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2002 DIGILAW 306 (PNJ)

Tarsem Kumar v. Assistant Collector First Grade, Kurukshetra

2002-03-15

JASBIR SINGH, N.K.SODHI

body2002
JUDGMENT Jasbir Singh, J. - In this writ petition, prayer of petitioner is that the order dated 26.9.2000 (Annexure P-4) passed by the Commissioner, Ambala Division, Ambala be quashed, having been passed without any jurisdiction. It is further prayed that order dated 6.12.2001 (Annexure P-6) passed by the Financial Commissioner, Haryana be also set aside, since he has failed to interfere with the order Annexure P-4 and has wrongly dismissed the revision petition. 2. Brief facts of the case are that, the petitioner filed an application under Section 7(2) of the Punjab Village Common Lands (Regulation) Act, 1961 as applicable in Haryana (in short Common Lands Act) against respondents No. 5 and 6 for their ejectment, allegedly, from area of public street over which private respondents have constructed a manger as due to unauthorised occupation of the land in dispute, lot of inconvenience is being caused to him and it is not possible for him to pass through that street. 3. A perusal of the writ petition shows that the application filed by petitioner on 23.5.1995 was opposed by private respondents on the ground that the property in dispute is not a part of public street and the manger etc. was constructed by private respondents in their own wara which is situated on one side of the house of the petitioner and said construction was made about 60 years ago. It was further stated that the petitioner intended to open a door towards their wara and keeping in view that intention, the said application for ejectment was filed. That application was dismissed by the Assistant Collector, Ist Grade, Thanesar on 15.7.1996. Petitioner, feeling aggrieved, filed an appeal against that order which was allowed on 23.10.1996 and the case was remitted back to he Court of Assistant Collector, Ist Grade with the direction that a Local Commissioner be appointed to ascertain the correct situation at the spot and thereafter, the parties be heard and case be decided afresh. 4. Accordingly, a Local Commissioner was appointed who submitted his report and on 31.1.1997, Assistant Collector Ist Grade again dismissed the application moved by he petitioner by opining that the allegations levelled against the private respondents are baseless. 4. Accordingly, a Local Commissioner was appointed who submitted his report and on 31.1.1997, Assistant Collector Ist Grade again dismissed the application moved by he petitioner by opining that the allegations levelled against the private respondents are baseless. Petitioner again filed an appeal against that order which was allowed by the Collector, Kurukshetra on 25.6.1997 and case was again remitted back to the Assistant Collector Ist Grade, who was directed to hold proper enquiry as to whether, private respondents were in occupation of the land in dispute prior to 1951 or not and decide the case afresh after hearing all the parties. It was also directed that the Assistant Collector will give a finding as to whether private respondents were in unauthorised occupation of the property in dispute or not. In the meantime, Naib Tehsildar was appointed as a Local Commissioner who submitted his report and against that report both the parties filed heir objections. After hearing the parties, Tehsildar, Shahbad was appointed as Local Commissioner who submitted his report on 27.10.1998. The matter was taken up for arguments by the Assistant Collector Ist Grade, Kurukshetra and on 9.10.1999, without looking into the reports of the Local Commissioner and also without discussing evidence on record, he passed the following order : "8. After hearing all the parties, on perusal of the entire record brought on the file and after carefully considering the situation found at the site, I have arrived at the conclusion that the manger which stands constructed in the Gali Share-aam has been constructed in its present shape only in the recent few years. Even if it is accepted that the respondents have been using the said site at times for tethering their cattle etc., since long, that does not give them the right to raise a pacca structure of bricks in the shape of manger in the Gali share-aam and to permanently obstruct the Gali Share-aam. In the aforementioned circumstances I, therefore, order the ejectment of respondents No. 1 and 2 from the Gali Share-aam, which has been shown as ABCD in the site plan and not to create obstruction of any type in the Gali Share-aam". 5. Private respondents, feeling aggrieved, filed an appeal against the order dated 9.10.1999 (P-2) before the Collector, Kurukshetra, who dismissed their appeal on 27.4.2000 (P-3)) and confirmed the order passed by the Assistant Collector Ist Grade, Kurukshetra. 5. Private respondents, feeling aggrieved, filed an appeal against the order dated 9.10.1999 (P-2) before the Collector, Kurukshetra, who dismissed their appeal on 27.4.2000 (P-3)) and confirmed the order passed by the Assistant Collector Ist Grade, Kurukshetra. He too, failed to look into the reports submitted by Local Commissioner at three different times. Private respondents then filed a revision petition before the Commissioner, Ambala. 6. Upon notice, petitioner appeared before the Commissioner, Ambala and matter was heard on 26.9.2000. Petitioner controverted all the arguments raised by private respondents but no objection was raised regarding jurisdiction of the Commissioner to entertain revision petition filed on behalf of private respondents. Commissioner, after hearing the parties and after looking into reports submitted by three Local Commissioners allowed the revision petition on 261.9.2000 (P-4). A specific finding was given that private respondents are not in unauthorised occupation of any part of the street. Against the order Annexure P-4 petitioner filed CWP No. 2802 of 2001 in this Court, which was dismissed as withdrawn on 27.2.2001. Order reads as under : "Mr. Verma prays that he may be permitted to withdraw the writ petition so as to enable the petitioner to approach the Finance Commissioner. Allowed as prayed for. Dismissed as withdrawn." 7. Petitioner then filed a revision petition under Section 13-AA(2) of the Common Lands Act before the Financial Commissioner, Haryana respondent No. 4 and the same was dismissed on 6.12.2001 (P-6). Under these circumstances, this writ petition has been filed by the petitioner. 8. Shri L.N. Verma, Advocate, appearing on behalf of petitioner, vehemently contended that order Annexure P-4 passed by the Commissioner deserves to be quashed having been passed without any jurisdiction. He has stated that as per the provisions of Section 7 of the Common Lands Act, the order passed by the Collector i.e. Annexure P3 dated 27.4.2000 is final and no further revision lies to the Commissioner. He has further argued that the Financial Commissioner has wrongly failed to interfere and set aside order Annexure P-4 even after giving a finding in favour of the petitioner. 9. After hearing the counsel for the petitioner, this Court is not convinced and is not inclined to interfere with the order Annexures P-4 and P-6 passed by the Commissioner and Financial Commissioner, respectively, -in view of the facts and circumstances of the present case. 9. After hearing the counsel for the petitioner, this Court is not convinced and is not inclined to interfere with the order Annexures P-4 and P-6 passed by the Commissioner and Financial Commissioner, respectively, -in view of the facts and circumstances of the present case. As is apparent from order Annexure P-4, no objection regarding jurisdiction of the Commissioner to entertain revision petition against order Annexure P-3 passed by the Collector was raised by the petitioner. The Matter was contested on merits and after hearing the parties, in his concluding para of the order dated 26.9.2000 (P-4) Commissioner observed as under : "4. I have heard the arguments of the ld. counsel for the parties and have perused the record. It is clear from the perusal of the record that in this case three Local Commissioners i.e., once Advocate and once the Naib Tehsildar and then the Tehsildar, Shahbad have been appointed Local Commissioner and all the Local Commissioners went at the site and saw that the petitioners are not in any unauthorised possession. It is clear from the site plan prepared by the Naib Tehsildar and the Tehsildar which is available at page 191 of the file of the lower Court and which has been affirmed afterwards by the Tehsildar also, that the house of Ram Chander is situated much ahead of the manger and that this manager is not at all obstructing the street and it is evident from the statements of the witnesses also that manger is being used at the spot for quite some time. The Assistant Collector has neither written any Site- inspection Report nor has prepared any Site-Plan from which it may be known that the petitioners have made any unauthorised encroachment on the street. The Reports of the Local Commissioner have never been set aside and the Reports of all the Local Commissioners are similar. The respondent has not produced any such evidence from which it may be proved that this manger is a part of the street. In my opinion the orders of the Courts below under revision are not based upon facts which are set aside finding the same as defective and the present revision petition of the petitioners is accepted." 10. Petitioner, aggrieved by the above-said order, filed CWP No. 2802 of 2001 in this Court, which was dismissed as withdrawn on 27.2.2001. In my opinion the orders of the Courts below under revision are not based upon facts which are set aside finding the same as defective and the present revision petition of the petitioners is accepted." 10. Petitioner, aggrieved by the above-said order, filed CWP No. 2802 of 2001 in this Court, which was dismissed as withdrawn on 27.2.2001. Thereafter, the petitioner filed a revision petition under Section 13-AA(2) of the Common Lands Act before the Financial Commissioner, Haryana which was also dismissed on 6.12.2001 (P-6). A reading of the order Annexure P-6 clearly shows that the order is perfectly valid one. Under the provisions of Section 13-AA of the Common Lands Act, the Financial Commissioner is competent to entertain a revision only against an order passed by the Commissioner arising out of proceedings under Section 13-A of the Common Lands Act. Provisions of Section 13-AA read as under : "13-AA. Appeal and Revision - (1) Any person aggrieved by an order passed under sub-section (1) of Section 13-A, may within a period of thirty days from the date of such order, prefer an appeal to the Commissioner in such form and manner, as may be prescribed, and the Commissioner may after hearing the appeal, confirm, vary or reserve the order as he deems fit : (2) The Financial Commissioner, may, suo-motu or on an application made to him by any person aggrieved by an order passed under sub-section (1) call for the record of any proceedings pending before or order passed by the Commissioner 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; Provided that no order adversely affecting any person shall be passed unless he has been afforded an opportunity of being heard." 11. A reading of the above-mentioned provisions clearly shows that the Financial Commissioner has no jurisdiction to entertain any revision against any order which was based by the authorities below while exercising jurisdiction under Section 7 of the Common Lands Act and in view of this, the order passed by the Financial Commissioner, seems to be justified. 12. A reading of the above-mentioned provisions clearly shows that the Financial Commissioner has no jurisdiction to entertain any revision against any order which was based by the authorities below while exercising jurisdiction under Section 7 of the Common Lands Act and in view of this, the order passed by the Financial Commissioner, seems to be justified. 12. So far as order passed by the Commissioner Annexure P-4 is concerned, Shri Verma, counsel for the petitioner has vehemently contended that it has been passed without any jurisdiction and even finding to that extent has been given by the Financial Commissioner while dismissing his revision petition vide order Annexure P-6 on 6.12.2001 and he prays that the order Annexure P-4 be quashed. Argument of the counsel for petitioner seems to be very attractive but he is not likely to get any benefit out of the same. As is apparent from the reading of order Annexure P-4, no such objection regarding jurisdiction was raised by the petitioner when the matter was taken up and heard by the Commissioner. Before the Commissioner both the parties contested the matter on merits, who after looking into reports submitted by Local Commissioners at three different times gave a definite finding that private respondents have not encroached upon any portion of the village street. On merits finding arrived at by the Commissioner seems to be justified. Neither the Assistant Collector, Ist Grade nor the Collector while passing the order Annexures P-2 and P-3 have looked into reports submitted by the Local Commissioners. Even evidence adduced by the parties was not looked into and discussed by both the Courts below. No objection has been raised by the parties regarding jurisdiction and on merits order seems to be justified. No case is made out to interfere by this Court under Articles 226/227 of the Constitution of India. 13. Furthermore, at an earlier point of time, petitioner came to this Court, filed CWP 2802 of 2001 against the order Annexure P-4 passed by the Commissioner. That writ petition was got dismissed as withdrawn on 27.2.2001 with a view to approach the Financial Commissioner, knowing fully well that no such revision petition is competent before the Financial Commissioner. 13. Furthermore, at an earlier point of time, petitioner came to this Court, filed CWP 2802 of 2001 against the order Annexure P-4 passed by the Commissioner. That writ petition was got dismissed as withdrawn on 27.2.2001 with a view to approach the Financial Commissioner, knowing fully well that no such revision petition is competent before the Financial Commissioner. Under these circumstances, this Court feels that once the writ petition against the order Annexure P-4 has been got dismissed as withdrawn, it is not open to the petitioner to challenge that very order again by filing present writ petition. 14. Thereafter, counsel for the petitioner, half-heartedly tried to assail the order passed by the Commissioner on merits. But he has failed to indicate anything which necessitates any interference by this Court with order Annexure P-4. The reports of the Local Commissioners have deliberately been not brought on record. Two times, the case was specifically remanded back to the Assistant Collector, Ist Grade to appoint a Local Commissioner, to ascertain the actual situation at the spot and then decide the matter afresh. Assistant Collector, Ist Grade and the Collector, while deciding the application of petitioner and dismissing the application of private respondent, have not even referred to the reports of Local Commissioners, as such, their orders were rightly reversed by the Commissioner. 15. In view of the reasoning given above, no case is made out to interfere with the orders Annexures P-4 and P-6 passed by the Commissioner and the Financial Commissioner, respectively. Writ petition is dismissed in limine. No order as to costs. Petition dismissed.