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2005 DIGILAW 107 (PNJ)

Jaipal v. State Of Haryana

2005-01-20

N.K.SUD, SATISH KUMAR MITTAL

body2005
Judgment Satish Kumar Mittal, J. 1. In this writ petition filed under Articles 226 and 227 of the Constitution of India, the petitioner has challenged the order dated 29.7.2003 passed by the Collector, Karnal, vide which the petitioner has been ordered to be ejected from 2 Marlas of land out of total 12 Kanals 7 Marlas of land comprising in Khasra No. 51/2, on an application filed by the respondent-Gram Panchayat under Sections 2 and 7 of the Haryana Public Premises and Land (Eviction and Rent Recovery) Act, 1972 (hereinafter referred to as the Public Premises Act). The said order, was affirmed in appeal by the Commissioner, Rohtak Division, Rohtak vide order dated 25.8.2004. 2. In this case, on 26.9.1996 an application was filed by the respondent-Gram Panchayat under the provisions of the Public Premises Act for evicting the petitioner from Khasra No. 51/2 measuring 12 Kanals 7 Marlas, part of which was alleged to be illegally encroached by the petitioner. The Collector vide order dated 30.6.1997 passed the order of ejectment against the petitioner. The said order was challenged by the petitioner before the Commissioner in appeal. The appeal was allowed by the Commissioner vide order dated 18.3.1999 on two grounds. Firstly that the Gram Panchayat filed the application under the Public Premises Act whereas the Collector has decided the same under the provisions of Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as the Village Common Lands Act). Secondly, the notice was issued to the petitioner with regard to the vacant land whereas the petitioner had constructed pucca residential house on the land in question, thus, the notice was defective. 3. Though the order passed by the Collector was set aside by the Commissioner but it was made clear that it would be open for the Gram Panchayat to proceed against the petitioner after following the prescribed procedure either under the Public Premises Act or Village Common Lands Act. 4. Thereafter, without filing the fresh application, at one point of time, the Gram Panchayat tried to dispossess the petitioner from the disputed portion of the land. The said action was challenged by the petitioner by filing C.W.P. No. 9967 of 2000, which was admitted by this Court and status-quo regarding possession was ordered to be maintained. The said petition is pending. The said action was challenged by the petitioner by filing C.W.P. No. 9967 of 2000, which was admitted by this Court and status-quo regarding possession was ordered to be maintained. The said petition is pending. In the said writ petition, the only grouse of the petitioner was that he cannot be ejected from the land in dispute without following the prescribed procedure as so ordered by the Commissioner. 5. During the pendency of the afore-said petition, respondent-Gram Panchayat filed the ejectment application against the petitioner after serving due notice on 29.8.2002. The Collector, after following the procedure and getting the land demarcated, found that the petitioner was in illegal possession of 2 Marlas of land of Khasra No. 51/2. Admittedly, Khasra No. 51/2 is the Phirni and is owned by the Gram Panchayat. The contention of the petitioner that the disputed portion of the land is part of Khasra No. 33//5/3 was rejected. As per the demarcation report, the illegal encroachment exists on the part of khasra No. 51/2, which is admittedly a Phirni and is owned by the Gram Panchayat. The said order was affirmed in appeal by the Commissioner vide order dated 25.8.2004. Counsel for the petitioner contends that the writ petition filed by the petitioner regarding the land in dispute is pending in this Court, therefore, his ejectment from the said land, on the subsequent application filed by the Gram Panchayat, is not sustainable. Secondly, he has submitted that the petitioner has raised construction on Khasra No. 33//5/3 which is not the land of the Gram Panchayat. 6. We do not find any substance in the afore-said argument of the counsel for the petitioner. In the writ petition, the grouse of the petitioner was that he was illegally ordered to be ejected from the land in dispute without filing the fresh application in terms of the order dated 18.3.1999 passed by the Commissioner. In this case in the year 2002, the Gram Panchayat filed the fresh application for eviction of the petitioner from the land in dispute under the Public Premises Act and on the said application, the Collector, after following the procedure prescribed under the said Act and after giving due opportunity of hearing and leading evidence to the petitioner, the order of ejectment has been passed on the basis of the demarcation report. The earlier order of ejectment passed by the Collector was set aside by the Commissioner on technical defect in the notice. However, the Gram Panchayat was permitted to file a fresh petition under the Public Premises Act. Therefore, in our opinion, the pendency of the afore-said writ petition will not preclude the Gram Panchayat to get the ejectment of the petitioner under the Public Premises Act on the fresh application. 7. Regarding the second contention of the petitioner, we are of the opinion that the petitioner has led no evidence to establish that the alleged encroached portion is the part of Khasra No. 33//5/3. On the other hand, the respondent-Gram Panchayat has proved the alleged encroachment on Khasra No. 33//5/3 on the basis of demarcation conducted by the revenue officials. 8. The counsel for the petitioner could not point out any jurisdictional error or any perversity in the impugned orders. On the basis of demarcation report, it was found as a fact by both the authorities that the petitioner had illegally encroached upon the part of Khasra No. 51/2, which is being used for the common purpose of the village being Phirni and over which nobody has any right to make any encroachment. Thus, we do not find any merit in this petition. Dismissed.