CWP No.1736 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No.1736 of 2007 Date of Decision: 7.7.2010 Ram Singh and others .....Petitioners Vs. State of Punjab and others ....Respondents .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr. Harinder Kumar Aurora, Advocate for the petitioners. Mr. C.S. Brar, DAG, Punjab, for respondents no.1 and 2. Mr. Nakul Sharma, Advocate for respondent no.3. .... RAJIVE BHALLA, J (Oral) The petitioners pray for issuance of a writ in the nature of Certiorari for quashing orders dated 29.12.2006 and 24.1.2006, passed by the Joint Development Commissioner (IRD) (exercising the powers of the Commissioner) and the District Development and Panchayat Officer-cum- Collector, Hoshiarpur. The Gram Panchayat, filed a petition for ejectment of the petitioners on the plea that the petitioners have occupied part of a public street situated in Khasra No.580. The Gram Panchayat relied upon a demarcation report dated 15.5.2003 prepared by Gurcharan Singh, Kanungo. The petitioners opposed the prayer in the petition, by denying the case pleaded by the Gram Panchayat and in turn asserting that the boundary CWP No.1736 of 2007 2 wall was constructed in 1974 and there is no hindrance in the street. The Collector, Hoshiarpur, vide order dated 24.1.2006, after holding that the petitioners have encroached upon a part of the street by constructing a boundary wall, directed their ejectment. Aggrieved by this order, the petitioners filed an appeal. Vide order dated 29.12.2006, the Joint Development Commissioner (IRD) (exercising the powers of the Commissioner under the Act), dismissed the appeal. Counsel for the petitioners submits that the entire case set up by the Gram Panchayat is based upon a demarcation report, prepared without associating the petitioners and as admitted by the Kanungo, without identifying three pucca points, as required by instructions for demarcation issued by the Financial Commissioner. It is argued that the boundary wall constructed in the year 1974 does not cause any hindrance to the smooth functioning of the street. It is further submitted that as the petitioners application for a fresh demarcation was arbitrarily dismissed on 10.1.2006, the Assistant Collector should be directed to carry out a fresh demarcation. Counsel for the Gram Panchayat, on the other hand, submits that the demarcation report is legal and valid. The petitioners did not raise any objection as to its correctness. As the petitioners have been held to be in unauthorised occupation of a part of a public street, the petition should be dismissed. I have heard counsel for the parties and perused the impugned orders. The petitioners have been held to be in unauthorised occupation of part of a public street bearing Khasra No.580. The impugned orders are admittedly based upon a demarcation report prepared before the filing of the ejectment application and without serving any notice upon the CWP No.1736 of 2007 3 petitioners or associating the petitioners. In addition, Sh.Gurcharan Singh, Kanungo, admitted during his cross-examination, as AW-2 that he did not identify any pucca point while measuring Khasra No.580 but only recorded the statements of people of the area. The Kanungo also admitted that he had not taken any measurement from the Northern, Eastern and the Western side of Khasra No.580 and even denied knowledge of any rules and regulations that govern demarcation of land. As is apparent from these facts, the demarcation has been prepared without associating the petitioners and in gross violation of the Financial Commissioner's instructions. A relevant extract of these instructions reads as follows :- (i) If a boundary in dispute, the Field Kanungo should relay it from the village map prepared at the last Settlement. If there is a map which has been made on the square system he should reconstruct the squares in which the disputed land lies. He should mark on the ground on the lines of the squares the places where the map shows that the disputed boundary intersected those lines, and then to find the position of points which do not fall on the lines of the squares. He should with his scale read on the map, the position and distance of those points from a line of a square, and then with a chain and cross staff mark out the position and distance of those points. Thus he can set out all the points and boundaries which are shown in the map. But if there is no map on the square system available, he should then find these points on CWP No.1736 of 2007 4 different sides of the place in dispute, as hear to it as he can and, if possible not more than 200 kadams apart which are shown in the map and which the parties admit to have been undisturbed. He will chain from one to another of these points and compare the result with the distance given by the scale applied to the map. If the distances, when thus compared, agree in all cases, he can then draw lines joining these three points in pencil on the map and perpendiculars with the scale from these lines to each of the points it is required to lay out on the ground. He will then, lay them out with cross-staff as before and test the work by seeing whether the distance from one of his marks to another is the same as the map. If there is only a small dispute as to boundary between two fields the greater part of which is undisturbed then such perpendiculars, as may be required to points on the boundaries of these field as shown in the field map can be set out from their diagonals, as in the field book and in the map, and curves made as shown in the map. (ii) In the report to be submitted by him the Field Kanungo must explain in detail any, with their dimensions (Karukan) of which he took measurements, situated between the points mentioned in Instruction No. (i) above and the boundary in dispute. This is necessary to enable the Court to follow the method adopted and to check the Field Kanungo's proceedings. CWP No.1736 of 2007 5 (iii) If a question is raised as to the position of the disputed boundary according to the field map of the Settlement preceding the current Settlement, that also should be demarcated on the ground, so far as this may be possible, and also shown in the copy of the current field map to be submitted under Instruction No.(ii). (iv) On the same copy should be shown also, the limits of existing actual possession. (v) The areas of the fields, abutting on the boundary, in dispute, as recorded at the time of the last Settlement and those arrived at as a result of the measurement on the spot should be mentioned in the Field Kanungo's report with the explanation of the cause or causes of the increase or decrease, if any, discovered. (vi) When taking his measurements the Field Kanungo should explain to the parties what he is doing and should enquire from them whether they wish anything further to be done to elucidate the matter in dispute. At the end, he should record the statements of all the parties to the effect that they have seen and understood the measurements that they have no objection to make to this (or if they have any objection he should record it together with his own opinion) and that they do not wish to have anything further done on the spot. It constantly happens that when the report comes before the Court, one or other party impugns the correctness of the measurements and CWP No.1736 of 2007 6 asserts that one thing or another was left undone. This raises difficulties which the above procedure is designed to prevent. (vii) The above instructions should be followed by Revenue Officers or Field Kanungos whenever they are appointed by a Civil Court as Commissioners in suits involving disputed boundaries.” A revenue officer, carrying out a demarcation of land must ensure that prior notice is served upon all parties concerned and where possible, the demarcation report is carried out in their presence. In addition, a revenue officer is required to comply with instructions issued by the Financial Commissioner and adopted by the High Court, while carrying out such a demarcation. The demarcation report which forms the sole basis for the petitioners ejectment has been passed without associating the petitioners and in gross violation of the Financial Commissioner's instructions. The findings recorded in the impugned orders, based upon this report, would necessarily suffer from the same infirmities. In this view of the matter, the writ petition is allowed, the impugned orders dated 29.12.2006 and 24.1.2006 are set aside and the matter is remitted to the Collector, Hoshiarpur, to decide the petition for ejectment afresh and in accordance with law. If during the pendency of the petition, the petitioners have been dispossessed, status-quo shall be maintained as it exists on date, till the decision of the application filed under Section 7 of the Punjab Village Common Lands (Regulation) Act, CWP No.1736 of 2007 7 1961 by the Gram Panchayat. No order as to costs. 7.7.2010 (RAJIVE BHALLA) GS JUDGE