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2008 Supreme(P&H) 2172
2009 (5) RCR(Civ) 801
THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
VINOD K. SHARMA, J.
Amarjeet Singh - Petitioner
Versus
Gram Panchayat Kambheri - Respondent
Civil Revision No. 5940 of 2007 (O&M)
Decided on: 22.12.2008
For the petitioner:Mr. D.V. Sharma, Sr. Advocate with Ms. Shivani Sharma, Advocate.
For the respondent:Mr. R.K. Malik, Advocate.
The main legal point established in the judgment is the interpretation of the definition of 'shamlat deh' under the Punjab Village Common Lands (Regulation) Act, 1961, and the jurisdictional bar on the Civil Court under Section 13 of the Act.
Headnote:
Shamlat Deh - Punjab Village Common Lands (Regulation) Act, 1961 - Section 2(g), Section 7(2), Section 13 - The court discussed the definition of 'shamlat deh' under Section 2(g) of the Punjab Village Common Lands (Regulation) Act, 1961, the legal process for eviction under Section 7(2), and the jurisdiction of the Civil Court as barred under Section 13.
Fact of the Case:
The petitioner filed a suit for declaration and permanent injunction claiming ownership of land and challenging an eviction order under the Punjab Village Common Lands (Regulation) Act, 1961.
Finding of the Court:
The court found that the land in dispute fell within the definition of 'shamlat deh' and that the petitioner did not have prima facie ownership over the property. The court also held that the Civil Court did not have jurisdiction to entertain the suit due to the provisions of the Punjab Village Common Lands (Regulation) Act, 1961.
Issues: Ownership of land, jurisdiction of the Civil Court, legality of eviction order.
Ratio Decidendi: The court's decision was based on the finding that the land was shamlat deh as defined under the Act and that the Civil Court's jurisdiction was barred under Section 13 of the Act.
Final Decision: The court dismissed the revision petition, upholding the lower courts' findings and ruling that the petitioner did not have a prima facie case and that the Civil Court did not have jurisdiction to entertain the suit.
VINOD K. SHARMA, J (ORAL) - This order shall dispose of Civil Revision No. 5940 of 2007 titled Amarjeet Singh Vs. Gram Panchayat Kambheri and Civil Revision No. 5941 of 2007 titled Karnail Singh Vs. Gram Panchayat Kambheri, as common questions of law and fact are involved.
For brevity sake, facts are being taken from Civil Revision No. 5940 of 2007.
2. This revision petition under Article 227 of the Constitution of India is directed against the orders dated 6.8.2007 and 23.10.2007 passed by the learned Courts below dismissing an application moved by the petitioner under Order 39 Rules 1 and 2 of the Code of Civil Procedure.
3. The petitioner-appellant filed a suit for declaration and permanent injunction on the plea that there is a land/bara/gitwar within the phirni and outside abadi deh or gorah deh situated at village Kambheri as shown in red colour in the site plan.
4. The plaintiff further claimed that there had been a johar within the phirni prior to consolidation as well as after the consolidation of holdings in khewat No. 186 khatauni No. 372 khasra No. 76 and land measuring 9 kanals 9 marlas was wrongly and illegally shown as johar in the revenue record.
5. It was claimed that the pond has never been used as johar or for any other common/public purpose. The plaintiff-petitioner further claimed that the village pond towards northern side of the site in dispute is only about 4 kanals 5 marlas, which was wrongly recorded as 9 kanals 9 marlas as gair mumkin johar.
6. It is further the case of the petitioner that the site being outside abadi deh was being used as gitwar/bara/manure pit/house cottage industry immediately before commencement of the Act. As such it was not owned and possessed by the defendant because such land stood excluded from shamlat deh by amendment made vide Act No. 2 of 1981.
7. A petition under Section 7(2) of the Punjab Village Common Lands (Regulation) Act, 1961 was filed against the petitioner in the Court of learned Assistant Collector, Grade, Ghula which was allowed on 4.10.2006. A penalty of Rs.10,000/-(Rupees ten thousand only) per hectare was also imposed on the petitioner.
8. The appeal filed against the order was also dismissed by Collector, Kaithal, on 28.11.2006 and revision also stands dismissed on 10.1.2007.
9. The plaintiff-petitioner claims that the orders are without jurisdiction, illegal, null and void and not binding upon his right. It was claimed that the suit property did not come within the definition of 'shamlat deh' and, therefore, does not vest in the panchayat.
10. The suit was contested and written statement filed. A preliminary objection was raised that the petitioner had no locus standi and cause of action to file and maintain the present suit. It was also pleaded that the Civil Court had no jurisdiction to entertain and try the suit. It was further pleaded that the petitioner had not come to Court with clean hands as he had concealed true and material facts from the Court.
11. On merit, it was asserted that the suit land was shamlat deh as defined under Section 2(g) of the Punjab Village Common Lands (Regulation) Act, 1961 and that the petitioner was in illegal and unauthorised possession of the suit property and he was rightly ordered to be evicted by the authorities under the Punjab Village Common Lands (Regulation) Act.
The learned Courts below recorded a finding that the injunction can be granted on proof of prima facie case, balance of convenience, irreparable loss and injury to the person seeking injunction.
12. The learned Courts observed that the suit land comprised in khasra No. 76 is shown to be gair mumkin johar and the same vests in Panchayat of village Kambheri and, therefore, the contention that the land was reserved as gorah deh during consolidation and did not come within the definition of 'shamlat deh' was held to be not acceptable.
13. The learned Courts further observed that the land used or reserved for the benefit of the village community
