Punjab-Haryana High Court
Krishan Lal vs Parmanand & Ors on 2 December, 2014
CR-8154-2014 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
CR-8154-2014
Date of decision: 02.12.2014
Krishan Lal
..... Petitioner
Versus
Parmanand and others
..... Respondents
CORAM: HON'BLE MR. JUSTICE R.P. NAGRATH
1. Whether Reporters of the local papers may 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?
PRESENT: Mr. Sanjay Verma, Advocate for the petitioner.
R.P. NAGRATH, J.
The petitioner is aggrieved by the judgment of learned Ist Appellate Court dated 18.10.2014 (Annexure P-9), reversing the order of trial Court which has granted ad interim injunction on application under Order 39 Rules 1 and 2 of the Code of Civil Procedure (CPC), 1908.
2. The dispute basically pertains to the passage existing in Khasra No. 80/2. Earlier respondent No. 1-Parmanand filed a petition under Section 7 of the Punjab Village Common Land Act, 1961 (for short 'the Act of 1961') for ejectment of the petitioner who had made encroachment on the passage. Those proceedings were filed in the year 1996 and finalized up to the revision. The order of the Commissioner, RISHU KATARIA 2014.12.23 15:37 I attest to the accuracy and authenticity of this document CR-8154-2014 -2- Gurgaon, dismissing the revision is dated 17.9.1998. Respondent No. 1 filed an execution and affidavits of the Sarpanch of Gram Panchayat of two villages Sherpur and Haqdarpur were filed stating therein that petitioner has handed over the possession of disputed land to Gram Panchayat, Sherpur. Respondent No. 1, however, initiated the contempt proceedings in which the petitioner pleaded that there was no encroachment over the passage existing in Khasra No. 80/2. That petition was dismissed by the Assistant Collector Ist Grade, on 14.8.2000. Respondent No. 1 was not satisfied with the said order and filed a third round of litigation i.e. a writ petition before this Court without disclosing the fact that contempt petition already stood dismissed. This Court had directed the State to remove the unauthorized possession of the petitioner over the disputed land vide order dated 23.4.2012. However, respondent No. 2-Block Development and Panchayat Officer, Tehsil Pataudi, District Gurgaon, (hereinafter referred to 'BD&PO') without taking into consideration the facts and circumstances of the case and without affording an opportunity of hearing issued a notice dated 6.9.2012 to the petitioner directing him to vacate the passage within 7 days and for non- compliance to seek police help for obtaining possession of the said passage.
3. I have heard learned counsel for the petitioner and perused the impugned orders as well as the paper-book.
4. The most important aspect is that after issuance of the notice dated 6.9.2012, the petitioner approached this Court in CWP-19309-2012 decided by this Court on 27.9.2012 (Annexure P-10). A perusal of this RISHU KATARIA 2014.12.23 15:37 I attest to the accuracy and authenticity of this document CR-8154-2014 -3- order would show that the petitioner challenged the show-cause notice dated 6.9.2012 issued by respondent No. 2-BD&PO, Pataudi, reiterating the factum of petitioner already complying with the previous order of eviction and dismissal of the contempt petition. It was also pointed out that the petitioner has already removed the un-authorized possession. This Court disposed of the said writ petition, with liberty to the petitioner to place all the relevant documents and facts before respondent No. 2- BD&PO, Pataudi, who was directed to proceed further only after considering the petitioner's reply and after passing the speaking order.
5. I am of the considered vide that this Court in CWP-19309- 2012 filed by the petitioner having already issued a specific direction, there was no basis for the petitioner to file a suit for permanent injunction and to claim ad interim injunction during its pendency. Anyhow, if the order of this Court dated 27.9.2012 (Annexure P-10) has not been complied with by the official respondents, the petitioner could have taken appropriate recourse for seeking action for non-compliance. Learned counsel for the petitioner, however, submitted that in compliance with the order of this Court, the complete facts and relevant documents were placed before the BD&PO, in response to the notice dated 6.9.2012.
6. The Ist Appellate Court observed as under:-
"15. .......After passing the order dated 27.9.2012, respondent no.3 has sent a notice to respondent no.1 bearing no. 283 dated 31.1.2013 whereby respondent no.1 was asked to produce the documents relating to the land in dispute. In compliance to the notice dated RISHU KATARIA 2014.12.23 15:37 I attest to the accuracy and authenticity of this document CR-8154-2014 -4- 31.1.2013, respondent no.1 filed a reply on 11.2.2013. Thereafter respondent no.3 passed an order on 29.4.2013 after considering all the facts and circumstances of the case in detail. I have perused the order dated 29.4.2013 passed by respondent no.1 and from the perusal of the same, it reveals that respondent no.1 did not appear before respondent no.3 rather he had sent the reply through speed post. From perusal of order passed by respondent no.3 dated 29.4.2013, it also reveals that all the facts concerning to the land in dispute were considered by respondent no.3 in detail. The order dated 29.4.2013 passed by respondent no.3 is absolutely in consonance with the directions issued by Hon'ble High Court of Punjab & Haryana on 27.9.2012 in CWP no. 19309 of 2012.
16. The respondent no.1 did not challenge the order dated 27.9.2012 before the competent authority and instead of challenging the order dated 29.4.2013 before the competent authority, the respondent no.1 has filed the present suit and in that suit also this order was not challenged by respondent no.1. To my mind, the filing of the present suit is a misuse of process of law.
17. I have perused the impugned order passed by learned trial court and from the perusal of the same it RISHU KATARIA 2014.12.23 15:37 I attest to the accuracy and authenticity of this document CR-8154-2014 -5- reveals that learned trial court did not appreciate the facts of the case in a right manner. The impugned order passed by learned trial court is not sustainable in the eyes of law because the respondent no.1 has no prima facie case in his favour. The order passed by respondent no.3 is absolutely in accordance with the directions issued by the Hon'ble High Court of Punjab & Haryana while deciding CWP no. 19309 of 2012. Balance of convenience also does not lie in favour of respondent no.1 because respondent no.1 has no primafacie case. The respondent no.1 did not suffer any irreparable loss because he has no right to retain unauthorized construction over the land of rasta."
7. The petitioner has placed on record demarcation report dated 26.2.2014 (Annexure P-8) in respect of khasra No. 80/2 and certain person have been found to be in illegal possession over this khasra number as mentioned therein. It is contended that the said list does not bear the name of petitioner-plaintiff. In report dated 31.10.2013 (Annexure P-7), it was clearly stated by the Kanungo that petitioner is not in illegal possession of khasra No. 80/2. All these documents can be surely relied upon by the petitioner before the authorities competent to dispose of the matter under the Punjab Village Common Lands (Regulations) Act, 1961 applicable to Haryana. It rather seems that the the petitioner in fact intends to encroach upon the land of khasra No. 80/2. By relying upon these documents, the learned trial Court granted RISHU KATARIA 2014.12.23 15:37 I attest to the accuracy and authenticity of this document CR-8154-2014 -6- the ad interim injunction by holding that dispute of possession is a triable issue upon which the parties have to lead their respective evidence without taking into account the fact that the parties agitated the matter before this Court by filing Civil Writ Petition which was disposed of with certain directions.
8. Respondent No. 2-BD&PO, is said to have finally sent a notice dated 31.1.2013 for removal of encroachment over the passage bearing khasra No. 80/2 to which the petitioner sent a reply on 11.2.2013 denying any alleged encroachment. So it seems that the authorities under the Act of 1961, have proceeded further by serving appropriate notices to the petitioner and intervention of the Civil Court where there is exclusive jurisdiction of the authorities under the Act of 1961, was not called for. I am of the view that the learned Appellate Court has rightly set aside the order passed by the trial Court. The order of Appellate Court is based on the settled principles and there is no scope of interference in exercise of the revisional jurisdiction of this Court.
9. Dismissed.
December 02, 2014 ( R.P. NAGRATH )
rishu JUDGE
RISHU KATARIA
2014.12.23 15:37
I attest to the accuracy and
authenticity of this document