Civil Writ Petition No.5499 of 2009 :1 :
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
DATE OF DECISION: APRIL 15, 2009
Ram Sawroop
.....Petitioner
VERSUS
Commissioner, Gurgaon Division, Gurgaon and others
....Respondents
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
PRESENT: Mr.Jai Vir Yadav, Advocate,
for the petitioner.
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RANJIT SINGH, J.
Respondent No.4, resident of village Dhani Chittra filed
an application under Section 7 of Punjab Village Common lands
(Regulation) Act, 1961 (for short “the Act”) seeking ejectment of the
petitioner from the land in dispute on the ground that it is a Rasta.
The petitioner claims to have constructed a house since the time of
consolidation on the land in dispute. To this effect, he filed reply in
response to said application. Assistant Collector Ist Grade rejected
the application on 27.11.1991 by holding that respondent No.4 could
Civil Writ Petition No.5499 of 2009 :2 :
not prove the land to be a Rasta. Respondent No.4 did not file any
appeal against the said order. He, however, filed another application
under Section 7 of the Act on 9.3.1994. This application was rejected
on 6.6.2005 on the ground that the same is barred by principle of res
judicata. This time, respondent No.4 filed an appeal against this
order before the Collector, who remanded the case back to Assistant
Collector on 14.9.2005 with direction to decide the same afresh after
hearing the parties. Assistant Collector then held the petitioner to be
in unauthorisd occupation of the land. This order was passed after
obtaining a report from Local Commissioner. Aggrieved against this
order dated 28.2.2006, the petitioner filed an appeal before Collector
which was dismissed on 26.7.2006. Revision was also dismissed by
the Commissioner on 8.10.2008. These orders are now under
challenge in the present writ petition.
The counsel for the petitioner contends that there is no
material on the basis of which the finding has been returned and the
ejectment of the petitioner ordered. He would further contend that the
second application filed by respondent No.4 was barred by principle
of res judicata. In support, he has placed reliance on Lal Chand Vs.
State of Haryana and others, 1983 PLJ 229 and Shri Naurang
Singh (died) now through His L.Rs. Vs. The State of Punjab and
others, 1997(1) PLJ 61.
No doubt, the earlier application filed by respondent No.4
was rejected, which was not taken in appeal or revision etc., but the
second application was filed, which was again rejected. The
Collector, however, remanded the case back to Assistant Collector
Civil Writ Petition No.5499 of 2009 :3 :
with direction to get the demarcation done in respect of land in
dispute and to decide the same on the basis of evidence. During the
demarcation it was found that there was no pucca possession of the
petitioner and only wall had been raised. Even in an earlier order
passed by the Collector, it had transpired that the land in dispute was
Rasta share-am and property of the Gram Panchayat. The Collector
while declining the appeal has clearly found that at the time of
demarcation, the person present there had admitted the appellant to
be in illegal possession of the Rasta in dispute. Finding this
demarcation report on the basis of spot inspection to be sufficient,
the ejectment of the petitioner was ordered and up-held in appeal.
Since the spot inspection has been made the basis of the
finding, the submission made by the counsel for the petitioner that
finding has been returned without any material cannot be accepted.
The proceedings under Section 7 of the Act are summary in nature.
While deciding this application, no issues are framed to return a
finding. In the cases of Lal Chand and Naurang Singh (supra), a
view is taken that Gram Panchayat would be debarred from re-
agitating same cause of action on principle of equitable estoppel, but
in Rama Sarup and others Vs. State of Haryana and others, 2006
(4) RCR (Civil) 350, it is held that doctrine of res judicata is not
applicable to summary proceedings unless statute expressly applied
to such orders. It is observed that dismissal of earlier petition under
Section 7 does not bar subsequent petitions. While taking this view,
reliance is placed on the case of Inder Singh and another Vs. The
Financial Commissioner, Punjab and others, 1997 (1) PLJ 52,
Civil Writ Petition No.5499 of 2009 :4 :
where it is held that doctrine of res judicata is not applicable to
summary proceedings. It is further observed that the authorities
under the Pepsu Tenancy and Agriculture Lands Act are not civil
courts nor petition or a plaint and even no issues are framed nor tried
as a civil suit. It is accordingly held that the order passed by the
authorities without any elaborate trial like in a suit but in a summary
manner, principles of res judicata are not applicable. In view of this
authoritative pronouncement of the Hon’ble Supreme Court, it would
not be possible to say that the second application filed under Section
7 of the Act would be barred by principle of res judicata.
The writ petition is accordingly dismissed.
April 15, 2009 ( RANJIT SINGH ) ramesh JUDGE