C.R.No.1895 of 2011 #1# IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.R.No.1895 of 2011 Date of Decision: 25.5.2011 Punjab Urban Development Authority, Patiala ....Petitioner Versus Anoop Singh and another ....Respondents CORAM: HON'BLE MR. JUSTICE JASWANT SINGH Present: Mr. D.V. Sharma, Sr. Advocate with Ms. Shivani Sharma, Advocate for the petitioner. Mr. Tushar Sharma, Advocate for respondent No.1. JASWANT SINGH, J Defendant No.1-PUDA (hereinafter to be referred as “petitioner”) has approached this Court under Article 227 of the Constitution assailing the order dated 15.11.2010 (P.10) passed by the learned Civil Judge (Sr. Division), Patiala whereby their objections to the report of the Local Commissioner have been dismissed. To unfold the controversy, certain facts to be noticed: Plaintiff/respondent No.1-Anoop Singh filed a suit for permanent injunction seeking to restrain the defendants from closing/encroaching upon passage/Kachha road described in the site plan C.R.No.1895 of 2011 #2# attached with the plaint being the only approaching passage to his house. Defendant-petitioner in their written statement have asserted that the land including the area of the alleged passage had been acquired vide award No.304 and 305 of 1973-1974 developed as Urban Estate Phase I. The area of the alleged passage was in the unauthorized possession of Raghuraj and others. This Court on a writ petition filed by the Resident Welfare Association of Urban Estate, Phase-I, Patiala was seized of the question of removal of encroachments from public property in Urban Estate Phase-I, Patiala and accordingly, the action was being taken to remove encroachments. It was denied that the plaintiff-respondent had any right of any passage from the purported passage in the plaint and it was further stated that as per the sale deed of the plaintiff, he was already having a passage on the southern side of his plot/house from 16' street of village Sahib Nagar. It was further stated that in order to protect their land from encroachments especially the green belt, defendants had started raising wall around the land in question. Learned trial Court vide order dated 20.9.2010 (P.5) appointed Sh. John Pal Singh, Advocate as Local Commissioner to ascertain the factual position as to whether there are two roads or there is only one passage/road as mentioned in the site plan leading to the house of the plaintiff. The Local Commissioner submitted his report (P.6) stating that Mark ABCD shown in the site plan was a Kacha Passage, which is 15 feet in width and 192 feet in length starting from main gate of plaintiff and leading to a metalled road, which is 20 feet in width. Eastern side of the plaintiff belongs to one Tarsem Lal, who has had vacant plot whereas southern side is a vacant plot having wild grass of Jaswant Singh and that C.R.No.1895 of 2011 #3# the plot towards eastern side belongs to one Pushpa Devi. The temporary Rasta/Pahi shown in the site plan colored with Sky-blue colour is going through the house of Pushpa Devi, which enter into plot of said Jaswant Singh leading to one Bagicha in the house of plaintiff. To controvert the report of the Local Commissioner, defendant- petitioner filed objections by way of objection petition stating that the Local Commissioner was only required to determine whether any passage exists to the house in dispute or not but he has wrongly reduced its width at the behest of the plaintiff showing the plots of other plot owners without taking any record on the file. It was also stated that a temporary rasta/passage has wrongly been mentioned whereas as per sale deed of the plaintiff, there is a passage of 16' wide on the southern. After hearing learned counsel for the parties, learned trial Court dismissed the objections filed by the petitioner, hence the present petition. Learned counsel for the defendant-petitioner submits that in view of Division Bench judgment of this Court in Balbir Dewan Cold Storage and General Mills v. Naveen Chander reported as 1989 PLJ 247, the objections filed by the defendant-petitioner have been wrongly dismissed by the learned trial Court as the same are to be considered at the stage of appraisal of the authenticity and relevancy of the report of the Local Commissioner. It is thus contended that dismissal of objections at this stage would prejudice their case at the time of consideration of the Local Commissioner's report by the learned trial Court. On the other hand, learned counsel for the respondent No.1 that the impugned order is perfectly legal and justified and does not warrant any interference by this court under Article 227 of the Constitution. C.R.No.1895 of 2011 #4# After hearing learned counsel for the parties and perusing the paper book, this Court finds merit in the present petition and the same deserves to be allowed. To decide the matter in controversy, it is necessary to reproduce the impugned order dated 15.11.2010, which reads thus: “Heard on the objection petition on the report of the Local Commissioner. Vide order dated 20.9.2010, the Local Commissioner was appointed to ascertain the factual position as to existence of the passage/road as is in dispute. Accordingly, the Local Commissioner submitted his report. The notice was also served to both the parties and in presence of both the parties, the said report has been prepared. In the report, the Local Commissioner has given his report as per directions of the court. However, while determining, whether there is passage or not, the Local Commissioner, was bound to observe and report as to what property adjoins the property of the plaintiff on different sides. Merely, by mentioning these observations, it does not ifso facto, disprove the report of the Local Commissioner. All the objections raised by the defendants have no merits and present application is dismissed. Now for consideration on stay application to come up on 18.11.10.” A perusal of impugned order reproduced hereinabove clearly reveals that the learned trial Court has dismissed the objections filed by the defendant-petitioner against the report of Local Commissioner and virtually made the report as final and conclusive leaving no chance for the defendant-petitioner to repudiate the same at C.R.No.1895 of 2011 #5# the time of final arguments. This approach of the learned trial Court is wholly unwarranted in view of the provisions of Rule 9 & 10 of Order 26 CPC as well as the Division Bench judgment of this Court in Balbir Dewan's case (supra), wherein somewhat similar situation arose. As in that case also, a report was submitted by the Local Commissioner and objection thereagainst were filed by the defendant-petitioner and the learned trial Court framed an issue to decide the objection petition and thus directed the defendant to produce his evidence on the said issue. The matter came to this Court in a revision petition before learned Single Judge and the same was referred to the Hon'ble Division Bench, which held as under: “Thus, from the provisions of Order 26 rule 10, it is quite evident that there is no provision for inviting any objection to the report of the Local Commissioner appointed under rule 9 thereof. In case, any such objections are filed by either of the parties to draw the attention of the Court as to the inherent defects therein, the Court may consider the same and if for any reasons dissatisfied with the proceedings of the Commissioner, may direct such further inquiry to be made as it shall think fit but neither of the parties is entitled to claim any issue with respect to the report. The only provisions under sub rule (2) of rule 10 of Order 26 of the Code is to examine the Commissioners personally in open Court either by the Court itself or by any of the parties with the permission of the Court. The objection, if filed by the parties, shall be considered after the cross examination, if any, of the Local Commissioner by the Court under rule 10 of Order 26 of the Code and that too along with the other evidence at the time of final hearing.” (emphasis laid) C.R.No.1895 of 2011 #6# In view of the above, the dismissal of the objections filed by the defendant-petitioner by the learned trial Court at this stage is not legally sustainable and as such the same deserve to be set aside. Consequently, present petition is allowed and the impugned order dated 15.11.2010 (P.10) passed by the learned Civil Judge (Sr. Division), Patiala is set aside with a direction to the learned trial Court to consider the objections filed against the report of Local Commissioner after his cross examination, if any, along with other evidence at the time of final hearing in the matter. May 25, 2011 ( JASWANT SINGH ) manoj JUDGE