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2021 DIGILAW 195 (PNJ)

Vinod Kumar & Others v. State Of Haryana

2021-01-21

JASWANT SINGH, SANT PARKASH

body2021
JUDGMENT Sant Parkash, J. - (The aforesaid presence is being recorded through video conferencing as the proceedings are being conducted in virtual court) 2. The present writ petition has been preferred by the petitioners under Article 226/227 of the Constitution of India for issuance of a writ in the nature of certiorari, quashing order dated 21.09.2020 (Annexure P-11) passed by respondent No.1, vide which request of petitioners for purchase and proposal of Gram Panchayat, Village Pirthala, for sale of Shamlat Land at market price, under Section 12(4) of the Punjab Village Common Lands (Regulations) Rules, 1964 (for short the Rules') has been rejected. 3. The facts of the case are that in the year 1956 during consolidation under government scheme, some small size plots were carved out from village common land for poor inhabitants of Village Pirthala, Tehsil Tohana, District Fatehabad. The ancestors of the petitioners were allotted 0-8 marla plots, adjoining to Khasra Nos. 426 and 428. In the year 1960, houses were constructed on the said plots. as per the site plan Annexure P/1, there existed a gair mumkin rasta (1 Kanal 4 Marla) in Khasra No. 426 in the revenue record and Khasra No. 428 was lying vacant. 4. On 29.09.1988, Village Gram Panchayat sent resolution /proposal to DBPO for approval to construct a pakka passage on the aforesaid gair mumkin rasta and after inspection by the JE, 30 feet wide pakka passage was constructed. However, due to wrong alignment/measurement, the pakka passage was constructed in some part of Khasra No. 428//6-10 and some part of Khasra No. 426. An application dated 11.02.2013 for demarcation of Khasra No. 428//6-10 was given by one Modu Ram son of Shera Ram to Tehsildar Tohana. 5. On 27.02.2013, the said demarcation was conducted by the Revenue Authorities wherein it was found that on the southern side 3x69 karam, pakka street existed in Khasra No. 428. Another application dated 14.03.2013 was given to SDM Tohana for demarcation of Khasra No. 426 (gair mumkin rasta). Without any notice to the petitioners and without conducting any proper inquiry, demarcation was conducted and the petitioners were held in illegal possession in Khasra no. 426 (passage). 6. Another application dated 14.03.2013 was given to SDM Tohana for demarcation of Khasra No. 426 (gair mumkin rasta). Without any notice to the petitioners and without conducting any proper inquiry, demarcation was conducted and the petitioners were held in illegal possession in Khasra no. 426 (passage). 6. An application under Section 7 of Punjab Village Common Lands (Regulation) Rules, 1964 (for short, 'Act') for removal of encroachment was moved to the Assistant Collector, 1st Grade, Tohana on 22.03.2013 whereupon on 11.11.2013, eviction of the petitioners was ordered, where against an appeal was filed before the District Collector, Fatehabad which was also dismissed on 22.05.2014. Thereafter, petitioners filed an appeal/revision before the Commissioner, Hisar Division but the same was also dismissed on 06.09.2016.Petitioners approached this Court against the orders of the Revenue Authorities, through CWP No. 21388 of 2016 which was dismissed as withdrawn on 17.10.2016 (Annexure P/4) with liberty to file an application for purchase of land. Thereafter, petitioners moved an application dated 25.10.2016 for purchase of land. On 13.12.2016, Gram Panchayat passed a resolution for sale of the land in question to the petitioners and after assessment of rate of land, the case was sent to the Deputy Commissioner, Fatehabad for approval. 7. During pendency of the aforesaid approval, one Garsi Ram filed a petition i.e. CWP No. 7852 of 2017 before this Court for execution of orders passed by the Revenue Authorities. This Court vide judgment dated 13.02.2020 (Annexure P/9) allowed the said petition and directed the District Collector, Fatehabad to put the Gram Panchayat in possession of the land in dispute. Feeling aggrieved, petitioners preferred LPA against judgment dated 13.02.2020 which was disposed of by a Division Bench of this Court vide judgment dated 01.09.2020 with liberty to the appellants/petitioners to seek appropriate remedy against the order to be passed by the Deputy Director, Panchayat Development on the application of Gram Panchayat under Rule 12(4) of the Rules. Pursuant to the aforesaid judgment, respondent No. 1 vide impugned order dated 21.09.2020 (Annexure P/11) rejected the application filed by the petitioners for purchase of land. 8. Learned counsel for the petitioners has vehemently contended that the action of the respondents in rejecting their application is unconstitutional, illegal, unjust, arbitrary and against the principle of natural justice. Pursuant to the aforesaid judgment, respondent No. 1 vide impugned order dated 21.09.2020 (Annexure P/11) rejected the application filed by the petitioners for purchase of land. 8. Learned counsel for the petitioners has vehemently contended that the action of the respondents in rejecting their application is unconstitutional, illegal, unjust, arbitrary and against the principle of natural justice. Petitioners fulfill all the prescribed conditions provided under Rule12 of the Rules as they are the inhabitants of the village who constructed their houses in the year 1960, which do not result in the obstruction to the traffic and passerby as 30 feet passage is still available. Learned counsel for the petitioners has further stated that petitioners' houses are 50-60 years old and a portion of these houses fall in Khasra No. 426 (passage). Even the Gram Panchayat had also resolved vide resolution dated 13.12.2016 to sell the land in dispute to the petitioners at the prevailing market price. The impugned order has been passed by ignoring the aforesaid resolution of the Gram Panchayat. 9. We have heard counsel for the petitioners and gone through the record. 10. For proper adjudication of the matter in controversy, Rule 12(4) of the Rules is reproduced hereunder:- "12. Purposes for which land may be sold. xx xx xx xx (4) The Gram Panchayat may with the prior approval of the State Government, sell its non-cultivable land in shamilat deh to the inhabitants of the village who have constructed their houses on or before the 31st March, 2000, not resulting in any obstruction to the traffic and passers by, along with open space upto 25% of the constructed area or an appurtenant area upto a maximum of 200 square yards at not less than collector rate, floor rate or market rate, whichever is higher." 11. Rule 12(4) ibid clearly provides that the Gram Panchayat may, with the prior approval of the State Government, sell its non-cultivable land to the inhabitants of the village, who have constructed their houses on or before 31.03.2000, not resulting into any obstruction in the free flow of traffic. 12. The case of the petitioners is that their houses were constructed in the year 1960 in the plots adjoining to Khasra Nos.426 and 428. Khasra No.426 (1 kanal 4 marla) is a passage (gain mumkin rasta). 12. The case of the petitioners is that their houses were constructed in the year 1960 in the plots adjoining to Khasra Nos.426 and 428. Khasra No.426 (1 kanal 4 marla) is a passage (gain mumkin rasta). On an application dated 14.03.2013 filed by the Gram Panchayat to SDM Tohana, demarcation was conducted and some encroachments by the petitioners were found in khasra No.426. The Gram Panchayat moved to the Assistant Collector 1st Grade, Tohana, who vide orders dated 11.11.2013, ordered the eviction of petitioners. The petitioners failed upto the level of Commissioner, Hissar Division. They also filed CWP No.21388 of 2016 which was dismissed as withdrawn, though with liberty to file an application for purchase of land in question. Meanwhile, one Garsi Ram filed a CWP No.7852 of 2017 for execution of aforesaid orders of revenue authorities. The petitioners were also a party to the writ petition, wherein vide judgment dated 13.02.2020, this Court found that encroachment was causing major obstruction to the traffic and thus, sub-rule (4) cannot help the cause of the private respondents (petitioners herein) and that, official respondents were colliding with the private respondents, and were permitting them to remain in unauthorized occupation without any good and sufficient cause. Accordingly, the District Collector was directed to put the Gram Panchayat in possession of the land in dispute. Though, petitioners preferred LPA but there too, they were left with seeking appropriate remedy only. 13. From the aforesaid discussion, it is crystal clear that the order of eviction had already been passed against the petitioners way back in the year 2013 and they have lost the case even upto the revisional Court. If glanced through, these orders would make it evidently clear that the petitioners have encroached upon the public path. Rule 12(4) of the Rules postulates that the Gram Panchayat may, with the prior approval of the State Government, sell its non-cultivable land to the inhabitants of the village, who have constructed their houses on or before 31.03.2000, not resulting into any obstruction in the free flow of traffic. The case of the petitioners is not at all covered by this rule and in our considered view, request of the petitioners for purchasing the land under their unauthorized occupation has been rightly rejected as the order of evictions passed against the petitioners have already attained finality on account of their unauthorizedly occupying the path. The case of the petitioners is not at all covered by this rule and in our considered view, request of the petitioners for purchasing the land under their unauthorized occupation has been rightly rejected as the order of evictions passed against the petitioners have already attained finality on account of their unauthorizedly occupying the path. Otherwise also, Rule 12(4) has given discretion to the State Government either to sell the land or not depending upon the facts and circumstances of each and every case. Learned counsel for the petitioners has failed to convince the Court that this discretionary power exercised while passing the impugned order dated 21.09.2020 has been exercised arbitrarily or in a biased manner. The request of the petitioners has been declined finding them the encroachers on a public passage for which the permission can not be granted even under the provisions of Rule 12(4) of the Rules. 14. In the light of what has been observed above, we do not find any merit in the instant petition and the same is dismissed.