Punjab-Haryana High Court
J.P. Singh vs Kans Dass And Others on 5 April, 2013
Author: Amol Rattan Singh
Bench: Satish Kumar Mittal, Amol Rattan Singh
LPA No.349 of 2013 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
LPA No.349 of 2013
Date of Decision : 05.04.2013
J.P. Singh ...... Appellant
Versus
Kans Dass and others ...... Respondents
****
CORAM : HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE AMOL RATTAN SINGH Present : Mr. Arvind Moudgil, Advocate and Mr. Sanjay K. Guevera, Advocate for the appellant.
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
**** AMOL RATTAN SINGH, J
1. The present letters patent appeal challenges the judgment of the learned Single Judge, dated 20.11.2012, passed in CWP No.10525 of 2000, whereby the appellant, a Punjab Civil Services Officer and former Sub Divisional Magistrate of Ajnala, along with the then Deputy Commissioner, Amritsar, have been burdened with compensation of Rs.4,00,000/-, (with Rs.1,00,000/- to be paid to each of the petitioners of CWP No.10525 of 2000, i.e. the present respondents No.1 to 4).
2. The facts leading to the filing of the writ petition and the consequent judgment are as follows :-
Chander Vikas2013.09.13 16:59 I attest to the accuracy and integrity of this document Chandigarh LPA No.349 of 2013 2
CWP No.10525 of 2000 was filed by four petitioners, residents of Abadi Ram Tirath, Village Kotla Doom, Tehsil Ajnala, District Amritsar, seeking action against the present appellant (respondent No.3 in the writ petition), for allegedly committing offences punishable under Sections 452, 247 and 506 of the Indian Penal Code, by causing demolition of their residential houses.
The history of the litigation, briefly, is that, at a historical place known as Ram Tirath, located at a distance of 11 kms from Amritsar, the ancestors of the petitioners are stated to have come and settled in 1545 A.D. and became the Mohtamims (managers and care takers) of the temple constructed. They are stated to have dug out the holy pond there and also constructed houses, in khasra No.79, for their own shelter. With the passage of time, other persons are also stated to have constructed their houses in the said area. As per the petitioners, the houses had been described as "Abadi Deh" in the record for the year 1994-95.
3. The allegation of the writ petitioners was that the present appellant demanded money from the collections made, in a fair held in the year 1999. When the writ petitioners (present respondents No.1 to 4) declined to accede to his demand, he brought a police force on 19.02.2000, along with bulldozers and demolished all the residential houses in the said khasra No.79, on the ground that they were encroachers. Upon this, a panchayat resolution condemning the action, was passed. Thereafter, a deputation met the Chief Minister also, with their complaint. The appellant is stated to have been, then, suspended and Rs.50,000/- was granted to each Chander Vikas 2013.09.13 16:59 I attest to the accuracy and integrity of this document Chandigarh LPA No.349 of 2013 3 petitioner as interim relief, for raising temporary structures to house their families.
4. The grievance of the said respondents was, that other than suspension of the present appellant, no action had been taken, despite the fact that he had committed the offences referred to hereinabove, by breaking into their houses, intimidating them and demolishing their houses.
5. On 23.07.2002, a Co-ordinate Bench of this Court, hearing the writ petition, passed the following order :-
"After hearing learned counsel for the parties and perusing the affidavits of respondent no.3 and Sh. Inderjit Singh, we are convinced that it would be appropriate to get a detailed inquiry conducted into the circumstances in which the properties of the petitioners had been demolished. Such enquiry would also enable the Court to find out whether the demolition was carried out under the orders of Sh. Narinderjit Singh or by Sh. J.P. Singh the then SDM Ajnala on his own.
The learned District Judge, Amritsar is requested to nominate one of the Additional District Judges for holding enquiry into the aforesaid issues.
The parties are directed to appear before the District Judge, Amritsar on 19.08.2002.
The District Judge shall inform the parties about the officer nominated by him.
Thereafter, the parties shall appear before the concerned officer and produce oral as well as documentary evidence in support of their respective cases.Chander Vikas 2013.09.13 16:59 I attest to the accuracy and integrity of this document Chandigarh LPA No.349 of 2013 4
The report on the basis of enquiry conducted by the designated Additional District Judge be sent to this court at the end of 3 months.
Put up on 22.11.2002."
6. Consequently, the enquiry was conducted by the Additional District Judge, Amritsar, who submitted his report on 18.10.2002, but the demarcation report said to have been prepared on the spot, before the demolition was ordered, had not been brought on record and the Kanungo who, as per the Patwari, carried out the demarcation (who had been examined as ordered by the learned Additional District Judge), had also not been examined. It was further found that in the daily diary (Roznamcha) entry, exhibited before the enquiry officer, there was no demarcation report of any encroachment being in existence. It was also recorded as a finding, that the present appellant, while appearing before the Enquiry Officer, had stated that no report identifying the encroachments and the particulars of the encroachers, or even the extent of encroachment, was ever submitted to him, and that no written notices were served upon the occupants, including the petitioners. The enquiry report also stated that though Sh. J.P. Singh (appellant before us), had stated on oath that he had telephonically requested Sh. Narinderjit Singh, the Deputy Commissioner, Amritsar, to allow him some more time to carry out the demarcation, his request was turned down and he was asked to carry out the work as per schedule, as he (Deputy Commissioner), was under great pressure from various persons, including the Chief Minister. The Enquiry Officer further noted that the Chander Vikas 2013.09.13 16:59 I attest to the accuracy and integrity of this document Chandigarh LPA No.349 of 2013 5 said Sh. Narinderjit Singh had not challenged the statement, as Sh. J.P. Singh has not been cross-examined in this regard.
7. With regard to the allegation of demand of illegal gratification, the Enquiry Officer found that there was no evidence to prove such demand by the present appellant.
8. After submission of the report of the learned Additional District Judge, to this Court, the matter came up for hearing on various occasions and was finally heard on 26.07.2004 and the petition was dismissed.
9. The present respondents,thereafter, filed Special Leave Petition (Civil) No.26552 of 2004 before the Hon'ble Supreme Court. The SLP was disposed of 09.01.2009 and the matter was remitted to this Court to be heard afresh. The operative part of the order is being reproduced hereinunder :-
"In view of the order proposed to be passed by us, it is not necessary to delve deep into the factual matrix of the matter. Suffice it to point out that the question of issuance of writ of or in the nature of mandamus directing the respondents to pay adequate compensation to the appellants herein and/or grant of other reliefs must be based on a premise that there had been violation of their fundamental rights and in particular Article 21 of the Constitution of India.
The High Court, in our opinion, should have considered that aspect of the matter. It may be one thing to say that the appellants had not been able to prove their allegation that the respondent no.3 bore any personal grudge against them in the enquiry held by the learned Additional District Chander Vikas Judge, Amritsar, but, it would be another thing to 2013.09.13 16:59 I attest to the accuracy and integrity of this document Chandigarh LPA No.349 of 2013 6 say that they have not made out any case in regard to breach of their fundamental rights enabling the High Court to exercise its jurisdiction of awarding damages by reason of the constitutional tort committed by the respondents.
It is in the aforementioned backdrop, we asked the learned counsel for the respondents to inform us as to under what statutory provision the said Committee was constituted and whether the Committee had any statutory power to remove the alleged encroachments.
Indisputably, the State must have the power to remove an encroachment, but, subject to just exceptions, the same must be done in accordance with law and upon following the procedure laid down in a Statute. Before us, the learned counsel for the parties could not bring to our notice any such Statute. The learned counsel for the respondents had also not been able to satisfy us that the observations made by the High Court in its impugned judgment were borne out from the records of the case.
In this view of the matter, we are of the opinion that the interest of justice would be subserved if the matter is remitted to the High Court to consider the matter afresh. It is ordered accordingly.
It would be open to the parties to file additional affidavits before the High Court, if they so desire. The parties shall appear before the High Court on 2nd February 2009. The Registry is directed to send a copy of this order to the Registrar Chander Vikas 2013.09.13 16:59 I attest to the accuracy and integrity of this document Chandigarh LPA No.349 of 2013 7 General of the Punjab & Haryana High Court for his information and necessary action.
The appeal is allowed to the
aforementioned extent."
10. In the impugned judgment now before us, the learned Single Judge has painstakingly detailed the facts, the background and the submissions of parties, as also the details of the report of Sh. M.S. Chauhan, the then learned Additional District Judge, Amritsar.
11. The learned Single Judge found that, since the demolition was carried out with no demarcation report, no proof of encroachments, no proof of any police power residing in the religious trust to demolish, or call to be demolished, any encroachments; and no statutory power was shown to order removal of the constructions in the manner that it was done, the action of the authorities, including (especially) the present appellant and the then Deputy Commissioner, Amritsar, was illegal.
12. Hence, compensation to the tune of Rs.1,00,000/- to each petitioner was ordered to be paid, which was to be recovered from the present appellant and the then Deputy Commissioner, Amritsar, Sh.
Narinderjit Singh. It was also left open to the present respondents (writ petitioners), to initiate civil proceedings, if so advised, for assessing the exact damage that was to be paid to them, on account of the demolition, subject to any directions in any appeal against the presently impugned judgment. The Civil Court, while going into the issue of quantum of damages, was held bound by the findings of this Court (in the impugned judgment), on the issue that the demolition was illegal. On that issue, the Chander Vikas 2013.09.13 16:59 I attest to the accuracy and integrity of this document Chandigarh LPA No.349 of 2013 8 judgment was to be treated to be final, by the Civil Court. The issue for adjudication, open to the Civil Court, would only, therefore, be to quantify the loss resulting from the demolition.
13. While allowing the writ petition, costs of Rs.25,000/- have been also been imposed by the learned Single Judge.
14. In the present appeal, the appellant has submitted that, firstly, the direction of the Hon'ble Supreme Court, while remitting the case back to this Court was only to come to a finding, with regard to the validity and status of the Committee constituted, to order removal of alleged encroachments.
Secondly, that the Supreme Court had specifically stated that the State has the power to remove encroachments, subject to just exceptions, and that the same must be done in accordance with law, upon following the procedure in the statute.
The contention of the appellant, therefore, is that the learned Single Judge went beyond the direction given by the Supreme Court, in determining the factual aspect concerned with the case.
15. The other grounds on which challenge is sought to be made are, briefly, as follows :-
(i) That the learned Single Judge has reappreciated the evidence in writ jurisdiction which was already given before the Additional District Judge (the Enquiry Officer ordered to be appointed by this Court) and no objection had ever been raised to the said enquiry report.
(ii) That the learned Single Judge has wrongly held that in the daily diary (Roznamcha), exhibited before the Enquiry Officer, there Chander Vikas 2013.09.13 16:59 I attest to the accuracy and integrity of this document Chandigarh LPA No.349 of 2013 9 was no mention of any encroachment being in existence, whereas, factually it was clearly mentioned in the demarcation report that some people had illegally encroached upon the land measuring approximately 50 kanals in khasra No.79 including the present respondents.
(iii) That the demarcation was duly done by the Patwari and there was also a munadi (announcement by beat of drums), but the same had been ignored by the learned Single Judge.
(iv) That the learned Single Judge has wrongly held that there was no material to show that the present respondents had illegally encroached upon the property, whereas actually there was nothing on record to show that they were the owners thereof. Even the revenue record annexed with the writ petition is to the effect that they are occupants as tenants at Will, as such they were actually encroachers.
(v) That the learned Single Judge has ignored the law laid down by the Apex Court and various High Courts, that injunction cannot be granted in favour of encroachers and trespassers against the original owners and, as such, the original owner can always eject the encroachers.
(vi) That there was a demand from the improvement committee to get the encroachment removed right since 1982 which fact has been completely ignored by the learned Single Judge.
(vii) That the appellant was carrying out his duty as per law, after due proclamation by beat of drums was made, demarcation was done and again proclamation was made to vacate the encroached area. It is averred that the demolition was carried out under the provisions of Section Chander Vikas 2013.09.13 16:59 I attest to the accuracy and integrity of this document Chandigarh LPA No.349 of 2013 10 14-A (1) and Section 9 (2) of the Punjab Security of Land Tenures Act, 1953, which stipulate that:-
"(i) A land-owner desiring to eject a tenant under this Act shall apply in writing to the Assistant Collector, First Grade, having jurisdiction, who shall thereafter proceed as provided for in sub-
section (2) of section 10 of this Act, and the provisions of sub-section (3) of the said section shall also apply in relation to such application, provided that the tenant's rights to compensation, and acquisition of occupancy rights, if any, under the Punjab Tenancy Act, 1887 (XVI of 1887) shall not be affected."
x x x x "(2) Notwithstanding anything contained hereinbefore a tenant shall also be liable to be ejected from any area which he holds in any capacity whatever in excess of the permissible area".
The appellant has, therefore, contended that, before executing the order of respondent No.6, he had followed all the procedures given in the Punjab Land Revenue Act, 1887 and further, it was for the Senior Superintendent of Police and the Deputy Commissioner to show all the statutory provisions.
His further plea is that a Committee had been constituted, which had given the order for removing the encroachment. In this regard it has been contended that the order of constituting the improvement and development committee had been issued by the Governor of Punjab, on the recommendation of the Government in the department of Rural Chander Vikas 2013.09.13 16:59 I attest to the accuracy and integrity of this document Chandigarh LPA No.349 of 2013 11 Development and Culture and Heritage. As such, the appellant had done his duty with no fault and that he should not be made liable for it.
(viii) That while demolishing what was required to be demolished right since 1962, the appellant has only executed the order given to him by the Deputy Commissioner, Amritsar and as such he was duty bound to do the needful.
Towards this it is stated that neither the Deputy Commissioner nor the Senior Superintendent of Police, Amritsar, filed any reply when the matter was remitted back to this Court, by the Supreme Court. The appellant, on the other hand, had duly filed a reply showing his bona fides.
16. Let us now examine the pleas raised above point by point.
As regards the preliminary plea that the Supreme Court, while remitting the case back to this Court, had only directed that the validity and status of the Committee constituted, be determined, in order to further determine whether the removal of alleged encroachments was legal or not, the argument itself is misplaced because:-
The Supreme Court, in its order, other than going to the basis of the issue, i.e. determination of the powers of the Committee, de jure, to order demolition, further very clearly had observed that the High Court, while exercising its jurisdiction of awarding damages for any constitutional tort committed, would have to see whether the fundamental right of the writ-petitioners (respondents herein), have been violated or not. Thus, obviously, in case the very Committee which had ordered removal of encroachments was found to be lacking in jurisdiction to direct as such, the consequential demolition would obviously amount to violation of rights of Chander Vikas 2013.09.13 16:59 I attest to the accuracy and integrity of this document Chandigarh LPA No.349 of 2013 12 the writ-petitioners and, having come to this conclusion, thereafter, this Court would exercise jurisdiction under Article 226, to award damages.
Thus, in our opinion, the learned Single Judge, having come to a negative finding on the first issue, the result of awarding damages was a natural consequence thereof.
17. Coming now to the grounds raised in the appeal.
i) The argument that the learned Single Judge has re- appreciated the evidence already led before the Enquiry Officer (Addl. District Judge), in writ jurisdiction, is again without any foundation, inasmuch as the learned Single Judge relied specifically only upon the report of the learned Addl. District Judge, to the effect that no report of demarcation had been brought on record before the Enquiry Officer.
Though, no doubt, the Enquiry Officer, had referred to the resolution passed by the Committee, entries in the jamabandies, statement of witnesses for and against the existence of the houses as encroachments; however, eventually he held, as specifically stressed upon by the learned Single Judge, as under:
"It also needs to be highlighted that the report of demarcation prepared on the spot has not been brought on record. Kanungo, Shri Jaspal Singh Sahota, who, according to Shri Manohar Lal Patwari, RW-4 carried out the demarcation, has not been examined.
In Rojnamcha entry Ex.RW4/1 there is no mention of any encroachments being in existence. It has also been admitted by RW-4, Shri Manohar Lal Patwari that no site plan was prepared to show actual occupation on the spot. At the same time, Shri J.P.Singh, while appearing as RW-7 (word missing from report) that no report identifying the encroachments, particulars of the encroachers and extent of encroachments was ever submitted to him and that no written notices were served upon the Chander Vikas occupants, including the petitioners.2013.09.13 16:59 I attest to the accuracy and integrity of this document Chandigarh LPA No.349 of 2013 13
6. Except for the self serving solitary statement of Shri Ram Lubaya, Petitioner, as PW-1, there is no evidence to prove demand of illegal gratification by Shri J.P.Singh for permitting the petitioners to put up temporary stalls during the annual fair of the year 1999.
7. Nothing has been brought on record to show that Shri Ram Tirath Improvement and Development Committee is a registered body or a Government body or a statutory body."
Thus, in our opinion, there was no re-appreciation of evidence and the factual aspect highlighted by the Enquiry Officer, which went to the root of the problem, was rightly relied upon by the learned Single Judge.
ii) The argument that the learned Single Judge has wrongly held that, in the Daily Diary/Roznamcha, exhibited before the learned enquiry officer, there was no mention of any encroachment being in existence, whereas, factually, it was clearly so mentioned, is not entirely in consonance with what the learned Single Judge has observed, to the extent that the learned Addl. District and Sessions Judge, "found that the Roznamcha entry did not reveal any encroachments, as having been clearly identified".
The enquiry report itself (annexed as Annexure P-4 in the writ petition), is reproduced in extenso, with regard to deposition of the Patwari concerned, Sh. Manohar Lal, before the learned enquiry officer, i.e. the learned Addl. District and Sessions Judge:-
..."21 Mr. Manohar Lal, Patwari Halqa Sarangdev entered the witness stand as RW-4 and stated on oath that vide Roznamcha entry Ex.RW4/2, a proclamation was caused to be made in the area of Ram Tirath about the demarcation of land on February 02, 2000 and demarcation was carried out on February 4, 2000. According to him entry regarding the demarcation was made in Roznamcha Ex RW4/1 and vide Roznamcha entry Ex.RW4/3 another proclamation was made on February 7, 2000, whereby the Chander Vikas 2013.09.13 16:59 I attest to the accuracy and integrity of this document Chandigarh LPA No.349 of 2013 14 encroachers were called upon to remove their belongings before February 17, 2000. In his cross examination, he admitted that the demarcation was carried out by the Kanungo and not by him though in his examination in chief the plea of the witness was that the demarcation was carried out by him in the presence of Kanungo, Jaswant Singh Sohal. He was not able to tell the actual location of pucca burji and other burji identified for verification and whether it was written in the demarcation report that 'Aksh Latha' was referred to before the demarcation. He also could not tell if over or near the land in dispute there was any Hanuman Temple or any other temple or what was the exact measurement of Khasra No.79 or whether there was any encroachment over the land comprised in that khasra no. It was, however, admitted by this witness that no written notice was given to any party before carrying out the demarcation; that no report/site plan to show actual occupation of land on the spot was prepared; that in the report of demarcation extent of encroachment was not indicated; that there was neither any order from the Deputy Commissioner nor any application from the committee for demarcation of the area; that in the report of the demarcation it has not been stated that there was any encroachment over the land comprised in Khasra No.69 of Village Kaler and Khasra No.79 of village Kotla Doom; and that in the Roznamcha no entry was made after the removal of encroachments. He also stated in his cross-examination that the petitioners though were present at the time of demarcation but they did not sign the report. As per him, there were many small temples and around them was a slack habitation.
22. Sh. J.P. Singh himself entered in the witness box as RW-7 and testified on solemn affirmation that being the member of the Committee, he was present in its meeting held on January 17, 2000 which was chaired by Shri Narinderjit Singh and wherein the resolution Ex.RW6/1 came to be passed. On receipt of the copy of the proceedings on January 24, 2000, he wrote a letter dated January 28, 2000 (Ex.RW7/1) to Circle Revenue Officer, Raja Sansi to cause demarcation of Khasra No.69 of village Kaler and Khasra No.79 of village Kotla Doom.
Demarcation (EX.RW4/1) was carried out after due proclamation (Ex.RW4/2). He also received note (Mark RW3/A) from the Patwari identifying the illegal encroachments. He then prepared a note mark (RW3/A) and sent it to the Deputy Commissioner requesting for police help and a bulldozer. Before that, on February 7, 2000 he had asked Circle Revenue Officer, Raja Sansi vide letter Ex.RW7/2 to cause a proclamation Chander Vikas 2013.09.13 16:59 I attest to the accuracy and integrity of this document Chandigarh LPA No.349 of 2013 15 to be made in the area of Ram Tirath calling upon the encroachers to remove the encroachments before February 17, 2000. As per compliance report Ex.RW7/3 proclamation was said to have been made and vide letters Ex.RW-7/4 and Ex.RW7/5 police help and bulldozer were arranged but these letters were received by him at about 5.30 in the evening when he was busy in some function in his residence and therefore he telephoned and requested the Deputy Commissioner to enlarge the time for carrying out demolitions as it was not possible for him to do the needful on February 19, 2000 to be told by the latter that his orders were to be translated into action as per schedule as he was under great pressure from certain persons including the Chief Minister. He, therefore, got in touch with the police post Raja Sansi and SDO, PWD B&R, and having been assured of the police help and bulldozer he reached the spot at about 10'O clock on February 19, 2000. A police contingent and a bulldozer were already in readiness.
23. He further went on to state that the first house to be demolished was found locked and in the second and old lady alone was present who though was aware of the impending demoitin but expressed her helplessness saying that she didn't know where to go. In the meantime, the petitioners came and resisted the drive. Petitioner Satpal lay in front of the buldozer and had to be bodily lifted by the police personnel. Boundary wall of his house was demolished. The petitioners started hurling abusive language upon him. He allowed two more hours to the petitioners to remove their possessions but they having not done so their belongings were removed and handed over to them by the officials of Municipal Corporation. Then their houses were demolished. But in the meanwhile, Shri Veer Singh Lopoke, M.L.A of the area appeared on the scene and started shouting upon him saying that he (Shri J.P. Singh) was a mean officer and who had authorized him to carry out the demolitions? He asked him to leave. This witness then went to the Deputy Commissioner at his residence but he being not available the entire episode was brought to the notice of Shri Baljit Singh, Additional Deputy Commissioner.
24. Shri J.P. Singh RW-7 has also gone on record to say that the site plan mark RW7/6 is copy of the map of Shri Ram Tirath prepared by the Department of Town and Country Planning Punjab and in the year 1982, 7 residential quarters were built and allotted to the Poojaris in lieu of the houses got vacated from them and were demolished but after some time Sh. Munshi Ram one of the said allottees encroached upon a portion Chander Vikas 2013.09.13 16:59 I attest to the accuracy and integrity of this document Chandigarh LPA No.349 of 2013 16 of the land earmarked for construction of a Dharamsala, Langar Hall and Art Gallery etc. etc. others, including the petitioners, followed suit. The quarters allotted to the poojaries were rented out by them. According to him matter regarding removal of illegal encroachments was engaging the attention of all concerned since 1985. He firmly denied the allegations that he demanded the money to allow the petitioners to install temporary stalls during the fair.
25. In his cross examination, it has been admitted by Shri J.P. Singh, RW-7 that no individual notices were issued to the petitioners; that the land under dispute does not belong to the Committee; that names of encroachers were not mentioned in the report of demarcation; that the area under the occupation of indivi- occupants was also not mentioned; that original of mark RW7/6 was neither prepared by him nor it was in his custody nor it was approved by any authority, khasra number of the land has not been indicated, and names of the encroachers have not been mentioned; that he was placed under suspension on account of the demolitions; that the demarcation could be carried out by Kanungo but no such report from a Kanungo was received by him; that particulars of the encroachers and extent of encroachment was not mentioned in Mark RW3/C; and that Roznamcha entry was neither received by him nor was it sent by him to the Deputy Commissioner. He also admitted at at the time of two proclamations he was not present. He, however, denied the pleas that houses of the petitioners were not upon the circumbulation; that the entries pertaining to the proclamations were manipulated by him; that no quarters were ever allotted to the pujaries; that Commissioner Jalandhar Division had indicated him; that petitioners and their families were taken away by the police; that there was no encroachments; that the demolitions were carried out illegally; that he demanded money from the petitioners to permit installation of stall in the fair, that note of the Patwari Mark RW3/C was not sent to him to the Deputy Commissioner; and that no order for demolition was issued by the Deputy Commissioner."
Thus, as per the above, it does seem that, though, apparently, there were encroachments on the land in question and, though demarcation had been ordered to be carried out, the actual demarcation report was never actually produced before the enquiry officer and though, initially, the Patwari in his examination-in-chief had stated that he had carried out the demarcation; Chander Vikas 2013.09.13 16:59 I attest to the accuracy and integrity of this document Chandigarh LPA No.349 of 2013 17 however, subsequently, in his cross-examination, he admitted that the demarcation was carried out by the Kanungo and not by him. The Patwari had also admitted that no written notice was given to any of the parties before carrying out the demarcation and that no report/site plan, to show actual occupation of land on the spot was prepared, and in the report of the demarcation, existence of encroachments was not indicated.
Though a report of the Patwari has also been annexed with the reply filed by the present appellant, (to the writ petition, as Annexure R- 3/14), dated 05.02.2000, it is only a report to the effect that the demarcation was duly done after beating of drums and that the parties were satisfied on the spot. The said report also states that the encroachments were made by Mahant Sat Pal, Kans Raj, Mangal Das and Ram Lubhaya; however, as is obvious, this is only a report with no demarcation specifically given and it seems to be completely belied by the admission of the said Patwari, before the enquiry officer, during his cross-examination.
As already noted earlier also, the appellant himself had also admitted to the fact that the report, with regard to the demarcation, was not received by him and that the number of the encroachers and extent of encroachments, was also not mentioned therein.
Though, in reply to the writ petition, he relied upon the report of the Patwari (Annexure R-3/14), strangely, before the enquiry officer, in his cross-examination, he also stated that the names of the encroachers were not mentioned in the report of the demarcation.
Thus, with regard to this point raised in this appeal, it is found that though the said report does mention the names of certain persons, including the first respondent, who had encroached upon the land, however, Chander Vikas 2013.09.13 16:59 I attest to the accuracy and integrity of this document Chandigarh LPA No.349 of 2013 18 this report is not accompanied by any statistics of the demarcation that was actually supposed to have been carried out, as neither the actual demarcation report was produced before the enquiry officer, nor the person, who is actually stated to have carried out the demarcation, i.e. Kanungo Jaspal Singh Sohal, was examined before him.
Thus, the report annexed as Annexure R-3/14 by the appellant in reply to the writ petition, was not a report which was actually proved before the enquiry officer; to the contrary, no such report was produced before him, and only a Roznamcha entry to the effect that demarcation was carried out, was produced before him. The factum of Manohar Lal, Patwari, who appeared in the witness-box before the enquiry officer, being present at the spot, is belied and signing of the report (on 05.02.2000), is also belied by his own admission in his cross-examination, that he had never carried out the demarcation, and it was the Kanungo who did so, who was also not examined. Thus, the report (Annexure R-3/14) is not a document prove any authentic demarcation on the spot.
In any case, de hors, anything else, the appellant himself admitted before the enquiry officer that he did not actually see the demarcation report.
Therefore, we do not see, how this argument holds any water.
iii) The contention that demarcation was duly done by the Patwari and there was also a 'Munadi', which has been ignored by the learned Single Judge, is an argument without any basis, in view of what we have discussed herein-above. Announcement by a 'munadi', does not prove Chander Vikas 2013.09.13 16:59 I attest to the accuracy and integrity of this document Chandigarh LPA No.349 of 2013 19 any actual demarcation having taken place. Hence, it is an argument without any substance in it.
iv). The argument that there was no material before the learned Single Judge, to show that the writ petitioners were in legal possession of the property, in the absence of any record showing their ownership, is also a misconceived argument.
The ownership of the land or the title of the land was not the question before the learned Single Judge; only the procedure adopted, starting from the orders for removal of encroachment by the Committee, to the time that the bulldozers actually razed the houses to the ground, was being examined by the learned Single Judge.
Therefore, though this issue may have some bearing on the direction with regard to assessment of quantum of damages, it would have no bearing, in our opinion, on the innocence, or otherwise, of the appellant before us, in ordering such demolition in the manner it was done.
Hence, this argument is rejected; however, on the issue of assessment of quantum of damages by the Civil Court, we will deal with it at the end of the judgment.
v) The argument that an injunction cannot be granted in favour of encroachers, is definitely a valid argument; however, even for removal of alleged encroachers, procedure of law in a country governed by the rule of law, has to be adopted.
In this particular case, when even the basis to determine whether there was any encroachment or not, was not established, in the absence of a clear cut demarcation report in that regard, the argument falls Chander Vikas 2013.09.13 16:59 I attest to the accuracy and integrity of this document Chandigarh LPA No.349 of 2013 20 flat for three reasons; first that, as just said, that there was no demarcation report to show that there was an encroachment; second, no proper procedure based on lawful orders by a competent authority to order any demolition, was followed; third, the true nature and ownership of the land has never been fully determined, as per the pleadings and record before us, to prove any encroachment, or otherwise.
Hence, this argument, though impressive at first blush, does not hold any water in the circumstances of this case.
vi) The argument that there was a demand from the Improvement Committee to get the encroachment removed right since 1982/1962, and such demand has been ignored by the learned Single Judge, is both factually wrong, as well as baseless in law, inasmuch as the learned Single Judge has referred to the resolution of the Temple Committee for removal of encroachment, in paragraph 5 of the impugned judgment, even though the date from which the demand for removal may not have been discussed.
Apart from this, as already observed earlier hereinabove, simply because the Committee was wanting the encroachment removed, did not confer jurisdiction upon the Committee itself, even though it was chaired by the Deputy Commissioner (or he was a member thereof), nor was any functionary empowered to act upon such demand, without following procedure as laid down by law and without first determining by physical demarcation, as to whether any such encroachment existed at all, or not, and, as to whether there could be any eviction of persons, without determination of encroachment, in civil/revenue proceedings. Chander Vikas
Hence, this argument is also rejected.
2013.09.13 16:59I attest to the accuracy and integrity of this document Chandigarh LPA No.349 of 2013 21
vii) The argument that the appellant had carried out his duty as per law, after demarcation had been done and after due proclamation by beating drums was made to vacate the area, is also an unsound argument, in view of what we have already discussed herein above, that, in the absence of any actual demarcation report and in the absence of any orders for removal of encroachment by a competent authority, simply a proclamation by beating of drums, (even if it is accepted that it was done), would not make the demolition carried out a lawful process and, as such, this argument is also not accepted by us.
As regards the contention that the demarcation was carried out under the provisions of Sections 14 (A) (1) and 9 (2) of the Punjab Security of Land Tenures Act, 1953, no specific argument has been addressed on this issue; however, we do not see how this Act is applicable in the present case, as the said Act was primarily enacted to provide a ceiling on individual land holdings and, further, to confer rights on tenants to pre-empt and purchase their tenancies, subject to certain conditions, thereby making the tiller, the owner of the land that he tilled. No order, whatsoever, passed under the said Act, has been brought to our notice; hence, to our mind, this ground raised in the present appeal, has been so raised only to try and come within the shelter of some provision of law, to justify the action of the appellant. To bring the action of the appellant within the ambit of the said Act, an order declaring some part of the land as surplus land, or declaring it as permissible area, either in the hands of the land owners, or the tillers, would have to be passed. No such order has been brought to our notice and a perusal of the reply filed by the appellant, Chander Vikas 2013.09.13 16:59 I attest to the accuracy and integrity of this document Chandigarh LPA No.349 of 2013 22 to the writ petition, before the learned Single Judge, also does not even mention that the action taken was in pursuance of any order passed under the provisions of Punjab Security of Land Tenures Act, 1953.
The plea with regard to the Committee having been constituted by a valid order of the Government, of course, is correct, as is obvious from a perusal of the order dated 08.12.1981, issued by the Financial Commissioner, Development, Punjab, in the name of Governor of Punjab, (annexed as Annexure R-3/4 with the reply to the writ petition).
By this order, "Shri Ram Tirath Improvement and Development Committee, Amritsar" was constituted, for "speedy development of Shri Ram Tirath, Amritsar".
The order gives the composition of the Committee and some terms and conditions with regard to allowance of members etc. However, it neither clothed the committee, as in any case it could not have done, to carry out demolition at its will, nor does the subsequent meeting of the Committee, minutes of which have been annexed with the said reply, give the right to the Committee to grant to itself any such power. If at all there were encroachments upon the land of Shri Ram Tirath Temple, such encroachments would definitely be removable by due process of law and not otherwise.
viii) The next argument that the demarcation carried out was in respect of structures which needed to have been demolished right since 1962, is again the same as the argument raised at Point No.(vi), on which we have already held, that in the absence of a demarcation report, and any finding with regard to encroachment, by a competent Court or authority, the Chander Vikas 2013.09.13 16:59 I attest to the accuracy and integrity of this document Chandigarh LPA No.349 of 2013 23 argument is completely unfounded, as already discussed. Moreover, no proceedings in any civil or revenue case initiated, whereby such demarcation was ordered to be got done in the first place, have been brought on record.
Coming to the last argument, that the appellant was only carrying out his duties in obeying the orders of the Deputy Commissioner, the argument loses merit because the appellant, a Sub-Divisional Magistrate, being a fully responsible officer, holding a post with responsibility cast upon his shoulders, should have recognized the difference between carrying out valid orders of a statutory authority, as per statute, and orders given by a Committee which did not possess any such power or jurisdiction, to order such removal of encroachment. Just because the Deputy Commissioner happened to chair the meeting of the Committee or be a member of the Committee and gave an order upon a resolution of that Committee, the appellant cannot be absolved of the responsibility of not distinguishing an order of a lawful authority and that given by his superior in a completely different non-statutory capacity. He obviously blurred the distinction between the two, in his mind.
It is, no doubt, possible that in the given circumstances, as per what the appellant deposed before the enquiry officer (learned Addl. District and Sessions Judge), to the effect that the Dy. Commissioner was under
pressure to carry out the demolition as quickly as possible, that the appellant in his own mind was simply carrying out the order of his superior and was thus doing his duty.Chander Vikas 2013.09.13 16:59 I attest to the accuracy and integrity of this document Chandigarh LPA No.349 of 2013 24
However, as a responsible officer, it was his duty to, in fact, correct his superior officer if he found that he was giving an illegal order.
Instead, he chose to be party to it and trampled upon the respondents by carrying out demolition of their houses. He, therefore, cannot be exonerated, as has been rightly held by learned Single Judge.
Neither he, nor the Dy. Commissioner, can be absolved of the blame of carrying out demolition without proper determination of the extent of any encroachment by any Court or jurisdictional authority, and, thereafter, following lawful procedure for the same.
Therefore, we are in agreement with the learned Single Judge that the appellant, as also the then, Dy. Commissioner, Narinderjit Singh, would be liable to pay Rs.1 lac to each of the respondents No.1 to 4, for damages caused due to the demolition which was carried out, not in consonance with any procedure established by law.
The appeal of the appellant is consequently dismissed.
However, we would like to clarify the order of the learned Single Judge, with regard to the second aspect, i.e. with regard to quantifying of damages to respondents No.1 to 4, by a civil Court in case a suit for such damages is instituted by them.
In our opinion, though, no doubt, the said respondents should be adequately compensated for demolition of the structures that they had built, however, extensive compensation should be awarded only after first determining, by proper legal procedure, as to whether the structures that they had built, were actually on land not encroached upon. Because, if the said structures, or any of them, were built upon land encroached upon, then, Chander Vikas 2013.09.13 16:59 I attest to the accuracy and integrity of this document Chandigarh LPA No.349 of 2013 25 to our mind, extensive compensation should not be available to the said respondents. If, on the other hand, it is found that the structures were not built upon any encroached land, then proper quantification of such damages, would be made by the civil Court, if such proceedings are instituted.
The finding of the learned Single Judge that the demolition itself was carried out without proper procedure being followed, would, of course, be taken as final by the Civil Court.
( AMOL RATTAN SINGH ) ( SATISH KUMAR MITTAL )
JUDGE JUDGE
05.04.2013
vcgarg
Chander Vikas
2013.09.13 16:59
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integrity of this document
Chandigarh