2013 Supreme(P&H) 933

IN THE HIGH COURT OF PUNJAB AND HARYANA
[FULL BENCH]
Before
The Hon’ble Mr. Justice S.S. Saron
The Hon’ble Mr. Justice Rajive Bhalla
The Hon’ble Mr. Justice S.P. Bangarh
Civil Writ Petition No.2318 of 2002
Parkash Singh & Ors.
v.
Joint Development Commissioner, Punjab & Ors.
{Decided on 08/11/2013}

Headnote:Question of title--Director Consolidation cannot decide whether land vests or does not vests in a Gram Panchayat.

       Question of title--The only authority empowered to answer such question is the collector exercising power u/s of 1961 Act.

       Question of title--Held; That "Jumla Mushtarka Malkan" land is not included in "Shamilat Deh" and, therefore, provisions of the 1961 Act including provisions of Section 11 that empower the Collector to decide a dispute regarding title shall not apply if the land is "Jumla Mushtarka Malkan".

       Question of title--Order passed by a Director Consolidation, deciding question of title, for which he had no jurisdiction, but was affirmed by High Court and Supreme Court would not operate as resjudicata in a subsequent petition filed order Section 11 of the VCL Act.

       (A) East Punjab Holdings (Consolidation and Prevention of Fragmentation Act, 1948, S.42--Question of title--Held;

       (i) Director Consolidation cannot decide whether land vests or does not vests in a Gram Panchayat.

       (ii) The only authority empowered to answer such question is the collector exercising power u/s of 1961 Act.

       (iii) Any order passed under Section 42 of the Consolidation Act deciding vesting of land/Question of title would be illegal and nonest for want of jurisdiction.

       (iv) Any such order at the best be construed to be an order passed by a tribunal of limited jurisdiction, to correct errors in scheme or orders passed during consolidation and nothing more.

       (v) Order passed by a Director Consolidation, deciding question of title, for which he had no jurisdiction, but was affirmed by High Court and Supreme Court would not operate as resjudicata in a subsequent petition filed order Section 11 of the VCL Act--Punjab Village Common Lands (Regulation) Act, 1961, S.11.

       (B) Punjab Village Common Lands (Regulation) Act, 1961, S.11--Question of title--Held; That "Jumla Mushtarka Malkan" land is not included in "Shamilat Deh" and, therefore, provisions of the 1961 Act including provisions of Section 11 that empower the Collector to decide a dispute regarding title shall not apply if the land is "Jumla Mushtarka Malkan". (Para 58)

       (C) Punjab Village Common Lands (Regulation) Act, 1961, S.2--"Shamilat Deh" and "Jumla Mushtarka Malkan" are two distinct varieties of common land, the former was in existence before consolidation whereas the latter was created during consolidation--East Punjab Holdings (Consolidation and Prevention of Fragmentation Act, 1948, S.42.

       The Consolidation Act was enacted in 1948, to consolidate and prevent fragmentation of land holdings--The said enactment brought into existence, a new variety of common land, distinct and separate from "Shamilat Deh", called "Jumla Mushtarka Malkan wa Digar Haqdarana Arazi Hasab Rasad Raqba" (for short "Jumla Mushtarka Malkan"), to be created after applying a pro-rata cut on the holdings of proprietors--Section 2(b)(b) of the Consolidation Act, for the first time provided a statutory definition of "common purposes"--The Consolidation Act, amongst other matters provided for extension of village abadi, reservation of land for the village panchayat and other common purposes like village path, drains, village wells, ponds, tanks, schools, play grounds, dispensary, hospitals etc.--Sections 18 of the Consolidation Act placed a statutory obligation upon the Consolidation Officer to reserve land for common purposes, if common land in an estate was insufficient--Section 23-A of the Consolidation Act provides that as soon as a scheme comes into force, "the management and control" of all lands assigned or reserved for common purposes of the village shall vest in the State Government relating to common purposes specified in sub-clause (iv) of clause (bb) of Section 2 and in case of any other common purpose, in the panchayat of the village. (Para 20)

       (D) East Punjab Holdings (Consolidation and Prevention of Fragmentation Act, 1948, S.42--Resjudicata--Question of title--Held; Order passed by a Director Consolidation, deciding question of title, for which he had no jurisdiction, but was affirmed by High Court and Supreme Court would not operate as resjudicata in a subsequent petition filed order Section 11 of the VCL Act--Evidence Act, 1872, S.11.

       Where a tribunal/Court of limited jurisdiction, adjudicates upon a matter that does not fall to its jurisdictional competence, such an order, even if affirmed by dismissal of the writ petition or a special leave petition, shall not operate as resjudicata or prohibit the jurisdictional forum from deciding questions that fall to the latters jurisdictional competence--This apart, if an order is affirmed, by dismissal of a writ petition and the special leave petition but neither the order passed in writ jurisdiction nor in leave to appeal, assigns any reasons, such the order shall not be deemed to have merged in the order passed by the High Court or the Supreme Court, so as to prohibit the jurisdictional forum from entertaining a petition on a question of title and the said forum would not be prohibitted from deciding the matter on merits.

       We, therefore, answer the second and third questions, in the following terms:-

       (1) The State or its delegate, exercising power under Section 42 and authorities under the Consolidation Act are tribunals of limited jurisdiction.

       (2) Consolidation authorities have no power to decide disputed questions of title in respect of lands, or any right, title or interest therein.

       (3) The State or its delegate, may in the exercise of power under Section 42 of the Consolidation Act order correction of errors, in accordance with law;

       (4) While exercising powers under Section 42 of the Consolidation Act, if it is held that the land, in dispute, vests or does not vest in a Gram Panchayat such an order would be construed to be an opinion recorded by a Tribunal of limited jurisdiction and an order so passed would not operate as resjudictaa to be binding upon parties or the Collector, exercising power under Section 11 of the 1961 Act, or the jurisdictional forum, constituted for deciding a question of title.

       (5) If a writ petition or special leave petition filed to challenge an order passed under Section 42 of the Consolidation Act is dismissed without assigning any reason, by use of the words "dismissed", "no merits, dismissed" or such like similar expressions, the order passed under Section 42 of the Consolidation Act shall not merge in the order passed by the High Court or the Hon'ble Supreme Court, so as to operate as resjudicata or prohibit the Gram Panchayat from approaching the jurisdictional forum, or.

       (6) If an order passed under Section 42 of the Consolidation Act has not been challenged in a writ petition or before the Hon'ble Supreme Court, such order shall be ignored, by the Collector exercising power under Section 11 of the 1961 Act, as Section 13-B clearly postulates that notwithstanding anything to the contrary in any law or any agreement, instruments, custom or usage or any decree or order of any court or other authority, the provisions of the 1961 Act shall prevail.

       (7) If, however, the order passed by the Director Consolidation has been affirmed, by the High Court or in a special leave petition or an appeal before the Hon'ble Supreme Court on merits, the order passed by the Director Consolidation shall be deemed to have merged in orders passed under Articles 226 and 136 of the Constitution of India and would, therefore, on the basis of the doctrine of rule estoppel, merger and the order of precedence among courts, prohibit the Gram Panchayat from filing a petition under Section 11 of the 1961 Act, the Collector from entertaining such a petition, or where the land is "Jumla Mushtarka Malkan" the Civil Court. (Para 94)

       (E) East Punjab Holdings (Consolidation and Prevention of Fragmentation Act, 1948, S.42--Question of title--Jurisdiction--A finding on a question of title, recorded by a tribunal of limited jurisdiction (Director Consolidation) is not binding on a tribunal or Court (Collector) specifically constituted to decide a question of title. (Para 46)

       Consolidation authorities are not competent to determine questions of title including whether "Shamilat Deh" vests or does not vest in a Gram Panchayat--The only power available to Consolidation authorities is to calculate the value of land delimit the land, and allot land in a consolidated parcel be it to the Gram Panchayat as the "Shamilat Khewat" or to owners of private land.

       (F) East Punjab Holdings (Consolidation and Prevention of Fragmentation Act, 1948, S.42--Question of title--Jurisdiction--If a party raises a question of title, the Director Consolidation should generally desist from passing an order touching upon a question of title and should direct parties to file petition u/s 11 of 1961 Act--However, if any order is passed touching question of title to correct errors of consolidation; it cannot be held to be a final or a binding opinion on a question of title.

       (G) East Punjab Holdings (Consolidation and Prevention of Fragmentation Act, 1948, S.42--Question of title--Jurisdiction--Held; That:- (a) Consolidation authorities, are tribunals of limited jurisdiction; (b) Consolidation authorities exercise powers of revenue officers, under the 1887 Act, a power to record and update fiscal entries and prepare record of rights; (c) but are not empowered to decide a question of title or vest/divest a party of its title; (d) the only authority empowered to determine a question, whether the land is "Shamilat Deh", between a Gram Panchayat and a private individual was the Civil Court but after enactment of Sections 11, 13 and 13-A of the 1961 Act, the Collector and; (e) if the land is "Jumla Mushtarka Malkan", an appropriate forum. (Para 50)

       (H) Punjab Village Common Lands (Regulation) Act, 1961, S.11--Question of title--Land described as "Jumla Mustarkan Malkan"--Held; S.11 provides exercise of power by Collector to determine dispute relating to title in "Shamilat Deh" and not "Jumla Mushtarka Malkan"--Further Held; Till such time state does not provide an appropriate forum, Civil Court would have jurisdiction to decide dispute regarding title in "Jumla Mushtarkan Malkan".

       (I) Evidence Act, 1872, S.11--Resjudicata--Doctrine of Resjudicata applies only if the former order was passed by a Court of Competent Jurisdiction.

       (J) Doctrine of Merger--Applicability of--Held; That the doctrine of merger would only apply where the writ petitions and the special leave petitions have been dismissed by assigning reasons for dismissal of the writ petition and the special leave petition. (Para 85)

       (K) East Punjab Holdings (Consolidation and Prevention of Fragmentation Act, 1948, S.42--Question of Title--Order passed by Director Consolidation obtained by Fraud--Plea of fraud can be raised even the order has been affirmed by the High Court and Supreme Court--Held; To affirm a fraudulent order on the anvil of doctrine of merger would be a traversity of justice--The dismissal of a writ petition or a special leave petition would not prohibit the filing of a petition under Section 11 of the 1961 Act, where the land is allegedly "Shamilat Deh" and before a Civil Court where the land is "Jumla Mushtarka Malkan" to prove the plea of fraud or collusion.

       The clear and unambiguous enunciation of law, on the question of fraud and collusion leaves no doubt that an order obtained by fraud cannot be said to have merged into an order passed by the High Court or the Supreme Court and an aggrieved party may validly raise a plea of fraud and collusion before the Collector, exercising power under Section 11 of the Act--If, however, the aggrieved party fails to prove its plea of fraud or collusion, such an order shall be deemed to have merged in orders passed by the High Court or the Hon'ble Supreme Court. (Para 102)

       (L) Doctrine of Merger--Applicability of--The doctrine of merger is not absolute and admits to a large number of exceptions, some of which we have already noticed--A significant exception is where the order is alleged to have been obtained by collusion and fraud--Fraud and collusion are a species of conduct so abhorent to the administration of justice that they vitiate all acts performed or orders passed and no person much less a successful litigant may press into service the doctrine of merger or resjudicata in defence.

       (M) Words & Phrases--

       (i) "Sharat Wazib-ul-arz"--A document that records the bye laws of a revenue estate.

       (ii) "Charagah" or "Charand"--Large tracts of land left for pastures.