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2014 DIGILAW 429 (PNJ)

Ramdhari v. Gram Panchayat Nain

2014-02-25

FATEH DEEP SINGH, HEMANT GUPTA

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JUDGMENT Mr. Hemant Gupta, J. (Oral):- The challenge in the present writ petition is to an order passed by the Assistant Collector on 06.10.2010, whereby an order of evicting the petitioner from a land measuring 17½ ft. x 18½ ft. was passed in proceedings under Section 7 of Punjab Village Common Lands (Regulation) Act, 1961 (for short ‘the Act’). Such order has been affirmed in appeal by the Collector on 20.09.2011 and later by the Commissioner on 15.11.2013 in revision. 2. Initially, the petitioner filed a civil suit for injunction on 23.08.2003 claiming that the site in dispute is in his possession since the time of his forefathers and that the defendants, which do not include the Gram Panchayat, be restrained to interfered with his possession. The said suit was decreed on 23.10.2009, whereby the defendants were restrained from demolishing boundary wall marked BC in the site plan Ex.PW4/A, though, the petitioner has raised a plea that he is in possession for the last 50 years by raising of wall, so as to identify the property in possession of the petitioner. 3. In the meantime, the Panchayat had filed petition under Section 7 of the Act on 03.12.2007. In such proceedings, Chander Bhan, Sarpanch and Karan Singh Nambardar of the village appeared as PW-1 & PW-2 respectively. Block Development & Panchayat Officer, Madlauda has inspected the site in dispute pursuant to the order passed by the Assistant Collector and submitted its report on 21.09.2010. To rebut such evidence, the present petitioner appeared as his own witness only. No other evidence was led by him. The report of BDPO is to the effect that Khasra No.109 is a part of abadi deh and that land is lying vacant on the spot on both sides of the street, which leads towards village Pardhana. In the eastern side of the street, there is room of the petitioner and Raj Kumar son of the petitioner measuring 17½ ft. x 18½ ft. It was also reported that Panchayat has constructed culvert, which is blocked. 4. Thus, it was found that it is the petitioner, who has blocked the passage. 5. The argument of the petitioner before the Assistant Collector was that spot inspection was not done in the presence of both the parties and, therefore, site should be inspected again. It was also reported that Panchayat has constructed culvert, which is blocked. 4. Thus, it was found that it is the petitioner, who has blocked the passage. 5. The argument of the petitioner before the Assistant Collector was that spot inspection was not done in the presence of both the parties and, therefore, site should be inspected again. The learned Assistant Collector found that the land vest with Panchayat and the present petitioner has failed to prove his ownership regarding the suit land. It was found that general public is facing trouble and therefore, the petitioner was ordered to be ejected so as to clear the culvert constructed in the street. Such order has been affirmed in revision. 6. Learned counsel for the petitioner has vehemently argued that the petitioner is in possession over the land in abadi, therefore, it is not a vacant land, which alone vest with Panchayat in terms of Clause (4a) of Section 2 (g) of the Act. Relying upon Division Bench judgment of this Court reported as Tara Chand and Fateh Singh Vs. Gram Panchayat and Gram Sabha of village Atail and others 1979 PLJ 1. It was argued that disputed questions of title could not be decided by the Assistant Collector in proceedings under Section 7 of the Act. Such questions are required to be decided in proceedings under Section 13-A of the Act. Therefore, the order passed by the Assistant Collector as affirmed by the Collector and the Commissioner is not sustainable in the eyes of law. 7. We have heard learned counsel for the petitioner at length and find no merit in the present writ petition. The Civil Court has recognized possession of the petitioner, but there is no finding that the possession of the petitioner is for the last 50 years as asserted before the Civil Court. Though, Gram Panchayat is not a party in proceedings before the Civil Court as per the judgment produced on record, but the fact remains that there is no finding of the petitioner being in possession since long. As per the case set up before the Assistant Collector, the petitioner is said to have encroached upon vacant land in abadi deh, 2 years prior to the filing of the application under Section 7 of the Act. As per the case set up before the Assistant Collector, the petitioner is said to have encroached upon vacant land in abadi deh, 2 years prior to the filing of the application under Section 7 of the Act. May be the possession of the petitioner is little longer than 2 years, but the fact remains that there is no proof of the fact that the possession of the petitioner is since the time of his ancestors. None of the inhabitants of the village has been examined in support of the plea that the possession of the petitioner is for the last 50 years. The spot inspection reveals that culvert has been blocked by the petitioner. The culvert is on street leading to village Pardhana. The petitioner is found to be encroacher on the land measuring 17½ ft. x 18½ ft. Therefore, the learned Assistant Collector was perfectly justified in law in passing an order of eviction in respect of a street vesting in the Panchayat. It was neither a vacant land in abadi nor the petitioner is proved to be in long established possession as owner of the site in question. 8. Learned counsel for the petitioner has vehemently argued that there is no documentary proof of ownership in respect of land situated in abadi deh. In the absence of documentary proof, the petitioner has proved his possession leading to inference of ownership over the part of the abadi deh for the last 50 years as alleged by him. We find it difficult to accept that mere raising of plea that he is in possession for the last 50 years is sufficient to recognize the possession since long. None of the inhabitant of the village has been examined in support of such plea that he is in possession for the last 50 years. The Authorities under the Act have returned a finding of fact that the petitioner has failed to prove his possession as alleged by him for more than 50 years. Therefore, we do not find that the question of title arises for consideration. 9. In the judgment referred to by learned counsel for the petitioner, the Assistant Collector has given a finding on a question of title in proceedings under Section 7 of the Act. After the aforesaid judgment, Section 7 of the Act has been substituted vide Haryana Act No.9 of 1992. 9. In the judgment referred to by learned counsel for the petitioner, the Assistant Collector has given a finding on a question of title in proceedings under Section 7 of the Act. After the aforesaid judgment, Section 7 of the Act has been substituted vide Haryana Act No.9 of 1992. The amended provision makes it mandatory for the Assistant Collector to decide the question of title only if there is a prima facie proof of the title on the basis of documents. In the absence of any prima facie proof of the petitioner being in possession since more than 50 years as alleged by him, we find that no question of title arises for consideration and therefore, the order passed by the Assistant Collector as affirmed by the Collector and the Commissioner does not warrant any interference in the writ jurisdiction of this Court. 10. Dismissed in limnie. ---------0.B.S.0------------