Punjab-Haryana High Court
Smt. Gian Kaur vs State Of Punjab And Others on 8 November, 2013
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
CWP No.13755 of 2012 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
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CWP No.13755 of 2012
Date of Decision: 08.11.2013
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Smt. Gian Kaur
. . . .Petitioner
Versus
State of Punjab and others
. . . . Respondents
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CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN
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Present: Mr.Sandeep Jain, Advocate,
for the petitioner.
Mr.V. Ramswaroop, Addl. A.G. Punjab.
Mr.V.K. Sandhir, Advocate,
for respondent No.3.
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RAKESH KUMAR JAIN, J.
The petitioner has challenged orders dated 20.7.2010 passed by respondent No.2 and 30.3.2012 passed by respondent No.1 by which she has been ordered to be evicted from the land measuring 6 marlas being in its unauthorised possession.
In brief, respondent No.3 filed a petition under Section 5 & 7 of the Punjab Public Premises & Land (Eviction and Rent Recovery) Act, 1973 [for short 'the Act'] seeking eviction of the petitioner form the land measuring 6 marlas comprising Khewat No.2561, Khatauni No.3073, Khasra No.1897 (7K-11M), 1898 (6K-1M), Gair Morusi Veterinary CWP No.13755 of 2012 -2- Hospital situated at Nawanshahr recorded in Jamabandi for the year 2003-04 and also for recovery of damages @ `1500/- per month from the date of unauthorised occupation till it is vacation.
It is submitted that earlier the land in dispute was owned by District Board but after is abolition through notification, possession has been handed over to Panchayat Samiti, Nawanshahr, which is coming into revenue record in the column of cultivation. It is alleged that in the aforesaid Khasra number, Veterinary Hospital is in existence but the petitioner had illegally encroached upon a portion of 6 marlas by raising boundary wall. Demarcation was carried out on 18.6.1997 in which this fact came to the light thereafter, two notices dated 8.7.1997 and 30.4.1998 were issued to the petitioner to vacate unauthorised possession. In reply filed by the petitioner, it was alleged that the land in question was purchased through a registered sale deed and constructed residential house after getting approval from the Municipal Committee Nawanshahr in the year 1976. It is also alleged that demarcation report dated 18.6.1997 cannot be relied upon as it was carried out in the absence of the petitioner.
The SDM, Nawanshahr exercising the power of Collector got the demarcation done through field Kanungo, Nawanshahr and Bharta Kalan jointly vide his order dated 21.8.2007 to find out as to whether the petitioner had encroached upon any area of Provincial Government. The CWP No.13755 of 2012 -3- demarcation was done by both the Field Kanungo on5.11.2007 and submitted their report dated 18.6.1997 according to which petitioner has been found in unauthorised possession of 6 marla of land belonging to the Government.
The petitioner challenged the fresh demarcation report dated 5.11.2007 on the ground that the demarcation has not been done as per instructions of the Financial Commissioner, Punjab because three pucca points were not fixed before taking the measurements. However, while rejecting the request of the petitioner, vide order dated 28.8.2008, it was observed by the Collector that the fresh demarcation was done in the presence of counsel for the petitioner, who did not raise any objection of any kind at that time.
The order of the Collector dated 28.8.2008 was set aside in appeal by the Commissioner and the case was remanded back on 26.3.2009 to the Court of the Collector with a direction that it may be re-decided after granting petitioner an opportunity to cross-examine the Local Commissioner appointed for the purpose of demarcation.
After the remand, the Local Commissioner Sh. Harbans Lal, Kanungo Nawanshahr and Sh. Malkiat Ram Kanungo, Circle Bharta Kalan were duly summoned and subjected to lengthy cross-examination by the counsel for the petitioner. Both the Field Kanungos stated that they had traced out pucca points before carrying measurements of CWP No.13755 of 2012 -4- Khasra Nos.1897 & 1898 and at that time counsel for the petitioner was not present.
The Collector, vide his order dated 20.7.2010 came to the conclusion that the petitioner has been found to be in unauthorised possession over 6 marla of land which belongs to the State Government and ordered eviction.
Aggrieved against the aforesaid order, the petitioner filed the statutory appeal which has also been dismissed by the Commissioner on 30.3.2012 holding that the petitioner has been found to be in unauthorised possession on the basis of demarcation report.
Learned counsel for the petitioner has submitted that it was incumbent upon the Collector to have issued a notice under Section 4 of the Act and in the absence thereof, the entire proceedings have been vitiated.
I have heard learned counsel for the petitioner and examined the record from which I have found that the two notices were served upon the petitioner on 8.7.1997 and 30.4.1998 on the basis of demarcation dated 18.6.1997 wherein it was found that she is in unauthosied possession to the extent of 6 marla of land belonging to the Government. The demarcation was again conducted when the petitioner disputed the earlier demarcation report dated 18.6.1997 on the ground that she was not associated at that time. The fresh demarcation report was submitted by two Field Kanungos on 5.11.2007 and at that time counsel for the CWP No.13755 of 2012 -5- petitioner was there. The petitioner again raised an objection that she could not get opportunity of cross-examining the Local Commissioner much less the Field Kanungos, who had demarcated the land in dispute. Again opportunity was granted to the petitioner to cross-examine both the Field Kanungos and after lengthy cross-examination, it was found that the demarcation was conducted by both of them as per instructions issued by the Financial Commissioner and at that time counsel for the petitioner was also present, who did not raise objection of any sort.
Thus, it has been concurrently found by both the authorities under the Act that the petitioner is in unauthorised possession over 6 marla of land belonging to the Government over which she has constructed boundary wall.
In view of the aforesaid discussion, I do not find any merit in the present writ petition and hence the same is hereby dismissed.
(RAKESH KUMAR JAIN) 08.11.2013 JUDGE Vivek Pahwa Vivek 2013.11.21 12:23 I attest to the accuracy and integrity of this document