IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Civil Writ Petition No.4033 of 2009 (O & M) Date of Decision: April 25, 2011 Hazoora Singh .....PETITIONER(S) VERSUS Director, Rural Development and Panchayat Department, Punjab & others .....RESPONDENT(S) . . . CORAM: HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: - Mr. Vikas Bahl, Advocate, for the petitioner. Mr. G.S. Attariwala, Additional Advocate General, Punjab, for respondent Nos.1 and 2. Mr. Ranjit Singh, Advocate, for respondent No.3. Mr. N.S. Dadwal, Advocate, for respondent Nos.4 to 6. . . . AJAI LAMBA, J (Oral) 1. This petition has been filed praying for issuance of a writ in the nature of CWP No.4033 of 2009 [2] certiorari, quashing Orders dated 14.3.2007 (Annexure P-4) and 7.11.2008 (Annexure P-6) passed by respondent No.2 and respondent No.1, respectively. 2. Vide Order Annexure P-4, respondent No.2 has held that the petitioner is in unauthorised occupation of land comprised in Khasra No.814 that is a Gair Mumkin Rasta being used by residents of the village, and therefore, the petitioner has been directed to be ejected there from. Petitioner carried an appeal which has been dismissed vide Order Annexure P-6. 3. The authorities under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (for short, ‘the Act’), as applicable to Punjab, on the basis of an inspection carried out in the presence of residents of the village, found that the petitioner constructed a house. 4. The stand taken by the petitioner was that no one had raised any objection at the point in time when construction was raised. House was constructed 50 years back. Had any objection been raised, the petitioner would not have constructed his house on the said land. 5. Learned counsel for the petitioner, CWP No.4033 of 2009 [3] essentially, has argued that the case of the petitioner would be covered under Exception (vi) to Section 2(g) of the Act because the land was being used as a house before commencement of the Act in the year 1961. Learned counsel further contends that there is, per-se, no demarcation to show that the house had been constructed in Khasra No.814 and therefore also, the orders are illegal and without relevant basis. 6. Learned counsel for the private/ added respondents contends that Khasra No.814 was a ‘Rasta Share-am’ which was being used by the said persons for taking their cattle. Front of the house, towards North side, is being used as main entrance to the house, and therefore, the orders passed are legal as the land is required for use by the residents of the village. 7. I have considered the contentions of the learned counsel. 8. There is no finding recorded in Annexure P-4 or P-6 that the petitioner had constructed the house 50 years back. The portion of the order from which learned counsel for the petitioner has referred to, is a contention raised by the persons at the time of spot CWP No.4033 of 2009 [4] inspection. In this view of the matter, I am of the considered opinion that in the absence of any finding to the effect that construction had been raised before coming into force of the Act, the case of the petitioner is not covered under Exception (vi) to Section 2(g) of the Act. 9. In regard to second contention, this Court, vide Order dated 25.10.2010, directed Tehsildar, Balachaur, to submit a report after demarcation of Khasra No.814 whether the petitioner is in possession of any part of Khasra No.814. 10. Report has been submitted. In Para 2 of the affidavit which is accompanied by Aks-sajra, the following has been said:- “2. The demarcation was started in the presence of parties. Khasra no. 814 (Rasta) was demarcated. At the spot, it is included in the house of Hazoora Singh adjoining main street Khasra no.648. The house of Hazoora Singh is constructed in Khasra no.814 (Rasta) and remaining portion of Khasra No.814 is in the form of Wehra. Apart from this Khasra no. 814 (Rasta) adjoins to Khasra no.815, 816, and 817. These Khasra nos. are of abadi and houses are constructed in it, which seem to be old constructed. The back side of these houses adjoins to Khasra no.814 (Rasta). This Khasra no.814 (Rasta) is 21 Karam long and two Karam wide which is included in the shape of house and wehra Hazoora Singh.” 11. Perusal of the extracted portion above, makes it absolutely evident that the petitioner has constructed his house in Khasra CWP No.4033 of 2009 [5] No.814, that is a Rasta. 12. It is not in dispute that in the revenue record, Khasra No.814 has been shown as “Rasta Share-am” and therefore, the case as set up by the Gram Panchayat is found to be on sound basis. It was for the petitioner to first see as to whether he is owner of the land, before making construction over the land. Merely saying that no one objected and therefore petitioner constructed the house, is not sufficient defence that can be taken into account by the Court to allow ‘Rasta Share-am’ to be used for private and personal purpose of the petitioner. Private purpose must give way for common purpose. 13. In view of the above, no ground for interference in extraordinary writ jurisdiction is made out. No reason has been shown to judicially review the impugned orders. 14. The petition is dismissed. 15. It is, however, directed that only the portion constructed by petitioner in Khasra No.814 be demolished so as to restore the land to serve as ‘Rasta’. 16. At this stage, learned counsel for the petitioner, after taking instructions from CWP No.4033 of 2009 [6] his client (petitioner), states that petitioner would himself demolish the portion of the house that falls in Khasra No.814 i.e. Rasta, within 60 days from today, and remove the Malba. An undertaking has been given that ‘Rasta’ would be restored. 18. Copy of the order be given under signatures of the Special Secretary of the Bench. (AJAI LAMBA) April 25, 2011 JUDGE avin 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest?