NAURATA Vs. STATE OF PUNJAB

JUDGEMENT

(1.) Petitioner and respondent No. 3 are members of the Scheduled Caste Agricultural Land Owning Co-operative Society, Kami Kalan, Tehsil Rajpura, District Patiala (for short the Society) which is registered under the Punjab Co-operative Societies Act, 1961 (hereinafter called the Act). The primary object of the Society is to advance economic interest of its members by encouraging them to pool their land so as to form blocks for joint cultivation and allied purposes, to purchase or take the land on lease in the name of the Society for cultivation and to take various steps to increase agricultural production. A total of 724 Bighas of land in village Kami Kalan was pooled by the thirty original members of the Society and the same was distributed amongst them for cultivation. Respondent No. 3 claims that six killas of land (for short the land in dispute) was in his cultivating possession on which he had built a house and that the petitioner played a fraud on him and demolished the house and took forcible possession of the land. He raised a dispute under Sec. 55/56 of the Act read with Rule 51 of the Punjab Co-operative Societies Rules, 1963 and filed a petition before the Assistant Registrar, Co-operative Societies, Punjab who was appointed the Arbitrator. Notice of the petition was issued to the petitioner and the Society. The petitioner controverted the allegations made by respondent No. 3 in his petition and claimed that land measuring 16 Bighas 8 Biswas including the land in dispute was in his possession and that respondent No. 3 wanted to occupy the same. It was further pleaded that the petitioner had filed a civil suit for injunction to restrain respondent No. 3 from interfering with his possession and the same was decreed by Sub-Judge Ist Class, Rajpura on 31-7-1986. it is also pleaded that an appeal filed against the order of the trial Court was dismissed by the District Judge and that order was affirmed by this Court in Regular Second Appeal on 5-2-1988. it was also averred by the petitioner that after the decree of the civil Court respondent No. 3 and one Gurcharan Singh illegally occupied the land in dispute which was contrary to the judgment of the civil Court and that on an application filed by him the possession was restored to him by the Court of Sub-Judge Ist Class and that he is in possession of the land in dispute since 4-2-1994. The Arbitrator examined the record of the society which was produced before him and after going through the written statement filed by the petitioner came to the conclusion that the land in dispute was being cultivated by respondent No. 3 and that he was the only rightful holder of the land. The petition under Sec. 55 of the Act was accordingly allowed and respondent No. 3 was held to be the owner of the land in dispute which, according to the Arbitrator, had been allotted to him by the Society. It is against this award of the Arbitrator that the present petition has been filed under Article 226 of the Constitution.

(2.) The argument of the learned counsel for the petitioner is that the dispute between the parties before the Arbitrator was not covered by the provisions of Sec. 55 of the Act and that it was a dispute of a civil nature of which a civil Court alone could take cognizance. It was further argued that the award of the Arbitrator is without jurisdiction and the same deserves to be quashed. Respondents, on the other hand, raised a preliminary objection that against the impugned award of the Arbitrator an appeal is competent under the Act which remedy the petitioner has not availed of and, therefore, the writ petition deserves to be dismissed. It was further contended on behalf of the respondent No. 3 that parties to the dispute before the Arbitrator were members of the Society and, therefore, the dispute was squarely covered by the provisions of Sec. 55 of the Act.

(3.) We have heard counsel for the parties at length. Before dealing with the contentions advanced by the parties, it is necessary to dispose of the preliminary objection raised by the respondents. It is true that the impugned award given by the Arbitrator is appealable under Sec. 68 clause (h) of the Act and that the petitioner has not availed of that remedy. In the normal course, we would have relegated the petitioner to pursue the alternative remedy of appeal but since we are of the view that the award of the Arbitrator is wholly without jurisdiction and this Court did entertain the petition by issuing notice of motion to the respondents and that the petition having remained pending for almost a year and half, it will not be fair and proper to dismiss the petition at this stage and direct the petitioner to pursue the remedy of appeal which by now has become barred by time. Moreover, existence of an alternative remedy is not an absolute bar to the exercise of jurisdiction by this Court under Article 226 of the Constitution and it is only a self-imposed restriction to be exercised judiciously on the facts and circumstances of each case. We, therefore, reject the preliminary objection raised by the respondents.