Punjab-Haryana High Court
Rajinder Bansal vs State Of Punjab And Ors on 30 May, 2016
CM Nos.6629 and 6725 of 2016 in/and 1
CWP No.3884 of 2016
240 CM Nos.6629 and 6725 of 2016 in/and
CWP No.3884 of 2016
RAJINDER BANSAL VS STATE OF PUNJAB AND ORS.
Present: Mr. Amar Ashok Pathak, Advocate,
for the applicant-petitioner.
Mr. B.M. Vinayak, DAG, Punjab.
Mr. Rajat Malhotra, Advocate,
for the applicant (in CM No.6629 of 2016)
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CM No.6629 of 2016 This is an application for impleading applicant Maharaja Ranjit Singh Nagar Welfare Society, Village Daad, Ludhiana, through its partron Shri Jiwan Lal Gupta as a party-respondent No.4.
Learned counsel for the applicant after arguing for sometime submits that he may be permitted to withdraw the application with liberty to file fresh on behalf of the individual owners residing in the said society.
Dismissed as withdrawn with the liberty prayed for. CM No.6725 of 2016 Application for placing on record subsequent events, is allowed and the affidavit is taken on record.
CWP No.3884 of 2016
In compliance of the order dated 28.04.2016 and order dated 13.05.2016, Dr. Richa, SDM, Ludhiana (West), Shri Kanwar Narinder Singh, Tehsildar, Ludhiana, West and other staff are present alongwith record. Tehsildar has filed a report in vernacular alongwith CD wherein it is mentioned that attempts to carry out demarcation have been made on different dates in the presence of 1 of 4 ::: Downloaded on - 02-06-2016 00:10:24 ::: CM Nos.6629 and 6725 of 2016 in/and 2 CWP No.3884 of 2016 residents of the area. The photographs and the videography in the shape of compact disc is taken on record.
Tehsildar states that due to non availability of Autocad drawing and due to non consolidation in the area and non availability of dimensions of Khasra numbers, demarcation is not possible. The explanation furnished by the Tehsildar does not appear to be tenable for the reason that earlier demarcation was carried out on 04.11.2014 (Annexure P-7) by the retired Naib Tehsildar as a Local Commissioner for establishing the identity of Khasra No.1642 which is the ownership of the petitioner as per the jamabandi. It is mentioned in the demarcation report that pakka points are available. Otherwise also, a part of the passage is existing outside the bounded area where construction has been carried out on the passage in question. Other pakka points can also be determined by taking measurements from other fields and khasra numbers. There may be admitted pakka points like road etc. So far as consolidation issue is concerned, even if no consolidation in the concerned village was held under the provision of The East Punjab Holdings (Consolidation and Fragmentation) Act, 1948 then the previous record prepared at the time of settlement and which is still in existence and in operation can be used. Though ownership rights as per the previous revenue records i.e. record of rights such as, misal haqiat, aks latha are available. It cannot be said that no revenue record exists if consolidation has not been held. The copy of aks latha has been shown to the Court today wherein dimensions of khasra numbers are mentioned and even the khasra number 1699 is shown as passage and is clearly readable in the aks latha. In the jamabandies of village Daad since 1945 i.e. 2009-10, 2004-05, 2 of 4 ::: Downloaded on - 02-06-2016 00:10:25 ::: CM Nos.6629 and 6725 of 2016 in/and 3 CWP No.3884 of 2016 1999-2000 khasra number 1699 has been shown to be rasta gair mumkin Phullanwal i.e. known as Daad-Phullanwal passage. It appears for the reasons best known to the revenue authorities, they are hesitating to carry out the demarcation of passage in question.
When the order was being dictated, Shri Kanwar Narinder Singh, Tehsildar, Ludhiana (West) sought more time to make another effort to demarcate the passage. The request for more time is allowed. If the demarcation is not carried out on or before the adjourned date, then Tehsildar will file an affidavit that they are not in a position to demarcate the passage. Deputy Commissioner and Sub Divisional Magistrate (present in Court) will file their own affidavit and explain as to why the demarcation is not possible and are directed to appear in person.
The photographs annexed with the report which is submitted in vernacular by the Tehsildar reveal that some builders have set up a colony and the construction has been made on the public passage. The possibility of pressure on the revenue officers not to carry out demarcation cannot be ruled out. Tehsildar and Shri Amrik Singh, Patwari of village Daad present in Court admitted before this Court that in part of the passage bearing khasra number 1699 construction in the shape of houses is existing and unencroached part of the passage is still existing on the other side. In view of this, there should be no difficulty in demarcating the encroached part of the passage.
The Hon'ble Supreme Court in number of cases has directed that encroachments on public lands and public passages should be removed. The reference to the judgments of Hon'ble Supreme Court has been made in the order 3 of 4 ::: Downloaded on - 02-06-2016 00:10:25 ::: CM Nos.6629 and 6725 of 2016 in/and 4 CWP No.3884 of 2016 dated 28.04.2016 passed by this Court. Non compliance of the directions of the Hon'ble Supreme Court amounts to contempt of Court. Under Article 141 and 142 of the Constitution of India, law laid down by the Hon'ble Supreme Court is binding on all Courts and authorities. Since the authorities have failed to carry out the directions of the Hon'ble Supreme Court issued from time to time, appropriate action can be initiated against the all concerned who are not complying with the judgments and orders of the Hon'ble Supreme Court.
In the interest of justice, a last opportunity is given to the respondents especially to the Deputy Commissioner-respondent No.2, Tehsildar, respondent No.3 and Dr. Richa Sub Divisional Magistrate cum SDO (Civil) to do the needful and submit status report of demarcation by the next date. The Deputy Commissioner-cum-District Magistrate and the Sub Divisional Magistrate are reminded of their duty to take action under Section 133 (1)(a) of the Code of Criminal Procedure against the persons who have caused obstruction in the public passage(s), which was/were lawfully left at the time of framing the revenue record, for use of general public.
If any obstruction and hindrance is being created in demarcation of the passage by the residents of the area then Deputy Commissioner and the Commissioner of Police, Ludhiana will deploy adequate number of police personnel for the purpose of carrying out the demarcation of the public passage bearing khasra number 1699.
Adjourned to 03.06.2016.
(PARAMJEET SINGH DHALIWAL) JUDGE 30.05.2016 Dinesh 4 of 4 ::: Downloaded on - 02-06-2016 00:10:25 :::