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2003 DIGILAW 696 (PNJ)

Sadhu Ram v. Collector

2003-05-14

SATISH KUMAR MITTAL

body2003
Judgment Satish Kumar Mittal, J. 1. In this writ petition, the petitioners have impugned the orders dated 29.3.1996 (Annexures P3) and 6.6.1996. (Annexure P4) passed by the Assistant Collector, Ist Grade, Kurukshetra and the Collector, Kurushetra, respectively, on the application filed by respondents No. 4 & 5 under Section 7(2) of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as the Act) vide which the petitioners have been ordered to be ejected from the land measuring 6-1/2 marlas situated in Village Gumti, Tehsil Thanesar, District Kurukshetra. 2. In the present case, the dispute is about 6-1/2 marlas of land, which is half share of land comprising in Khasra No. 92 situated in Village Gumti. This land is situated within the Abadi and in the revenue record, it has been described as Gair Mumkin Ahata Chah Putha. The petitioners are in possession of the land in question measuring 6-1/2 marlas and have constructed their residential houses thereon. 3. On 22.12.1993, Gram Panchayat, village Gumti (respondent No. 3 herein) filed an application under Section 7(2) of the Act (Annexure P-5) for ejectment of the petitioners from the aforesaid land in question. Subsequently, the matter was compromised by passing a resolution dated 14.2.1995 (Annexure P-1) for withdrawal of the said application, as the petitioners had agreed to leave 20 passage towards south of the land in question which would be left for access to the khera and pond. Consequently, the Assistant Collector, 1st Grade, Thaneswar vide his order dated 16.2.1995 (Annexure P-2) dismissed the aforesaid application filed by respondent No. 3 as withdrawn on the statement made by its Sarpanch, who stated that the Gram Panchayat respondent No,3 does not want to continue with the case in view of the resolution dated 14.2. 1995. 4. Thereafter, respondents No. 4 and 5, who are the residents of the village, filed another application under Section 7(2) of the Act against the petitioner regarding the same very land alleging therein that the petitioners have illegally encroached upon the land in question belonging to respondent No. 3 and have raised certain construction thereon. 1995. 4. Thereafter, respondents No. 4 and 5, who are the residents of the village, filed another application under Section 7(2) of the Act against the petitioner regarding the same very land alleging therein that the petitioners have illegally encroached upon the land in question belonging to respondent No. 3 and have raised certain construction thereon. It was further alleged that the earlier application filed by respondent No. 3 was got dismissed as withdrawn on 16.2.1995 as per the resolution dated 14.2.1995, according to which, it was agreed that the petitioners would leave a 20 wide passage towards south of the land in question for ingress and outgress but they did not leave any passage, therefore, possession of the land in question be restored to the Gram Panchayat after eviction of the petitioners. 5. In spite of the fact that the petitioners had clearly stated before the Assistant Collector, Ist Grade, in their reply to the aforesaid application filed by respondents No. 4 and 5, that they have already left a 20 passage in view of the compromise with respondent No. 3, the Assistant Collector, Ist Grade, Kurukshetra allowed the aforesaid application and ordered the ejectment of the petitioners from the land in question vide order dated 29.3.1996 (Annexure P3). The said order was confirmed in appeal by the Collector, Kurukshetra, vide order dated 6.6.1996 (Annexure P4). The petitioners have challenged these two orders in the instant writ petition. 6. Sh. Pritam Saini, learned counsel for the petitioners, submitted that both the authorities under the Act have totally ignored the fact that once the application filed by respondent No. 3 under Section 7(2) of the Act was dismissed as withdrawn in view of a compromise and settlement and in view of the resolution passed by respondent No. 3 itself, the second application in respect of the very same land filed by respondent No. 4 and 5 under Section 7(2) of the Act is not maintainable at all. In support of his contention, learned counsel placed reliance on the decision of a Division Bench of this Court in Bant Singh v. The Joint Director Panchayat etc., 1984 P.L.J. 581, wherein it was held that the second application under Section 7(2) of the Act is not maintainable. In support of his contention, learned counsel placed reliance on the decision of a Division Bench of this Court in Bant Singh v. The Joint Director Panchayat etc., 1984 P.L.J. 581, wherein it was held that the second application under Section 7(2) of the Act is not maintainable. Learned counsel further submitted that both the authorities, under the Act have not considered the fact that a 20 vide passage was left by the petitioners with the consent of the villagers on their asking for providing access to the khera and pond. When actually the passage was left on the spot, there was no occasion for respondents No. 4 and 5 to file the present application under Section 7(2) of the Act, which was actually filed by them due to political motive as brother of the petitioners had contested election of the Sarpanch against respondent No. 4. Thus, the instant application was filed by respondents No. 4 and 5 with an oblique motive. Learned counsel for the petitioners further submitted that both the authorities under the Act have never tried to ascertain the fact whether actually 20 passage was left by the petitioners at the spot or not and without considering that aspect of the matter, they have illegally passed the impugned orders of the eviction against the petitioners. 7. Though none has appeared on behalf of respondents No. 4 and 5, however, in their written statement they have stated hat there is no infirmity or illegality in the impugned orders; the petitioners have no legal right to encroach upon the land of respondent No. 3 and that respondent No. 3 was not competent to pass a resolution and to withdraw the application filed by it against the petitioners, therefore, the second application filed by respondents No. 4 and 5 was maintainable. The counsel for respondent No. 3 submitted that the writ petition be dismissed as there is no infirmity in the impugned orders. 8. After hearing the learned counsel for both the parties and perusing the record of the case, I am of the opinion that the instant petition deserves to be allowed. Admittedly, respondent No. 3 is the owner of the land in question measuring 6-1/2 marlas which is situated in the village Abadi and which is described as Gair Mumkin Ahata Chah Pukhta in the revenue record. Admittedly, respondent No. 3 is the owner of the land in question measuring 6-1/2 marlas which is situated in the village Abadi and which is described as Gair Mumkin Ahata Chah Pukhta in the revenue record. On the earlier occasion, respondent No. 3 filed an application under Section 7(2) of the Act against the petitioner which was later on got dismissed as withdrawn by respondent No. 3 itself on the basis of the resolution passed by it which reflected a compromise with the petitioners. According to the said compromise, the petitioners agreed to leave 20 vide passage from the south of the land in question from the ingress and outgress of the khera and pond. Once the ejectment application filed by the respondent No. 3 was got dismissed as withdrawn, the second ejectment application pertaining to the same very land at the instance of respondents No. 4 and 5, who are residents of the village, is not maintainable. Certainly, the second application filed by respondents No. 4 and 5 is barred by the principle of constructive res judicata. They filed the second application under Section 7(2) of the Act before the Assistant Collector, 1st Grade by alleging that in the earlier ejectment application, the petitioners had agreed to leave 20 wide passage towards south of the land in question, which has not been left by them, due to which the villagers are facing great difficulty, as there was no passage for the ingress and outgress to the khera and pond. The petitioners, in their reply, have categorically stated that they have already left 20 wide passage as they had agreed in the earlier ejectment application filed by respondent No. 3. Learned counsel for the petitioners has also stated before this Court that the said passage is existing at the spot and the petitioners are not seeking any relief regarding the land covered by the said passage. Both the authorities under the Act have not considered this aspect of the matter at all. No finding has been recorded by them that the petitioners have not left any passage as agreed by them in the previous application. The authorities have only proceeded on the assumption that the land in question is recorded under the cultivation of respondent No. 3, therefore, the petitioners are deemed to be in illegal possession of the same and are liable to be ejected under the Act. The authorities have only proceeded on the assumption that the land in question is recorded under the cultivation of respondent No. 3, therefore, the petitioners are deemed to be in illegal possession of the same and are liable to be ejected under the Act. They have not considered the fact that previously an ejectment application filed by respondent No. 3 was got dismissed as withdrawn by it on the basis of resolution, in which it was agreed that the petitioners will leave 20 wide passage towards south of the land in question. In view of this fact, the impugned orders passed by the authorities under the Act are not sustainable and the second application filed by respondents No. 4 and 5 against the petitioners is not maintainable in view of the law laid down by this Court in Bant Singh v. The Joint Director Panchayats etc. (supra). However, it is made clear that in case there is any encroachment on the 20 wide passage left by the petitioners in view of the compromise in the earlier ejectment application, the same is liable to be removed. 9. In view of the aforesaid discussion, the instant writ petition is allowed. The impugned orders dated 29.3.1996 (Annexure P3) and 6.6.1996 (Annexure P4) passed by the Assistant Collector, 1st Grade, Kurukshetra and the Collector, Kurukshetra, respectively, are quashed. No order as to costs.