Punjab-Haryana High Court
Ganga Ram Deceased Through Lrs vs State Of Punjab And Others on 20 April, 2024
Bench: Sureshwar Thakur, Lalit Batra
Neutral Citation No:=2024:PHHC:053259-DB
CWP-8706-2024 2024:PHHC:053259-DB
-1-
2024:PHHC:053259-DB
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
104 CWP-8706-2024
Date of Decision: 20.04.2024
Ganga Ram (deceased) through LR
....Petitioner
Versus
State of Punjab and others
....Respondents
CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
HON'BLE MR. JUSTICE LALIT BATRA
----
Present: Mr. Ashish Pal Kaushal, Advocate
for the petitioner.
Mr. Eklavya Darshi, Deputy Advocate General, Punjab.
****
Sureshwar Thakur, J. (Oral)
1. Through the instant writ petition, the present petitioner seeks the
making of mandamus upon the appellate authority concerned, seized with an
application Annexure P/8, wherebys the present petitioner asked for relief for
staying the operation of Annexure P/6, thus during the pendency of the
statutory appeal Annexure P/7.
2. Before proceedings to delve into or adjudicate upon the merits of
the writ claim, it is deemed appropriate to refer to the facts relevant for a
decision being made on the writ claim.
3. The predecessor in interest of the present petitioner, one Ganga
Ram, instituted a claim under Section 11 of the Punjab Village Common
Lands (Regulation) Act, 1961, (hereinafter in short to be referred as 'the Act
of 1961'), before the Collector, Rupnagar, wherebys he asked for the
1 of 7
Neutral Citation No:=2024:PHHC:053259-DB
CWP-8706-2024 2024:PHHC:053259-DB
assigning of a declaratory decree in respect of the suit lands, as become
described in the headnote of Annexure P/6. The said declaratory claim was
asked to be made against the impleaded therein respondent i.e. the Gram
Panchayat of Village Palata, Sub Tehsil Nurpur Bedi, District Ropar, through
its Sarpanch. The Collector, through making a decision (Annexure P/6) upon
the said suit, proceeded to in respect of 49 Kanals 14 Marlas comprised in
Khewat No.77, Khatauni No.100, Khasra Nos.31, 363, 366, 367, 368,
399/19/1, 9, 12/2, 19/1, 400/19, 20, 404/3 and 416/15/1, thus declare the
predecessor in interest of the present petitioner to be the lawful owner of the
said Khasra numbers. However, it appears that the said assigning of the
declaratory relief, was only in respect of 49 Kanals and 14 Marlas of land
comprised in Khewat and Khasra numbers (supra), whereas, the declaratory
claim, as become laid before the Collector concerned, by the predecessor in
interest of the present petitioner, rather was in respect of land measuring 58-12
Kanals. Therefore, but obviously the Collector concerned, in his making
Annexure P/6, assigned the declaratory decree only in respect of part of the
suit claim and did not assign the espoused declaratory decree rather to the
fullest extent, qua the predecessor in interest of the present petitioner.
4. It is fairly stated today before this Court by the learned counsel
for the petitioner, that Annexure P/6 remained unchallenged either at the
instance of the Gram Panchayat, arrayed as respondent in Annexure P/6, nor
Annexure P/6 became challenged at the instance of the predecessor in interest
of the present petitioner, namely Ganga Ram, who was prosecuting the said
claim as plaintiff/petitioner. Therefore, Annexure P/6, but acquires
conclusivity.
2 of 7
Neutral Citation No:=2024:PHHC:053259-DB
CWP-8706-2024 2024:PHHC:053259-DB
5. If so, the consequence of assigning conclusivity to Annexure P/6,
is that, the predecessor in interest of the present petitioner namely one Ganga
Ram abandoned his claim in respect of lands beyond 49 Kanals 14 Marlas,
comprised in Khewat and Khasra numbers (supra). It appears that the above
abandonment of claim by the predecessor in interest of the present petitioner
in respect of lands beyond 49 Kanals 14 Marlas, as comprised in Khewat and
Khasra numbers (supra), led one Gurdial Singh to, on 23.04.2021 institute a
petition under Section 7 of the Act of 1961, seeking therebys the eviction of
the successors in interest of one Ganga Ram from that part of the suit land, in
respect whereof rather a declining decree, thus became rendered.
6. Through a decision made on the said application, thus on
03.11.2023 Annexure P/11, the Collector concerned, after in the relevant
paragraph thereof, paragraph whereof becomes extracted hereinafter, though
inferred, that the petitioner in the said eviction petition namely Gurdial Singh,
is disempowered to well constitute a petition under Section 7 of the Act of
1961, thus on the ground, that he is neither authorized by the Gram Panchayat,
nor is an officer to file the said petition, and, resultantly, the Collector
concerned, appears to thereby conclude that the said petition was not as such
maintainable.
"Respondent Hari Krishan etc. have filed an application dated
06.10.2023 through their counsel, in which they requested that
as per order dated 14.03.2023 passed in CWP NO.25676 of 2019
titled as "Bhupinder Singh Versus State of Punjab" passed by
Hon'ble Punjab and Haryana High Court, (2023 (3) LA Herald
(P&H), it has mentioned that petitioner Gurdial Singh has no
right to file the present petition because he has no right to file
3 of 7
Neutral Citation No:=2024:PHHC:053259-DB
CWP-8706-2024 2024:PHHC:053259-DB
the present petition under Section Section 7 of Punjab Village
Common Land (Regulation) Act, 1961 and the petitioner is also
not authorized by the Gram Panchayat or any officer to file the
present petition, therefore the present petition is not
maintainable, so this petition be dismissed."
7. Be that as it may, though through the operative part of Annexure
P/11, operative part whereof becomes extracted hereinafter, the Collector
concerned, rather proceeded to make a direction, upon, the Block
Development and Panchayat Officer, Noorpur Bedi, to appoint an officer or to
direct the Sarpanch of the Gram Panchayat concerned, to institute an
application seeking therebys the cancellation of mutation No.479 dated
28.06.1988, whereby right, title and interest became conferred, upon, the
predecessor in interest of the present petitioner, in respect of the entire lands,
which find mention in the headnote of Annexure P/6.
"As per the revenue record presented by the petitioner and
application filed by the respondents, I am agreed with their pleas.
Petitioner Gurdial Singh is not entitled to file the present petition,
hence this petition is dismissed. As per order dated 30.05.1998
passed by District Development and Panchayat Officer-cum-
Collector Rupnagar, *** but on the basis of order dated
21.09.1987 of Collector-cum-District Development and
Panchayat Officer Rupnagar, the respondents have got
sanctioned the mutation in their favour. Therefore the Block
Development and Panachayat Officer, Noorpur Bedi is hereby
directed that while appointing any officer or through Gram
Panchayat, the case be filed in the competent court of
cancellation of mutation No.479 dated 28.06.1988."
It appears that the said directions were made only on the premise
that ex facie the predecessor in interest of the present petitioner namely one
4 of 7
Neutral Citation No:=2024:PHHC:053259-DB
CWP-8706-2024 2024:PHHC:053259-DB
Ganga Ram rather had abandoned his right to make a challenge to Annexure
P/6, whereby only in respect of 49 Kanals 14 Marlas of lands, a declaratory
decree was rendered in his favour, but no declaratory decree was rendered in
respect of lands in excess of the said area measuring beyond 49 Kanals 14
Marlas. Therefore, in respect of such excess land or lands measuring 49
Kanals 14 Marlas, thus, eviction petition (supra) became instituted.
8. Annexure P/11 has now been challenged at the instance of the
successor in interest of one Ganga Ram, through theirs raising a statutory
appeal thereagainst, before the appellate authority concerned. To the said
statutory appeal Annexure P/7 is assigned. The said statutory appeal appears
to be time barred, inasmuch as, it has been filed on 24.01.2024, whereas, it
was required to be filed as such on 04.12.2023. Therefore, within the said
statutory appeal, an application has been filed under Section 5 of the
Limitation Act by the aggrieved from Annexure P/11, wherebys they seek an
order from the appellate authority, thus to condone the happening of the above
minimal delay, in thus theirs filing a statutory appeal against Annexure P/11.
9. Prima facie even qua the above minimal delay, the appellate
authority concerned, may rather without striking issues and also without
asking for the litigant concerned, to adduce the apposite evidence on the said
issue, thus proceed to condone the said minimal period of delay.
10. Having set forth the background of the case, especially the trite
prima facie factum qua despite rather, the petition under Section 7 of the Act
of 1961, being ill constituted, thus on the score qua prima facie it was ill made
by one Gurdial Singh, whereas, the said application was to be well laid only
by the BDPO concerned, or by the Sarpanch of the Gram Panchayat
5 of 7
Neutral Citation No:=2024:PHHC:053259-DB
CWP-8706-2024 2024:PHHC:053259-DB
concerned, or by any other officer authorized to do so. Resultantly, though
prima facie it appears that the conclusion as made in Annexure P/11, that one
Gurdial Singh rather could not well constitute a petition under Section 7 of the
Act of 1961, thus was legally, but ultimately in Annexure P/11, the Collector
concerned, has yet proceeded to direct the BDPO concerned, to either appoint
the Sarpanch of the Gram Panchayat concerned, or some other officer
concerned, to move an application for cancellation of the relevant mutation,
thus on the ground, that the unimpugned Annexure P/6 has assigned right, title
qua the predecessor in interest of the present petitioner, only in respect of 49
Kanals of lands, whereas, the suit claim, as declared in Annexure P/6, was in
respect of land measuring 58 Kanals 12 Marlas. Therefore, in respect of land
in excess of 49 Kanals, it appears that through Annexure P/11, the Collector
concerned, was led to make the order (supra).
11. Without commenting upon the fact whether the said part of
Annexure P/11, is made beyond the jurisdictional competence of the Collector
concerned, especially when the said argument is permissible to become raised
before the appellate authority concerned, this Court deems it fit and
appropriate to make a mandamus, upon, the appellate authority concerned, to
not only decide the jurisdictional capacity of the Collector concerned, thus in
his making the said direction, but also this Court is led to make a mandamus,
upon, the appellate authority concerned, to after condoning the above minimal
delay of 7 days, which has occurred in the institution of the statutory appeal
directed against Annexure P/11, thus to make a lawful decision on the
application seeking stay of operation of Annexure P/11, in so far as, therebys
the said direction has been made upon the BDPO concerned, or the Sarpanch
6 of 7
Neutral Citation No:=2024:PHHC:053259-DB
CWP-8706-2024 2024:PHHC:053259-DB
of the Gram Panchayat concerned, or any other officer to cancel the relevant
mutation. The statutory appeal is directed to be decided within a period of three
months from today, but after hearing all the affected persons concerned. It is left
open to the appellate authority to also objectively consider whether after its
making of objective decision about the prima facie juridictional incapacity of the
Collector in making the above said direction in Annexure P/11, to subsequently
make such orders, as deemed fit in accordance with law, whereby the Gram
Panchayat becomes enjoined to institute the apposite execution petition, besides
the judgment debtors i.e. the successor in interest of one Ganga Ram, who is the
present petitioner may become permitted, thus to raise all objections relating to
the bar of limitation becoming attracted against the institution of the execution
petition besides qua its successful execution.
12. Till the decision on the said application is made within a fortnight
from today, thereupto the parties are directed to maintain status quo as of today in
respect of the disputed property. Moreover, the statutory appeal be also decided
within three months from today, but after hearing all the affected persons
concerned.
13. Disposed of accordingly along with all pending applications, if any.
(SURESHWAR THAKUR)
JUDGE
20.04.2024 (LALIT BATRA)
Varinder Prashad JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
7 of 7
