CWP No. 3523 of 2008 [1] IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP No. 3523 of 2008 Date of Decision: 04.11.2008 Subhash and others ..Petitioners versus State of Haryana and others ..Respondents CORAM: HON'BLE MR. JUSTICE T.S.THAKUR,CHIEF JUSTICE HON'BLE MR. JUSTICE JASBIR SINGH 1.Whether Reporters of local papers may be allowed to see the judgment ? 2. Whether to be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? Present : Mr. Sanjay Chauhan, Advocate for the petitioners Mr. Rameshwar Malik, Addl. A.G. Haryana for respondents No.1 to 4 Mr. Jagdish Manchanda, Advocate for respondent No.5 Mr. Mansur Ali, Advocate for respondents No. 6 to 9. ***** T.S.Thakur, C.J. (Oral) CM No. 21454 of 2008 Heard. Allowed subject to all just exceptions and CM application disposed of. CM No. 21455 of 2008 Counter affidavit on behalf of respondents no. 6 to 9 is taken on record and CM application disposed of. CWP No. 3523 of 2008 This petition has been filed in public interest. It prays for a CWP No. 3523 of 2008 [2] mandamus directing respondents No.1 to 3 to take action against the encroachers who are alleged to have illegally occupied public ponds in village Kalayat, Tehsil & District Kaithal in the State of Haryana. The petitioners case as set out in the writ petition is that an area measuring 121 Kanals situate in different khasra numbers of the village mentioned above is recorded as 'Gair Mumkin Johar' (village pond), which is meant for common use by the residents of the village. With the inclusion of the village area within the limits of Municipal Committee, Kalayat, the said land has vested in the Municipal Committee in terms of Section 2(22-B) of the Haryana Municipal Act, 1973. Although, the land belongs to the municipality and ought to have been taken care of by it yet some of the residents of the village have started alienating portions of the said land to different persons, who have in turn started filling up the ponds for construction and other purposes thereby causing serious prejudice to the interest of the municipality and the people residing within the municipal area. A mandamus directing the municipal authorities to take action against the encroachers and to restore the land in question to the possession of the Municipal Committee has been prayed for. In response to the notice issued by this Court, Shri O.P.Rana, Naib Tehsildar, Kalayat has filed an affidavit on behalf of respondents No.1 to 4. The affidavit, inter-alia, makes the following specific assertions:- “ The property in dispute is the common land and in the column of ownership name of various proprietors of the land has been recorded and in column of type of land, it is recorded as Johar. But as per law, there is no ban on the sale of proprietary right of land to other body. CWP No. 3523 of 2008 [3] The authorities have no collusion with any body. Rather the Deputy Commissioner, Kaithal has issued directions to Secretary, Municipal Committee, Kalayat to take all possible steps to save the land. No doubt the land in suit is meant for common purposes in accordance with the revenue record and in accordance with Section 2 (22-B), the land in question have vested in the Municipal Committee, Kalayat. But Municipal Committee, Kalayat has not initiated any proceedings before the competent authority to get convert the land in its favour.” The affidavit goes on to state that no complaint has been received by Naib Tehsildar or by District Authorities from Municipal Committee, Kalayat regarding misutilisation or encroachment over the land in dispute nor has the Municipal Committee taken any steps to get the land in dispute declared as its property or vacated from those who may have occupied the same. In the affidavit filed even on behalf of Municipal Committee, Kalayat, the Committee has inter-alia asserted that the land in question vests in the Gram Panchayat which area has now come within the municipal limits. The land is 'Gair Mumkin Johar' and is vested in the Municipal Committee as per Section 2 (22-B) and Section 61of the Haryana Municipal Act, 1973. The counter affidavit further states that Municipal Committee as well as the local administration are bound to take action against the encroachers under the provisions of Haryana Municipal Act as well as under the Public Premises Act. A committee has been formed under the guidance CWP No. 3523 of 2008 [4] of the Deputy Commissioner to demarcate the land and to file eviction petitions, if necessary, against the encroachers. The affidavit filed on behalf of respondents No. 6 to 9 alleged encroachers, however, asserts that the land in question is proprietary land and had been purchased by the said respondents for valuable consideration with which the Municipal Committee or the village Panchayat has no concern whatsoever. The said respondents have prayed for dismissal of the petition. We have heard learned counsel for the parties at some length and perused the record. The only question that falls for determination is whether the land in dispute is public property has been illegally occupied and diverted on account of in action and apathy on the part of the District Administration and the Municipal Authorities. In so far as the petitioners, respondents No.1 to 4 and Municipal Committee are concerned, they are all ad idem that the land in question is the property of Municipal Committee as the same comprises 'Gair Mumkin Johar' in village Kalayat. The said land is vested in the Municipal Committee in terms of Section 2(22-B) and 61 of the Haryana Municipal Act. It is also evident that Deputy Commissioner has issued certain directions to the Municipal Committee to take action against the encroachers. That is the version given even by the Municipal Committee, according to whom, the matter has been taken up with the local administration for demarcation of the land so that proceedings for eviction of the encroachers can be initiated. Although, this version of the petitioner and the Local Administration as also the Municipal Committee is disputed by respondents No. 6 to 9, who claim to have purchased the land for CWP No. 3523 of 2008 [5] valuable consideration from the rightful owners, we are of the opinion that the question of title of the property cannot be satisfactorily determined in these proceedings. If the Municipal Committee claims ownership of the land as indeed is the position in the instant case, it ought to take immediate steps to prevent any encroachment, sale, transfer or misutilisation of the said property. The fact that it has not been done so effectively till now, only shows that the authorities concerned or the Municipal Council have not acted bonafidely and have not taken steps to protect the property belonging to it. This negligence and apathy on the part of the Municipal Authorities is only the reason, why we consider it necessary to direct the Deputy Commissioner, Kaithal to personally look into the matter and if necessary visit the spot to determine the true nature of the land, namely, whether the same constitutes ponds meant for common use by the residents of the area, or private property. In case the Deputy Commissioner after verification of the record and site conditions comes to the conclusion that land in question is indeed municipal property, he ought to direct the Municipal Committee to take immediate steps for preventing any encroachment, sale, transfer or misutilisation of the same. He will also identify the officers employed within the Municipal Committee who could and ought to have taken steps for protecting the public property but who have failed to do so for whatever reasons. The petitioners can also be permitted to associate the Deputy Commissioner in this process who shall do the needful expeditiously but not later than six months from the date a copy of this order is produced before him. The Deputy Commissioner shall be free to hear the respondents No. 6 to 9 to know their point of view. We make it clear that while the Deputy Commissioner is not the final authority to determine the title of the land, if CWP No. 3523 of 2008 [6] on prima facie basis, he is of the opinion that the land actually belongs to the Committee, the Committee can initiate proceedings for eviction of the unauthorised occupants and restore the land to its possession for such use as may be otherwise permissible in accordance with law. Needless to say that in the course of any such proceedings, the encroachers/persons in occupation, shall have an opportunity of being heard and establishing their right to stay in occupation of the land in question. The Municipal Committee shall cooperate with the Deputy Commissioner for compliance with all such directions regarding protection of public property under the unauthorised occupation of the private occupants, as may be issued by the latter pursuant to this order. The writ petition is accordingly disposed off with the above directions and observations leaving the parties to bear their own costs. (T.S.THAKUR) CHIEF JUSTICE (JASBIR SINGH) 04.11.2008 JUDGE 'ravinder'