CWP No.8268 of 2001 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No.8268 of 2001 Date of Decision: 6.8.2008 Pritam Kaur .....Petitioner Vs. The Commissioner, Rohtak Division, Rohtak and others ....Respondents .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr. Ashish Aggarwal, Advocate with Mr.Vijay Singh Kajla and Mr.Kulwant Singh, Advocates for the petitioner. Mr.Ajay Chaudhary, DAG, Haryana. ... RAJIVE BHALLA, J (Oral) This order shall dispose of CWP Nos.8268 to 8276 of 2001, as they involve common questions of fact and law. Facts, however, have been extracted from CWP No.8268 of 2001. The land in dispute was originally a part of Khasra No.1636, which measured 13 kanals and 13 marlas and was owned by Daya Ram etc. The Government of Haryana, issued a notification, under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as `the Act') dated 21.10.1975, proposing to acquire land measuring 27 kanals 17 marlas, for construction of a Bus Stand. 6 marlas of out of Khasra No.1636, described as Khasra No.1636/1 was also notified for acquisition. This notification was followed by a notification issued under Section 6 of the Act dated 11.5.1978. Though, the notifications refer to acquisition of 6 kanals of land bearing Khasra No.1636/1, they do not specify which part of Khasra CWP No.8268 of 2001 2 No.1636 was being acquired. The award was pronounced on 11.2.1981 by the Land Acquisition Collector. Eventually on 24.8.1983, a mutation was sanctioned, whereby Khasra No.1636, was bifurcated into Khasra No.1636/1, owned by the State of Haryana and Khasra No.1636/2 owned by private persons. In the meanwhile, the petitioner purchased 6 marlas of land out of Khasra No.1636, by way of a registered Sale Deed dated 2.9.1982 and raised construction of a house, after her building plans were sanctioned by the Municipal Committee, Assandh. The petitioners in the other writ petitions have also raised construction in the shape of houses/shops. The State of Haryana, filed a petition under Sections 3,4,5,6 and 7 of the Haryana Public Premises and Land (Eviction and Rent Recovery) Act, 1972 (hereinafter referred to as `the Public Premises Act') praying for the eviction of the petitioners and for realisation of damages for unauthorised use of a part of Khasra No.1636/1, which had been vested in the State, post acquisition. In response, the petitioner pleaded that she had purchased a share of undivided Khasra No.1636, by way of a registered Sale Deed and raised a residential structure. The State of Haryana has acquired 6 kanals and 0 marla of an undefined part of Khasra No.1636 and till such time, as it was not clarified, as to which specific part of Khasra No.1636 was acquired by the State of Haryana, the petitioners vendors were free to sell their share. It was also averred that after purchase of land from Khasra No.1636, the petitioner had become a co-sharer with the State of Haryana and could, therefore, not be said to be in unauthorised occupation of any part of Khasra No.1636/1, without a legal partition. CWP No.8268 of 2001 3 The Collector-cum-S.D.O. (Civil),Karnal, vide order dated 11.12.1998, allowed the petition and ordered the petitioner's eviction. The Collector held that after the award by the Land Acquisition Collector, Khasra No.1636/1 vested in the State of Haryana free from all encumbrances. It was also held that though, the mutation was sanctioned in favour of the State of Haryana on 24.8.1983, but as the petitioner was in occupation of land out of Khasra No.1636/1, as reflected in the demarcation report, she was in unauthorised occupation. Aggrieved by this order, the petitioner filed an appeal before the Commissioner, Rohtak Division, Rohtak, which was dismissed on 27.11.2000. The Commissioner, held that the sale deed executed in favour of the petitioner did not reflect the purchase of any specific portion of Khasra No.1636 and as the petitioner had failed to establish that the land purchased by her did not fell under Khasra No.1636/1, she was in unauthorised occupation. Counsel for the petitioner submits that the impugned orders are illegal and void. It is submitted that though the State of Haryana, acquired a part of Khasra No.1636, the notifications or award do not specify which part of Khasra No.1636 was acquired. The petitioner's vendors were, therefore, free to sell land from their unacquired share of Khasra No.1636. It is further submitted that as the State of Haryana did not acquire the entire Khasra No.1636, but acquired only a part thereof, the petitioner after purchase of land from Khasra No.1636 became a co-sharer with the State of Haryana. The unilateral partition carried out by the mutation dated 24.8.1983, therefore, does not bind the petitioner. It is further submitted that the mutation Annexure P-7 was CWP No.8268 of 2001 4 sanctioned on 24.8.1983, whereas the petitioner purchased 6 marlas of land earlier. The mutation, for the first time, demarcated and assigned boundaries and provided specific measurement to Khasra No.1636/1. The demarcation report Annexure R/4/T, pressed into service by the respondents, is illegal. It was carried out without notice to the petitioner and in her absence and the conclusions recorded in the demarcation report are vague and do not state that the petitioner is in unauthorised occupation of any part of Khasra No.1636/1. Counsel for the petitioner further submits that the bus stand is complete and its boundary wall has been raised. The construction raised by the petitioner falls beyond the boundary wall. It is, therefore, submitted that as the order passed by the Collector and the Commissioner are illegal, void and without jurisdiction, the writ petitions be allowed and the impugned orders be set aside. Counsel for the State of Haryana, submits that the petitioner purchased land from Khasra No.1636/1, after issuance of the notification under Section 6 of the Land Acquisition Act and after pronouncement of the award, by the Land Acquisition Collector. The petitioner has no right to remain in possession of the land, which has vested in the State of Haryana. It is further submitted that the State of Haryana acquired 6 kanals 2 marlas out of Khasra No.1636. The land acquired by the State of Haryana falls in Khasra No.1636/1 and is duly demarcated in the mutation Annexure P-7. The demarcation report Ex.R-4/7 clearly bears out that the petitioner is in unauthorised occupation of government land. As regards the petitioner's assertion that she is a co-sharer with the State of Haryana, pursuant to purchase of land from Khasra No.1636, it is submitted that the petitioner cannot claim the status of a co-sharer, as she has purchased land, which was CWP No.8268 of 2001 5 acquired by the State of Haryana. I have heard learned counsel for the parties and perused the impugned orders. As noticed herein above, Khasra No.1636, originally measured 13 kanals 13 marlas. The State of Haryana, acquired 6 Kanals from Khasra No.1636. Though, the notifications issued under Sections 4 and 6 of the Act and the award refer to Khasra No.1636/1 they do not identify, whether by boundaries or by measurement, which specific part of Khasra No.1636 was being acquired by the State of Haryana. It was for the first time and upon sanction, of the mutation of ownership in favour of the State of Haryana, on 24.8.1983 that Khasra No.1636/1 came into existence and Khasra No.1636 was bifurcated into Khasra No.1636/1 measuring (62 karam x18 karam), the Khasra No.1636/2 measuring (62 Karam x 23 karam). The mutation demarcated the boundaries of Khasra No.1636/1 and 1636/2 for the first time. In the meanwhile and prior to this bifurcation of Khasra No.1636, the petitioner purchased land measuring 6 marlas from Khasra No.1636, by way of a registered Sale Deed dated 2.9.1982. She raised construction after obtaining permission from the Municipal Committee, Assandh. The dispute is whether the petitioner is in occupation of any part of Khasra No.1636/1. The short question, which would determine the outcome of this controversy and would necessarily require adjudication is, whether the respondents have placed any legal and cogent material, before the Collector or the Commissioner, to establish that the petitioner's house, raised pursuant to her admitted purchase of 6 Marlas of land from Khasra No.1636, falls in Khasra No.1636/1. CWP No.8268 of 2001 6 In support of their respective submissions, counsel for the parties have referred to the mutation Annexure P-7 and the demarcation report Annexure R-4/T, though for different purposes. The petitioner alleges that prior to the mutation, there was no determination as to the location, boundary and area of Khasra No.1636/1. Her house does not fall in Khasra No.1636/1. The respondents on the other hand rely upon the demarcation report to assert that the report clearly establishes that the petitioner is in unauthorised occupation of a part of Khasra No.1636/1. Admittedly, the notifications issued under Sections 4 and 6 of the Act and the award pronounced there under do not identify, whether by boundaries or by measurement the 6 Kanals of land acquired by the State of Haryana, from Khasra No.1636. It is not denied that for the first time and pursuant to the mutation dated 24.8.1983 Annexure P-7, Khasra No.1636 was bifurcated into Khasra No.1636/1 and Khasra No.1636/2 and assigned, location, the measurements and boundaries to the newly created Khasra numbers. It is, therefore, apparent that prior to the sanction of this mutation, there was no indication, as to which specific part of Khasra No.1636 was acquired, its location, its measurements or its boundaries. The notifications merely refer to acquisition of 6 marlas from Khasra No.1636/1. The petitioner's vendors were admittedly owners of entire land of Khasra No.1636, prior to acquisition. and sold 6 Marlas out of Khasra No.1636 to the petitioner, vide registered Sale Deed dated 2.9.1982. The petitioner, thereafter, raised construction after obtaining sanction of building plans from the Municipal Committee, Assandh. In view of above facts, the only manner in which this dispute could be resolved, was by calling upon the Revenue Authorities to demarcate Khasra No.1636/1, Khasra No.1636/2 CWP No.8268 of 2001 7 and the other Khasra numbers, so as to determine, whether the land purchased by the petitioner falls under Khasra No.1636/1 or land acquired by the State. For this purpose, the authorities below have relied upon the demarcation report Ex. R-4/T. The report was prepared on 2.7.1992 whereas the petition under the Public Premises Act was filed on 25.8.1992. The report does not disclose that any notice was issued to the petitioners prior to or during the demarcation. The petitioner and the other alleged unauthorised occupants, who are petitioners in the connected writ petitions were not associated with the demarcation. A demarcation of land must inevitably, be preceded by service of a notice upon all persons likely to be affected. Demarcation of land are to be carried out in accordance with instructions issued by the Financial Commissioner. The instructions prescribe clear guidelines for carrying out demarcations of land and the rules of natural justice require that all interested parties should be present during demarcation. As no attempt was made to secure the presence of the petitioners prior to or during the demarcation, the report is violative of the principles of natural justice and cannot, therefore, be pressed into service by the respondents. The Halqa Patwari and the Kanungo, carried out the demarcation in the presence of a representative of the State of Haryana, but in the absence of any of the petitioners. The demarcation was carried out of of Khasra Nos.1636/1, 308-15/1-6/2-6/1/2, 1637/2, 1637/1, 1634/3, 1635-4/1, 1635/6, 1635/5, 1634-2/2, After measurements, the Patwari and the Kanungo recorded a terse remark that Hardeep Singh, S/o Gurcharan Singh, Hardeep Singh, Deep Automobiles, Gurcharan Singh, Daljeet Singh, Mongewala, Pritam CWP No.8268 of 2001 8 Singh S/o Harnam Singh, Pritam Kaur W/o Gurcharan Singh, Raj Transport Wala, Pardeep S/o Amar Nath and Gulshan Kumar S/o Pindi Dass were in unauthorised occupation of the “land of bus stand”. The Kanungo and the Patwari were required to specify the exact area under occupation of the petitioners and the exact Khasra number in which their lands fell. The report as noticed herein above merely states that the above mentioned persons are in unauthorised occupation of “land of the bus stand”. The Patwari and the Kanungo should have recorded a specific finding that the petitioners were in possession of a part of Khasra No.1636/1 and then also which part. As the report is silent as to the part of Khasra No.1636/1 in occupation of the petitioner, the report is vague and does not conclusively establish the case set out by the respondents. The report, therefore, could not have been relied upon by the Collector and the Commissioner. Apart from the demarcation report, there is no other evidence on record to establish that the land in occupation of the petitioner falls in the land acquired by the State of Haryana. In view of the conclusions recorded herein above, it would have to be held that there was no legal or cogent evidence on record before the Collector and the Commissioner to hold that the petitioners are in unauthorised occupation of land belong to the State of Haryana. A person in unauthorised occupation of public land, commits an unpardonable act of misappropriation of public property. Unauthorised occupants, whatever be their status or might should not escape the consequences of their illegal acts. However, in view of the absence of any legal evidence to establish unauthorised occupation of government land, I have no option but to accept the writ petitions, set aside the impugned CWP No.8268 of 2001 9 orders and remit the matter to the Collector for an adjudication afresh, in accordance with law. In view of what has been stated herein above, the writ petitions are allowed and the impugned orders dated 11.12.1998 and 27.11.2000 are set aside. The matter is remitted to the Collector for adjudication afresh. The Collector shall order a fresh demarcation of the disputed land, by associating the petitioners. The demarcation shall be carried out after taking into consideration the boundaries, as reflected in the Mutation dated 24.8.1983. Parties are directed to appear before the Collector, Karnal on 18.9.2008, who shall decide the matter within a period of three months. Parties would be free to raise any other point that may arise for consideration before the Collector. 6.8.2008 (RAJIVE BHALLA) GS JUDGE