IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 4450 of 2008 Date of Decision: November 28, 2011 Naresh and another. …Petitioners Versus The Collector, Sonepat and others. …Respondents CORAM: HON’BLE MR. JUSTICE SATISH KUMAR MITTAL, HON’BLE MR. JUSTICE PARAMJEET SINGH. Present: Mr. Arun Singal, Advocate, for the petitioners. Mr. Ajay Kumar Gupta, Addl. A.G., Haryana, for respondent Nos. 1 and 2. Mr. O.P. Goyal, Sr. Advocate with Mr. H.S. Gharoo, Advocate, for respondent Nos. 3 to 5. None for respondent Nos. 6 and 7. Paramjeet Singh, J. Present writ petition has been filed by the petitioners for quashing of order dated 31.05.2007 (Annexure P/6) passed by the Assistant Collector Ist Grade, Sonepat and order dated 10.01.2008 (Annexure P/8) passed by the Collector, Sonepat, whereby application filed by the petitioners under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961, as applicable to the Haryana, (hereinafter referred to as the Act) has been dismissed. CWP No.4450 of 2008 The brief facts of the case are that the petitioners filed application under Section 7 of the Act for eviction of the private respondents from the passage bearing Khasra No. 175 measuring 0 kanal 8 marlas situated in the area of Village Rathdhana, Tehsil and District Sonepat. The said khara number is a rasta sare-aam (thoroughfare). The claim of the petitioners is that this passage was left at the time of consolidation and is so recorded in the jamabandi for the year 2001-02 (Annexure P/1) and is clearly visible in the Aks Latha (Annexure P/2). The petitioners are owners in possession of Khasra No. 171/5 and the passage goes to their plot and the private respondents are owners of 177/13, 14 and 15 and their plots are also situated on the passage bearing Khasra No. 175. The private respondents have merged the passage in their plots and had left the connecting passage along 177/13. As such, they have virtually closed the passage. In this regard, demarcation was done on 14.11.2004 (Annexure P/3) whereby it has been found that the private respondents are in illegal possession of the passage bearing Khasra No. 175. Learned counsel for respondent Nos. 3 to 5, who are the main contesting respondents has stated that the Gram Panchayat, Rathdhana, had passed resolution many times that plot No. 175 on the South of plot No. 177/15 and 177/14 was not a street but was a Khal of Irrigation from Well No. 174. Plot No. 175 was being used to irrigate the agricultural fields of the owners. They have constructed houses over there for more than 25 years. The case of the private respondents is that the public street exists along the North side of plot No. 177/15 and 177/14 and on the Western side of Plot No. 177/14, it enters into the 2 CWP No.4450 of 2008 village. Therefore, the petitioners have no grievance. The villagers have no problem for using that street. The Panchayat had passed the resolutions dated 01.08.2003 and 13.03.2006 stating that they have no objection if the rasta which is running at the spot i.e. along side of Khasra No. 177/14 and 15 is maintained. Respondent No.7 had filed a separate written statement and has denied the averments in the petition, rather, has stated that Khasra No. 175 goes to the Well No.174. There is no street in existence at Khasra No. 175. We have heard the learned counsel for the parties and have perused the record. The reading of jamabandi for the year 2001-02 (Annexure P/1) makes it clear that the ownership of Khasra No. 175 vests in the Panchayat, its area is 8 Marlas and it is shown as “Sare-Aam”. Furthermore, Aks Sajra (Annexure P/2) prepared at the time of consolidation also makes it clear that a specific khasra number has been given to the passage i.e. Khasra No. 175. Along both the side of this passage, plot Nos. 177/12, 13, 14 and 15, on one side and on the other side, plot No. 177/4 and 5 has been carved out which clearly indicates that Khasra No. 175 is a passage and passage goes upto the main phirni of the village. Furthermore, the demarcation report dated 14.11.2004 (Annexure P/3) clearly shows that Khasra No. 175 has been encroached upon by the private respondent Nos. 3 to 6. The findings recorded by the Assistant Collector Ist Grade and the Collector are not based on the evidence on record, rather, are imaginary without looking into the revenue record and demarcation report. The authorities have decided case after seeing 3 CWP No.4450 of 2008 the site and concluded that gali (street) does not exist there. This case of the petitioners is that the private respondents have merged passage in their plots. For non-reading of the documentary evidence on record i.e. jamabandi, Aks Sajra, prejudice has been caused to the petitioners, which has resulted into manifest in justice. Thus, impugned orders are perverse. We are of the view that the finding recorded by the Assistant Collector Ist Grade and the Collector vide impugned orders are not based on evidence on record are not sustainable in the eyes of law, are hereby set aside. Furthermore, it would be appropriate to mention here that under Rule 5 of the Punjab Village Common Lands (Regulation) Rules, 1964, (as applicable to the Haryana), exchange of land can be made only if the Panchayat is of the opinion that it is necessary to do so for the benefit of inhabitants of the village. It can only be with the prior approval of the State Government. There is no specific provision that common purposes land like passage can be exchanged. Shamlat deh land can be exchanged with the land of equivalent value, which is to be determined by the Deputy Commissioner. No exchange of public passage is permissible specifically “rasta” earmarked at the time of consolidation. Thus, the contention of the learned counsel for the private respondents that they have exchanged the land is also without any merit. In view of the above discussions, we remand the case to the Assistant Collector Ist Grade to decide the case fresh in the light of the documentary evidence on record, as well as, the 4 CWP No.4450 of 2008 provisions of the Act and the Rules. The parties are directed to appear before the Assistant Collector First Grade, on 27.01.2012. (PARAMJEET SINGH) JUDGE NOVEMBER 28, 2011 (SATISH KUMAR MITTA) vkd JUDGE 5