Civil Writ Petition No. 10262 of 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 10262 of 2007 Date of Order: 05.07.2010 Neki Ram ....Petitioner Versus Commissioner, Ambala Division, Ambala and others ..Respondents CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. Rajinder Goyal,Advocate for the petitioner. Mr. Gagandeep Singh Wasu, Sr. DAG, Haryana for respondents no.1 to 3. Mr. Sandeep Panwar, Advocate for respondent no.4. Mr. Vinod Bharadwaj , Advocate for respondent No.5 RAJIVE BHALLA, J (Oral). The petitioner prays for issuance of a writ in the nature of certiorari for quashing orders dated 31.03.2004, 29.04.2005 and 22.11.2006, passed by the Assistant Collector Ist Grade, Kaithal, the Collector, Kaithal and the Commissioner, Ambala Division, Ambala, respectively, directing the petitioner's ejectment from the land in dispute. Raghbir, respondent no.4, filed an application for ejectment of the petitioner, on the plea that the petitioner is in occupation of a public street. In response, the petitioner pleaded that as he has constructed his house outside the abadi, before 1950, he cannot be evicted. The petitioner also pressed into service a resolution dated 30.03.2005, passed by the Gram Panchayat, acknowledging the fact that the petitioner had Civil Writ Petition No. 10262 of 2007 -2- constructed his house 45 years ago. The Assistant Collector Ist Grade, Kaithal, directed the petitioner's ejectment by holding that the petitioner is in unauthorised occupation of a public street. An appeal filed by the petitioner before the Collector, Kaithal, was dismissed. A revision filed by the petitioner before the Commissioner, Ambala Division, Ambala, also met the same fate. Counsel for the petitioner submits that the petitioner has constructed his house, outside abadi deh, before 1950. This fact has been accepted by the Gram Panchayat in its resolution dated 30.03.2005, Annexure P-2. The affidavits filed by two of the signatories of the resolution that they appended their signatures, without knowledge of its contents is an after thought. The resolution, has neither been withdrawn by the Gram Panchayat nor set aside. As the land in dispute is excluded from “Shamilat Deh” by virtue of proviso (vi) to Section 2(g) of the Act, the writ petition should be allowed and the matter should be remitted to the Assistant Collector Ist Grade, Kaithal, to decide the matter afresh particularly after taking into consideration the resolution. Counsel for respondents no.4 and 5, on the other hand, submit that the demarcation report, Annexure R4/1 and the site plan clearly establish that the petitioner has encroached upon the street. The resolution is null and void, in view of the affidavits filed by two of the signatories. In response to these arguments, counsel for the petitioner submits that a perusal of the site plan, Annexure P-7 clearly reveals the existence of 24 feet wide street in front of the petitioner's land. The demarcation report is, therefore, incorrect. I have heard counsel for the parties and perused the impugned orders. The petitioner's plea that as he constructed his house, outside Civil Writ Petition No. 10262 of 2007 -3- Abadi Deh, prior to 1950, proviso (vi) to Section 2(g) excludes the land in dispute from “Shamilat Deh”, finds support from resolution dated 30.03.2005, passed by the Gram Panchayat. The resolution has not been cancelled by the Gram Panchayat or set aside by any competent authority. Santu and Pitu, Panches, have filed affidavits deposing that they signed the resolution without knowledge of its contents. The resolution prima- facie tends to support the petitioner's plea but the Assistant Collector, the Collector and the Financial Commissioner have not considered its effect. It would also necessary to point out that as per the site plan Annexure P-7 a 24 feet wide street abuts the petitioner's house. It would, therefore, be appropriate to remit the matter to the Commissioner, Ambala Division, Ambala, to decide the revision afresh after taking into consideration the resolution dated 30.03.2005, Annexure P-2 and all other relevant material that may be available on record. The writ petition is, therefore, allowed, the order dated 22.11.2006 is set aside and the matter is remitted to the Commissioner, Ambala Division, Ambala, to decide the revision filed by the petitioner, afresh and in accordance with law. Parties are directed to appear before the Commissioner, Ambala, Division, Ambala, on 06.09.2010. It is made clear that this order shall not be construed to be an expression of opinion on the rights of the parties. The Commissioner shall be at liberty to decide the matter independent of any opinion that may have been recorded hereinabove. July 05, 2010 (RAJIVE BHALLA) nt JUDGE