C.W.P.No.763 of 1987 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision : 21.02.2011 C.W.P.No.763 of 1987 Harnarain Singh and others …Petitioners Versus Commissioner, Ambala Division, Ambala and others …Respondents CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present : Mr. Ashok Aggarwal, Sr. Advocate, with Mr. Amit Aggarwal, Advocate, for the petitioners. Mr. Himanshu Raj, AAG, Haryana. HEMANT GUPTA, J. (ORAL) Challenge in the present writ petition is to the order passed by the Assistant Collector Ist Grade, Gurgaon on 30.05.1986 (Annexure P-9); order passed by the Collector on 22.07.1986 (Annexure P-11); and order in revision dated 30.01.1987 (Annexure P-14), arising out of an application filed by the Panchayat under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (for short ‘the Act’). Gram Panchayat, Jharsa filed an application for eviction of the petitioners alleging therein that the land bearing Ahata No.777 measuring 19 biswansi is in illegal and unauthorized possession of the petitioners. In the written statement, the applicability of the Act to the land in dispute was denied and it was asserted that there was no open space of Ahata No.777, which could be occupied by the petitioners and that the owner of the house 1 C.W.P.No.763 of 1987 i.e. Smt. Chandro was not impleaded as a party. The petitioners denied that the Gram Panchayat was owner of the property. Initially, the petition was allowed on 31.03.1986, but in appeal against the said order, the matter was remanded to the learned Assistant Collector. After remand, the learned Assistant Collector permitted the parties to lead evidence. In evidence, the Panchayat produced demarcation report (Ex.A-1); demarcation map (Ex.A-2); copy of khasra measurement of village abadi-1877 (Ex.A-3); copy of paimaish abadi village Jharsa (Ex.A- 4); and statements of the respectables persons of the village (Exs.A-5 to A- 30) apart from the resolution of the Gram Panchayat (Ex.A-33) and some other documentary evidence. In reply, the petitioners herein produced copy of the sale deed dated 08.09.1966 and also the judgment rendered by the Court of Shri Om Parkash, Additional District & Sessions Judge, Gurgaon. The Assistant Collector also visited the site on 28.05.1986. Learned Assistant Collector found that thoroughfare No.777 is within abadi and the disputed land is thoroughfare, which is used by the children for going to school. The measurements of the land were taken by the learned Assistant Collector in the presence of Sarpanch and Panches including the petitioners herein. It was found that there is an old mosque on Rasta No.301 and both the parties agreed to its existence. The present petitioners were found in occupation of land measuring 457 sq. yards, which was 152 sq. yards more than the land purchased by the petitioners i.e. 305 sq. yards. The learned Assistant Collector held to the following effect: “After hearing both the counsels and perusing the case file and the documents including the revenue record and also after personal inspection of the site of the land in dispute, I have come to the conclusion that Ahata No.777 is a thoroughfare and 2 C.W.P.No.763 of 1987 Gram Panchayat is the owner of this land and the defendants are in illegal possession of this area. The fact of illegal possession is further clarified from the personal inspection of the site in dispute. There is a big ground on the sought of the mosque which is on Ahata No.301, and a passage passes along the village abadi from the southern and western sides of this ground. This area is on a higher level than the adjoining areas. The houses stand on this higher level. The exit-slopes of the passages and houses opens in the ground from the southern side of the mosque and the rain water flows down towards the ground through these slopes and through the southern sides water goes to the fields through Rasta No.777. This place is used as Rasta No.3 because the said village passage is used for reaching the main road connecting Jharsa and Wazirbad. There is no other road except this passage to reach the main road from the village. The land purchased by the defendants is 305 sq. yards and the land actual in possession with them has been found to be 457 sq. yards which is 152 sq. yards in excess of the area shown in the registration deed. It is thus clear that the defendants are in possession of excess area than mentioned in the registration deed, and they by constructing houses and flour mill on Rasta No.777 are in unauthorized occupation of the area. As such the Gram Panchayat is the owner of the land in dispute which is in Ahata No.777 and is a thoroughfare. I have come to the conclusion that defendants are in illegal possession of the land and I order for their eviction.” The appeal against the said order was dismissed on 22.07.1986. In revision, the learned Commissioner considered the arguments raised by the learned counsel for the petitioners that the land in dispute was never a shamlat deh as well as the judgment dated 26.03.1969 relied upon by the petitioners, whereby suit of Smt. Chandro for possession of a plot situated within abadi was partly decreed against Chuni Lal and others. Learned Commissioner held to the following effect: 3 C.W.P.No.763 of 1987 “5. I have heard the arguments of both the counsels and perused the record available on file carefully. The reasoning presented by the petitioners that the house at Khasra No.300 lies close to rasta No.771 and not on rasta No.777. It is clear from the village map that the contention of the petitioner does not make any difference because khasra No.33 lies adjacent to both the rastas Nos.771 and 777. In view of these facts, I have come to the conclusion that the land in dispute is of rasta No.777 and Panchayat is the owner of that land and the petitioners are under its illegal possession. As such agreeing with the reasons put forth by the respondents and finding no force in the contentions raised by the petitioners, I dismiss the revision petition.” Learned counsel for the petitioners has vehemently argued that the Civil Court has granted decree of possession in favour of the mother of the present petitioners, therefore, such decree could not be ignored by the authorities under the Act. It is contended that the question of title raised by the petitioners has not been decided by the authorities under the Act, therefore, the orders passed are not sustainable. I do not find any merit in the arguments raised by the learned counsel for the petitioners. The civil suit for possession was filed by the mother of the present petitioners alleging therein to be purchaser of evacuee plot No.21 from Shri Uday Bhan for a consideration of Rs.3000/- by virtue of registered sale deed dated 08.09.1966. The claim of the mother of the petitioners was that the land in dispute is more than 305 sq. yards as given in the parchi allotment. The learned Additional District Judge initially remanded the matter for appointment of a Local Commissioner for determining the location and extent of plot No.21. It appears that, thereafter, the learned trial Court decreed the suit partly on 30.04.1970 and the said judgment was affirmed in first appeal on 05.06.1971 and in second appeal on 4 C.W.P.No.763 of 1987 19.03.1982. In such proceedings Gram Panchayat is not a party nor the dispute relates to Rasta No.777. The passage has been found to be within abadi and, thus, vesting in Gram Panchayat. In fact, in the present proceedings under Section 7 of the Act, the dispute is; whether the petitioner has encroached upon any part of Rasta No.777 on the strength of the purchase from Shri Uday Bhan, an allottee of the Rehabilitation Department. It was a dispute of demarcation of Ahata No.777 of passage. The Assistant Collector has conducted the demarcation and found that the petitioners have encroached upon the land measuring 152 sq. yards. The process of demarcation caused by the Assistant Collector in the presence of the parties could not be disputed in any manner. The judgment of the Civil Court is of no help to the petitioner as it does not relate to the controversy raised in the present proceedings. The mother of the petitioners was a party in proceedings under Section 7 of the Act, as has been noticed by the Commissioner. Therefore, the said argument also is not available to the petitioners. In view of the above, I do not find any illegality or irregularity in the orders passed by the authorities under the Act, which may warrant any interference by this Court in exercise of its writ jurisdiction. Dismissed. 21.02.2011 (HEMANT GUPTA) Vimal JUDGE 5