CWP No. 1146 of 1994 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 1146 of 1994 Date of Decision: 04.07.2011 Subhash Chand & Anr. ...Petitioners Vs. Assistant Collector Ist Grade & Ors. ...Respondents CORAM Hon'ble Mr. Justice A.N.Jindal, Present: Mr.Chandra Singh, Advocate, for the petitioners. Mr.Kartar Singh, DAG, Haryana, Mr.Jasbir Singh, Advocate, for private respondents. -- A.N.Jindal, J . (Oral) The petitioners have invoked the jurisdiction of this court under Articles 226 of the Constitution of India, for quashing of orders dated 10.11.1989 (Annexure P.1) and dated 30.10.1992 (Annexure P.3) passed by the Assistant Collector First Grade, Mahendergarh and Commissioner, Gurgaon Division, respectively, vide which 3 marlas of land was ordered to be vacated by them. The petitioners are the real brothers of Santosh Kumar, who was engaged in defence services. It is submitted that they are CWP No. 1146 of 1994 2 the right-holders in the revenue estate of village Partal and their agricultural land falls along with Path No.516 situated in the revenue estate of village Partal. Their father namely Inder Singh was illiterate. At the time of consolidation in the year 1962 their father Inder Singh was allotted some lesser area of land in the land bearing Khasra Nos.3/17, 24, 38/4, 3, 8/1 and 3, shown in Annexure P.1. However, the petitioners and Santosh Kumar had constructed their houses 30 years back. Some area forming part of Path No.516 was also included in the houses viz. 3 marlas as shown in the impugned order dated 10.11.1989 (Annexure P.1). It is further pleaded that the order vacating 3 marlas of land as aforesaid is not valid inasmuch as Santosh Kumar was not duly served. The Gram Panchayat had sought ejectment of the said area of path, whereupon vide order dated 10.11.1989 (Annexure P.1), the petitioners and respondent No.5 were ordered to vacate 3 marlas of land of the path and also to pay Rs.3,000/- per hectare as damages Actually, the petitioners never cultivated the area of Path No.516, actually the petitioners were the allottees of 1 kanal 5 marlas of land during the consolidation, therefore, they moved an application before the learned Additional Director (Consolidation) Haryana, Rohtak, who after hearing the Gram Panchayat and other right holders of the village Partal determined the area allotted to the petitioners holding less than due and in fact held that 1 kanal 5 marlas of land was lesser allotted to the petitioners and thus, made up such deficiency by withdrawing the equivalent area 1 kanal 5 CWP No. 1146 of 1994 3 marlas from the area of Path No.516 which is owned by Gram Panchayat, Partal and allotted the same to the petitioners as a result of which the petitioners became the owners of the area of path hence the petitioners are not guilty of any encroachment. While challenging the order dated 10.11.1989, it was submitted that the same is based on no evidence. Similarly, they have also challenged the order dated 25.07.1992 on the same grounds. Respondent No.3 contested the petition alleging that the orders Annexures P.1 and P.2, were quite valid and recorded a finding of fact that the petitioners have illegally encroached upon 3 marlas of land out of Path No.516 which is in the nature of passage and they have illegally raised the construction over the same. The Gram Panchayat has denied that lesser land was allotted to the petitioners. Due to illegal construction, the area of passage has been reduced to only 3' which is a clear-cut obstruction in ingress and outgress of the tractors and camel carts from the village to the fields and vice versa. Since the petitioners and Santosh Kumar are brothers, therefore, they were well within the knowledge of the litigation and they duly contested the application and the Assistant Collector First Grade passed the ejectment order after considering the report of the Local Commissioner who had measured the path and gave a report that the petitioners had illegally encroached upon 3 marlas of land of the passage comprised of khasra No.516 and total area encroached upon is 4 kanals 9 marlas. CWP No. 1146 of 1994 4 Arguments heard. Record perused. As regards the orders Annexures P.1 and P.3, both appear to have been passed after hearing both the parties. Santosh Kumar who is said to be a co-sharer with the petitioners has not assailed the orders (stated to have been passed in his absence). In any case, since the interests of all the brothers were common in nature and the petitioners were duly served in the case, as such the service of the two brothers would be treated as service of the third brother also and he would also be presumed to have knowledge of the litigation pending against them. As regards the encroachment, Assistant Collector First Grade has passed his order on the basis of reliable evidence including spot inspection which was measured twice and every time the respondents were found to be in illegal possession. The petitioners have also admitted that they had included 3 marlas of land in excess from khasra No.516. However, they have submitted that they have built houses over the said encroached area since long but it is specifically mentioned in the order dated 10.11.1989 that on spot inspection it was found that houses are not older than 8 or 10 years. Thus, such illegal encroachment was bound to be removed. Resultantly, finding no merit in the writ petition, the same is dismissed. No costs. (A.N.Jindal) 04.07.2011 Judge rp