circumventing the orders passed in the earlier proceedings or of indefinitely postponing the consequences of the action taken by the competent authorities. The principle that a party cannot be permitted to repeatedly invoke the jurisdiction of the Court in successive proceedings arising out of the same cause of action is founded upon the larger public policy that litigation must attain finality. A litigant, having once invoked the jurisdiction of this Court and having thereafter been relegated to a particular remedy, cannot circumvent the effect of the orders passed in the earlier proceedings by instituting another petition seeking to reopen the same controversy. Permitting such successive proceedings would not only defeat the finality attaching to the earlier orders, but would also result in an abuse of the process of the Court.

In the circumstances, we are of the considered view that the learned Single Judge was justified in declining to entertain the writ petition. The writ petition itself was not maintainable as a second round of litigation seeking to re-agitate the same cause and substantially the same relief, after the appellants had failed to avail the remedy expressly made available to them.

Having chosen not to pursue the remedy before the appropriate Civil Court or competent judicial/quasi--judicial authority within the extended period granted by the Hon’ble Supreme Court, the appellants could not revive the same cause of action by instituting another writ petition and thereafter maintain the present intra-Court appeal.

Consequently, without expressing any opinion on the merits of the appellants’ claim with regard to title, possession, demarcation, existence of the pond or the legality of the notices issued under Section 172-A(1) of the Act and the consequential proceedings, the present Letters Patent Appeal is dismissed as not maintainable.

It is, however, made clear that dismissal of the present appeal shall not preclude the appellants from availing such remedy as may otherwise be available to them in law before the competent forum. Any such remedy shall, however, remain subject to all questions of limitation, maintainability, availability of such remedy and all other legal objections, which are left open.

Pending applications, if any, also stand disposed of.