Punjab-Haryana High Court
Bhupender And Others vs State Of Haryana And Others on 15 February, 2025
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
Neutral Citation No:=2025:PHHC:022665-DB
CWP-4198-2025(O&M) -1-
In the High Court of Punjab and Haryana at Chandigarh
110 CWP-4198-2025(O&M)
Date of Decision: 15.02.2025
BHUPENDER AND OTHERS .....PETITIONERS
VERSUS
STATE OF HARYANA AND OTHERS ...RESPONDENTS
CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
HON'BLE MR. JUSTICEVIKAS SURI
Present: Mr. Parmod Kumar Parmar, Advocate for the petitioners.
Mr. Ankur Mittal, Additional Advocate General, Haryana
Ms. Svaneel Jaswal, Additional Advocate General, Haryana
Mr. P.P.Chahar, Sr. Deputy Advocate General, Haryana
Mr. Saurabh Mago, Deputy Advocate General, Haryana
Mr. Gaurav Bansal, Deputy Advocate General, Haryana and
Mr. Karan Jindal, Assistant Advocate General, Haryana.
****
SURESHWAR THAKUR, J (ORAL)
1. The present petitioner becomes aggrieved from the issuance of a notice Annexure P-4, contents whereof becomes extracted hereinafter. The said notice has emanated from the Block Development and Panchayat Officer, Jhajjar, and, is addressed to the Sub Divisional Officer (Civil), Jhajjar, wherebys, the addressee of the said notice has been asked to provide police help for removing illegal encroachments over the Panchayat land/public road/square etc. "From:
Block Development and Panchayat Officer, Jhajjar. To, Sub Divisional Officer (Civil), Jhajjar.
1 of 16 ::: Downloaded on - 01-03-2025 03:59:26 ::: Neutral Citation No:=2025:PHHC:022665-DB CWP-4198-2025(O&M) -2-
Sr. no.4007 Dated: 06.02.2025 Subject: To provide police force for removing illegal encroachment from Panchayat land/public road/square etc. Regarding the above subject, it is sent to your service and it is informed that the Gram Panchayat proposal number 01 dated 05/02/25 has been received in the block office for removing illegal encroachment from the Panchayat land/public road/square etc. According to which, even after giving notice to the illegal occupants of the land/public road/square of the Gram Panchayat under Section 24 (1) and 24 (2) of Haryana Panchayati Raj Act 1994, the illegal encroachment has not been removed. Through the said proposal of the Gram Panchayat, the Gram Panchayat has requested to provide police assistance with women police force. Therefore, by sending the proposal of the Gram Panchayat to your service, it is requested that the Gram Panchayat Raiya should be provided police assistance with women police on 14/02/25, so that the said illegal encroachment can be removed by the Gram Panchayat peacefully.
Attached/above.
Block Development and Panchayat Officer, Jhajjar"
2. Initially the said notice is both nebulous and also is cryptic, as neither the relevant khasra number have been mentioned thereins, nor the obvious fact, qua the mohal, whereins the apposite khasra numbers are located, but remains unmentioned thereins. Consequently, though therebys no cause of action accrued to the present petitioners, thus to institute the instant writ petition before this Court, as they are not recipients of the notice supra.
2 of 16 ::: Downloaded on - 01-03-2025 03:59:27 ::: Neutral Citation No:=2025:PHHC:022665-DB CWP-4198-2025(O&M) -3-
3. However, it is fairly stated before this Court by the learned Additional Advocate General, Haryana, that some notices have been issued upon the present petitioner by the Gram Panchayat, Raiya. The said notices are submitted, to have been issued in terms of Sections 24(1) & 24(2) of the Haryana Panchayati Raj Act, 1994 (hereinafter in short to be referred as 'the Act of 1994'), provisions whereof become(s) extracted hereinafter:-
"24(1) A Gram Panchayat either suo motu or on receiving a report or other information and on taking such evidence, if any, as it thinks fit, may make a conditional order requiring within a time to be fixed in the order -
(a) the owner or the occupier of any building or land -
(i) to remove any encroachment on a public street, place or drain;
(ii) to close, remove, alter, repair, clean, disinfect or put in good order any latrine, urinal, water closet, drain, cesspool or other receptacle for filth, sullage water, rubbish or refuse or to remove or alter any door or trap or construct any drain for any such latrine, urinal or water closet, by a sufficient roof and wall or fence from the view of persons passing by or dwelling in the neighborhood ;
(iii) to cleanse, repair, cover, fill up, drain off, deepen or to remove water from a private well, reservoir, pool, pit , ditch , depression or excavation therein which may appear to the Gram Panchayat to be injurious to health or offensive to the neighborhood ;
3 of 16 ::: Downloaded on - 01-03-2025 03:59:27 ::: Neutral Citation No:=2025:PHHC:022665-DB CWP-4198-2025(O&M) -4-
(iv) to remove any dirt, dung, night soil manure or any noxious or offensive matter there from and to cleanse the land or building;
(b) the owner of any wall or building which is deemed by the Gram Panchayat to be dangerous in any way to remove or repair any such wall or building ;
(c) the owner or occupier of any building or property to keep his building or property in a sanitary condition ;
(d) the owner of any dog or other animal suffering or reasonably suspected to be suffering from rabbies or which is dangerous to destroy, confined or cause to be confined such dog or animal ;
(e) the owner or occupier of any agricultural land to destroy Pohli or any other such harmful weed from such land ;
(f) the owner or occupier concerned to reclaim an unhealthy place ;
(g) the owner or occupier of any building or land to maintain in proper repair the level and surface of any road or street passing in front of the building or through his land ;
(h) the owner or person incharge of a private 'Khal' to keep it in a state of reasonable repair, or if he objects so to do, to appear before it at a time and place to be fixed by the order and to move to have the order set aside or modified in the manner hereinafter provided. If he does not perform such act or appear and show cause, the order shall be made absolute. If he appears and show cause against the order the Gram Panchayat shall take evidence and if it is satisfied that the order is not reasonable and proper no further proceedings shall be taken in the case. If it is not satisfied the order shall be made absolute.
4 of 16 ::: Downloaded on - 01-03-2025 03:59:27 ::: Neutral Citation No:=2025:PHHC:022665-DB CWP-4198-2025(O&M) -5- (2) If any of the act mentioned in sub-section (1) is not performed within the time fixed, the Gram Panchayat may cause it to be performed and may recover the costs of performing it from such person."
4. This Court has earlier dealt with the validity of the issuance of above notices, by the Sarpanches of the Gram Panchayats' concerned, through theirs invoking the supra provisions as carried in the Act of 1994. In the earlier recorded decisions by this Court appertaining to the supra, this Court had discountenanced the therethroughs exercising of powers by the Sarpanches of the Gram Panchayats. The reason, for this Court to disconcur with the Sarpanches of the Gram Panchayat concerned, in theirs choosing to invoke the jurisdiction vested in them under the supra provisions, became founded on the factum, that since the necessary precursor for foisting validation viz-a-viz the issuance of the apposite notice(s) upon the encroachers concerned, upon the land owned by the shamlat deh, thus is the makings of a valid demarcation report by the empowered revenue officer concerned, whereas, the said imperative percursor to the invocation of the powers vested in the Sarpanches of the Gram Panchayat concerned, under Section 24 of the Act of 1994, rather not ever existing on record. Resultantly, this Court had restrained the Sarpanches of the Gram Panchayat concerned, to exercise the supra, invested upon them unless, in the makings of the apposite notices by the Sarpanches of Gram Panchayat concerned, they had ensured that prior 5 of 16 ::: Downloaded on - 01-03-2025 03:59:27 ::: Neutral Citation No:=2025:PHHC:022665-DB CWP-4198-2025(O&M) -6- thereto a valid demarcation of the disputed site(s) by the empowered revenue officer, thus becomes conducted.
5. Now, since it is stated by the learned Additional Advocate General, State of Haryana, and, also by the learned Senior Deputy Advocate General, State of Haryana, that preceding the issuance of the said notice, no valid demarcation of the disputed sites became conducted by the empowered revenue officer concerned, resultantly therebys the issuance of the said notices becomes vitiated. However, they further jointly submit before this Court that the issuance of the said notice by the Sarpanch concerned, through his invoking the statutory jurisdiction invested in him under Section 24 of the Act of 1994, yet became preceded by a verdict of eviction, becoming pronounced upon the encroachers, upon, the land designated in the revenue records as "abadi deh". However, they also very fairly submit before this Court, that in the said passed orders of eviction by the competent statutory authority, the present petitioners were not arrayed as respondents therein.
6. Therefore, obviously the non-arrayings of the present petitioners, thus as respondents in the appositely instituted eviction petition, thus whereons a verdict of eviction became rendered, rather does not make the said passed verdict of eviction, thus to be enforceable viz-a- viz the present petitioners. Consequently, there was prima facie an imperative requirement for the Sarpanch of the Gram Panchayat concerned, to before his invoking the powers invested in him under Section 24 of the 6 of 16 ::: Downloaded on - 01-03-2025 03:59:27 ::: Neutral Citation No:=2025:PHHC:022665-DB CWP-4198-2025(O&M) -7- Act of 1994, thus ensure that but obviously prior thereto, his ensuring the conducting of a valid demarcation of the disputed sites by the empowered revenue officer, wherebys the further proceedings as taken in pursuant thereto, thus would hold some aura of validity. Therefore, for want thereofs, thus the impugned notice(s) become vitiated.
7. Moreover, even on the basis of a validly conducted demarcation of the disputed site, the Sarpanch of the Gram Panchayat concerned, could than, proceeding to invoke the jurisdiction as invested in him under Section 24 of the Act of 1994, thus could proceed to institute a petition cast under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 as applicable to Punjab & Haryana (hereinafter in short to be referred as 'the Act of 1961'), rather before the Asst. Collector concerned. Significantly since the proceedings drawn under Section 24 of the Act of 1994, are summary in nature, whereas, the proceedings drawn under the Act of 1961, are detailed proceedings, whereons an adequate opportunity to all concerned, becomes afforded to impeach the credibility of the demarcation report. Therebys too, the proceedings under Section 24 of the Act of 1994, may be drawn only post to the binding and conclusive verdicts of eviction becoming recorded by the Assistant Collector, wherebys to the said limited extent, the Sarpanch can work to supplement the exercising of jurisdiction by the executing Court concerned, vis-a-vis the apposite execution petition.
7 of 16 ::: Downloaded on - 01-03-2025 03:59:27 ::: Neutral Citation No:=2025:PHHC:022665-DB CWP-4198-2025(O&M) -8-
8. Reiteratedly, since the Sarpanch of the Gram Panchayat concerned, thus has chosen to invoke the jurisdiction vested in him under Section 24 of the Act of 1994, and that too, without the imperative prior thereto demarcation of the disputed sites being conducted, thus by an empowered Revenue Officer, therebys the invocation of the powers vested in the Sarpanch of the Gram Panchayat concerned, as embodied in Section 24 of the Act of 1994, is a misinvoked power by him.
9. Be that as it may, though irrespective of the above taint becoming manifested in the notice issued by the Sarpanch of the Gram Panchayat concerned, through his invoking the powers vested in him, under Section 24 of the Act of 1994, thus the Sarpanch, yet has an empowerment to institute a petition for eviction cast under Section 7 of the Act of 1961, against the encroachers concerned.
10. Nonetheless, before proceeding to reserve the said liberty, it becomes incumbent upon this Court, to also allude to the fact, that in respect of the disputed subject constructions, the petitioners have instituted a suit for declaration and for permanent injunction besides claim therein the rendition of a decree of mandatory inunction. The relevant averment made in the said suit, is that, since the disputed lands have been excluded from the definition of shamlat deh, thus in terms of exception (VI) of Section 2(g) of the Act of 1961, provisions whereof becomes extracted hereinafter, inasmuch as, the suit land being used as gitwar. Therefore, since the disputed gitwar does prima facie for not fall within ambit of shamlat deh, 8 of 16 ::: Downloaded on - 01-03-2025 03:59:27 ::: Neutral Citation No:=2025:PHHC:022665-DB CWP-4198-2025(O&M) -9- therebys the respondents therein, but has no right, title and interest over the said gitwar, necessarily on the ground, that the subject gitwar falls within the exclusionary clause to the definition of shamlat deh.
"2 (g) "Shamilat deh" includes (1) Land described in the revenue records as Shamilat deh excluding abadi deh.
(2) Shamilat Tikkas, (3) Land described in the revenue records as shamilat, Tarafs, Pattis Pannas and Tholas and used according to revenue records for the benefit or the village community or a part thereof for common purposes of village.
(4) Lands used or reserved for the benefit of the village, community including, streets, lanes, playgrounds, schools, drinking wells, or ponds within abadi deh or gora deh and (5) Land in any village described as banjar qadim and used for common purposes of the village, according to revenue records, but does not include land which:
[Proviso...............................................] 4[(i) becomes........................................]
(ii) has been allotted on quasi permanent basis to displaced persons
(iii) has been partitioned and brought under cultivation by individual landholder before the the 26th January,1950.
(iv) having been acquired before the 26th
January, 1950, by a person by purchase or
9 of 16
::: Downloaded on - 01-03-2025 03:59:27 :::
Neutral Citation No:=2025:PHHC:022665-DB CWP-4198-2025(O&M) -10-
in exchange for proprietary land from a co sharer in the shamilat deh and is so recorded in the jamabandi or is supported by a valid deed.;1[and is not in excess of the share of the co sharer in the shamilat deh.
(v) is described in the revenue records as Shamilat, Taraf, Patti Panna an Thola and not used; according to revenue records for the benefit to the village community or a part thereof or for common purposes of the village.
2[(vi) lies outside the abadi deh and was being used as gitwar, bara manure pit, house or for cottage industry, immediately before the commencement of this Act].
3(vii) is Shamilat deh.................................]
(viii) was Shamilat deh was assessed to land revenue and has been in the individual cultivating possession of co-shares not being in excess of their respective shares in such shamilat deh on or before the 26th January, 1950, or 4[(ix) was being used as a place of worship or for purposes, subservient thereto, immediately before the commencement of this Act]."
11. Therefore, since the disputed gitwar does not prima facie fall within the ambit of shamlat deh, besides also exists outside the abadi deh therebys though, the defendants-respondents therein the Gram Panchayat 10 of 16 ::: Downloaded on - 01-03-2025 03:59:27 ::: Neutral Citation No:=2025:PHHC:022665-DB CWP-4198-2025(O&M) -11- Raiya, Tehsil and District Jhajjar, but prima facie have no right, title or interest over the said gitwar, necessarily on the ground that the subject prima facie gitwar falls within the exclusionary clause to the definition of shamlat deh.
12. However, the said suit has not been filed before the civil Court of competent jurisdiction, but has been instituted under Section 13-A of the Act of 1961, before the Collector Jhajjar, which, however may not be an appropriate remedy, rather, it may be a mis-recoursed remedy. Contrarily the remedy available to the present petitioners was, may be rather to institute a civil suit, with alike reliefs, as claimed in Annexure P-5, but before the Civil Court of competent jurisdiction.
13. In that regard, initially it is relevant to refer to the jurisdictional bar which becomes created under Section 13 as carried in the Act of 1961, provisions whereof become extracted hereinafter:-
"13. Bar of Jurisdiction in Civil Courts:-
No civil court shall have jurisdiction:-
(a) to entertain or adjudicate upon any question, whether any property or any right to or interest in any property is or is not Shamilat deh vested or deemed to have been vested in a Panchayat under this Act ; or 11 of 16 ::: Downloaded on - 01-03-2025 03:59:27 ::: Neutral Citation No:=2025:PHHC:022665-DB CWP-4198-2025(O&M) -12-
(b) to question the legality of any action taken by the Commissioner or the Collector or the Panchayat, under this Act, or
(c) in respect of any matter which the Commissioner or the Collector is empowered by or under this Act to determine]."
14. A circumspect reading of the jurisdictional bar, created against the apposite exercisings of jurisdiction by the Civil Courts of the competent jurisdiction, over the relevant subject dispute, reveals that the said bar is applicable only when the plaintiff in the civil suit, as raised before the Civil Court of competent jurisdiction, makes a prayer to render a decree in his/her or their favour, thus to the extent that any land or immovable property is/is not shamlat deh besides makes a prayer for the rendition of a decree, that the subject property involved in civil suit, rather does not vest any right, title and interest viz-a-viz the Gram Panchayat concerned/shamlat deh concerned. It appears that since in terms of the finalized consolidation scheme drawn under the East Punjab Holding (Consolidation and Prevention of Fragmentation) Act, 1948, the relevant disputed lands become reserved in favour of the Panchayat deh, whereons, rights of common user, become vested in the entire village proprietory body. Moreover, since it also appears, that the vestment of any disputed lands in the shamlat deh, may take place, in terms of the relevant statutory provisions embodied in the Act of 1961. As such all the supra, are those 12 of 16 ::: Downloaded on - 01-03-2025 03:59:27 ::: Neutral Citation No:=2025:PHHC:022665-DB CWP-4198-2025(O&M) -13- questions, which become declared to become unameneable to be raised, before the civil Court of competent jurisdiction.
15. Reiteratedly, the reason for the ouster of jurisdiction of the civil Courts, thus to entertain suits of the above genre, is founded on the principle, that since Section 13-A of the Act of 1961, preserves a specific statutory remedy to the plaintiff concerned, therebys with a special statute, thus creating a special remedy viz-a-viz the plaintiff, therebys the said specific remedy is to be recoursed, than the remedy of a civil suit becoming availed by the aggrieved litigant. Moreso, when the availment of a remedy of filing a civil suit by the aggrieved plaintiff becomes specifically ousted through the specific jurisdictional bar supra, as becomes engrafted in the Act of 1961.
16. Though, abadi deh has been excluded from the definition of shamlat deh. However, the exclusion of abadi deh, from the definition of shamlat deh, is to be read in conjunction with the mandate occurring in Section 2 (g) (4) of the Act of 1961, the underlined provisions whereof becoming extracted hereinabove, whereins, open spaces within the abadi deh, have been included in the inclusionary definition of shamlat deh. The exclusion of constructed abadis over abadi deh land, thus from the definition of shamlat deh, becomes anchored on the fine principle, that constructed abadis over lands designated as abadi deh, but become saved from the definition of shamlat deh, as thereovers the village proprietory body concerned, who inhabits the abadi deh, thus through theirs raising 13 of 16 ::: Downloaded on - 01-03-2025 03:59:27 ::: Neutral Citation No:=2025:PHHC:022665-DB CWP-4198-2025(O&M) -14- dwelling units thereovers, but naturally make(s) the said raised dwelling units over the abadi deh, to reiteratedly become saved from the inclusionary definition of shamlat deh. Significantly for the settlement of the said dispute, the remedy as envisaged in the special statute was unavailable to become recoursed by the supra. Contrarily the settlement of the said dispute, was to be through a suit becoming raised before the civil Court of competent jurisdiction. Therefore, in respect of constructed abadis erected over abadi deh, the apposite jurisdictional bar created under Section 13 of the Act of 1961, thus is not applicable. However, in case, there is a dispute in respect of exercisings of rights of easements over open spaces existing within the abade deh or when disputes arise relating to usurpation of constructed possession of a co-abadi owner, through the adjoining co- owner, rather beyond his constructed abadi, thus raising constructions, thereupons, the said grievance is to be agitated through a suit in said regard becoming instituted before the civil Court of competent jurisdiction.
17. Be that as it may, yet open lands existing within the abadi deh are made to fall within the inclusionary definition of shamlat deh. It appears that over the said open lands, the entire abadi owners, do become vested, thus the apposite joint rights of ownership. It also further appears that in conformity qua the said vesting of rights of joint ownership over open spaces in the abadi owners, that the ensuing therefrom, easementary rights, over open lanes or paths existing over abadi deh, thus become preserved viz-a-viz the abadi owners, who have constructed abadis, on land 14 of 16 ::: Downloaded on - 01-03-2025 03:59:27 ::: Neutral Citation No:=2025:PHHC:022665-DB CWP-4198-2025(O&M) -15- designated as abadi deh. Therefore, when encroachments are made upon such open spaces existing within the abadi deh, thereupons again the remedy to the aggrieved, is to file an eviction petition cast under Section 7 of the Act of 1961, before the Assistant Collector concerned, or in case of State of Punjab to institute an eviction petition before the Collector concerned.
18. Now in the case in hand the petitioners contend, that they have right over a gitwar and the said gitwar is contended to fall outside the inclusionary definition of shamlat deh. The effect of exclusion of a gitwar, from shamlat deh, necessarily is that, therebys when the jurisdictional bar created against the civil Court exercising jurisdiction, it is restricted or strikingly confined, to upon the plaintiff asserting that he has right title and interest over shamlat deh, and or when he contests the vestment of the title of the disputed lands in the shamlat deh. However, the assertion in the instant case is not of a right title and interest over sh-amlat deh, but is over a gitwar, which has been excluded from the definition of shamlat deh, as such, the remedy to the present petitioners, but was not to institute a suit under Section 13-A of the Act of 1961, but was to institute a suit before the civil Court of competent jurisdiction.
19. In the face of the above, it is open to the present petitioners to choose to withdraw the present suit and to subsequently institute a civil suit before the civil Court of competent jurisdiction, in respect of the instant subject matter.
15 of 16 ::: Downloaded on - 01-03-2025 03:59:27 ::: Neutral Citation No:=2025:PHHC:022665-DB CWP-4198-2025(O&M) -16-
20. In aftermath, with the above observations and after quashing the impugned Annexure P-4, the instant petition is accordingly disposed of, along with all pending applications, if any.
(SURESHWAR THAKUR) JUDGE (VIKAS SURI) JUDGE 15.02.2025 A.Kaundal/varinder Whether speaking/ reasoned : Yes/No Whether Reportable : Yes/No 16 of 16 ::: Downloaded on - 01-03-2025 03:59:27 :::