CWP No.11053 of 1989 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.11053 of 1989 DATE OF DECISION: March 22, 2011 BAHADUR SINGH ...PETITIONER VERSUS THE COLLECTOR, MOHINDERGARH & OTHERS ...RESPONDENTS CORAM: HON'BLE MR. JUSTICE K.KANNAN. 1. Whether reporters of local papers may be allowed to see the judgement? Yes 2. To be referred to the reporters or not? Yes 3. Whether the judgement should be reported in the digest? Yes ---- PRESENT: MR.JASWANT JAIN, ADVOCATE FOR THE PETITIONER. MR. C.B. GOEL, ADVOCATE FOR THE RESPONDENTS. K.KANNAN, J.(ORAL) 1. The writ petition contains a challenge to an order of eviction under the issue under the Punjab Village Common Lands Regulation Act, 1961 (for short 'the Act'). The petition had been filed by the Panchayat referring to its ownership in Ahata No.24 and Ghar No.27. The contention in the petition filed under Section 7 of the Act was that in a vacant plot measuring 21 feet x 41 feet there had been a dolli of 4 feet high made of stones. It had been dismantled by the petitioner to provide for passage to his house. The assumption of possession by the respondent and user of the property as a passage was the cause of action for filing of the petition. This petition had been originally allowed and in appeal filed by the petitioner before the Collector, since there was no construction on the land in dispute and that the petitioner was merely using the property as a passage, the appeal was allowed. Against this order the Panchayat had gone in revision to the Commissioner who passed the order directing the Collector to decide CWP No.11053 of 1989 -2- the case of on merits. The Collector again passed an order on 1.3.1989 (Annexure P-3) recording the fact that the petitioner who was appellant before him was only interested in using the land in dispute and that he had admitted the land in dispute as a property of the Panchayat. Since the property admittedly belonged to the Panchayat, the order of the first Authority, namely, the Assistant Collector was upheld and the appeal was dismissed. 2. Counsel for the petitioner contends that the Collector had no authority to pass an order since the Commissioner did not have the power to exercise any jurisdiction to pass any order for, if the Panchayat was aggrieved by the decision of the Collector rendered on 7.1.1987, it ought to have come through challenge in appropriate forum and not before the Commissioner. The impugned order passed by the Collector was, therefore, virtually annulling his earlier order passed on 7.1.1987. The counsel appearing on behalf of the Panchayat would contend that after having participated in the proceeding before the Collector and after also admitting the ownership of the property with the Panchayat, the petitioner cannot assail the order of the Collector on the ground that the Commissioner had no power to direct the Collector to render a fresh adjudication. 3. The learned counsel for the petitioner also urges that the petitioner has been only a right of passage and there is really no encroachment into the property. An assertion of right of passage in property cannot be a subject of adjudication under the Act and if at all only a civil suit could be instituted. 4. It must be remembered that the complaint of the Panchayat was that in the place where there existed a dolli, the petitioner has removed the CWP No.11053 of 1989 -3- same and has cleared the property as a passage to his property. As of now, it cannot be stated that there is any encroachment which is liable for ejectment under the Act. What could be noted is that the property which is being used by the petitioner as a passage is objected to by the Panchayat. The proceeding under Section 7 of the Act applicable to Haryana provides for the power to an Assistant Collector of the Ist Grade having jurisdiction in the village to pass an order ejecting any person who is in wrongful or unauthorized possession of the land or other immovable property in Shamlat Deh. An order of ejectment would mean a right to remove a person who is in unauthorized possession of the land. The expression “ejectment of any person who is under unlawful or unauthorized possession of land” contemplates, therefore, a person to be in occupation of land which could either be said to be wrongful or unauthorized. The occupation again pertains to what a property is capable of use. A person that uses the property as a passage may not legally possess the property, but he could be said to subject the property to such use which is in derogation of the owner's right. In my view, if the Panchayat was interested in protecting the property against any misuse by any possible construction in future, it could have its injunctive relief in a civil Court. If a construction is made unauthorizedly, it could resort to an action under Section 7 of the Act for its removal. An apprehended action of the petitioner for using the property as passage cannot come within the four corners of Section 7. A right of passage is a right asserted over the property and not an assertion in the specie of property itself. It is in the nature of easement. The legal possession vests in panchayat and admitted by the petitioner to vest in panchayat. Unless the petitioner is in possession, as distinguished from exercising right of CWP No.11053 of 1989 -4- easement over another person's property the action in eviction under the Public Premises Act does not arise. While I uphold the right of Panchayat to the property the admission by the appellant before the Authority that is found reflected in the order of the Collector, I will not still take this as sufficient to take an action under Section 7 of the Act. If a property is continued to be subjected to any use which is in derogation of the Panchayat's property upon the ownership over such property, it may take such appropriate action for injunction if it is competent to do in a civil suit and not by resorting to Section 7. Learned counsel appearing for the Panchayat points out that Civil Court jurisdiction is barred under Section 13. This bar must be understood as constituting only such action for which there are express provisions under the Act itself. The exclusion of jurisdiction of a civil Court shall not be lightly inferred by virtue of Section 9 of the Civil Procedure Code [see United India Insurance Company Ltd. vs. Ajay Sinha (2008) 7 SCC 454]. Any person seeking for such an exclusion of jurisdiction shall prove the same. Any party who seeks for assertion of his right of way over this property or the party who seeks for prevention of exercise of such right may approach the civil Court for redress and this order shall not come in any way to such vindication of right by either one of the parties. The order of Authority stands clarified to this effect that action for ejectment under Section 7 of the Act does not lie in a case where the cause of action that is complained-of is a purported attempt of user of the property as a passage. 5. The writ petition is ordered to the above extent. March 22, 2011 (K.KANNAN) Gulati JUDGE