Tandub Chhering alias Dharama Nand v. Additional District Magistrate, Pooh
2016-04-05
RAJIV SHARMA
body2016
DigiLaw.ai
JUDGMENT : Rajiv Sharma, J. This petition is directed against the order dated 23.10.2014, rendered by the learned Addl. District Magistrate, Pooh in case No. 1 of 2011. 2. Key facts, necessary for the adjudication of this petition are that the petitioner started raising construction of his house on part of the land comprised in Kh. No. 530 near Shalkhar Bus Stand, opposite to Kh. No. 527 situated in village Shalkhar, Distt. Kinnaur, H.P. According to the petitioner, the land was abadi deh. He has started raising construction on 5.6.2011. The functionaries of the Gram Panchayat visited the spot on 6.6.2011. Notice was issued to the petitioner by the Gram Panchayat on 8.6.2011. The petitioner was permitted to place his version before the Gram Panchayat. On 23.6.2011, the petitioner submitted documents before the Gram Panchayat. The matter was adjourned to 8.7.2011. On 23.6.2011, four witnesses were produced by the petitioner, including his mother-in-law, son, nephew and sister. According to them, there was a tree below the kuhl and the petitioner used to collect its leaves. The residents of the Gram Panchayat were also permitted to give their version vide communication dated 8.7.2011. According to them, the residents of village have given the land for the construction of the Shalkhar Bus Stand. The Gram Panchayat passed the conditional order on 8.8.2011 directing the petitioner to stop the construction and remove the construction material within seven days. The petitioner, feeling aggrieved by order dated 8.8.2011 of the Gram Panchayat, Shalkhar, preferred an appeal before the learned Addl. District Magistrate, Pooh bearing case No. 1 of 2011. The learned Addl. District Magistrate, Pooh dismissed the same on 23.10.2014. Hence, this petition. 3. The villagers have brought to the notice of the Appellate Authority that the petitioner despite the stay order has started raising construction. The interim order was passed ordering the parties to maintain status quo. The copy of the order was sent to Naib Tehsildar as well as Pradhan of the Gram Panchayat, Shalkhar for due compliance. 4. I have heard learned counsel for the parties and gone through the impugned order dated 23.10.2014, carefully. 5. The petitioner has filed the written arguments before the Appellate Authority. The petitioner has not led any tangible evidence to establish his possession over the disputed land except referring to the jamabandi.
4. I have heard learned counsel for the parties and gone through the impugned order dated 23.10.2014, carefully. 5. The petitioner has filed the written arguments before the Appellate Authority. The petitioner has not led any tangible evidence to establish his possession over the disputed land except referring to the jamabandi. It is evident that jamabandi has not been produced before the Gram Panchayat and the Appellate Authority. The fact of the matter is that the Bus Stand is on abadi deh. According to the objections raised by the Gram Panchayat, it was common land and the same was given to PWD for the construction of the Bus Stand. The kuhl also exists on the spot. The factum of the construction raised by the petitioner was verified by the Tehsildar, Pooh. He submitted the report dated 7.9.2011. According to him, on 7.9.2011, he alongwith Naib Tehsildar Hangrang and Assistant Engineer (B & R) Pooh, found that in violation of the order of the learned Addl. District Magistrate, Pooh, the petitioner has raised six pillars. The Assistant Engineer (B & R) Pooh has certified that despite the orders of the learned Addl. District Magistrate, Pooh, the petitioner on 5.9.2011, 6.9.2011 and 7.9.2011 has started construction work by engaging 4- 5 masons/labourers. 6. The petitioner, in fact, has obstructed the passage and irrigation channel, besides raising construction on the site reserved for Bus Stand. In the detailed reply filed to the petition by respondent No. 7, there is reference to Shajra Nasab Annexure R-8/I. According to Shajra Nasab Annexure R-8/I, the mother of the petitioner Smt. Neema Dolma came in the village after settlement which took place in the year 1984. According to Shajra Nasab Annexure R-8/I, the petitioner is the son of Smt. Neema Dolma. Smt. Neema Dolma was having house and compound in the abadi deh area of Kh. No. 530 which is far away from the proposed site of Bus Stand Shalkhar. In the spot map/tatima, Annexure R-8/2, the site of the house of Smt. Neema Dolma is shown at Point “A” and the proposed site of Bus Stand Shalkhar is shown at point “B”. The distance between the two points is about 100 meters. 7.
No. 530 which is far away from the proposed site of Bus Stand Shalkhar. In the spot map/tatima, Annexure R-8/2, the site of the house of Smt. Neema Dolma is shown at Point “A” and the proposed site of Bus Stand Shalkhar is shown at point “B”. The distance between the two points is about 100 meters. 7. The Gram Panchayat has been authorized under Section 12 (1) (a) (i) of the Himachal Pradesh Panchayati Raj Act, 1994, (hereinafter referred to as the Act) to make conditional order requiring owner or the occupier of any building or land to remove any encroachment on a public street, place or drain. The Gram Panchayat has passed the conditional order on 8.8.2011 and despite that the petitioner has neither removed the encroachment over the land nor stopped the construction work. 8. Rule 51 of the Himachal Pradesh Panchayati Raj (General) Rules, 1997, prescribes the procedure for examination of the parties and their witnesses under Section 54 (3) of the Act. In the present case, it is the petitioner alone who has produced four witnesses. There is no evidence on record that during the course of proceedings before the Gram Panchayat, any witness has appeared on behalf of the complainants. The petitioner has also not raised this issue before the Appellate Authority. The petitioner, despite the orders passed by the Gram Panchayat and the Appellate Authority has continued to raise the construction. This fact was verified by the Tehsildar, Pooh by visiting the spot on 7.9.2011 alongwith Naib Tehsildar Hangrang and Assistant Engineer (B & R) Pooh. 9. The site for construction of Bus Stand Shalkhar has been chosen by the proprietors of Mauja Shalkhar in larger public interest. The budget has been sanctioned. The compound wall has already been constructed. The photograph Annexure P-6 does not prove that the petitioner was owner of the suit land. The proceedings of the Gram Panchayat were carried strictly in conformity with the Act and the Rules framed thereunder. The Gram Panchayat has correctly appreciated the entire oral as well as documentary evidence while passing the order dated 8.8.2011. The order of the first appellate Authority is reasoned/detailed. All the points urged in the appeal have been dealt with by the Appellate Authority. 10. Consequently, there is no merit in this appeal and the same is dismissed. Order dated 5.5.2015 is vacated. No costs.