Punjab-Haryana High Court
K.D. Sharma vs State Of Haryana And Ors on 23 December, 2014
Author: Paramjeet Singh
Bench: Paramjeet Singh
CWP Nos. 20399, 20560 of 2009 and
CWP Nos. 8 to 20, 216 and 223 of 2010 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Reserved on: December 16, 2014
Date of Decision: December 23, 2014
1. C.W.P. No. 20399 of 2009 (O&M)
K.D. Sharma ... Petitioner
Versus
State of Haryana and others ... Respondents
2. C.W.P. No. 20560 of 2009 (O&M)
Arun Walia and another ... Petitioners
Versus
State of Haryana and others ... Respondents
3. C.W.P. No. 8 of 2010
Universal Medicos ... Petitioner
Versus
State of Haryana and others ... Respondents
4. C.W.P. No. 9 of 2010
Amrit Tailor ... Petitioner
Versus
State of Haryana and others ... Respondents
5. C.W.P. No. 10 of 2010
Mahesh Devi ... Petitioner
VIRENDER KUMAR
2014.12.25 12:47
I attest to the accuracy and
authenticity of this document
CWP Nos. 20399, 20560 of 2009 and
CWP Nos. 8 to 20, 216 and 223 of 2010 2
Versus
State of Haryana and others .. Respondents
6. C.W.P. No. 11 of 2010
Dental Clinic .. Petitioner
Versus
State of Haryana and others ... Respondents
7. C.W.P. No. 12 of 2010
Sachdeva Sweet Shop ... Petitioner
Versus
State of Haryana and others .. Respondents
8. C.W.P. No. 13 of 2010
Computer Bazar ... Petitioner
Versus
State of Haryana and others ... Respondents
9. C.W.P. No. 14 of 2010
Harish Chander Electronics .. Petitioner
Versus
State of Haryana and others .. Respondents
10. C.W.P. No. 15 of 2010
Sethi Garments ... Petitioner
Versus
State of Haryana and others ... Respondents
VIRENDER KUMAR
2014.12.25 12:47
I attest to the accuracy and
authenticity of this document
CWP Nos. 20399, 20560 of 2009 and
CWP Nos. 8 to 20, 216 and 223 of 2010 3
11. C.W.P. No. 16 of 2010
Janta Dhaba .. Petitioner
Versus
State of Haryana and others ... Respondents
12. C.W.P. No. 17 of 2010
Hair Dresser .. Petitioner
Versus
State of Haryana and others ... Respondents
13. C.W.P. No. 18 of 2010
Janta Emporium ... Petitioner
Versus
State of Haryana and others ... Respondents
14. C.W.P. No. 19 of 2010
Oberoi Garments ... Petitioner
Versus
State of Haryana and others ... Respondents
15. C.W.P. No. 20 of 2010
Sunrise Enterprises ... Petitioner
Versus
State of Haryana and others ... Respondents
16. C.W.P. No. 216 of 2010 (O&M)
Subhash Chander Chauhan ... Petitioner
VIRENDER KUMAR
2014.12.25 12:47
I attest to the accuracy and
authenticity of this document
CWP Nos. 20399, 20560 of 2009 and
CWP Nos. 8 to 20, 216 and 223 of 2010 4
Versus
State of Haryana and others .. Respondents
17. C.W.P. No. 223 of 2010
Gurmeet Snack Bar through Satvinder Kaur ... Petitioner
Versus
State of Haryana and others ... Respondents
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1) Whether Reporters of the local papers ay be allowed to see the judgment?
2) To be referred to the Reporters or not?
3) Whether the judgment should be reported in the Digest?
Argued by: Mr. C.B. Goel, Advocate and
Mr. Manoj Sharma, Advocate,
for the petitioner(s) in CWP No. 20399 of 2009.
Mr. Virender Verma, Advocate,
for the petitioner(s) in CWP Nos. 216 and 233 of 2010.
Mr. Malkeet Singh, Advocate,
for the petitioner(s) in CWP Nos. 8 to 20 of 2010.
Mr. Vivek Goyal, Advocate,
for the petitioner(s) in CWP No. 20560 of 2009.
Mr. Sandeep S. Mann, Sr. DAG, Haryana.
Mr. S.K.S. Bedi, Advocate,
for the applicant(s) in CM-10094-CWP of 2013
in CWP No. 20399 of 2009.
Paramjeet Singh, J.
In all aforementioned 17 writ petitions basically one issue VIRENDER KUMAR 2014.12.25 12:47 I attest to the accuracy and authenticity of this document CWP Nos. 20399, 20560 of 2009 and CWP Nos. 8 to 20, 216 and 223 of 2010 5 arises, whether the property which is in occupation of the writ petitioners is a part of Government property bearing Khasra No. 137 gair mumkin road and the petitioner(s) have encroached upon the road and road margins and have rightly been ordered to be evicted from the same under the provisions of Haryana Public Premises and Land (Eviction and Rent Recovery) Act, 1972 (hereinafter referred to as the "PP Act").
The beauty of a public road known as "Ambala-Jagadhri Road" which passes through an area now known as "Mahesh Nagar Jagadhri Road, Ambala Cantt." and other parts of the Ambala Cantt. has been marred due to encroachment by different persons. Encroachment has been a cause of several troubles for commuters of the road and road side- walks. The encroachments are of permanent, semi-permanent or temporary nature which adversely affects the free flow of traffic. The litigation with regard to encroachment on the public road has a long history. There has been earlier proceedings before this Court when some persons had approached this Court. It was alleged that the road in question is a very busy road which passes through the city of Ambala. The encroachment around the road is causing serious or fatal accident to pedestrians, cyclists, persons travelling of vehicles. It is alleged that the major part of the road remains occupied and blocked by way of permanent, semi-permanent and temporary encroachments. The major part of the road has been encroached upon by the persons who have made construction in the shape of various VIRENDER KUMAR 2014.12.25 12:47 I attest to the accuracy and authenticity of this document CWP Nos. 20399, 20560 of 2009 and CWP Nos. 8 to 20, 216 and 223 of 2010 6 shops and commercial buildings. But no action is being taken by the Government and the municipal authorities. Consequently in Civil Writ Petition No.9055 of 1996, direction was issued to the State Government to take action against the persons who have unauthorizedly encroached upon the road which has become a traffic hazard resulting into traffic jams and fights. The Mahesh Nagar area is bustling with several markets and shops. Both sides are occupied/encroached upon unauthorizedly.
The above mentioned 17 Civil Writ Petitions i.e. CWP Nos. 20399, 20560 of 2009, 8 to 20, 216 and 223 of 2010 are being disposed of by this common judgment as the subject matter of all the aforementioned writ petitions is same. Learned counsel for the petitioner has referred to the facts from CWP No. 20399 of 2009. Therefore, for the sake of convenience, facts are taken from this petition.
In the present writ petition, petitioner has impugned order dated 08.01.2009 (Annexure P/23) passed by respondent no.3 - Collector, Ambala, under the provisions of PP Act, whereby the petitioner has been ordered to be evicted from the land which is part of khasra no. 137 gair mumkin road, and order dated 29.07.2009 (Annexure P/24) passed by respondent no.2 - Commissioner, Ambala Division, Ambala, whereby appeal preferred by the petitioner has been dismissed.
Brief facts as stated in the writ petition are that Smt. Vidhyawati leased out 5/8th share of the land out of khasra No. 56/15 (1- VIRENDER KUMAR 2014.12.25 12:47 I attest to the accuracy and authenticity of this document CWP Nos. 20399, 20560 of 2009 and CWP Nos. 8 to 20, 216 and 223 of 2010 7
16) situated in Village Babyal which is now part of Ambala Cantt. and the area was earlier known as Chhabiyana, Near Green Park, which is now known as Mahesh Nagar, Jagadhri Road, Ambala Cantt., in favour of Smt. Veena Rani Jindal wife of Sh. Suresh Jindal for a period of 99 years vide registered lease deed dated 15.01.1979. Said Veena Rani Jindal submitted a building plan for constructing a building in the year 1982 and the same was sanctioned by the Municipal Committee, Ambala Cantt. on 25.10.1982 (Annexure P/1). Thereafter, petitioner - Dr. K.D. Sharma stepped into the shoes of Smt. Veena Rani Jindal and raised a construction of building for hospital which is run under the name and style of K.D. Hospital, Mahesh Nagar, Jagadhri Road, Ambala Cantt. It is pleaded case of the petitioner that construction has been raised as per the sanctioned building plan which is in existence since 25.10.1982.
Petitioner was served with a notice (Annexure P/2) by the Collector, Ambala under Section 4(1) of the PP Act. In pursuance of said notice, petitioner appeared and contested the proceedings. The proceedings in that case was adjourned sine die. Meanwhile S/Sh. Satpal Sehgal and Rajesh Kumar Sharma, filed a Civil Writ Petition No. 9055 of 1996 in this Court seeking a writ of mandamus directing the official respondents to remove the illegal encroachment made unauthorized by occupants over the land belonging to the PWD (B&R), Haryana. In the said writ petition, the petitioner was not impleaded as a party. However, VIRENDER KUMAR 2014.12.25 12:47 I attest to the accuracy and authenticity of this document CWP Nos. 20399, 20560 of 2009 and CWP Nos. 8 to 20, 216 and 223 of 2010 8 the same was disposed of by this Court vide order dated 27.11.1996 (Annexure P/3) on the undertaking given by the official respondents that unauthorized construction would be removed within six months. Inspite of the order passed by this Court, no action was taken. Resultantly, COCP No. 962 of 1997 was filed. Thereafter, the Commissioner and Secretary to Government of Haryana directed the Engineer-in-Chief, PWD (B&R), to remove the encroachments within 10 days, except where there is a stay order from the competent Court. In pursuance of that, the PWD authorities made an attempt to demolish the building of the petitioner on the assumption that hospital of the petitioner is on the land which is part of road. Thereafter, petitioner filed Civil Writ Petition No. 11977 of 1998 in which the prayer was made that the respondents should not demolish his property without due course of law. Said writ petition along with contempt petition was disposed of vide judgment dated 21.08.1998 (Annexure P/4). Various directions were issued by the Division Bench of this Court. After passing of judgment dated 21.08.1998, the proceedings were initiated against the petitioner and ultimately, order of eviction was passed by the Collector on 05.02.1999 (Annexure P/5). Against that order, petitioner preferred an appeal before the Commissioner, which was dismissed vide order dated 18.05.1999. The orders of the Collector and the Commissioner were challenged by the petitioner in Civil Writ Petition No. 8184 of 1999 in this Court and said writ petition was allowed and the impugned orders VIRENDER KUMAR 2014.12.25 12:47 I attest to the accuracy and authenticity of this document CWP Nos. 20399, 20560 of 2009 and CWP Nos. 8 to 20, 216 and 223 of 2010 9 were quashed vide order dated 29.10.1999 (Annexure P/6) and it was observed that competent authority can issue fresh notice in accordance with the provisions of the PP Act. It was also observed that there should be a proper demarcation. In pursuance of order passed by this Court, department got conducted demarcation on 18.01.2001 (Annexure P/7) and allegedly as per that demarcation, no encroachment was found. However, Department has wrongly shown that some encroachments on the northern side of Jagadhri road in khasra no. 137 has been made by the petitioner. It was averred that there was no encroachment at the spot. Subsequently, same was ordered to be corrected vide report dated 26.06.2001 (Annexure P/9). It was also averred that demarcation was got done from the revenue officials twice on 19.06.2001 and 23.08.2001 (Annexure P/10 and P/11 respectively). In both the demarcation reports, again no encroachment was found to have been made by the petitioner. In spite of that, again notice (Annexure P/12) under Section 4(1) of the PP Act was issued to the petitioner alleging some encroachment on khasra No. 137, to which the petitioner submitted reply dated 26.04.2001 (Annexure P/13). The Collector found that the department has failed to prove any encroachment by the petitioner and dismissed all the petitions filed under Sections 5 and 7 of the PP Act, vide order dated 29.10.2001 (Annexure P/14) and liberty was given to the respondents to file fresh application after collecting appropriate evidence regarding extent of encroachment. Both the parties VIRENDER KUMAR 2014.12.25 12:47 I attest to the accuracy and authenticity of this document CWP Nos. 20399, 20560 of 2009 and CWP Nos. 8 to 20, 216 and 223 of 2010 10 feeling aggrieved by the order (Annexure P/14), filed appeals before the Commissioner. The Commissioner vide order dated 21.05.2002 (Annexure P/15) set aside the order dated 29.10.2001 (Annexure P/14) and directed the SDO (Civil), Ambala to get fresh demarcation carried out by the Tehsildar under his supervision and thereafter, decide the cases on merits. In pursuance of remand order (Annexure P/15), demarcation was carried out but as per the report it was not possible in the thickly populated area as no pucca points were available. In view of the subsequent demarcation report, the Collector vide order dated 15.11.2002, dismissed the ejectment applications filed by the respondents. Feeling dis-satisfied, an appeal was preferred before the Commissioner. Vide order dated 21.10.2003 (Annexure P/18), the Commissioner again set aside the order of the Collector and issued direction to get demarcation afresh under the supervision of Deputy Commissioner and thereafter, proceed in accordance with law, so that orders passed by this Court are complied with. The Deputy Commissioner vide order dated 24.05.2004 directed the demarcation of khasra no. 137, gair mumkin road. The same was carried out on 08.06.2004 under the orders of the then Deputy Commissioner - Sh. H.S. Malik. Said report was fabricated as it was without the signatures of Deputy Commissioner. On the basis of subsequent demarcation report dated 08.06.2004, fresh notice (Annexure P/20) under Section 4(1) of the PP Act was issued, to which objections (Annexure P/21) were filed. VIRENDER KUMAR 2014.12.25 12:47 I attest to the accuracy and authenticity of this document CWP Nos. 20399, 20560 of 2009 and CWP Nos. 8 to 20, 216 and 223 of 2010 11 Feeling aggrieved by the notice and application moved by the respondents to amend the notice, the petitioner challenged the notice and amendment application in appeal which was accepted by the Commissioner and the case was again remanded vide order dated 23.08.2006 (Annexure P/22). After passing of order by the Commissioner, the parties led their evidence before the Collector. Respondent department produced AW1 Om Parkash, SDE and AW2 Mahabir Singh, DRO, Karnal, whereas, petitioner produced RW1 G.C. Kakkar, SDO, PWD (B&R) Department (Retired), RW2 Raj Kumar Sharma, a shop-keeper, RW3 Rajinder Singh, Architect, Ambala Cantt. Thereafter, relying upon the demarcation report dated 08.06.2004 eviction order dated 08.01.2009 (Annexure P/23) was passed by the Collector, Ambala. Thereafter, an appeal was preferred by the petitioner, which has been dismissed by the Commissioner vide order dated 29.07.2009 (Annexure P/24). Hence, this writ petition.
In pursuance of notice of motion, respondents appeared. Respondent nos. 1 to 3 filed written statement controverting the averments in the writ petition and averred that impugned orders (Annexure P/23 and P/24) have been validly passed after carrying out demarcation at the spot. The petitioner has encroached upon the area which is meant for road and the road has been shown in the record of rights i.e. jamabandis as khasra no. 137. The ownership of the road vests in the Government. Other averments in the writ petition were denied.
VIRENDER KUMAR 2014.12.25 12:47 I attest to the accuracy and authenticity of this document CWP Nos. 20399, 20560 of 2009 and CWP Nos. 8 to 20, 216 and 223 of 2010 12 Replication was also filed by the petitioner to the written statement filed by respondent nos. 1 to 3, reiterating the averments made in the writ petition and denying the averments made in the written statement.
When notice of motion was issued on 24.12.2009, this Court passed the following order:-
"Notice of motion, returnable on 5.2.2010.
Parties to appear before the Registrar (Judl.)-III for completion of service/pleadings.
In the meantime, status quo in regard to the possession of the property in question shall be maintained by the parties."
Thereafter, various orders were passed by this Court. On 14.10.2010, this Court directed the State Counsel to place on record original breadth of the road as sanctioned and modified from time to time. Thereafter, on 01.02.2012, this Court passed the following order:-
"Learned State counsel has filed in Court affidavit of Sh. R.K. Kansal, Executive Engineer, Provincial Division No.1, PWD (B&R) Br. Ambala Cantt along with Annexures RA-1 to RA-7 and the same is taken record.C.M. No. 15411 of 2011
The applicant-petitioner has filed this application for fresh demarcation of Khasra No. 137, Gair Mumkin Ambala Road, which was earlier part of Village Babyal, Hadbast No. 63, Tehsil and District Ambala, now within the Municipal VIRENDER KUMAR 2014.12.25 12:47 I attest to the accuracy and authenticity of this document CWP Nos. 20399, 20560 of 2009 and CWP Nos. 8 to 20, 216 and 223 of 2010 13 Limits of Ambala Cantt. 17 writ petitions have been filed disputing the demarcation carried out by the authorities. Earlier, this Court has specifically passed an order dated 29.10.1999 (Annexure P/6) in CWP No. 8184 of 1999 for recording detailed reasons with regard to encroachment on public road by the petitioners. Thereafter, the demarcation was carried out under the supervision of the Sub Divisional Officer (Civil), Ambala, on 18.01.2001. The demarcation was again carried out on 19.06.2001 and 26.06.2001. Thereafter, another demarcation was carried out under the supervision of Naib Tehsildar, Mullana, on 23.08.2001. But, the said demarcation has not been accepted by the State Government. Rather, it has been held by the authorities under the Haryana Public Premises and Land (Eviction and Rent Recovery) Act, 1972, that the petitioners have encroached upon the public land which is a part of the Ambala Road bearing khasra No. 137. With the assistance of the learned counsel for the petitioners, as well as, learned State Counsel, I have perused the record available on the paper book of this writ petition.
Reading of Annexure RA-1 (Aks-Shajra), prepared in the year 1963-64 (as amended in 2002) shows khasra no. 137 as Ambala Road. In revenue record, the road is shown to be in existence as khasra No. 123 in Annexure RA-4 (This document is prior to consolidate i.e. 1958). It is the case of the petitioner that no proper demarcation has been carried out. The authorities had taken into consideration wrong demarcation and passed the order of eviction. It is not disputed that the public property cannot be allowed to be VIRENDER KUMAR 2014.12.25 12:47 I attest to the accuracy and authenticity of this document CWP Nos. 20399, 20560 of 2009 and CWP Nos. 8 to 20, 216 and 223 of 2010 14 encroached specifically Road.
I am of the view that in the interest of justice, fresh demarcation be carried out at the spot with respect to the disputed properties by the Tehsildar under the supervision of the Deputy Commissioner, Ambala.
The fresh demarcation will be carried out on 26.02.2012. The Tehsildar will conduct the demarcation under the supervision of the Deputy Commissioner, Ambala. The demarcation will start at 10 a.m. which may continue till its finalisation. The petitioners through their respective counsel are directed to be present on that date. No further notice is required to be given to them. Deputy Commissioner would instruct the subordinate revenue officials i.e. Tehsildar, Naib Tehsildar, Kanungo and Patwari, to be present at the spot along with the record prior to the consolidation and after the consolidation, to ascertain the actual dimension of the Road at the spot as given in the revenue record like musavi, field book, Missal Hakiat. Deputy Commissioner is further directed to ensure that site plan of demarcation be got prepared correctly. The presence of the petitioners be marked and their signatures be obtained on a separate sheet. If the petitioners refuse to sign, their refusal may also be recorded. Entire demarcation will be videographed / photographed. The Deputy Commissioner is requested to spare time to be present at the spot, when the demarcation is carried out. It is further directed that the PWD Department will also prepare a separate site plan of the existing structure on both sides of the road and the PWD department will also mention total road reservation area with the exact width of the mettled road VIRENDER KUMAR 2014.12.25 12:47 I attest to the accuracy and authenticity of this document CWP Nos. 20399, 20560 of 2009 and CWP Nos. 8 to 20, 216 and 223 of 2010 15 area and brumes on both sides of the Road. After the completion of demarcation, demarcation report will be submitted to this Court a week before 12.03.2012 with all the Annexures and photographs.
After the report is submitted to this Court, the petitioners will be at liberty to take photocopy from the Registry of this Court.
CM is disposed of accordingly.
A copy of the order be given to the learned State counsel under the signatures of the Reader.CWP No. 20399 of 2009
Adjourned to 12.03.2012.
A photocopy of this order be placed on the files of connected cases."
Thereafter, the demarcation was carried out under the supervision of Deputy Commissioner. Demarcation report along with documents as Annexures were taken on record. Even videography CD of demarcation has also been placed on record. Thereafter, the roster was changed and the case remain with various Benches. Ultimately, the matter has come to this Bench again. On 14.11.2014, this Court directed the State counsel that revenue official should be present along with record i.e. original musavi, aks latha and field book of khasra no. 137, which has been carved out from old khasra no. 123. Besides this, the department placed on record masavi, field book, misal haqiat and mutations. After submission of demarcation report, which was carried out under the VIRENDER KUMAR 2014.12.25 12:47 I attest to the accuracy and authenticity of this document CWP Nos. 20399, 20560 of 2009 and CWP Nos. 8 to 20, 216 and 223 of 2010 16 supervision of Deputy Commissioner in pursuance of order dated 01.02.2012, petitioner has moved various applications objecting to the demarcation carried out under the orders of this Court.
I have heard learned counsel for the parties and perused the record.
Learned counsel for the petitioner vehemently contended that there was no material on record before the Collector with regard to demarcation and has made reference to the order of this Court dated 14.10.2010, which reads as under:-
"C.M. No. 14952 of 2010
Allowed as prayed for.
Replication to the written statement filed on behalf of respondents no.1 to 3 is taken on record.CWP No. 20399 of 2009
A perusal of the paper book, including the impugned orders reveal that there is no material on record to establish the width of the Ambala-Jagadhri road.
Counsel for the State of Haryana is directed to file an affidavit revealing the original breadth of the road, as sanctioned and modified from time to time. The respondents shall also produce all relevant documents including masavi that may enable this Court to record a finding with respect to the width of the road.
Adjourned to 14.12.2010.
A photo copy of this order be placed on the files of the connected cases."VIRENDER KUMAR 2014.12.25 12:47 I attest to the accuracy and authenticity of this document
CWP Nos. 20399, 20560 of 2009 and CWP Nos. 8 to 20, 216 and 223 of 2010 17 Learned counsel for the petitioner contended that as such, there is no encroachment. The orders passed by the Collector as well as the Commissioner are null and void and not sustainable in the eyes of law. It was also contended by the learned counsel for the petitioner that demarcation dated 26.02.2012 (Annexure R-9) is not legal and valid. No pucca points were established. The objections were raised before the Deputy Commissioner, but he has disposed of the same in mechanical manner. No detailed order has been passed. As such, merely on the basis of this document, they cannot be evicted.
Per contra, learned State counsel submitted that demarcation has been carried out at the spot under the supervision of the Deputy Commissioner and senior officers i.e. Tehsildar, Naib Tehsildar, Naib Sadar Kanungo, Field Kanungo, Patwari of various revenue circles and the officials of PWD (B&R) Department, Nambardar of the Village etc. Signatures of those who were present at the spot, were obtained in token of their presence. Videography was also done in addition to photographs.
Pucca points have been established and the pucca points have been traced out in khasra number where Ravi Dass Mandir exists and there is no dispute with regard to the establishment of pucca points, nor the same is a ground raised by the petitioner that no pucca point was available.
Although the objections were filed before the Deputy Commissioner, but this Court vide order dated 22.11.2012 afforded opportunity to the VIRENDER KUMAR 2014.12.25 12:47 I attest to the accuracy and authenticity of this document CWP Nos. 20399, 20560 of 2009 and CWP Nos. 8 to 20, 216 and 223 of 2010 18 petitioner to file objections to the demarcation report and the same were also filed in this Court vide CM No. 520 of 2013. The orders passed by the authorities are legal and valid. Number of times the demarcations have been carried out. Every time, the petitioner was found to have encroached upon khasra no. 137 which is meant for gair mumkin road. There is no illegality or perversity in the orders passed by the authorities under the provisions of PP Act. The authorities are proceeding according to due process of law.
I have considered the contentions raised by learned counsel for the parties and perused the record.
Admittedly, the petitioners are in occupation of the premises which are abutting the road known as Ambala-Jagadhri Road which passes through Ambala Cantt. The area in question is Mahesh Nagar, Ambala Cantt. where the petitioners are stated to have encroached upon the road which is a bustling area. There are number of shops and markets in that area. The building in question is a hospital known as "K.D. Hospital". The entire controversy revolves around the demarcation of khasra no. 137. In the revenue record, road is shown to be in existence prior to 1958 as per Annexure RA-4 - masavi which is in Urdu language and prepared on 18.05.1956. Translated copy of the same has been placed on record in which khasra number of the road is shown as 123. Thereafter, the consolidation took place in the surrounding villages. The area where the VIRENDER KUMAR 2014.12.25 12:47 I attest to the accuracy and authenticity of this document CWP Nos. 20399, 20560 of 2009 and CWP Nos. 8 to 20, 216 and 223 of 2010 19 land of the petitioner is situated originally falls into village Babyal. As per the jamabandi for the year 1963-64 (Annexure RA-5), the old khasra number of the road has been mentioned as 123 i.e. prior to consolidation and new khasra number has been carved out as 137. Total area of the gair mumkin road is 64 kanals and 18 marlas. In the misal haqiat i.e. jamabandi for the year 1963-64, the Government has been shown to be the owner in the ownership coloumn and in the cultivation column, PWD department has been mentioned. The masavi which has been placed on record as Annexure RA-1 of Village Babyal indicates that khasra no. 137 is a road adjacent to it are various khasra numbers. Besides this, this Court has ordered the presence of the revenue officials who were well conversant in Urdu. All the original revenue record was summoned by this Court and photocopies of the original record along with its translated copies have been taken on record as Annexures C1 to C3, respectively. There are various demarcations. Counsel for the parties agreed before me that the recent demarcation which has been carried out under the supervision of Deputy Commissioner under the orders of this Court i.e. demarcation report dated 26.02.2012 should be taken as basis for decision of the present writ petition. The area of the petitioner falls in khasra no. 56//15.
The width of the road in Annexure RA-I which is a photocopy of the original masavi at that point has been shown to be 25 karams at one corner of khasra no. 56//15 and diagonally the length has been shown as 45 VIRENDER KUMAR 2014.12.25 12:47 I attest to the accuracy and authenticity of this document CWP Nos. 20399, 20560 of 2009 and CWP Nos. 8 to 20, 216 and 223 of 2010 20 karams. To identify the ghosa and breath of the road along side the area touching the main road of khasra no. 56//15 i.e. towards the northern side of that khasra number in any circumstances, cannot be less than 22 karams. This has been measured at the spot as also as per the masavi which was measured in the Court while hearing the case with the help of the revenue officials and the scale which is specifically meant for measuring the karams on the Aks-lathas, this has been calculated as 23 karams. Even giving the relaxation, it could not be in any case less than 22 karams at that spot. At the time of demarcation, the revenue authorities have prepared a site plan where actual demarcation and encroachment has been shown which is attested by the Deputy Commissioner. In view of this, there is a list also prepared by the revenue officials. In the said list, name of the petitioner's hospital appears at Sr.No. 28. Land measuring 7 karam on the eastern side, 12 karams on the western side, 72 karams on southern side and 72 karams on northern side, total 76 sq.yards area has been encroached upon by the petitioner, which is actual part of khasra no.137 gair mumkin road. The contention of the petitioner is that as per the information got under the Right to Information Act from the Executive Engineer the width of the road is less and encroachment as per demarcation cannot be taken into consideration. This contention cannot be accepted for the reasons that the original revenue record is available, before every khasra numbers the width of the road is indicated in the VIRENDER KUMAR 2014.12.25 12:47 I attest to the accuracy and authenticity of this document CWP Nos. 20399, 20560 of 2009 and CWP Nos. 8 to 20, 216 and 223 of 2010 21 masavi and the road is in existence prior to 1956 as its old khasra number was shown as 123 and after consolidation, its new khasra number is 137. In the missal haqiat, old and new number has been given. In numerous demarcations the encroachment by the petitioner has been established.
Similarly petitioners in other connected writ petitions have encroached upon the road. The table prepared at the time of demarcation and mentioned in demarcation carried on 26.02.2012 indicates the extent of encroachment whereby dimensions of all the four corners i.e. east, west, south and north have been given. The table is relating to the encroachment of many persons, however, encroachment with reference to the petitioners in these writ petitions is reproduced as under:-
Sr. East West South North Area Name of the petitioners No. Sq.
yards
1 Xx Xx Xx Xx Xx Xx
2 4 4 17 17 8 Computer Bazar (CWP No.13
17x4 of 2010)
3 Xx Xx Xx Xx Xx Xx
4 15 16 10 10 17 Universal Medicose (CWP No.
8 of 2010)
10 (15+16)
2
5 14 15 10 10 16 Sachdeva Sweet House (CWP
No. 12 of 2010)
14x10
6 13 14 7 7 10 Sethi Bandhu (CWP No. 15 of
2010 - Sethi Garments vs.
13x7
State of Haryana and others)
VIRENDER KUMAR
2014.12.25 12:47
I attest to the accuracy and
authenticity of this document
CWP Nos. 20399, 20560 of 2009 and
CWP Nos. 8 to 20, 216 and 223 of 2010 22
Sr. East West South North Area Name of the petitioners
No. Sq.
yards
7 12 13 15 15 20 HR Electronics (CWP No. 14
15x12 of 2010 - Harish Chander
Electronics vs. State of
Haryana and others)
8 to Xx Xx Xx Xx Xx Xx
17
18 8+7= 15 16 16 27 Gurmeet Snacks Bar (CWP
15 No. 223 of 2010)
15x16
19- Xx Xx Xx Xx Xx Xx
20
21 11 11 18 18 22 Dr. Arun Walia (CWP
No.20560 of 2009)
18x11
22 Xx Xx Xx Xx Xx Xx
to
27
28 7 12 72 72 76 KD Hospital (CWP No.20399
72 (7+12) of 2009)
2
29 Xx Xx Xx Xx Xx xx
to
40
41 9 10 8 8 8 Janta Emporium (CWP No. 16
of 2010 - Janta Dhaba vs. State
8(9+10)
of Haryana & others and CWP
2 No. 18 of 2010 - Janta
Emporium vs. State of Haryana
and others)
42 Xx Xx Xx Xx Xx Xx
to
49
50 16 16 8 8 14 Sushil Dental Hospital (CWP
No. 11 of 2010 - Dental Clinic
16x8
vs. State of Haryana and
others)
51 Xx Xx Xx Xx Xx Xx
VIRENDER KUMAR
2014.12.25 12:47
I attest to the accuracy and
authenticity of this document
CWP Nos. 20399, 20560 of 2009 and
CWP Nos. 8 to 20, 216 and 223 of 2010 23
Sr. East West South North Area Name of the petitioners
No. Sq.
yards
52 17 18 9 9 17 Standard Hair Dresser (CWP
9(17+18) No. 17 of 2010 - Hair Dresser
vs. State of Haryana and
2 others)
53 18 20 9 9 19 Amrit Tailor (CWP No. 9 of
2010)
9(18+20)
2
54 20 22 11 11 26 Jain Trade Ways (CWP No. 10
11(20+22) of 2010 - Mahesh Devi vs.
State of Haryana and others)
2
55 22 24 8 8 20 SK Videos (CWP No. 10 of
2010 - Mahesh Devi vs. State
8(22+24)
of Haryana and others)
2
56 24 25 11 11 30 Rakesh Gupta & Bros.(ACC)
11(24+25) (CWP No. 10 of 2010 -
Mahesh Devi vs. State of
2 Haryana and others)
57 Xx Xx Xx Xx Xx Xx
58 3 3 22 22 7 Oberoi Sweet & Fast Food
22x3 (CWP No. 19 of 2010 - Oberoi
Garments vs. State of Haryana
and others)
59 Xx Xx Xx Xx Xx xx
to
63
(Civil Writ Petition numbers and titles placed in brackets in last column have been added for facility of reference).
After perusal of the record, this Court has come to the conclusion that all the writ petitioners have encroached the area of the road in question.
Now, I will deal with the objections filed by the petitioners in VIRENDER KUMAR 2014.12.25 12:47 I attest to the accuracy and authenticity of this document CWP Nos. 20399, 20560 of 2009 and CWP Nos. 8 to 20, 216 and 223 of 2010 24 this Court.
So far objection nos.1 and 2 filed by the petitioner in CWP No. 20399 of 2009 are concerned, they are virtually no objections. They are with regard to the demarcation carried out and they appeared before the Deputy Commissioner. In para no.3, the objection raised is that they had got the information under the Right to Information Act from the Executing Engineer, PWD that the Government land in front of the hospital is 32.60 meters (107 ft.), whereas on the spot, the area lying vacant is 34.75 meters (114 ft.). The reliance on this statement is mis- placed because when the report has been prepared by the Executive Officer, PWD Department, they may not have looked into the original revenue record i.e. masavi and the field book where the dimensions at various points are specifically mentioned with regard to the length and width before every khasra number. In the Court itself while hearing the arguments, objections were specifically explained to the parties and their counsel. This Court has taken special pains to tell the parties that they could still verify the facts as per the site plan and the demarcation and if there is any variation the same could be pointed out. As such, the said objection is meaningless when actual measurement at the spot has been carried out as per the masavi, misal haqiat and the field book. Para no.4 of the objections only refers to the measurement existing in the year 1974 and the same is virtually no objection. Counsel for the petitioner has VIRENDER KUMAR 2014.12.25 12:47 I attest to the accuracy and authenticity of this document CWP Nos. 20399, 20560 of 2009 and CWP Nos. 8 to 20, 216 and 223 of 2010 25 referred to para no.5 of the objections that the building plan was sanctioned in 1982 and hospital was constructed as per the building plan sanctioned by the Municipal Committee (now Municipal Corporation) Ambala Cantt. There is no dispute regarding this that the petitioner or other predecessor-in-interest must have got sanctioned the site plan. Said site plan is sanctioned keeping in view the boundaries given in the title document and the construction at the spot have been carried out by the petitioner by encroaching upon the area meant for the road. When the actual demarcation has been done at the spot in accordance with the revenue record referred to above, that too under the supervision of Deputy Commissioner and the senior officers and has been videographed and photographed, there is no question of any wrong demarcation at the spot. Even the CD is available on the record. 6th and 7th objections are the main objections which is with regard to the proper identification of the pucca points and the subsequent construction in the adjoining area and the objection that no pucca point has been established as per Chapter 1 Part M of the High Court Rules and Orders, Vol.I. These objections cannot be sustained for the reasons that this is clear from the report (Annexure R-9) that the pucca point has been specifically established by the authorities which reads as under:-
"The work of demarcation was started at 10.00 AM through measurement tape in the presence of all the persons present VIRENDER KUMAR 2014.12.25 12:47 I attest to the accuracy and authenticity of this document CWP Nos. 20399, 20560 of 2009 and CWP Nos. 8 to 20, 216 and 223 of 2010 26 with videography/photography under the supervision of Deputy Commissioner, Ambala. For the purpose of demarcation, the pucca point was traced. There was no survey mark, tri-junction pillar, found available at the site due to thickly populated area around the road. For the purpose of demarcation, the pucca point was traced. In khasra No. 113, there exist Ravidass Mandir at the spot, which is in existence (Kaymi) since consolidation (Istemal). All the present persons also admit it to be correct. Its confirmation was done by taking demarcation of khasra no. 53//11/4 from its western northern corner by measuring 45 karam straight i.e. 247.6 ft. The site was found to be correct. Hence by considering the khasra no. 113 as the Mustkil Mauka from the Western northern corner of the khasra no. 113 towards east, the measurement of 112 karam straight i.e. 616 ft. was made and northern western corner of the khasra no. 53//14/1/1 was fixed. From this point, towards western southern side and along the western side of khasra no. 146 measurement of the 216 karam straight i.e. 1188 ft (as per record) was made and western southern corner of the khasra no. 146 was fixed which is the northern side of the khasra no. 137 gair mumkin sarak. From western northern corner of khasra no. 113 towards southern western side as per record by measuring 182 karam straight i.e. 1001 ft. western southern corner of khasra no. 56//7 was fixed which is northern side of khasra no. 137 gair mumkin sarak. From the western southern corner of the khasra no. 146 and in the line of the western southern side khasra no. 56//7 by measuring 11 karam straight i.e. 60.06 ft the western southern corner of VIRENDER KUMAR 2014.12.25 12:47 I attest to the accuracy and authenticity of this document CWP Nos. 20399, 20560 of 2009 and CWP Nos. 8 to 20, 216 and 223 of 2010 27 the khasra no. 69 was fixed. From this point by measuring of the 25 karam straight i.e. 137.06 ft in the southern side, the width of the khasra no. 137 Gair Mumkin Sarak was fixed.
After it the search was made for pucca point towards southern side of the khasra no. 137 Gair Mumkin Sarak in Mauja Naggal. There are Tatimas in khasra no. 10//25 as per revenue record. On the basis of these Tatimas, confirmation was made of all khasra nos. 10//25/8, 25/9-10-11-12-13-14- 15-16-17-18-19-20-21-22-23 by making demarcations as per record and confirmation was made. All these khasra nos. were found to be correct and there are built houses and passages at the spot. Dr. K.D. Sharma and Raj Kumar Nambardar of village Babyal who were present at the spot objected that there are not pucca points and told that demarcation from passage in between khasra no. 5//16 and 25 be done which is recorded in the revenue record. The measurement was taken as per revenue record as told by them. This passage is of 2 karam width in revenue record. But at the spot the width of path is more than 2 karam, its width is 18 ft. instead of 11 fit. and due to this passage cannot be treated as pucca point. Besides that another search was made for the pucca point. The khasra no. 1//22/7 was taken to be correct by the present persons. Taking 4 karams straight from eastern southern corner pacca point was fixed. From this point measuring 151 karam straight i.e. 830 ft 6 inch western southern corner of khasra no. 6//23/1/1 was fixed. From this point towards eastern measuring 80 karams straight i.e. 440 ft. point was fixed. Fromt his point taking 7 karams straight in northern side, western northern corner of VIRENDER KUMAR 2014.12.25 12:47 I attest to the accuracy and authenticity of this document CWP Nos. 20399, 20560 of 2009 and CWP Nos. 8 to 20, 216 and 223 of 2010 28 khasra no. 6//25/1/1/1 was taken. From there measuring 200 karams straight i.e. 1100 ft. towards eastern side, western- northern corner of khasra no. 5//25 was fixed. From this point taking 216 karams i.e. 1188 ft. correctness of khasra no. 10//25/23 was ascertained. In this way confirmation of point of western southern side of khasra no. 10//25/23 was made. From western southern corner of khasra no. 10//25/23 measuring 458 karams straight i.e. 2519 ft. towards north straight, western northern corner of khasra no. 2//15/1 was traced which is southern side of khasra no.137 Gair Mumkin Sarak at the point which connects village Naggal and Babyal. From this point towards northern measuring 7 karams straight i.e. 38.6 ft. western northern corner of khasra no. 56/15/7 was measured which connects at southern side of Sarak. From this point towards northern measuring 25 karams straight i.e. 137.6 ft. width of gair mumkin sarak in khasra no. 137 was taken."
Although there is no survey mark available but tri-junction pillar was found available at the site. For the purpose of demarcation, pucca point was traced. In khasra no. 113, there exists Ravi Dass Mandir at the spot which was existing prior to consolidation and the same was admitted to be standard point and confirmation of its existence was established by demarcating the same from khasra no. 53//11/4 from its western northern corner by measuring 45karams straight i.e. 247.6 ft. The site was found to be correct and in this manner, all the points were established at the spot and after matching the same with the dimensions of VIRENDER KUMAR 2014.12.25 12:47 I attest to the accuracy and authenticity of this document CWP Nos. 20399, 20560 of 2009 and CWP Nos. 8 to 20, 216 and 223 of 2010 29 khasra no. 137 gair mumkin road, it cannot be said that the revenue authorities were not in a position to establish pucca points at the spot. The said pucca points have already been taken care of. In view of this, objections no. 6 and 7 are not sustainable. The demarcation has been carried out keeping in view the exact situation at the spot and is in consonance with the High Court Rules and Orders and basic revenue record i.e. masavi, field book and misal haqiat. In masavi and field book, all the dimensions of north, south, east and west in karams have given the width of road as has been mentioned in these revenue record with regard to khasra numbers abutting the khasra no. 137 gair mumkin road. Demarcation report exactly mentions the area encroached by each of writ petitioners and also of others.
Now, I deal with the impugned orders.
Admittedly, khasra no. 137 is the property of the Government as per the misal haqiat i.e. jamabandi for the year 1963-64 and prior to that too it has been shown to be ownership of the Government and its old khasra number is 123 and neither of the parties is disputing the ownership of the road in question i.e. present khasra no. 137 (old khasra no. 123). The only dispute is dimensions at various places. The encroachments have been pointed out vide various demarcations. Even to do complete justice, this Court also ordered fresh demarcation which was carried out on 26.02.2012 which is placed on record as Annexure R-9 along with the VIRENDER KUMAR 2014.12.25 12:47 I attest to the accuracy and authenticity of this document CWP Nos. 20399, 20560 of 2009 and CWP Nos. 8 to 20, 216 and 223 of 2010 30 revenue record i.e. masavi, misal haqiat and field book. Otherwise also, the earlier demarcation was carried out in the presence of Deputy Commissioner which has not been taken into consideration. Although in those demarcations also, the petitioner and others have found to be in illegal occupation, therefore, they have been ordered to be evicted.
At the time of passing the impugned order, demarcation report was before the authorities and 76 square yards was found to be encroached upon by the petitioner, the same has been found in the recent demarcation also. The only technical ground is that the demarcation was carried out many times. All the relevant documents have been dealt with in the order passed by the Collector and the order does not suffer from any illegality or perversity. The pucca points were earlier also established at the spot when the Deputy Commissioner has supervised the demarcation. Again the demarcation has been done under the orders of this Court, so in view of the finding of fact recorded by the authorities with regard to the encroachment by the petitioner and others and also as per demarcation dated 26.02.2012 petitioners have been found to have encroached upon khasra no. 137, I do not find any illegality or perversity in the impugned orders.
It is pertinent to mention here that during the course of arguments, the parties were offered that their actual area in their possession can be measured as per their document of title. If they are VIRENDER KUMAR 2014.12.25 12:47 I attest to the accuracy and authenticity of this document CWP Nos. 20399, 20560 of 2009 and CWP Nos. 8 to 20, 216 and 223 of 2010 31 found to be in excess of the same, then that area will also be taken over by the Municipal Committee/Municipal Corporation or the Government and they were also asked to place on record the documents of title, but perusal of all the writ petitions reveals that none of them have produced any record from which it could have been indicated what was their actual entitlement. Even the petitioners did not agree to the demarcation of their respective areas. All the writ petitioners are not owners of the land. They claim their possession as tenants. The owners are not before the Court but the tenants are before the Court. In this case, the petitioner also may not be the actual owner of the property, but being occupant the petitioners are contesting the writ petitions. When the encroachment is on the public road which is meant for the convenience of the public and when such public road passes through the urban area and the construction is carried out around it, the tendency is to encroach upon the area of the road. It is boundened duty of the Courts and the authorities that road should be restored to its original condition as per the revenue record.
Learned counsel for the petitioners have not been able to point out any perversity or illegality in the impugned orders passed by the Collector and the Commissioner.
It is apposite to mention that Hon'ble Supreme Court in Jagpal Singh and others v. State of Punjab and others, (2011) 11 SCC 396 has specifically ordered that where public land has been VIRENDER KUMAR 2014.12.25 12:47 I attest to the accuracy and authenticity of this document CWP Nos. 20399, 20560 of 2009 and CWP Nos. 8 to 20, 216 and 223 of 2010 32 unauthorizedly encroached upon the encroachers should be summarily evicted therefrom.
In view of above, all the aforementioned 17 writ petitions are dismissed. As specific direction is issued to the authorities to take action in accordance with law and to restore the road to its original width as per the masavi and the demarcation report (Annexure R-9). However, it is made clear that when the operation is carried out, the Deputy Commissioner shall ensure that encroachment as depicted in the demarcation report dated 26.02.2012 (Annexue R-9) should be removed at the spot without any hindrance.
No order as to costs.
December 23, 2014 [Paramjeet Singh]
vkd Judge
VIRENDER KUMAR
2014.12.25 12:47
I attest to the accuracy and
authenticity of this document