C.M. No.23925 of 2008
CIVIL WRIT PETITION NO.16433 OF 2007 (O&M) :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
DATE OF DECISION: MARCH 23, 2009
Brahma Nand
.....Petitioner
VERSUS
State of Punjab and others
....Respondents
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
PRESENT: Mr. K. S. Cheema, Advocate,
for the petitioner.
Mr. Parveen Chander Goyal, Addl.A.G., Punjab,
for the State.
Mr. A. S. Gill, Advocate,
for the applicant.
Mr. T. P. Singh, Advocate,
for respondent No.4.
****
RANJIT SINGH, J.
On 24.7.2003, demarcation was carried out by Girdawar
on instructions of Block Development and Panchayat Officer.
Thereafter Gram Panchayat filed an application under Section 7 of
the Punjab Village Common Lands (Regulation) Act (for short, “the
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CIVIL WRIT PETITION NO.16433 OF 2007 (O&M) :{ 2 }:
Act”) against the petitioner. The application was dismissed on
30.5.2006. Gram Panchayat filed an appeal against the same which
was accepted and the case remanded for consideration of both the
demarcation reports. The petitioner has impugned this order.
The Collector while declining the prayer of the petitioner,
noticed that khasra number of the disputed land is 27 which is owned
by the Gram Panchayat. He also found that Gram Panchayat had
earlier got the disputed khasra number demarcated under the orders
of Block Development and Panchayat Officer through Block Samiti,
Patwari on 24.7.2003. Samiti Patwari did not file the site plan
showing the encroachment. The Gram Panchayat filed a fresh
application for demarcation and Local Commissioner was appointed
by the Collector. Demarcation report was received on 7.8.2005.
Respondent was not found in any unauthorised possession at the
spot. Collector also observed that there is a pucca road built at the
disputed land which is correctly 3 karams wide at the spot. The
application filed by the Panchayat was accordingly dismissed. The
Commissioner, however, in an appeal observed that as per
jamabandi for the year 1988-89, the disputed land is owned by Gram
Panchayat and that it is not clear from the conflicting competing
demarcation reports whether the petitioner was in possession over
the land or not. He accordingly found that thorough enquiry in regard
to the report of Local Commissioner was needed to see if it is really
in possession of the petitioner. He accordingly set aside the order
passed by the Collector and remanded the case to him for re-
hearing. The petitioner has, thus, impugned this order before this
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CIVIL WRIT PETITION NO.16433 OF 2007 (O&M) :{ 3 }:
Court.
When the case came up for hearing before this Court on
4.11.2008, the counsel representing the parties agreed that only
controversy was whether the petitioner has encroached over the
passage measuring 59 karams x 3 karams. Counsel for the petitioner
had submitted that path measuring 59 karams x 3 karams was
available at the spot, whereas the counsel for the Gram Panchayat
insisted that the petitioner had encroached over the entire passage.
A prayer accordingly was made before the court for issuing direction
to Tehsildar to visit the spot and determine whether the passage/path
measuring 59 karams x 3 karam was available at the spot. The
counsel for the petitioner did not object to such detailment, but
pleaded that demarcation be carried out in conjunction with the Local
Commissioner to be appointed by this Court. This proposal so made
by the counsel for the petitioner was accepted by the counsel
representing the respondents. It was clearly agreed between the
counsel appearing for parties that report of the Local Commissioner,
after the spot inspection so made, should be binding upon the rival
parties. Accordingly Division Bench of this court appointed Mr.Ashok
Verma, Advocate, as Local Commissioner to visit the spot in
question. He was to see if the passage/path measuring 59 karams x
3 karams was available at the spot. After the spot inspection, the
Local Commissioner was required to submit his report within a week
of his inspection.
The Local Commissioner accordingly has inspected the
spot. He has now placed his report on record. As per the report, the
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CIVIL WRIT PETITION NO.16433 OF 2007 (O&M) :{ 4 }:
Local Commissioner got measured the passage/path from Kanungo
and Patwari. The width of the passage was measured at different
places in the presence of Local Commissioner which was found to be
3 karams on all the four different places so measured. All present at
the spot did not dispute regarding the width of the passage, which
was found to be 3 karams wide at every place. The length, though
was not measured, but all those present at the spot unanimously
agreed that passage was 59 karams long. The Local Commissioner,
however, still went on to make some observation regarding the
location of the aforesaid passage. It was pointed out that in case
distance was measured from the pucca point X the passage would
come within the land of the petitioner, Brahma Nand cutting across
the aforesaid two houses of Balbir Chand and Kartar Chand whereas
Brahma Nand, petitioner, stated that location of the passage was
perfectly correct and no encroachment was made. The Local
Commissioner did not take the measurement of distance between
the pucca point and the passage since it was not part of his
reference while detailing him as a Local Commissioner.
After submission of the report by Local Commissioner, an
opportunity was given to the parties to file their objections. I am of the
view that in view of the limited reference made to the Local
Commissioner as noticed in order dated 4.11.2008, there is no scope
of further contest and dispute in the petition. The Collector found that
the petitioner was not in an unauthorised possession at the spot,
which was interfered with by the Commissioner on the basis that
there was conflicting competing demarcation reports. This court
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accordingly made reference to see in case the passage measuring
59 karams x 3 karams was available at the spot or not. The Local
commissioner has measured the same and found that passage/path
measuring 59 karams x 3 karams is available at the spot. Obviously,
the allegation of encroachment made against the petitioner would not
stand. In this background now to further give chance to the parties to
contest, that too in a writ petition pending before this court, would
neither be just nor appropriate. It will not be proper for this court to
adjudicate and go into the disputed questions of fact, especially so
when the parties are also litigating in a civil suit.
It may need a notice here that one Gurbachan Singh filed
a Civil Misc. Application No.23909 of 2008 for being impleaded as
respondent No.5. He wanted to become a party on the ground that
he is owner in possession of the land adjoining the land in dispute.
He also pleaded that the petitioner has encroached upon the Rasta
and while doing so, petitioner and respondent No.4 were intending to
use the land of the applicant. Applicant had also filed a suit for
permanent injunction in September 2006 and has prayed for
issuance of decree of permanent injunction for restraining the
petitioner and respondent No.4 from interfering in his peaceful
possession. This civil suit is now fixed for evidence. The prayer made
in the application is that the applicant would be a necessary and
proper party, as dispute here in the writ petition was also concerning
encroachment of the Rasta. The applicant was never a party before
any of the authority below. He has separately filed a civil suit to seek
adjudication of his rights which will be decided separately. The
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CIVIL WRIT PETITION NO.16433 OF 2007 (O&M) :{ 6 }:
applicant, thus, is not considered necessary or proper party in the
present writ petition. His prayer for being impleaded accordingly
cannot be accepted and is accordingly declined. Since the applicant
has already filed a civil suit which is pending prosecuted by him, it
would be appropriate to observe that any observation made in the
present writ petition would not effect the outcome of the civil suit,
which shall be decided on the basis of evidence led therein. The
issue in the present writ petition was only concerning the
encroachment alleged to have been done by the petitioner which has
not been substantiated by the evidence and material on record.
Accordingly, the impugned order passed by the Commissioner,
remanding the case need not be proceeded further in view of the
report given by the Local Commissioner as on date, the petitioner
cannot be said to have encroached any path or passage.
The writ petition is accordingly allowed. The order passed
by the Commissioner remanding the case back to the Collector is
set-aside and the order passed by the collector is up-held. The suit
presently in progress between the parties and Civil Misc. Application
No.23909 of 2008 will be decided on the basis of evidence and
material led in the said suit.
March 23, 2009 ( RANJIT SINGH ) ramesh JUDGE