RSA No.1666 of 2007 - 1 – IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** RSA No.1666 of 2007 DATE OF DECISION: 03.12.2009 **** Jai Parkash . . . . Appellant VS. Ram Narain . . . . Respondent **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: Mr.Sanjiv Gupta, Advocate for the appellant. Mr.R.S. Bhudwar, Advocate for the respondent. **** RAKESH KUMAR JAIN J. (ORAL) Defendant is in second appeal. The brief facts of the case are that plaintiff/respondent herein filed suit for mandatory injunction with a consequential relief of temporary injunction, alleging that plaintiff is the owner in possession of a house in Village Kaimla Tehsil Gharaunda, District Karnal. A street shown in the site plan Ex.PW3/A, in red colour, is alleged to be a personal street of the plaintiff, which leads from the public street (Gali shar-e-aam) situated in the western side. The said street is used by the plaintiff since the time of his forefathers for approaching their house but the defendant, illegally and forcibly, had encroached upon the street by raising some construction much less a lintel. The defendant, in his written statement, alleged that the plaintiff has no locus standi to file the suit as he is not the owner of the street. The character of the street of private street was also denied. It was RSA No.1666 of 2007 - 2 – alleged that it is a public street constructed by the Gram Panchayat of the village and is being used for ingress and egress of all the inhabitants and residents of the village including the defendant whose houses are situated in front of each other on both sides, West and East, of the street. The doors and windows of both the houses of the defendant open towards the disputed street having projection about two feet wide on each side constructed prior to filing of the suit. The other inhabitants of the street had also constructed two feet wide projection over their doors and windows. The averments made in the written statement were rebutted by the plaintiff by way of replication and on the pleadings of the parties, the following issues were framed: - “1. Whether the plaintiff is entitled for decree for mandatory injunction with consequential relief of permanent injunction as prayed for? OPP 2. Whether the suit is not maintainable? OPD 3. Whether plaintiff has no locus standi to file the present suit? OPD. 4. Relief. After taking into account both oral as well as documentary evidence, both courts below have held that the street alleged by plaintiff to be private is in fact a public street but the suit of the plaintiff was decreed to the effect that the defendant shall remove whatever construction he has raised as projection over the doors and windows. Aggrieved against the judgment and decree of both the Courts below, the present appeal has been preferred by the defendant/appellant, in which the question of law that has been raised is that if “If the gali is proved, as a fact, to be public street in the RSA No.1666 of 2007 - 3 – village, then the present suit in the present form, at the instance of the private person, is maintainable? Whether the public street in the village is Shamlat and any encroachment thereupon can be removed through civil suit or under the provisions of the Punjab Village Common Lands (Regulation) Act, 1961. “ Learned counsel for the appellant has vehemently argued that once the fact has been established that the street is a public street, then it falls in the Gram Panchayat being Shamlat in view of the definition provided under the Punjab Village Common Lands (Regulation) Act, 1961 (for short ‘the Act’) under Section 2(g)(4), which provides as under: - “lands used or reserved for the benefit of village community including streets, lanes, playgrounds, schools, drinking wells or ponds situated within the sabha area as defined in clause (mmm) of Section 3 of the Punjab Gram Panchayat Act, 1952, excluding lands reserved for the common purposes of a village under Section 18 of the East Punjab Holdings (consolidation and prevention of Fragmentation) Act, 1948 (East Punjab Act 50 of 1948), the management and control whereof vests in the State Government under Section 23- A of the aforesaid Act.” He further submits that if the public street falls within the Shamlat and Civil Court does not have the jurisdiction, the grievance of an inhabitant can still redressed under Section 7 of the Act, which reads as under: - “7. Power to put Panchayat in possession of certain lands.—(1) An Assistant collector of the first grade having jurisdiction in the village may, either suo moto or on an application made to him by a Panchayat or an inhabitant RSA No.1666 of 2007 - 4 – of the village or the Block Development and Panchayat Officer or Social Education and Panchayat Officer, or any other Officer authorized by the Block Development and Panchayat Officer, after making such summary enquiry as he may deed fit and in accordance with such procedure as may be prescribed, eject any person who is in wrongful or unauthorized possession of the land or other immovable property in the shamilat deh of that village which vests or is deemed to have been vested in the panchayat under this Act and put the panchayat in possession thereof and for so doing the Assistant collector of the first grade may exercise the powers of a revenue court in relation to the execution of a decree for possession of land under the Punjab Tenancy Act, 1887. Provided that if in any such proceedings the question of title is raised and proved prima facie on the basis of documents that the question of title is really involved, the Assistant Collector of the first grade shall record a finding to that effect and first decide the question of title in the manner laid down hereinafter. (2) The Assistant Collector of the first grade shall by an order, in writing, require any person to pay a penalty, in respect of the land or other immovable property which was or has been in his wrongful or unauthorized possession, at a rate not less than five thousand rupees and not more than ten thousand rupees per hectare per annum, having regard to the benefit which could be derived from the land or other immovable property. If the penalty is not paid within the period of thirty days from the date of the RSA No.1666 of 2007 - 5 – order, the same shall be recoverable as arrears of land revenue. (3) The procedure for deciding the question of title under proviso to sub-section (1) shall be the same as laid down in the Code of Civil Procedure, 1908. (4) If any person refuses or fails to comply with the order of eviction passed under sub- section (1), within ten days of the date of such order, the Assistant Collector of the first grade may use such force, including police force, as may be necessary for putting the panchayat in possession. (5) Any person who is found in wrongful or unauthorized possession of the land or other immovable property in shamilat deh and is ordered to be ejected under sub-section (1), shall be punishable with imprisonment for a term which may extend to two years.” Learned counsel for the appellant has also relied upon a decision of this Court in the case titled as Chhaju Ram Vs. Nand Lal” 1982 PLJ 399. On the other hand, learned counsel for the respondent has submitted that no appeal has been filed by the plaintiff/respondent against the finding of the fact recorded by the Courts below. The fact of the learned Court below is that the private street is not the public street yet the encroachment can always be removed at the instance of inhabitants of the village, who are being adversely effected. He, however, could not cite any law to contrary relied upon by the learned counsel for the appellant. I have heard learned counsel for the parties and have given my thoughtful consideration to their rival contentions. It is an RSA No.1666 of 2007 - 6 – admitted fact that the property in dispute is a public gali. It is also an admitted fact that the defendant has raised construction of projection over the windows and doors of his houses, which are lying on both sides, West and East, of the gali. It is also an admitted fact that the finding of fact recorded by both the Courts below against the plaintiff about the street being public street and not a private street has not been challenged. Thus, the question of law, that has been raised by the appellant, is that a public street falls within a definition of Shamlat Deh, from which any encroachment can be removed or illegal possession can be removed under the provision of Section 7 of the Act and for that the judgment cited by the learned counsel for the appellant fully applies to the present case wherein, it has been held that a suit in Civil Court qua Shamlat Deh is not maintainable in view of Section 13-B of the Act and the collector under Section 7 of the Act has the power to remove illegal possession and encroachment and put Panchayat in possession. In view of the above discussion, both the questions, which are raised hereinabove, are answered in favour of the appellant and it is held that the present suit is not maintainable in the present form. If there is any grievance against the alleged encroachment by the appellant that can be sorted out under the relevant provisions of the Act. Hence, the appeal is allowed though without any order as to costs. (RAKESH KUMAR JAIN) DECEMBER 03, 2009 JUDGE Vivek Refer to reporter - Yes