In the High Court of Punjab and Haryana at Chandigarh ...... C.W.P. No.710 of 2008 ..... Date of decision:16.11.2009 Kulwant Singh and others .....Petitioners v. State of Punjab and others .....Respondents .... Present: Mr. R.K. Joshi, Advocate for the petitioners. Mr. H.S. Gill, Deputy Advocate General, Punjab for respondents No.1 to 4. Mr. Baljinder Singh, Advocate for respondents No.5 to 10. ...... S.S. Saron, J. The civil writ petition has been filed by the petitioners under Articles 226/227 of the Constitution of India seeking quashing of the order dated 27.9.2007 (Annexure-P.7) passed by the Chief Engineer, Department of PWD (B&R), Patiala (respondent No.2) and for directing the respondents not to exchange the land shown in blue colour in the site plan (Annexure- P.4). The State of Punjab vide notification dated 6.12.1974 issued under Section 4 of the Land Acquisition Act, 1894 (`Act’ – for short) acquired land for the construction of National Highway No.15. Award of compensation was passed in respect of the acquisition on 21.5.1981. Thereafter, mutation in favour of the State of Punjab was sanctioned in C.W.P. No.710 of 2008 [2] respect of the acquired land comprised in Khasra Nos.282, 283, 297, 298 and 303/2 situated in the revenue estate of Village Tarn Taran, Tehsil Tarn Taran, District Amritsar. After acquisition the government took possession of the acquired land in the year 1981. A metalled road, it is stated, has been constructed on the land that was acquired which is running at the spot since 1981. The remaining land of the petitioners out of Khasra No.303/2, which has not been acquired, abuts the road. The petitioners have built four shops on the same in the year 2002. Site plan (Annexure-P.4) showing the shops of the petitioners is annexed. The grievance of the petitioners is that respondents No.5 to 10 have unlawfully and illegally constructed a `Dhaba’ (restaurant) in front of the shops of the petitioners with a view to cause loss to them. The said `Dhaba’, it is stated, has been constructed on the land which belongs to the PWD (B&R) Department. The petitioners brought the fact of encroachment and illegal possession of respondents No.5 to 10 to the notice of the Government. They also moved the Punjab State Human Rights Commission, Chandigarh which has vide order dated 11.12.2003 (Annexure-P.5) directed the Government to remove the encroachments. Thereafter, proceedings under Sections 4 and 6 of the Punjab Public Premises and Land (Eviction and Recovery) Act, 1973 (`Punjab Public Premises Act’ – for short) were initiated by the Sub Divisional Engineer, Central Works Sub Division No.2, PWD (B&R), Amritsar for eviction of Gurbax Singh (respondent No.5) from the Government land measuring 42’ x 126’ out of land measuring 4 Kanals 1 Marla comprised in Khasra No.303//2 (4-1) `Gair Mumkin’ road situated at Village Muradpura, Tehsil Tarn Taran as per Jamabandi for the year 1995-96. The said land it is C.W.P. No.710 of 2008 [3] submitted is of the PWD (B&R) Department, Central Works Sub Division No.2, Amritsar. The payment of the land has already been made by the department to its owner through the Land Acquisition Collector, Jalandhar in terms of the award passed on 3.10.1984. The eviction of Gurbax Singh (respondent No.5) was sought on the ground that he had made unauthorized encroachment on the land. The Collector, Tarn Taran vide order dated 25.1.2005 (Annexure-P.6) allowed the petition seeking eviction of Gurbax Singh (respondent No.5) and ordered him to vacate the premises within 30 days of the publication of the order. The respondents No.5 to 10 thereafter filed an appeal before the Deputy Commissioner, exercising the powers of Commissioner, under the provisions of the Punjab Public Premises Act. The appeal is still pending. However, respondents No.5 to 10 in order to nullify the effect of the order dated 25.1.2005 (Annexure-P.6) passed by the Collector, Tarn Taran under the Punjab Public Premises Act regarding their eviction mooted a proposal that the alignment of the bye-pass Tarn Taran road be changed so that the order of eviction becomes redundant and is nullified. It is submitted that for the said purpose it had been proposed that the land where the encroachment had been made by respondents No.5 to 10 be exchanged with their land on the other side of the National Highway bearing Khasra No.302/1. The proposal initiated by the lower revenue staff it is submitted has been approved by the Government of Punjab vide order dated 20.9.2007 (Annexure-P.7) endorsed on 27.9.2007. The petitioners, therefore, by way of the present petition have assailed the said order dated 20.9.2007 (Annexure P7) endorsed on 27.9.2007. Notice of motion was issued and separate replies have been filed by respondents No.1 to 3 and by respondents No.5 to 10. C.W.P. No.710 of 2008 [4] In the reply filed by respondents No.1 to 3 by way of counter affidavit of Engineer Gurdev Singh, Executive Engineer, Central Works Division No.1, PWD (B&R) Amritsar it is stated that previously respondents No.5 to 10 along with some other persons had filed CWP No.9110 of 2007 titled Nirvail Singh and others v. State of Punjab and others, in this Court for directing the respondents to finalize the process of exchange of land with the Government land in respect of the unacquired land with the acquired land, due to change of alignment and further for restraining respondents No.4 to 6/ Punjab State (PWD Department) not to dispossess them (the petitioners in the said petition and now respondents No.5 to 10) in any manner from the acquired land left unused which was still in their possession. The said writ petition was allowed by this Court vide order dated 25.1.2008. It is submitted that the present petition has been filed for directing respondents No.1 to 4 not to exchange the land with the land of respondents No.5 to 10 and this has already been adjudicated by this Court, therefore, no cause of action has accrued to the petitioners to file the present petition on the same cause of action. It is accepted that the land of respondents No.5 to 10 and some other persons was acquired by the Department of PWD for construction of Tarn Taran bye-pass which is within the area of Village Muradpura and Pandori Gola. However, due to the existence of Gurdwara Sahib, the alignment Tarn Taran bye-pass had to be changed. Therefore, some land of respondents No.5 to 10 was used by the PWD Department for construction of Tarn Taran bye-pass and some part of the acquired land owned by the Provincial Government was never occupied or used by the PWD Department. Therefore, the said land was in C.W.P. No.710 of 2008 [5] possession of respondents No.5 to 10 and they had constructed a `Dhaba’ on the said land. It is stated that the said land/`Dhaba’ was possessed by respondents No.5 to 10 illegally. As such, proceedings under the Punjab Public Premises Act were initiated against them. Thereafter, the Government, Department of PWD decided to exchange the land of the respondents Nos.5 to 10 with the Government land subject to the condition that the land width 200 feet of road should not be changed, in any manner. On the basis of the said policy, the revenue authorities have also completed all the formalities for exchange of the said land and the same is in compliance with the order dated 25.1.2008 (Annexure R-5/2) passed by this Court in CWP No.9110 of 2007. Therefore, the petitioners it is submitted have no legal right to interfere in the present proceedings being taken for exchange of land and they have no concern also with it. In the reply filed by respondents No.5 to 10, it is submitted that the writ petition in the present form is not maintainable as disputed questions of facts are involved. In any case, the same has become infructuous because exchange of land has been effected on the basis of letter dated 20.9.2007 (Annexure P7) of the Punjab Government, Department of PWD (B&R) which has already accorded sanction for the transfer/exchange of land with that of respondents No.5 to 10 and other inhabitants of Village Muradpura and Pandori Gola regarding the alignment of the bye-pass road Tarn Taran subject to the condition that the ‘land width’ of the road should not be affected and further exchange and transfer of possession has been effected. The mutation of exchange i.e. Mutation No.9048 (Annexure R5/1) of Village Muradpura and Mutation No.6352 of Pandori Gola have also been sanctioned on 11.12.2007 by the revenue authorities. It is further C.W.P. No.710 of 2008 [6] stated that respondents No.5 to 10 along with other inhabitants of Village Muradpura and Pandori Gola filed CWP No.9110 of 2007 titled as Nirvail Singh and others v. State of Punjab and others in this Court for issuing directions to the official respondents to finalize the process of exchange of land in accordance with the letters/correspondence in respect of the proposed exchange of land after visiting the spot as per actual and factual position in respect of unacquired land bearing Khasra Nos.351/2 (5-13), 302/1/2 (1-14), 51//12/1/1/1 (0-13), 12/2/1/2(1-11), 12/3/1/2 (0-16), 19/2/1 (2-5), 51//9/2/1(2-1) owned by the petitioners, (now answering respondents) and the other inhabitants wrongly encroached by the respondent-department while constructing bye-pass Tarn Taran with the acquired land bearing Khasra Nos.51//8/2/1 Min(1-2), 352/2/1 (3-14), 358/2/1Min North (0-8), 303/2/2(1-11), 306/2/1 Min North(0-2), 51//18/2/1(3-14), 13/2/1/2 Min South (0-16), 8/2/1 Min North & 9/1/1 Min North (0-8), 51//13/2/1/2 Min North (1-15), 13/1/1/2 Min South (0-3) owned by the Provincial Government which was never occupied, possessed or used by the respondent department while constructing bye-pass Tarn Taran due to change of alignment. It is submitted that the same is still in possession of the petitioners (now answering respondents) and other inhabitants situated in the area of villages Muradpura and Pandori Gola, Tehsil and District Tarn Taran. It is further stated that due to change of alignment of Tarn Taran bye-pass on account of existing Gurdwara Sahib from the very beginning the land in Khasra No.302/1/2 (1-14) owned by the petitioners abutting the bye-pass Tarn Taran, which was not acquired had been utilized for the road purpose. Besides, the land bearing Khasra No.302/2/2 (1-11) owned by the C.W.P. No.710 of 2008 [7] Provincial Government, Department of PWD (B&R), Amritsar was never utilized for the purpose of construction of road. Therefore, to avoid any technicalities the exchange of land had been legally effected between the parties. The writ petition titled Nirvail Singh and others v. State of Punjab and others (C.W.P. No.9110 of 2007) was disposed of with a direction to the respondents of the said petition to clear the transfer/exchange of land in terms of the sanction granted on 20.9.2007 and the previous correspondence between various departments of the Revenue and the PWD Department. Therefore, it is submitted that the petitioners have no locus standi to file the present petition and they have no concern with letter dated 20.9.2007 (Annexure P7). Mr. R.K. Joshi, Advocate, learned counsel appearing for the petitioners has contended that the land of the petitioners abuts the main national highway, however, respondents No.5 to 10 are in unauthorized occupation of the land abutting the land of the petitioners on the national highway. They have surreptitiously constructed a `Dhaba’ in front of the land of the petitioners on which shops have been constructed by the petitioners. In this manner, the frontage of the shops of the petitioners have been blocked. It is submitted that the illegal encroachments made by respondents No.5 to 10 is evident from the proceedings initiated under the Punjab Public Premises Act and an order of eviction has also been passed on 25.1.2005 (Annexure-P.6). However, to nullify the effect of the eviction order the surreptitious exchange of land is being done so as to circumvent the eviction order. It is submitted that the exchange of land has been carried out merely on the basis of Government letter without any registration being effected which is in violation of provisions of Section 118 of the Transfer of C.W.P. No.710 of 2008 [8] Property Act. It is submitted that even if there is a change of alignment and exchange of land was to be carried out in respect of land where `Dhaba’ had been built by respondents No.5 to 10, the petitioners and other owners whose land abuts the road are adversely affected and before taking any final decision they were liable to be given an opportunity of being heard. The action of the respondents, in any case, is against the principles of natural justice. In response, Mr. H.S. Gill, learned Deputy Advocate General General, Punjab appearing for respondents No.1 to 4 has submitted that the exchange of land has been effected in consequence of the order dated 25.1.2008 (Annexure R5/2) passed by this Court in the case of Nirvail Singh v. State of Punjab, C.W.P. No.9110 of 2007. Besides, some part of the acquired land owned by the Provincial Government was not occupied or used by the PWD Department. The said land was in possession of respondents No.5 to 10 and they constructed a `Dhaba’ on the said land. It is accepted that proceedings were initiated under the Punjab Public Premises Act seeking eviction of respondent No.5. But later, the Government in the Department of PWD decided to exchange the land of respondents No.5 to 10 with the Government land subject to the condition that the width of 200 feet road should not be changed, in any manner. Now the exchange has been carried out in accordance with law. It is submitted that mutation of exchange has also been sanctioned. Mr. Baljinder Singh, Advocate, learned counsel appearing for respondents No.5 to 10 has raised a preliminary objection with regard to maintainability of the writ petition, inasmuch as, it is stated that disputed questions of facts are involved and, therefore, these questions are not to be C.W.P. No.710 of 2008 [9] determined in exercise of the supervisory writ jurisdiction of this Court under Articles 226/227 of the Constitution of India. In any case, it is submitted that the land of respondents No.5 to 10 has been validly exchanged with the land owned by the PWD (B&R) Department and such exchange cannot be said to be illegal on any account. It is submitted that the exchange had to be carried out in view of the re-alignment of the National Highway in order to protect the Gurdwara Sahib which would have been affected in case the road continued to exist without the alignment. Therefore, it is submitted that there is nothing illegal in the exchange of land. As regards registration of the exchange, it is submitted that the same is only a formality and the mutation No.9048 (Annexure R-1) of Village Muradpura having been sanctioned on the basis of exchange, the exchange is complete. I have given my thoughtful consideration to the contentions of the learned counsel for the parties and with their assistance perused the record. The position that emerges is that indeed respondents No.5 to 10 have constructed a `Dhaba’ along the main National Highway which is in front of the shops of the petitioners on the land which abuts the main road. The same was an encroachment on the part of respondents No.5 to 10. It was for this reason that the State Government filed a petition under Sections 4 and 6 of the Punjab Public Premises Act seeking eviction of Gurbax Singh (respondent No.5) from the Government land measuring 42’ x 126’ out of the land measuring 4 Kanals 1 Marla comprised in Khasra No.303//2 (4-1) `Gair Mumkin' road situated at Village Muradpura, Tehsil Tarn Taran (Amritsar) as per Jamabandi for the year 1995-96. The said land was owned by the PWD (B&R) Department Central Works Sub Division No.2, C.W.P. No.710 of 2008 [10] Amritsar. The PWD (B&R) Department paid compensation in respect of the said land to its owner through the Land Acquisition Collector, Jalandhar in pursuance of his award dated 3.10.1984. The eviction of Gurbax Singh (respondent No.5) was sought on the ground that he had unauthorizedly encroached on the said land. The PWD (B&R) Department had given a notice to Gurbax Singh (respondent No.5) in respect of the encroachments made by him on the said land. However, he refused to accept the same. The PWD (B&R) Department had requested that the unauthorized Dhaba constructed by Gurbax Singh (respondent No.5) on the PWD (B&R) land may be removed. Gurbax Singh (respondent No.5) appeared in the eviction proceedings before the Collector, Tarn Taran. It was stated that when the road was to be constructed the Gurdwara Sahib building intervened the land. The road was constructed 200’ wide and the land of Gurbax Singh (respondent No.5) was on both sides of the road. Therefore, out of Khasra No.302 measuring 8 Kanals, land measuring 1 Kanal 4 Marlas of his land was acquired for the construction of the road. It was submitted that more area owned by Gurbax Singh (respondent No.5) was taken and at that time officials had compensated him from khasra No.303 and he was in possession of portion of khasra No.303 in his own right. The learned Collector after considering the contentions inter alia observed that the main assertion of Gurbax Singh (respondent No.5) was that the PWD (B&R) Department had taken some land from him for construction of road and in lieu thereof given him that said land in order to compensate him. However, Gurbax Singh (respondent No.5) was unable to prove his assertion by documentary evidence. Even the Jamabandis for the C.W.P. No.710 of 2008 [11] years 1995-96 and 2000-01 showed that the property in question belonged to the PWD (B&R) Department and it was in possession of the same. It was held that Gurbax Singh (respondent No.5) had unauthorizedly encroached upon the Government land. It was held that mere assertion of Gurbax Singh (respondent No.5) that the PWD Department had taken some land from him for the construction of road and in lieu thereof given a piece of land in order to compensate him did not carry any weight. It was noticed that the PWD (B&R) officials had also taken demarcation of the land in question on 13.5.2002 and at that time there was no `Dhaba’. Gurbax Singh (respondent No.5) had also filed a civil suit in the Court of Civil Judge (Senior Division), Tarn Taran on 5.3.2002 which was withdrawn by him on 27.9.2004. The unauthorized encroachment had been made by Gurbax Singh (respondent No.5) after 13.6.2002 on the public premises. Therefore, in exercise of powers conferred by Section 5 (1) of the Punjab Public Premises Act eviction of Gurbax Singh (respondent No.5) was vide order dated 25.1.2005 (Annexure-P.6) ordered to vacate the said premises within 30 days of the publication of the order and in the event of refusal or failure to be evicted. Thereafter, the Government of Punjab addressed memo dated 20.9.2007 (Annexure-P.7) regarding the amendment in the wrong alignment of the Tarn Taran Bye-Pass. It is mentioned in reference to memo of the Chief Engineer, Punjab, Department of PWD (B&R), Patiala dated 24.8.2007, his proposal regarding exchange of the land was approved on the condition that no adverse affect would be caused in land width and any kind of land loss is not caused to the Government. On the strength of the said letter Mutation No.9048 has been sanctioned. The facts and circumstances, therefore, evidently show that C.W.P. No.710 of 2008 [12] respondents No.5 to 10 had constructed a `Dhaba’ on the land of the State Government owned by the Department of PWD (B&R) and the said `Dhaba’ is in front of the shops of the petitioners which has been constructed on the land abutting the main highway. The respondents had also filed a suit on 5.3.2002 in the Court of learned Civil Judge (Senior Division), Tarn Taran for permanent injunction which was withdrawn on 27.9.2004. Mr. R.K. Joshi, learned counsel for the petitioners has submitted that in fact the petitioners had filed two civil suits for permanent injunctions which were withdrawn. One civil suit which was withdrawn on 27.9.2004 and the plaint of the other suit is dated 12.1.2005 (Annexure- P.20) to which written statement (Annexure-P.21) was filed by the Sub Divisional Engineer Central Works Sub Division No.2, PWD (B&R), Amritsar in which it was stated that plaintiff Gurbax Singh (respondent No.5) had made encroachment on the land measuring 1 Kanal 2½ Marlas bearing Khasra No.303 as shown in the site plan attached with the written statement in respect of which order to vacate had been passed against him. Therefore, the encroacher was not entitled to injunction in respect of the public property. Besides, he is liable to vacate the same as per order dated 25.1.2005 (Annexure-P.6) passed by the Collector under the Punjab Public Premises Act. It was stated that PWD (B&R) Department had constructed a bye-pass road which was 200 feet wide. It was, however, specifically denied that during construction of the road, the PWD (B&R) Department occupied some land of Gurbax Singh (respondent No.5). It was also denied that thereafter, PWD (B&R) Department allotted land measuring 4 kanals 18 marlas towards the Eastern side of the road adjoining the bye-pass situated in the area of village Muradpura, Tehsil Tarn Taran, District C.W.P. No.710 of 2008 [13] Amritsar. It was also denied that Gurbax Singh (respondent No.5) was owner in possession of the suit land. It was stated that Gurbax Singh (respondent No.5) had made encroachments over the property in dispute which was the ownership of the PWD (B&R) Department. It was also denied that PWD (B&R) Department occupied excess land measuring 1 kanal 18 marlas out of khasra No.302 (6-16). It was denied that the said khasra number was only 4 kanals 18 marlas. It was also denied that PWD (B&R) Department had occupied land towards eastern side measuring 1 kanal 2½. It was stated that the plaintiff Gurbax Singh (now respondent No.5) had prepared a false story as an afterthought to put hindrance to vacate the property in dispute as per order of the Collector dated 25.1.2005 (Annexure-P.6). The said suit was withdrawn by the plaintiff in the proceedings of the Lok Adalat on 5.2.2006 (Annexure-P.22). It was recorded that in view of the statements suffered by the plaintiff (Gurbax Singh-respondent No.5) on 12.12.2005, the suit was dismissed as withdrawn. Therefore, it is quite evident that the land had been encroached upon by Gurbax Singh (respondent No.5) and in respect of which eviction order dated 25.1.2005 (Annexure P6) had also been passed under the Punjab Public Premises Act. The respondents No.5 to 10 have constructed their `Dhaba’ in front of the shop of the petitioners which has been constructed on the land abutting the national highway. In this manner their rights are affected. In the case of Municipal Board, Manglaur v. Mahadeoji Maharaj, AIR 1965 SC 1147 it was held that in the said case it was not disputed that the metalled road was dedicated to the public. The inference that the side lands are also included in the public way is drawn much easily C.W.P. No.710 of 2008 [14] as the said lands are between the metalled road and the drains admittedly maintained by the Municipal Board. Such a public pathway vests in the Municipality, but the Municipality does not own the soil. It has the exclusive right to manage and control the surface of the soil and “so much of the soil below and of the space above the surface as is necessary to enable it to adequately maintain the street as a street”. Therefore, the land in the present case which is in front of the shops of the petitioners was in the nature of the side lands in respect of which the petitioners have certain rights. Therefore, the objection raised by Shri Baljinder Singh, Advocate, learned counsel appearing for respondents No.5 to 10 that the writ petition is not maintainable is not tenable as the petitioners have certain rights in respect of the side lands of the National High way which is