68 1 5 j CrlVIiscNoMm45177 of 2006 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CrlMiscNo M45177 of 2006 Date of Orderl August03 2010 The Damdama Sahib MultipurposeCoop SocietyLtd Talwandi Sabo District Bathinda throughits Secretary 0 Petitioner 0 Z CD VERSUS I Gram PanchayatTalwandi Sabo and another Z Respondents 2 0 k 9r R I CORAM HONBLE MRJUSTICE MBEDI a k k k 7 PRESENT MrSBedi Advocate Z for the petitioner 1 I MMS BEDI J The petitionerIS aggrievedby the order of Additional Sessions Judgel Fast Track Couit Bathinda dated 26052006 passedin the exercise of revisional jurisdictionagainst the order dated 2122005 passedbythe Sub Divisional Magistrate Talwandi Sabo under Section 147 Cr restoringthe possession of the propertyin disputeto the Gram PanchayatTalwandi Sabo Brief facts relevant for the purpose of 1 KUMAR SURESH SHAM LAL 2012.06.26 10: 19 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 69 1 1 1 CrMiscNoM45177 of 2006 of the presentpetitionare that ManagingCommittee of the petitioner CooperativeSociety Talwandi Sabo broughtto the notice of the Sub Divisional MagistrateTalwandi Sabo by an applicationdated 172005 that the buildingof the societyin between the Govt Hospitaland Baba DeepSinghKhalsa HighSchool Talwandi Sabo was built on a Iand which was givento the societyby the Panchayat 1 of Talwandi Sabo by an unanimous resolution Nol of 201 957 0 ofthe Panchayat The societyconstructed tM buildingon the said 0 Iand from its funds Different rooms of the buildingwere given to different tenants and the CooperativeBank to rui Thereafter the I CooperativeBank shifted to some other place was claimed that Z JagdeepSinghSapranchof the Gram Panchayatand Balbir Singh lSonse t Panch with the help of persons broke the locks and took the possessionand were demol ish ing the c8 buildingAn applicationwas made to the policeon 30 122004 and 31 122004 but no action was taken It was claimed by the soclety m Z that it was facingIossesle Sub Divisional Magistratetook the l Om 1 said applicationunder Section 147 Cr C and gave notice to both the parties In reply the Panchayatproduceda copy of the order dated 0692003 passed by the Civil Judge Divr Talwandi Sabo On the other hand the petitionersocietyproduced the registration Certificate of the societydated 101 956 and the Ietter dated 251 02004 regardingvacation of buildingby the Bathinda Central CooperatIve Bank Limited besides a resolution of 2 KUMAR SURESH SHAM LAL 2012.06.26 10: 19 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 70 1 1 of2006 the Gram Panchayatdated 20 1957 and the photocopiesof Jamabandis from the year 1967 till 2003 indicatingthat there was a bank on 5 kanals 11 marlas of Iancl Few affidavitsof the tenants regardingtakingof rooms on rent in the years 1994 8 1995 and agreementsof rent etcNere also produce The Sub Divislonai MagistrateTaiwandi Sabo passedthe followingorder 1 Counsel for both the partieswere heard at 0 Iength The record broughton the case file was I also considered from which it came to notice that CD Shri Jagdeep Singh Sarpanch has not been I authorisedby the Gram PanchayatTalwandi Sabo bypassinga resolution to contest this case and he Z cannot contest the case on behalf of Gram 2 Panchayat From the documents placed on the case file it came to the notice that Nagar I Panchayat TaIwandi Sabo had giventhe Iand in S disputeto party Nol for constructingthe building vide resolution Nol in the year 1957 From the 20 record producedit is provedthat these buildings have been constructed by the CooperativeSociety d Party No and further 1 was given to CooperativeBank and other tenants on rer From the photocopiesof produced party No Was found in possessionon Khasra NoOl 111 The ruling relied upon by the counsel of party Nol that ownershipof the disputedIand is not to be seen rather it is to be seen that at the time of filingthe case the Iand in disputeIS In whose possessionand it was held that the parry should be put in possession which was earlier in possession These proceedings were 3 KUMAR SURESH SHAM LAL 2012.06.26 10: 19 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 71 of2006 initiated under Section 147 CtC on the of party N1 dated 31 22004 3122004 thereafter dated 1722005ut party No could not produceany solid evidence that they are In possessionfrom which it can be inferredthat theywere in possessionfrom the filing of the case but documents producedbypartyNo has provedthat party N1 is still in possession 1 and earlier was also in possessionSo far as the L case of Shri Balbir Singhtenant againstpartyNo 0 pending In the Civii Court before CiviI Judge I J Divn TaIwandi Sabo is concemed I agree D with the arguments of CounseI of party No that this Court cannot hear the case if it is pendingin the Civil Cour As such the case which is pending Z It7the Civil Court of Shri Balwinder Singhregarding the shop party NI cannot be said to be in possessionuntil any order IS passed by any I competent coutt regarding its ownershipl c8 possessionSo apartfrom the shop of Shri Balbir Singhit is provedthat the rest of the buildingIS under the possessionof Party Nol le The Z 1 DamdamaSahib MultipurposeCooperativeSociety Ll 1 Ltd Talwandi Sabo The partyNol will remain in possessionof the buildingexcept the shopof Shri Balbir singh till any order is passed by any competent court to take back the possession 32 It is clarified that the partyNo 1 referred to in the order is the petltlonerand the pattyNo2 referredto in the order IS t17eGram 4 KUMAR SURESH SHAM LAL 2012.06.26 10: 19 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 72 1 CrlllliscNo45177 of 2006 A of the above said order indicateSthat the Sub Divisional has directed that the cooperative would remain in possessionof the building exceptthe shopof Balbir Singhtill any order is passedby any Court to take back the possessionTwo revisionpetitions the above said SarpanchJagdeepSinghas were preferred 1 Talwandi Sabo Itwas polntedout before well as Gram 0 the revisional court thatKhasra N601 5 kanals 11 marlas is the of Gram Panchayatas per the revenue record and that Z the petitioner could not have been givenany Iand by the without of the Dlrector Panchayat Gram Z In the absence of any valid resolution No 2 dated 2091957 where there is no khasra number mentioned it Oll cannot be that the Iand of the Gram Panchayatwas given a5 to the petitionersociety as Gram Panchayat IS the owner of the 7tI which is also deemed to be inossession m Z The claim ofthe societythat it has been Llm of the propertypursuantto resolution was rejectedby Ill the revisional Court by observing as follows As stated above the Iand WaS nOt givento oppositeparty No Even as per resolution No1 it is stated to have been givento the Rural Ltd Talwandiabo 11 Oaom Jr Eotir a buildingwaslet to 6prative Bank and it hasnow beenvacatedbythe Bank Contentionof Pa4yNohat WaSIe 5 KUMAR SURESH SHAM LAL 2012.06.26 10: 19 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 73 of2006 CooperativeBank does not appear to be correc appearsthat open site was givenby the Panchayat to CooperativeBank CooperativeBank raised some construction on the Iancl CooperativeBank has now shifted and abandoned the buildingAfter the shiftingof the bank the buildingwas occupied by the Gram PanchayatThis has been stated by theoppositepartyinIifferent petitionsfiled by it to 1 0 the Sub Divisional Magistrateand to the police am accordinglyofthe View that after the shiftingof 0 0 the CooperativeBank the property reverted to I Gram Panchayatand Gram Panchayatwas in its D Iawful possessionas owner The order under I revISIOO seeks to dispossessthe Gram Panchayat to the Damdama Sahib MultipurposeCooperative Z Sabha Ltd which under the Iaw is not permissible Order under revision is not in accordance with Iaw tr and is Iiable to be set aside I o2S Both the revisions are accordinglyallowed O2 Order under revision is set aside and it is ordered 1 7 Z that possessionof the propertyshall remain with 1 Gram Panchayat TaIwandi Sabo Reader IS tl J directed to placeone attested copy of the order Irl r0VISIO17 petition No dated 11 22006 Lower Court record be retumed and revision file be consignedto the record room IJ A perusalof the order passed by the revisional Court indicates that the revisional Court has set aside the order under Section 147 CrC passed by the Magistratein favour of petitionersocietyon the groundthat the propertyhad been givento 6 KUMAR SURESH SHAM LAL 2012.06.26 10: 19 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 74 l of2006 Rural Bank Talwandi Sabo and that the bank has alreadyvacated the same The CooperativeBank ralsed the construction and has now shifted and abandoned the buildlngand i 1 the buildingwas occupiedbythe Gram PanchayatWith the shifting 1 of CooperativeBank the propertyreverted back to the Gram Panchayatand the Gram Panchayatwasln Iawful possessionas 1 owner whereas the Damdama Sahib MultipurposeCooperative 0 Sabha Limited e the petitionerseeks to dispossessthe Gram Panchayatas such the order passedbythe Magistratewas held to I 9 be illegal Shri M0SBediIearned counsel for the petitioner Z has vehementlyurgedthat the findingof the Iearned Additional 2 Sessions Judge is contraryto the revenue record It was also urged Cr I that the possessionof Gram Panchayatis not established as per the ci5 record rather in the column of possesslonMakboojaRafiyaamhas been mentioned The Gram Panchayatis not in possessionas per 7 Z the entries in the column of possessione Column No 5 of the 1 L Jamabandi The Gram Panchayathas not been recorded Ill r possession of the propertyin disputeA strongreliance was placed by the counsel on Jamabandi for the year 200203 copy Annexure P4 wherein the NagarPanchayatis mentioned in column No4 to n J be owner but in cultivation column MakboojaRat7yaam is depicted Counsel for the petitionerhas further arguedthat the petitionersocietywas registeredoriginallyon 10 10 1956 ln the name of Kissan MultipurposeSocietyLimited Tehsil Talwandi Sabo 7 KUMAR SURESH SHAM LAL 2012.06.26 10: 19 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 75 49CrlllIliscNoM45177 of 2006 and Iater on name of the societywas changedto CooperativeRural Bank and this changewas made vide registrationof the Society AnnexureP6 on 101 1957 The name of the petitionersocietywas changed to Talwandi Sabo CooperativeAgricultural Services Society on 0510 1958 The name was further changedto Damdama Sahib AgriculturalServices SocietyLimlted Damdama Sahib 1 0791997 Further the name of the societywas made Damdama f on 0 Sahib CooperativeSocietyLlmited Damdama Sahib 0 and till date the societyis functioningunder I C3 the same name have carefullyconsidered the contention of Z Mr MSBedi 2 The societyseeks its origin under the nameof Kissan MultipurposeCooperativeSocietyLimited claiming a that it was the societywhich constructedthe buildingand Iet out the same to thedifferent tenants includlngBathinda Central Cooperative eam Z Bankin the year 1976 which was vacated in the year 2004 as such 1 Ll the society being successor7terest of the original r society has got a rightto the possessionof the buildingand the Iand whichadmittedlybelongsto Gram Panchayat have carefullyconsidered the provisionsof Section147 CrC which read as followsl 147 Disputeconcemingright of use of Iand or vvater 1l Wheneveran ExecutiveMagistrate IS satised 8 KUMAR SURESH SHAM LAL 2012.06.26 10: 19 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 76 S r 4 CrlMiscNoe45177 of 2006 from the report of a police officer or upon other information that a disputeIikelyto cause a breach of the peace exists regardingany allegedrightof user of any Iand or water within his Iocal jurisdictionwhether such rightbe claimed as an easement or otheIwise he shall make an orderin writingstatingthe groundsof his beingso satisfied and requiringthe partiesconcemed in such dispute e C to attend his Court in person or by pleaderon a specified date and time and to put in written 0 statements of their respectiveclaims I D ExplanatiorTheexpressionIand or wate has the meaninggivento it in sulsectior21 of section 145 Z 21 The Magistrateshall then peruse the statements Lr SO put in hear the parties receive all such I evidence as may be produced by them c8 respectivelyconsider the effect of such evidence take such further evidence if any as he thinks A7 Z 1 necessaryand if possible decide whether such rightexists and the provisionsof section 145 shall 0m r so far as may be applyin the case of such inquiry 31 If it appears to such Magistratethat such rights exist he may make an order prohibitingany interference with the exercise of such right includingin a proper case an order for the removal of any obstruction in the exercise of any such rightl Provided that no such order shall be made where the right IS exercisable at all times of the year unless such righthas been exercised within three 9 KUMAR SURESH SHAM LAL 2012.06.26 10: 19 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 77 t e CrUVliscNoMe45177 of 2006 months next before the receiptunder sub section 11 of the report of a police officer or other information Ieadingto the institution of the inquiry or where the rightis exercisable only at particular seasons or on particularoccasions unless the right has been exercised during the Iast of such a seasons or on the Iast of such occasions before such receipt 1 t 41 When in any proceedingscommenced under 0 subsection 11of section 145 the Magistratefinds I that the disputeis as regardsan allegedrightof user of Iand or water he may after recordinghis I reasons continue with the proceedingsas if they had been commenced under subsectior and Z when in any proceedingscommenced under sul 2 section ll the Magistratefinds that the dispute 1 should be dealt with under section 145 he may I after recordinghis reasons continue with the a proceedings as if theyhad been commenced under subsection 611of section 145 55 aew Z 3 1 The provisionsof Section 147 Cr enables the Executive Magistrateto pass an order in case of disputewhich IS Iikelyto cause breach of peace regardingany allegedrightof user of any Iand or water within the Iocal jurisdictionwhere such rightbe claimed as an easement or otherwise The Magistrate can requIre the partiesconcerned to attend the Court in person or through pleaderand submit written statements The Magistratein exercise of powers under Section 147 31 CrC may make an order 10 KUMAR SURESH SHAM LAL 2012.06.26 10: 19 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 78 1 CtMiscNoM45177 of 2006 any interference with the exercise of such right in a proper case an order for the removal of any obstruction in the exercise of any such right A specialprovisohas been appendedto Section 147 31CrC that no order shall be made where the right IS exerclsable at all times of the year unless such righthas been exercised within three months next before the receiptunder sub e C2 section l l of the report of a police officer or other information 0 Ieadingto the institution of the inquiry or where the right IS exercisable only at particularseasons or on particularoccasions I C unless the right has been exercised duringthe iast of such Ir I seasons or on the Iast of such occasions before such receipt The Z nature of the disputebetween the petitionersocietyand the Gram L Panchayatappears to be regardingthe rightof possesslonover a I property which admittedly vests in the Gram PanchayatWhether the ci5 societyhas got a right to user of this Iand on the basis of the revenue record specifyingthat it IS In cultivation of Makbooja ma Z Rafiyaam cannot be decided bythe MagistrateVodoubt in case of 1m apprehension of breach of peace regarding user of any rightor water where rightis claimed as an easement or otherwise the Magistrate can prohibita ny interference with the exercise of such right The powersgivento the Magistrateunder Section 147 31Cr are akin to the powers exercised bya Clvil Court in a suit for injunction or in a suit for mandatoryinjunction to remove an obstruction which is a hindrance in the exercise of rightsof a party But the said power has been vested ln the Executive Magistrateonly where the dispute 11 KUMAR SURESH SHAM LAL 2012.06.26 10: 19 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 79 V4 r 1 CrMiscJoMe45177 of 2006 between the partiesis Iikelyto cause a breach of peace regarding any allegedrightof user of any Iand or water where such rightbe claimed as an easement or otherwise The word otherwise used under Section 147 CrC widens the scope of powers of the Executive Magistratebut followingthe rules of of statutesthe word othetwise has to be read with the word rightof easement which has been specificallymentioned by the Legisiature 0 under Section 147 Cr P The word btherwisehas to be read 0 1 ejusdemGeneris with the word right of easement Since the V D petitionerhas not claimed rightor user in the Iand vested in the Gram Panchayaton the basis of an easement there was no Z occasion for the the Sub Divisional Magistrateto exercise powers under Section 147 31CrC The order passedby the revisional I Court is herebyaffirmed c8 The present petitionIS dismissed However it IS observed that the dismissal of this petitionwill not in any manner Z prejudicethe rlghtsof the petitionerto seek the appropriateremedy Qm in the civil Court in accordance with Iaw 1MSBEDII JUDGE August032010 rka 947 10 12 KUMAR SURESH SHAM LAL 2012.06.26 10: 19 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document