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2009 DIGILAW 561 (PNJ)

Brahma Nand v. State Of Punjab

2009-03-23

RANJIT SINGH

body2009
Judgment Ranjit Singh, J. 1. 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 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. 2. 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 rehearing. The petitioner has, thus, impugned this order before this Court. 3. 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. 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. 4. The Local Commissioner accordingly has inspected the spot. He has now placed his report on record. As per the report, the 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. 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. 5. 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 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. 6. 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. 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 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. 7. 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.