RSA No.3407 of 2006 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3407 of 2006 Date of Decision: 01.02.2010. Badlu Ram .……Appellant Versus Smt. Gaga Dai and others ……Respondents Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Kulvir Narwal, Advocate for the appellant. Mr. Deepender Ahlawat, Advocate for respondent Nos.1 to 13. Respondent No.14 ex parte. L. N. MITTAL, J (ORAL) Plaintiff Badlu Ram has filed the instant second appeal having remained unsuccessful in both the Courts below. Plaintiff filed suit seeking permanent injunction restraining the defendants from raising any construction over the suit property measuring 5 marlas in which a well is in existence for about 50 years before filing of the suit, which well is used by all the villagers for fetching drinking water, but defendant Nos.1 to 7 in collusion with defendant No.8 Gram Panchayat wanted to encroach upon portion of the suit land depicted by letters EDCF in the site plan and wanted to merge the said portion in the Chaupal existing towards south of the suit property. It was alleged that the suit land belongs to Gram Panchayat. Defendant Nos.1 to 7 have no right to encroach upon it or to merge it with Chaupal or to install a gate. Defendants (except defendant No.4) admitted that Gram RSA No.3407 of 2006 -2- Panchayat is owner of the suit property measuring 5 marlas and that well exists in it for more than 50 years. It was, however, pleaded that water of the well is alkaline and cannot be used for drinking purpose nor the well is being used by all residents of the village. On the other hand, marriage parties stay in the Chaupal existing towards south of the suit property and water of the well is used for taking bath. Portion CDEF of the suit land already had Harijan Chaupal which was in dilapidated condition and at the same place, new Chaupal is being reconstructed. Learned Civil Judge (Junior Division), Jhajjar vide judgment and decree dated 26.07.2005, dismissed the suit of the plaintiff. First appeal preferred by the plaintiff has also been dismissed by learned Additional District Judge, Jhajjar vide judgment and decree dated 05.08.2006. Feeling aggrieved, the plaintiff has preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellant vehemently contended that well existing in the suit land belonging to Panchayat could not be reserved for Harijans or Chamar community because it would be in violation of Article 15 of the Constitution of India which lays down that no citizen shall, on the grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to access to shops, public restaurants, hotels and place of public entertainment or the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use RSA No.3407 of 2006 -3- of general public. The contention although apparently attractive cannot be accepted in view of clause (4) of Article 15 of the Constitution of India providing that nothing in this Article or in Clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes. Accordingly, in view of Article 15(4) of the Constitution of India, special provision can be made for the advancement of Scheduled Castes. Consequently, there can be a public well in property of Gram Panchayat for use of members of Scheduled Castes. Learned counsel for the appellant also contended that the suit land is property of Gram Panchayat and, therefore, defendants have no right to encroach upon the same. The contention is untenable. Admittedly, the plaintiff had filed ejectment petition under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (in short, the Act) seeking ejectment of defendant Nos.1 to 7 from the suit land before Assistant Collector. The said ejectment petition has since been dismissed and the plaintiff has not preferred any appeal against the order of dismissal. In other words, the order of dismissal of ejectment application filed by the plaintiff under Section 7 of the Act has attained finality. It would depict that defendant Nos.1 to 7 were already in possession of the suit land and for this reason, ejectment petition was filed against them. Learned counsel for the appellant, however, contended that the said ejectment petition was also filed to prevent defendant Nos.1 to 7 from merging the suit land in the Chaupal. The contention cannot be RSA No.3407 of 2006 -4- accepted because the plaintiff could not have sought two remedies simultaneously i.e by filing ejectment petition under Section 7 of the Act and by filing the instant Civil suit. On the other hand, ejectment petition is filed only when the opposite party is in unauthorised possession of a site. In addition to it, the plaintiff himself admitted in cross-examination that the disputed well and the Chaupal of Harijans are adjacent to each other and the well also belongs to Chamar community. The plaintiff also admitted that the water of the well is being utilized for the purpose of bath. In the plaint, however, the plaintiff alleged that the water of the well is used by all the villagers for drinking purpose. There is categorical admission of the plaintiff himself that the Chaupal as well as the disputed well belong to Harijan Community. Existence of Chaupal in part of the suit property is also admitted and Chaupal is being reconstructed at the site of the old Chaupal. In view of the aforesaid discussion, I find no perversity or illegality in the judgments of the Courts below. No question of law much less substantial question of law arises for determination in the instant second appeal. The appeal lacks any merit and is accordingly dismissed. ( L. N. MITTAL ) JUDGE 01.02.2010 A. Kaundal