Smt. Ishwar Wati vs The State of Haryana and Others

V.K. Bali, J.

Smt. Ishwar Wati, petitioner herein has filed a writ under Articles 226 and 227 of the Constitution of India wherein she seeks issuance of writ in the nature of certiorari to quash the Annexures P-l, P-2, P-4 and P-6. Annexure P-l has been passed by the Assistant Collector 1st Grade, Nuh, An-nexure P-2 has been passed by the Assistant Collector 1st Grade, Palwal, Annexure P-4 has been passed by the Collector, Faridabad, and Annexure P-6 has been passed by Commissioner, Gurgaon Division. 2. Brief facts on which the relief indicated above is sought to rest reveals that petitioner had become the owner of the land in dispute on 30.9.1972 through a Civil Court decree. The Gram Panchayat Khokiaka the only contesting respondent herein had obtained an ex parte decree. On 9.2.1976 (Annexure P- 1 ) the Assistant Collector 1st Grade, Nuh set-aside the Civil Court decree that was obtained by the petitioner on 30.8.1972 and consequent upon that, the possession of the land was to be delivered to the Gram Panchayat. This order was passed by the Assistant Collector 1st Grade exercising his powers u/s 13-A(4) of the Punjab Village Common Lands (Regulation) Act, 1961. The Gram Panchayat slept over the matter for a number of years. On 27.11.1991 an order for executing, the order Annexure P-1 was passed, while rejecting the objections raised by the petitioner opposing the execution proceedings. The petitioner unsuccessfully filed an appeal and revision before the Collector and Commissioner respectively, which too met with the same fate.

Constrained thus, in this manner, the petitioner has filed this writ petition under Article 226 of the Constitution of India with the prayer as indicated above.

The sole contention of Shri R. M. Singh, Advocate, learned counsel appearing for the petitioner is that Section 13-A, as inserted by Haryana Act No. 34 of 1974 was no more on the statute book at the relevant time when the Gram Panchayat had obtained order (Annexure P-l) by which the Civil Court decree obtained by the petitioner was set-aside. In Karnal Cooperative Farmers Society Pehowa Ltd. v. Gram Panchayat, Pehowa and Ors. 1976 PLJ 237, the aforesaid provision i. e. 13-A of the Punjab Village Common Lands (Regulation) Act was held to be ultra vires, unconstitutional and was struck down. Section 13-A was once again inserted by Act. No. 2 of 1981. This time however, vide Section 13-A as inserted by Act No. 2 of 1981, jurisdiction of Civil Court was barred and again this provision was made applicable with retrospective effect i. e. 4.5.1961. In so far as retrospectivity of Section 13-A as inserted by Act No. 2 of 1981 is concerned the same was successfully challenged by some affected persons and to that extent the provision was held to be illegal. This opinion was expressed by Division Bench of this Court in Bijender Singh and Anr. v. The Assistant Collector 1st Grade, Guhla and Ors.1983 PLJ 116. These two judgments of the High Court i. e. Karnal Cooperative Farmers Society''s case (supra) and Bijender Singh''s case (supra) were upheld by the Supreme Court in State of Haryana and Ors. v. The Karnal Cooperative Farmers Society Limited (1993) 105 P.L.R. 220 . In fact, that decision by the Supreme Court was in appeal preferred by the State of Haryana against the judgment delivered by Division Bench of this Court in 1976 PLJ 237. On the aforesaid facts, the sole contention of Shri R. M. Singh, Advocate is that when Section 13-A was not on the statute book, the Assistant Collector had absolutely no jurisdiction to pass Annexure P-l and therefore even though the petitioner did not agitate at any stage before execution proceedings were launched against her, the said order being nullity and void ab initio could be ignored.

The contention of Mr. R. M. Singh has considerable force. Once Section 13-A was not in the statute book, the decree obtained by the petitioner on 30th August, 1972 could not be set-aside. The order Annexure P- 1 passed by Assistant Collector was illegal, inoperative, void ab initio and was not binding upon the petitioner. That being the position, he could challenge the same by way of appeal or revision but this was simply ignored.

Mr. C.B. Goel, learned counsel for the respondent Gram Panchayat was un-able to controvert the legal provision as per contentions raised by learned counsel for the petitioner. He, however, contends that the decree obtained by the petitioner in 1972 was collusive as is apparent form the records having been obtained in collusion with the functionaries of Gram Panchayat. The Panch of the Gram Panchayat filed consent written statement with a view to defeat the rights of the Gram Panchayat. He also contends that no notice was issued to the Gram Panchayat and in a clandestine manner the case was taken on the date fixed by the Court on some application moved by the parties i. e. by the petitioner and Panch who came present on that day conceded the case. The Panch filed a consent written statement and a decree was passed in favour of the petitioner.

Mr. Goel, appears to be right. The record shows that when the matter came up on 29th August, 1972 the same was adjourned to 11th October, 1972. However, file was taken up on the next date 30th August, 1972 and the following order was passed :--

"File taken up on the application of plaintiff''s counsel. Defts. counsel has filed statement of G. P. dated 29.8.1972 admitting the suit of the plaintiff. In view of above admission in written statement filed by the defendant, suit of the plaintiff for declaration to the effect that the plaintiff is the owner in possession of the property described in para No. 1 of the plaint is decreed as prayed. No order as to costs."

The written statement dated 29th August, 1972 also appears to have been filed by one Prem Raj Member Panchayat and not by the Sarpanch. As mentioned above, Mr. Goel may be right in what he is contending in this Court but in writ petition filed by the petitioner challenging the impugned orders referred above to set aside the decree all these matters can be gone into. A positive finding on these issues can be recorded by civil Court only when parties lead evidence.

In view of what has been said above, this petition is allowed. Orders Annexures P-l, P-2, P-4 and P-6 are set aside. However, it will be open to the Gram Panchayat to challenge the civil Court decree Annexure R-6/3 on the grounds as urged by Mr. Goel or on any other ground that may be available to the Panchayat. Parties are left to bear their own costs.