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2004 DIGILAW 494 (PNJ)

Om Parkash @ Oma v. Collector, Sonepat

2004-04-28

M.M.KUMAR

body2004
JUDGMENT M.M. Kumar, J. - This petition filed under Article 226 of the Constitution prays for quashing orders dated 1.8.1984, Annexure P-1 passed by the Assistant Collector Ist Grade, Gohana and the Appellate Authority dated 1.6.1986, Annexure P-2 passed by the Collector, Sonepat. 2. The case of the petitioner is that respondent No. 3 filed an application under Section 7 of the Punjab Village Common Lands Act, 1961 seeking ejectment of the petitioner from Khasra Nos. 259 and 264 alleging that the petitioner has encroached upon the land of the Gram Panchayat. The application was allowed by the Assistant Collector Ist Grade by holding that the petitioner has illegally occupied the Panchayat land which is owned by it. An order of eviction of the petitioner from the disputed land was passed. It was further ordered that the petitioner was to pay penalty at the rate of Rs. 600/- per hectare per year for three years totalling Rs. 1404/- for taking benefit from illegal possession of the land in dispute and the same was to be recovered from him as arrears of land revenue. The appeal filed by the petitioner before the Collector also failed and the plea that his crusher and room on the land is in the fields of Jogis was rejected by holding as under :- "After hearing the learned counsel (? sic) for both the sides and perusing the evidence on the record, I have reached the conclusion that there is no force in the application filed by the appellant for adducing additional evidence and there can be no benefit to him in allowing the same. The case of the respondent is that the appellant has illegally occupied Khasra Nos. 259 and 264 while according to the appellant his crusher is not in Khasra Nos. 259 and 264. Therefore, there is no harm to him ordering his ejectment from Khasra Nos. 259 and 264. There is also no force in the submission of the learned counsel for the appellant that the notice issued by the lower court under Section 20 is illegal because he has not raised any such objection in his written statement and the main purpose of issuing the notice is to give him ample opportunities to submit his case which has been granted in the present case and he has produced his written statement in the lower court. The proceedings under Section 7 of the Punjab Village Common Lands (Regulation) Act under which the proceedings are taken is of a summary nature. It is also difficult to give the benefit of Section 2(g)(vi) of the Punjab Village Common Lands (Regulation) Act that the cottage industry installed by him was established 12 years prior to the enforcement of the Act. According to the appellant he has no concerned with the land in dispute while according to the respondents, the appellant is in illegal occupation of 5 Kanals 12 Marlas of land comprised in Khasra No. 259 (6 Kanals 13 Marlas) and 264 (8 Kanals - 11 Marlas) which according to the Jamabandi for the year 1980-81 Ex. A-2 is of Panchayat Deh and for common purposes. Thus, the submission of the appellant to the effect that a question of title was raised in the lower court and the same should have been decided before the decision of this case is also wrong because no such allegation was made in the written statement. While in Para Nos. 2, 4 and 6, it has been stated that he has not installed the Crusher in the Panchayat land rather the same are the plots of Lakhmi, Dewan, Chander, Banwari, Hari Singh etc. but none of them have been produced in support of his allegation." 3. Feeling aggrieved the petitioner has filed the instant petition challenging both the orders of Assistant Collector and the Collector. The Division Bench while issuing notice of motion on 13.2.1986 passed the following order :- "Notice of motion for April 9, 1986. Realization of the penalty is stayed. It is further directed that the petitioner will not be ejected unless the land claimed by the Panchayat is got demarcated and its identity established." 4. Mr. Bhoop Singh, learned counsel for the petitioner has argued that in the absence of findings recorded by the authorities below, ejectment of the petitioner from Khasra Nos. 259 and 264 could not be ordered and his application for demarcation of the land was illegally dismissed. According to the learned counsel, it was for the Gram Panchayat to get the aforementioned Khasra numbers demarcated and find out whether the petitioner has been illegally occupying the land belonging to the Gram Panchayat. 259 and 264 could not be ordered and his application for demarcation of the land was illegally dismissed. According to the learned counsel, it was for the Gram Panchayat to get the aforementioned Khasra numbers demarcated and find out whether the petitioner has been illegally occupying the land belonging to the Gram Panchayat. In the absence of any such finding, the orders passed by the Assistant Collector as well as the Collector are liable to be dismissed. 5. Mr. R.K. Malik, learned counsel for respondent No. 4 has argued that once the stand taken by the petitioner before the authorities below is that he is not occupying any portion of Khasra Nos. 259 and 264, then the orders passed by the statutory authorities are not open to challenge as ejectment has only been ordered from Khasra Nos. 259 and 264. According to the learned counsel no harm is likely to be caused to the petitioner if his ejectment has been ordered from Khasra Nos. 259 and 264. 6. After hearing the learned counsel, I am of the considered view that the orders passed by the Assistant Collector and the Collector suffer from a patent illegality inasmuch as the dispute is with regard to the fact whether the land in possession of the petitioner is comprised in Khasra Nos. 259 and 264. In the absence of any demarcation, it cannot be ascertained whether the petitioner is in occupation of the land belonging to the Gram Panchayat in Kharas Nos. 259 and 264. On the Court query, learned counsel for the Gram Panchayat has not been able to give any satisfactory answer as to whether the order dated 13.2.1986 passed by a Division Bench of this Court has been complied with or not i.e. whether the demarcation has been got effected and identity of the land has been established. In the absence of any demarcation report and on record, I am of the considered view that the orders passed by the Assistant Collector and the Collector, Annexures P-1 and P-2 respectively are liable to be quashed. No ejectment of the petitioner could have been ordered without recording a finding that he has encroached upon the land of the Gram Panchayat comprised in Khasra Nos. 259 and 264. In view of the above, the writ petition is allowed. Orders dated 1.8.1984 and 6.1.1986, Annexures P-1 and P-2 respectively are quashed. No ejectment of the petitioner could have been ordered without recording a finding that he has encroached upon the land of the Gram Panchayat comprised in Khasra Nos. 259 and 264. In view of the above, the writ petition is allowed. Orders dated 1.8.1984 and 6.1.1986, Annexures P-1 and P-2 respectively are quashed. However, the Gram Panchayat shall be at liberty to proceed against the petitioner in accordance with law. Petition allowed.