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2016 DIGILAW 2287 (PNJ)

Subhash v. State of Haryana

2016-08-26

LISA GILL, S.S.SARON

body2016
JUDGMENT 1. The petitioners-Subhash and others filed the present CWP No.3523 of 2008 in the nature of public interest for directing the State of Haryana through the Deputy Commissioner, Kaithal; Senior Superintendent of Police, Kaithal and SHO Police Station Kalayat, District Kaithal (respondents No.1 to 3) to take action against the encroachers, who it was alleged, had illegally occupied public ponds in village Kalayat, Tehsil and District Kaithal in the State of Haryana. 2. According to the petitioners, an area measuring 121 Kanals comprised in different khasra numbers of the village mentioned various parcels of land as ‘Gair Mumkin Johar’ (village pond), which were meant for the common use of the residents of the village. The area of the village was included within the limits of Municipal Committee, Kalayat and the village land came to vest in the Municipal Committee in terms of Section 2 (22-B) of the Haryana Municipal Act, 1973. However, the municipality though it was liable to take care of the land and maintain it yet some residents of the village started alienating portions of the said land to different persons, who in turn started filling up the ponds for raising buildings by constructing on the same and for other purposes. This caused serious prejudice to the interest of the municipality and the people residing within the municipal area. 3. The petition was disposed of by a Division Bench of this Court on 04.11.2008 with the directions to the Deputy Commissioner, Kaithal to personally look into the matter and if necessary visit the spot to determine the true nature of the land, i.e. as to whether the same constitutes ponds meant for common use by the residents of the area, or private property. In case the Deputy Commissioner after verification of the record and site conditions came to the conclusion that the land in question was indeed municipal property, he was to direct the Municipal Committee to take immediate steps for preventing any encroachment, sale, transfer or misutilisation of the same. He was also to identify the officers employed within the Municipal Committee who could and ought to have taken steps for protecting the public property but who have failed to do so for whatever reasons. The petitioners in the writ petition were permitted to associate with the Deputy Commissioner in this process. He was also to identify the officers employed within the Municipal Committee who could and ought to have taken steps for protecting the public property but who have failed to do so for whatever reasons. The petitioners in the writ petition were permitted to associate with the Deputy Commissioner in this process. The Deputy Commissioner was also free to hear the respondents No. 6 to 9 to know their point of view. It was made clear that while the Deputy Commissioner was not the final authority to determine the title of the land, however, on prima facie basis, if he was of the opinion that the land actually belongs to the Committee, the Committee could initiate proceedings for eviction of the unauthorised occupants and restore the land for its possession for such use as may be otherwise permissible in accordance with law. It was mentioned as needless to say that in the course of any such proceedings, the encroachers/persons in illegal occupation, shall have an opportunity of being heard and establish their right to stay in occupation of the land in question. The Municipal Committee, it was observed shall cooperate with the Deputy Commissioner for compliance with all such directions regarding protection of public property under the unauthorised occupation of the private occupants, as may be issued by the latter pursuant to the said order. The writ petition was accordingly disposed of. 4. After the writ petition was disposed of on 04.11.2008, the present CMs No.9839 of 2016 and 9840 of 2016 have been filed by Virender Dev @ Lila Ram and fifteen others on 10.08.2016. 5. In CM No. 9839 of 2016, the said applicants Virender Dev @ Lila Ram and others, residents of Ward No.6, Kalayat District Kaithal, pray for impleading them as respondents in the writ petition, i.e. CWP No.3523 of 2008 titled ‘Subhash and others v. State of Haryana and others’. 6. CM No.9840 of 2016 has also been filed by the said applicants for recalling judgment and order dated 04.11.2008 with respect to khasra No.482 (old No.3805 and 3807), as the applicants claim ownership and possession as co-sharers of the same. 7. Notice of CM to Advocate General, Haryana. 8. Mr. Surinder Singh Pannu, DAG, Haryana accepts notice. 9. Heard learned counsel for the parties. 10. As already noticed that the petitioners’ claim to be owners in possession of khasra No.482 (old No.3805 and 3807). 7. Notice of CM to Advocate General, Haryana. 8. Mr. Surinder Singh Pannu, DAG, Haryana accepts notice. 9. Heard learned counsel for the parties. 10. As already noticed that the petitioners’ claim to be owners in possession of khasra No.482 (old No.3805 and 3807). A reference has been made by the learned counsel for the applicants to the report of the Deputy Commissioner dated 10.06.2009 (Annexure P-6) wherein he has inter alia observed as follows:- “Regarding khasra No.479 and 482, the S.D.O. (Civil), Kaithal has further mentioned in his report that the nature of the land in revenue record of above khasra numbers is ‘Johar’ since 1976, but in the column of ownership, the land is shown to be ownership of Malkan Arazi alongwith other khasra numbers. They have also sold their share in part or full. It has further been mentioned in the report that Municipal Committee has no concern with these khasra numbers and these khasra numbers are not in the possession of the Municipal Committee.” 11. On the strength of the said observations, it is submitted by the learned counsel for the applicants that the said land does not vest with the Municipal Committee. However, despite that the Deputy Commissioner, Kaithal in his said order dated 10.06.2009 (Annexure P-6) has directed the Secretary, Municipal Committee, Kalayat to initiate proceedings for eviction of authorized (sic. - unauthorized) occupants in the competent Court of law and restore the land to the possession of Municipal Committee, Kalayat. The action taken in this regard it is mentioned would be supervised by the Sub Divisional Officer (Civil), Kaithal and progress report in this regard would be submitted to the Deputy Commissioner. 12. The eviction proceedings have been initiated against the applicants; however, according to the learned counsel appearing for the applicants, the same are not liable to be initiated. 13. After giving our thoughtful consideration to the matter, we find no force in the applications filed by the applicants for impleading them as parties in the present petition as also for recalling the order dated 04.11.2008 passed by a Division Bench of this Court. 14. The directions given in in terms of the order dated 04.11.2008 were for initiating proceedings in respect of those who were illegally occupying public ponds. 14. The directions given in in terms of the order dated 04.11.2008 were for initiating proceedings in respect of those who were illegally occupying public ponds. It was made clear by this Court that the Deputy Commissioner was not the final authority to determine the title of the land. It is to be noticed that the documents that have now been placed on record, include the jamabandi for the year 1921-22 (Annexure P-1). In the said jamabandi, khasra No.3805, which is one of the old khasra numbers of new khasra No.482 that is claimed by the applicants, is mentioned as 43-7 ‘banjar kadeem’. Khasra No.3807, which is the other old number of khasra No. 482, is not mentioned in the said jamabandi. 15. The jamabandi for the year 1976-77 (Annexure P-2), also does not depict khasra No.3807, although it is submitted by learned counsel for the applicants that the khasra No.3805 has been mentioned twice as new khasra No.482, which relates to the land measuring 120 bighas 4 biswas and is recorded as ‘Gair Mumkin Johar Dharni Dhar’. 16. In the jamabandi for the year 2010-2011 (Annexure P-3) khasra No.482/1 (12-6) is mentioned as ‘Gair Mumkin Johar’ and khasra No. 482/3 (98-12) is also mentioned as ‘Gair Mumkin Johar’ and the names of various persons have been recorded as owners of the same. A reference has been made to the copy of consolidation scheme (Annexure P-4) of village Kalayat, Tehsil Kaithal, District Kaithal wherein khasra No.482 (119-5) ‘Dharni Dhar Pilgrim’ is mentioned and is shown as ownership and possession of various persons. However, it is not shown as to how the applicants are connected with those who are recorded as owners and whether they are indeed connected. 17. In the circumstances, these matters can appropriately be gone into by a Court of competent jurisdiction either under the Punjab Village Common Lands (Regulations) Act, 1961 (as applicable in the State of Haryana) (‘1961 Act’ - for short) or the Haryana Municipal Council Act, 1973 or the Civil Court whichever is the competent Court. 17. In the circumstances, these matters can appropriately be gone into by a Court of competent jurisdiction either under the Punjab Village Common Lands (Regulations) Act, 1961 (as applicable in the State of Haryana) (‘1961 Act’ - for short) or the Haryana Municipal Council Act, 1973 or the Civil Court whichever is the competent Court. However, no fault per se can be said to be there in the order of the Deputy Commissioner for initiating proceedings for eviction of unauthorized occupants of the village pond as such ponds are ‘shamlat deh’ as defined in Section 2 (g) (4) of the 1961 Act and vest in the Panchayat in terms of Section 4 of the said 1961 Act. Besides, with the land vesting in the Municipal Council, such lands continue to be ‘shamlat deh’ in terms of Section 2 (22B) (4) of the Haryana Municipal Act, 1973 and vest with the Municipal Council in terms of Section 61 (1) (h) of the said Haryana Municipal Act, 1973. However, these aspects would require consideration by a competent Court of law on the basis of evidence and material on record. It would be improper for this Court to go into this question as according to the order dated 04.11.2008 passed by this Court, the Municipal authorities are to initiate eviction proceedings against those who have encroached the ponds and the persons said to have encroached have been given full right to put forward their claims. 18. In the circumstances, it would be more appropriate that the present applicants set forth their claims before the competent Court in which proceedings for their eviction have been initiated and in case, the same have been held against them, then approach the higher Forums by way of appeal or revision, as the case may be. 19. The only reason stated by the learned counsel for the applicants for approaching this Court is that they were not parties to CWP No.3523 of 2008. We fail to understand as to how that would come in the way of the applicants to set forth their claims before the competent Court dealing with their eviction proceedings. 19. The only reason stated by the learned counsel for the applicants for approaching this Court is that they were not parties to CWP No.3523 of 2008. We fail to understand as to how that would come in the way of the applicants to set forth their claims before the competent Court dealing with their eviction proceedings. In fact, this Court in its order dated 04.11.2008 had clarified that the Deputy Commissioner was not the final authority to determine the title of the land; besides, it was mentioned that it was needless to say that in the course of any such proceedings, the encroachers/persons in illegal occupation, shall have an opportunity of being heard and establish their right to stay in occupation of the land in question. Therefore, in case any proceedings are initiated against the applicants, they have a right to contest the proceedings that were initiated. The application has been filed by the applicants for placing on record various revenue records including jamabandis, mutations, consolidation schemes etc., which are quite irrelevant as the learned counsel appearing for the applicants has been unable to connect the revenue records with the applicants. 20. In view of the aforesaid position, learned counsel for the applicants submits that he may be allowed to withdraw the applications and seek his remedies in accordance with law. 21. Dismissed as withdrawn.