L.P.A. No.530 of 2011 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH L.P.A. No.530 of 2011 (O&M) DATE OF DECISION: MARCH 18, 2011 Surajbhan .....APPELLANT Versus The Commissioner, Rohtak Division, Rohtak and others ....RESPONDENTS CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL HON'BLE MR.JUSTICE M. JEYAPAUL --- Present: Mr. S.R. Hooda, Advocate, for the appellant. .. SATISH KUMAR MITTAL, J. This Letters Patent Appeal has been directed against the order dated 31.01.2011 passed by the learned Single Judge, whereby the writ petition (CWP No.20655 of 2008) filed by the appellant and proforma respondent No.6 challenging the order dated 30.1.2008 passed by the Collector, Sonepat, ordering their eviction from 109 Sq. Yard of the disputed land; and the order dated 17.7.2008 passed by the Commissioner, Rohtak Division, Rohtak, dismissing their revision against the above-said order, has been dismissed. 2. Before we deal with the contention raised by the learned counsel for the appellant, it is necessary to give the chequered history of this case. 3. In the present case, the dispute is about a piece of land L.P.A. No.530 of 2011 (O&M) -2- measuring 142 Sq. Yard situated in village Abadi Deh in which one old well is existing, which was constructed long back and was being used by the inhabitants of the village for fetching drinking water. The said piece of land, situated in the abadi, was used for the common purposes of the village and, thus, vests in the Gram Panchayat. When the said land was illegally encroached upon by the appellant and proforma respondent (hereinafter referred to as `the appellants') and had been made part of their house by constructing a boundary wall around it, one of the resident of the village, namely, Shiv Kumar (respondent No.5 herein) filed an application under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as `the Village Common Lands Act') for eviction of the appellants from the said land. Vide order dated 29.7.1991, the Assistant Collector Ist Grade, Sonepat, after hearing the parties and making spot inspection, ordered the eviction of the appellants from the said land after coming to the conclusion that the well, which was constructed in the year 1914, is being used by the residents of the village to draw water and the land around the well is being used for common purposes of the village, and the said land has been illegally encroached upon by them. On appeal filed by the appellants, the said order was set aside by the Collector on 17.3.1992 and the matter was remanded to the Assistant Collector Ist Grade for deciding the matter afresh after considering the question of title raised by the appellants and getting the land demarcated from the revenue official. 4. After the remand, again the eviction application filed by respondent No.5-Shiv Kumar, was dismissed by the Assistant Collector Ist Grade vide order dated 6.2.1996 on the basis of the demarcation report that L.P.A. No.530 of 2011 (O&M) -3- the appellants had raised some construction on the land excess to what they had purchased, but in view of the fact that they had constructed the house 15-20 years back, no eviction order could be passed against them. 5. Feeling aggrieved against the said order, respondent-Shiv Kumar filed an appeal. The Collector, vide his order dated 22.8.1996, again remanded the matter, while observing as under:- “After hearing both the sides and perusing file of the case it is found that subordinate court has himself admitted in his order that respondents have laid bricks over land measuring 3x44 ft. in the passage which is used by all people. The subordinate court has held this land the land of passage and the land which has been used for common purposes vests in the Gram Panchayat and no one can lay bricks on it. The subordinate court has passed no order regarding this land. It has been written regarding kitchen that local Commission concedes that the house of the appellants seem to be built 15-20 years back. Subordinate court has taken decision in his order that when the construction of house of the appellants was done. No clear cut decision has been done on the point that the construction of the house was done around 1971. On the basis of aforesaid facts I set aside the order of the ACIG, Sonepat dated 6.2.1996 finding same illegal and this case is being remanded with the direction that ACIG decide the case by inspecting the spot and decide the point that when the construction of the house was made. In case he fails to decide the case by inspecting the spot then he invite the evidence from both the sides again and will decide the case on merits. Parties had been directed to appear before the court of learned ACIG-cum-SDO (Civil) on 12.09.1996.” 6. After the remand, vide order dated 24.3.1998, Assistant Collector Ist Grade, Sonepat, after recording the evidence and making spot inspection, L.P.A. No.530 of 2011 (O&M) -4- and after getting the land demarcated from the revenue official, had come to the conclusion that the appellants had constructed kitchen and staircase on the common purpose land belonging to the Gram Panchayat and ordered for eviction of the appellants from the disputed land. 7. Against the above-said order, the appellants filed an appeal. The Collector vide his order dated 9.12.1998 allowed the appeal and set aside the order of the Assistant Collector Ist Grade and remanded the matter for the third time, while observing that the order passed by the Assistant Collector Ist Grade was non-speaking and he had not complied with the earlier remand order. 8. After the third remand, the Assistant Collector Ist Grade vide his order dated 29.4.2003 again dismissed the ejectment application on the ground that the constructions of the kitchen, staircase and the house were old one, i.e., prior to 12.02.1981. Therefore, they could not be ordered to be evicted from the common purpose land on which they had raised construction. 9. Feeling aggrieved against the said order, the respondent-Shiv Kumar filed an appeal before the Collector, which was dismissed by him vide order dated 28.3.2005. Against the said order, respondent-Shiv Kumar filed a revision before the Commissioner, who according to Section 13-B (2) of the Village Common Lands Act is having suo motu power to call for any proceedings, pending or orders passed by any authority subordinate to him for the purpose of satisfying himself, as to the legality or propriety of the proceedings or order and pass such order, in relation thereto as he may deem fit. The Commissioner vide his order dated 27.6.2007 set aside the L.P.A. No.530 of 2011 (O&M) -5- order of the Collector and remanded back the case to him to decide it afresh, while observing as under:- “After considering arguments from both the sides and perusing through the relevant record brought on the file, it has been clearly proved through evidence on the file that there was no construction on the disputed site by the respondents No.1 and 2 and they were ejected for the first time vide order dated 29.7.1991 by Shri Tarun Bajaj, SDO (Civil)-cumA.C.1st Grade, Sonepat. This order was passed after inspecting the site by the said A.C. 1st Grade and details of the site as seen during inspection, have also been mentioned in the said order. As per inspection report enclosed with the said order, it has been stated that the well in question was old one wherefrom all villagers drew water and it was confirmed by the people present at the site that plot in question was Share-am plot meant for common purposes over which a platform of 6x10 ft. existed. It is further revealed from the written statement of Suraj Bhan etc., respondents filed before the A.C. 1st Grade on 17.1.1991 that it was a plot over which a well and hand pump existed. On these grounds, it is proved beyond doubt that earlier it was an open vacant plot till 1991 but because the said respondents were having adjoining house, thereafter they have constructed a boundary wall over the same. It is quite surprising that both the lower courts have failed to appraise the total evidence on the file and they have wrongly relied upon Chullah Tax receipt and bills of electricity which do not pertain to this plot and probably pertain to adjoining house of the respondents. During arguments, contention of the counsel for the respondents that the admission of respondents about the plot being vacant site, actually pertains to a separate land, cannot be given any weightage because there was no ground for the respondents to talk of other plot when the proceedings related to the site in L.P.A. No.530 of 2011 (O&M) -6- question. Mark-A, which is an application is also a futile exercise by the respondents to rope in people of his preference in support of his contention which has not been proved on the basis of evidence on the file. On these grounds, the impugned orders of the lower courts are set aside and the case is remanded back to the Collector to decide the same afresh purely on merit after appraising evidence correctly and cross checking the same, if necessary.” 10. Before the Collector, on the asking of the appellant, the disputed land was again demarcated by the Tehsildar. He had made a statement that in case any land is found in excess of his purchased land, then he is ready to vacate the same or purchase the same by depositing money. In the presence of the parties, the disputed land was demarcated by the Tehsildar, who submitted his report on 28.1.2008 in which he found that the appellants had encroached upon 109 sq. yard of common purpose land by erecting boundary wall, and in that portion, no construction is existing. When the report was placed before the Collector, the appellants did not raise any objection against the demarcation report, rather they conceded the same as true. Accordingly, the Collector vide his order dated 30.1.2008 passed the order of eviction against the appellants from the area measuring 109 sq. yard as per the demarcation report dated 28.1.2008 on having been found in unauthorized possession. 11. In spite of the fact that the appellants had accepted the demarcation report and as per the said report, the ejectment order was passed, the appellants filed a revision against the aforesaid order, which was dismissed by the Commissioner vide order dated 17.7.2008, while observing as under:- L.P.A. No.530 of 2011 (O&M) -7- “After hearing the counsel and perusing the documents on the file, it is revealed that the Collector after the remand order of the then Division Commissioner, Rohtak, has got the site demarcated by appointing a Local Commission and has decided the case accordingly. The Collector has also mentioned in his order that the demarcation has been got done on the request of the respondent No.1 who is now petitioner before this court. There does not seem any violation of the remand order of the then Commissioner rather the case has been decided by the Collector on merit as per the site situation reported by the Local Commission. The perusal of the impugned order of Collector further reveals that the petitioner during the arguments before the Collector has stated that the land be got demarcated and if the petitioner is found to be in possession of the excess land to his purchased land, he is ready to remove his possession from the same or is ready to pay the cost of the land as per policy of the Government. There is no force in the plea of the petitioner that the well in fact is personal kuee meant for his personal use and not for public use because the area of the well including its periphery is 105 sq. yds. and such a large area cannot be meant for small kuee (small well) rather it is for a well for the water for general public at large. Now, since the petitioner has been found to be in unauthorized possession of the site in question, therefore, there does not seem any irregularity in the impugned order of the Collector and accordingly, finding no force in the present revision petition, the same is dismissed in limine.” 12. These orders were challenged by the appellants in the aforesaid writ petition, which has been dismissed by the learned Single Judge, while observing as under:- “The facts, when considered in totality, indicate that an old well had been installed wherefrom all the villagers drew water. It was a Share-am plot meant for common purposes L.P.A. No.530 of 2011 (O&M) -8- over which a platform of 6 feet x 10 feet existed. The plot was vacant till 1991. The petitioners, however, were having a house adjoining to the area and, therefore, so as to encroach, they constructed a boundary wall over the said land. The facts have been verified by way of demarcation report and a finding of fact against the petitioners has been recorded. In such circumstances, in extra ordinary writ jurisdiction, no indulgence can be shown, particularly because the land was being used for common purposes. 9 No arbitrariness or perversity in the orders can be traced. Even equity demands that the land is restored for common use of the villagers, they having been deprived of the use since 1991 when the petitioners encroached upon the same. The petitioners have been successful in maintaining possession over the land for such a long time by filing appeals/revisions and having the matter remanded at one stage or the other. There must come an end to every lis and the matters cannot be reopened on technicalities, particularly when equitable relief demands adjudication. 10 The petition is, accordingly, dismissed.” 13. From the aforesaid facts, it appears that the appellant, who had illegally encroached upon the common purpose land of the village, is resisting and maintaining his illegal encroachment for a long time by filing one petition after the other and the matter is being remanded time and again by the revenue authorities on one pretext or other. It is a matter of surprise that once the appellant had conceded before the Collector after the third remand that the land be again demarcated and if any encroachment is found on the same, then he would vacate the said illegal encroachment or will purchase the same after making payment, if permissible under the law, even then the appellant had challenged the said order before the Commissioner and after the dismissal of revision petition, he further L.P.A. No.530 of 2011 (O&M) -9- challenged the said order before this Court. 14. Now, during the course of arguments, learned counsel for the appellant, on the strength of a Division Bench decision of this Court in Leela Ram Versus Gram Panchayat, Jailaf and others, 1997(2) PLJ 407 and a Single Bench judgment of this Court in Chand Ram and others Versus The Commissioner and others (CWP No.12418 of 2007) decided on March 4, 2009, tried to impress upon this Court that the order dated 27.6.2007 passed by the Commissioner setting aside the order of the Collector remanding the matter to the Collector again, was wholly without jurisdiction because under Section 13-B(2) of the Village Common Lands Act the Commissioner can entertain the revision petition against the order of the Assistant Collector Ist Grade and Collector, where the question of title has been decided under the proviso of sub-section(1) of Section 7. Since in the present case no question of title is involved, therefore, the Commissioner was having no jurisdiction to entertain the revision under Section 13-B(2) of the Village Common Lands Act and the order of the Collector dated 28.3.2005 had become final. This contention of the learned counsel cannot be accepted in the facts of this case. Without going into the issue, the aforesaid legal contention and the provisions of Section 13-B(2) of the Village Common Lands Act, which provide suo motu power to the Commissioner to call for any proceedings, pending or orders passed by any authority subordinate to him for the purpose of satisfying himself, as to the legality or propriety of the proceedings or order and pass such order, in relation thereto as he may deem fit, the appellant cannot be permitted to raise this plea because not only he had accepted the said remand order, but L.P.A. No.530 of 2011 (O&M) -10- thereafter he had also contested the case before the Collector and even had consented for the appointment of the Local Commissioner for demarcating the land with an undertaking that in case any illegal encroachment is found, he will vacate the same. On his request, the land in dispute was demarcated from the Tehsildar and in that demarcation report, it was found that the appellants had encroached upon 109 sq. yard land by erecting boundary wall and house in excess to their purchased land. It has been further found that in 109 sq. yard land the old well meant for the public use had been existing and the same was being used by the inhabitants of the village as common purposes land. The appellant himself had challenged the order of the Collector by filing a revision which was dismissed by the Commissioner. Now, at this stage, when the appellant had submitted to the jurisdiction of the Collector and got the land demarcated on his request, where he was found to be in unauthorized possession of the common purposes land, he cannot be permitted to say that the revision before the Commissioner was not maintainable. As a matter of fact, in the earlier demarcation report as well as second demarcation report, it was found that the appellant had encroached upon the common purposes land, on which a well is existing, which was being used by the residents of the village for fetching drinking water. The kitchen and staircase, which had been constructed on the disputed land, has been excluded under the second report and thereafter out of 145 sq. yards land, only 109 sq. yard area was found to be in excess in which there is no construction. It appears that the appellant on one pretext or the other is adamant to hold the illegal possession of the common purpose land which vests in the Gram Panchayat L.P.A. No.530 of 2011 (O&M) -11- and instead of accepting the report and the undertaking given by him, he is challenging the order of his ejectment from the said land. Further, the contention of the learned counsel that in case the appellant is found in excess of his purchased land, then he is ready to vacate the same or purchase the same by depositing money, cannot be accepted because on the disputed land there is no construction. Therefore, under the policy of the State Government, the appellant cannot be permitted to purchase the common purpose land, on which a well is existing, which was being used by the residents of the village for fetching drinking water. Thus, we do not find any illegality in the orders dated 27.6.2007 passed by the Commissioner, remanding the case to the Collector, 30.1.2008 passed by the Collector, 17.7.2008 passed by the Commissioner and the order dated 31.1.2011 passed by the learned Single Judge. 15. In view of the aforesaid discussion, the appeal is dismissed with costs, which are assessed to Rs.25,000/-. Since the appellants are maintaining the illegal possession since long, the Collector is directed to get the encroached land vacated, which is to be used by the inhabitants of the village for common purposes, in terms of the ejectment order, within a period of three months, and report the matter to this Court. (SATISH KUMAR MITTAL) JUDGE March 18, 2011 ( M. JEYAPAUL ) vkg JUDGE