Himachal Pradesh High Court
Dr. Pankaj Soni vs State Of H.P. And Others on 5 August, 2019
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No.: 6338 of 2011
Date of Decision: 05.08.2019
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__________________________________________________________
Dr. Pankaj Soni ....Petitioner.
Vs.
State of H.P. and others .....Respondents.
Coram:
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge
Whether approved for reporting?1 Yes.
For the petitioner: Mr. R. L. Chaudhary, Advocate.
For the respondents: Mr. Dinesh Thakur, Additional Advocate
r General, with Ms. Divya Sood, Deputy
Advocate General, for respondents No. 1
to 4.
Mr. Vikrant Thakur, Advocate, for
respondent No. 5.
Mr. L.S. Mehta, Advocate, for respondent
No. 6.
Mr. K.D. Sood, Senior Advocate, with M/s
Shubham Sood, Sukrit Sood and Het
Ram Thakur, Advocates, for respondents
No. 7 to 9.
Ajay Mohan Goel, Judge (Oral):
By way of this petition, the petitioner has, inter alia, prayed for the following reliefs:
"(i) That writ in the nature of mandamus may kindly be issued, directing the respondents to remove the tullupump/motor from the old Bowari which was constructed 200 years back by the then 1Whether the reporters of the local papers may be allowed to see the Judgment?::: Downloaded on - 29/09/2019 01:46:09 :::HCHP 2
King and same is a Gair Mumkin Bowari as per the Revenue Record and is being used by the people of four villages i.e. Lathiani, Upper Rajali, Lower Rajali and Toyashar from the time of their .
ancestors, but the respondent No. 7, who is Lumbardar of the area as a result of connivance with the revenue department got mutated the public propertyh in his name and now has restrained all the villagers from getting the drinking water, which is not sustainable in the eyes of law.
(ii) That writ in the nature of mandamus may kindly be issued, directing the respondents to enter the land measuring 462 Kanals, comprised in Khasra No. 65, 130, 169, 185, 201, 205, 2010, 215, 301, 303, 304, 305, 307, 309, 310, 313, 314, 316, 317, 318, 319, 320, 321, 322, 323 and 328 in Khewat No. 23, 24, 25 and 26 in the name of State Government of Himachal Pradesh in accordance with the Himachal Pradesh Common Land (Vesting & Utilization) Act, since the said land from the time of English people was a Shamlat land and as per the Punjab Village Common Land Regulation Act, same was to be mutated in the name of Gram Panchayat and thereafter, in the name of State of Himachal Pradesh. The respondent No. 7 is a Lumberdar and he has got no right over the public property.
(iii) That writ in the nature of mandamus may kindly be issued, directing the respondent No. 3 i.e. Deputy Commissioner, Una to decide the representation as per Annexure P11 within stipulate period and the nuisance created by the ::: Downloaded on - 29/09/2019 01:46:09 :::HCHP 3 respondent No. 7 upon the old Bowari may be removed within a time bound period."
2. Case of the petitioner is that the Bawari in issue was .
constructed over Khasra No. 525 in Mohal Lathiani for the use of general public by the then King and alongwith the said Bawari, an orchard was also grown. As per the petitioner, the Bawari in issue existed upon Shamlat land and villagers as also their predecessors were using the Bawari for the purpose of water and the land upon which the orchard was there was being used for the purpose of grazing animals, as a result of Bartandari rights for the last 200 years. As per the petitioner, said Bawari is the only source of water for villages Lathiani, Upper Rajali, Lower Rajali and Toyashar and there is no other source of water for the residents of the said villages. As per him, on 13.12.2010, it was published in 'Dainik Tribune', a daily vernacular newspaper that the Bawari in issue had been encroached upon by Lumberdar of the area, i.e., respondent No. 7 herein, who in connivance with the Revenue Agencies, got mutated the land in issue as also Bawari in his name. He did not disclose to the residents of the Panchayat that he had become owner of the Bawari, however, recently he started claiming so and had also started restraining the villagers from using the Bawari as also from using the land for grazing their animals. It is in this background that the petitioner filed the present petition, inter alia, praying for the reliefs enumerated hereinabove.
::: Downloaded on - 29/09/2019 01:46:09 :::HCHP 43. Replies to the petition have been filed by the respondents.
4. The stand of the Deputy Commissioner, Una .
(respondent No. 3) in the reply filed is that inspection of the site was carried out and during the course of inspection, it was found that respondent No. 7 had installed a Tullupump in the Bawari to lift the water for his own use and as per copy of Jamabandi for the year 20052006, the land on which the Bawari was situated, was recorded in the ownership and self possession of Hari Chand Hissedar. It is further mentioned in his reply that the Bawari was constructed prior to the year 1868. It is further mentioned in the reply that 2 HP Motor which has been installed in the Bawari by respondent No. 7 has submersible cable of high quality appended with it, and in view of this, there were no chances of electrocution. It was advised on the spot to respondent No. 7 that water of Bawari should be divided into two tanks. One tank may be used by him with submersible pump and other tank should be left open for the general public, to which he agreed. However, the other party wanted that the Gram Panchayat should have exclusive control upon the Bawari.
5. In its reply, respondent No. 4, Superintendent of Police, Una has, inter alia, mentioned that upon receipt of the complaint of the petitioner, the matter was duly verified by the Police on the spot and it was found that the water tank (Baiwari) was situated in ownership and self possession of Hari Chand Hissedar (respondent No. 7) and the ::: Downloaded on - 29/09/2019 01:46:09 :::HCHP 5 Authorities of the Electricity Board had opined that there was no danger of electrocution.
6. The private respondents in their replies have reiterated .
the factum of their being owner in possession of the land over which the boundary is situated. As per them, though the replying respondents were permitting certain villagers to take water from the said Bawari, but the same did not confer any right upon the said persons to file the writ petition. According to them, the Bawari in question was constructed more than 100 years back. It was constructed by their predecessors. The replying respondents wanted to repair the same, but the petitioner was objecting to it. Their further stand in the reply is that neither the Panchayat nor anyone else made any contribution for the maintenance and construction of the Bawari.
7. There is also on record a compliance report filed by respondents No. 7 to 9, relevant portion of which reads as under:
"1. That without prejudice to the submissions made by way of reply to the writ petition and with a view to resolve all disputes and to maintain the Bowari constructed by the ancestors of the replying respondents, the replying respondents have renovated and repaired the bowari and the area around it at a cost of over Rs.3.20 lacs.
2. That the bowari now is 2.54 mtrs.
in length, 2.80 mtrs. in breadth and 2.25 mtrs. in height. The inlet to the bowari is 15 cms. Above the bowari which is collected in the ::: Downloaded on - 29/09/2019 01:46:09 :::HCHP 6 bowari as is evident from photographs "A".
Approximately 7000 gallon water is collected in the bowari. For the excess water outlet has been created by fixing pipe as shown in .
photograph "B".
3. That there three water taps have been provided by way of outlet from the bowari from which water can be freely collected by the villagers. The water taps have been fixed at a height of 4 feet from the bottom of the bowari.
Above the point of discharge of water from the three water taps, the storage capacity is 3.5 ft. and the discharge of the excess water is by the outlet thereafter as is evident from photograph "B".
4. That the submersible tullu pump has been fixed so as to pump the water at a height of 1.5 ft. above the three water taps and if the water level falls below that level then the water cannot be lifted through the submersible tullu pump by the petitioner.
5. That separate stairs inside the bowri have also been constructed for repairs and cleaning the bowari as also for collecting water by going down, if the water level goes below the water taps as the water is collected in the bowari by a fall from the top of the bowari as has been shown in photograph "A". The photograph of the submersible tullu pump which is safe is shown in the photograph "C".
6. That the front of the bowari has been enclosed with the grill which has two ::: Downloaded on - 29/09/2019 01:46:09 :::HCHP 7 doors on both sides and which can be used for going down the bowari for collecting water as also for cleaning the same. When the water level in tbe bowari reduces in the Summers .
the stairs have been provided so as to enable the people entering the bowari and collecting the same with buckets.
7. That the grill has been put in front of the bowari as shown in photograph "B" with a view to obviate the monkeys and other stray animals entering the bowari and to keep it neat and clean.
8. That there is enough water in the bowari all round the year. The plan prepared by retired Assistant Engineer on 24.10.2016 alongwith the report is attached as "D".
9. That the replying respondents have done this repair and renovation work after the orders passed by this Hon'ble Court on 30.04.2012, 12.08.2016 and 03.10.2016.
The replying respondents undertake to repair and maintain the bowari and keep it neat and clean, as has also been assured to this Hon'ble Court. The path leading to the bowari has also been repaired by the replying respondents.
10. That Shri Ashwani Kumar son of Shri Hari Chand has retired from Health Department as Senior Pharmacist on 30.09.2016 and out of his retiral benefits he has spent a sum of over Rs.3 lacs for the repair and renovation of the bowari as his ::: Downloaded on - 29/09/2019 01:46:09 :::HCHP 8 personal contribution and maintaining the philanthropist activities of his ancestors and respondents 7, 8 and 9."
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8. Having heard learned counsel for the parties and after going through the respective stand which has been taken by the respondents herein in their replies, in my considered view, there are seriously disputed questions of fact involved in the petition, which can not be adjudicated by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India, as parties shall have to lead evidence to substantiate their respective contentions. In this view of the matter, the present petition is dismissed, but with the observation that in case the petitioner so desires, it shall be open for him to approach the appropriate Court of law for redressal of the grievances which stand raised by way of present petition.
Petition stands disposed of in above terms, so also pending miscellaneous applications, if any.
(Ajay Mohan Goel) Judge August 05, 2019 (bhupender) ::: Downloaded on - 29/09/2019 01:46:09 :::HCHP