Punjab-Haryana High Court
Rajesh Kumar Bharti vs State Of Haryana And Others on 1 September, 2009
Author: S.S. Saron
Bench: S.S. Saron
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No. 8740 of 2009
Date of decision : 1.9.2009
Rajesh Kumar Bharti
..... Petitioner
Versus
State of Haryana and others
..... Respondents
Present: Mr. Karnail Singh, Advocate for the petitioner.
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S.S. SARON, J.
This petition has been filed under Articles 226/227 of the Constitution of India for issuing appropriate directions to the respondents to take immediate action for getting the land of Gram Panchayat vacated from those have has made illegal encroachments.
The petitioner submitted that one Bharat Singh Hooda son of Ram Saroop resident of village Mazgar District Faridabad had earlier vide application dated 18.6.2007 (Annexure P1) approached the Deputy Commissioner-cum- Collector, Faridabad (respondent No.2) with the request to get the land of the Gram Panchayat of village Mazgar vacated from the illegal possession of Sh. Singh Raj son of Ghasi Member Panchyat of village Mazgar. The matter was referred to the Block Development and Panchayat Officer, Ballabhgarh District Faridabad (respondent No.4) for taking action. The Block Development and Panchayat Officer (respondent No.4) wrote to the Tehsildar, Ballabhgarh (respondent No.3) vide letter No.681 dated 16.7.2007 (Annexure P2) for getting the land of the Panchayat, demarcated. Since the Tehsildar, Ballabhgarh CWP No. 8740 of 2009 [2] (respondent No.3) was not taking any action for getting the land vacated from the illegal possession of the encroachers, the aforesaid Bharat Singh Hooda filed CWP No.5105 of 2008 in this Court. The said writ petition was disposed of on 28.3.2008 with the direction to the respondents in the said petition to dispose of the complaint of the petitioner therein (i.e. Bharat Singh Hooda) pending with the Block Development and Panchayat Officer, Ballabhgarh (respondent No.4). Thereafter, the land was demarcated by the Tehsildar and the demarcation report dated 13.05.2008 (Annexures P-3 and P-4) was submitted to the authorities in which Singh Raj son of Ghasi Ram was found to be in illegal possession of the Gram Panchayat land in Khasra No.81/1 and 38/18. Besides, Om Parkash son of Gaga Lal had encroached Khara No.74/1 by constructing a wall on the North- West corner.
Learned counsel for the petitioner has referred to Annexure P1 and submitted that the petitioner is the President in Chief of People's All India Anti Corruption and Crime Prevention Society. The complaint dated 18.6.2007 (Annexure P1) bears the designation of the petitioner in this regard. Therefore, it is submitted that the petitioner is acting in public interest to get the land of the Gram Panchayt, Mazgar vacated.
After giving my thoughtful consideration to the matter, it may be noticed that a perusal of the report dated 13.5.2008 (Annexure P3) regarding demarcation it has been found that as per record that khasra Nos.74/1, 31/1 and 74/4 are the ownership of Gram Panchayat and Killa No.38/18 is shamlat deh. After demarcation it was found that Singh Raj son of Ghasi had encroached upon 49 sq. yards of land towards Eastern side from khasra No.81/1 and he had included the land comprised in khasra No.38/23/1 and in khasra No.38/18 towards south west side and he had encroached upon 37 sq. yards by constructing boundary wall. Besides, Om Parkash son of Ganga Lal had CWP No. 8740 of 2009 [3] encroached upon land comprised in khasra No.74/1 by constructing boundary wall which was in the same very number towards West-South corner. Krishan Lal son of Lakhi had encroached 8 sq. yards. The unauthorized possession are noticed in khasra Nos.81/1, 38/18, 74/1 and 74/4.
As already noticed as per the demarcation report, it has only been mentioned that khasra Nos. 74/1, 31/18 and 74/4 are the ownership of Gram Panchayat and killa No.38/18 is shamlat deh. Therefore, out of the encroachment there is encroachment in khasra No.38/18 which is shamlat deh, besides, 74/1 and 74/4 which are of the Gram Panchayat. It is not mentioned in the report whether khasra No.81/1 is ownership of Gram Panchyat or shamlat deh. Therefore, in the absence of complete material and relevant record, it would be improper to issue any directions to the respondents for taking action against the persons who are said to have made illegal encroachments. Even otherwise, it may be noticed that the procedure for taking action against those who have encroached upon the Panchayat land or shamlat land is to be resorted in accordance with the provisions of Section 7(1) of the Punjab Village Common Lands (Regulation) Act, 1961 (as applicable in Haryana) ("Act" - for short). The said Section reads as under:-
" 7. Power to put Panchayat in possession of certain lands. : (1) An Assistant Collector of the first grade having jurisdiction in the village may, either suo muto or on an application made to him by a Panchayat or an inhabitant of the village or the Block Development and Panchayat Officer or Social Education and Panchayat Officer, or any other Officer authorized by the Block Developmnt and Panchayat Officer, after making such summary enquiry as he may deem fit and in CWP No. 8740 of 2009 [4] accordance with such procedure as may be prescribed, eject any person who is in wrongful or unauthorized possession of the land or other immovable property in the shamlat deh of that village which vests or is deemed to have been vested in the panchayat under this Act and put the panchayat in possession thereof and for so doing the Assistant Collector of the first grade may exercise the powers of a revenue court in relation to the execution of a decree for possession of land under the Punjab Tenancy Act, 1887:
Provided that if in any such proceedings the question of title is raised and proved prima facie on the basis of documents that the question of title is really involved, the Assistant Collector of the first grade shall record a finding to that effect and first decide the question of title in the manner laid down hereinafter."
A perusal of the above provision shows that inhabitant of the village may file an application before the Assistant Collector seeking ejectment of any person who is in wrongful or unauthorized possession of land or other immovable property in the shamlat deh of that village which vests or is deemed to have been vested under the Act. The petitioner is a resident of Vidyut Nagar in Hisar and is not a resident of village Mazgar from where the eviction is sought. He claims himself to be President in Chief of the People's All India Anti Corruption and Crime Prevention Society with its Head Office in New Delhi and the present petition has been filed, it is stated, in the nature of a public interest. In Bhartiya Homoeopathy College, Bharatpur v. Students' Council of CWP No. 8740 of 2009 [5] Homoeopathy Medical College, Jaipur and Others, (1998) 2 SCC 449, the question of maintainability of a petition by a union of students against a Vice Chancellor seeking to remove the hardship of students admitted in accordance with a State Act to a college which was at that time not affiliated to the University and permitting them to appear at University examination, held that a union of students challenging such order by way of PIL, such a union, held, must disclose; (i) whether it was authorized to file the litigation; (ii) if so, by whom;
(iii) whether it has sufficient funds to indulge in such litigation; (iv) the basis for alleging harm to public interest. Otherwise, it should not be allowed lightly to litigate in the name of public interest to cause damage to others. The present petition has not disclosed any of the ingredients laid down by the Supreme Court. Therefore, the petitioner even otherwise has no locus standi to file such a petition. If any inhabitant of the village is aggrieved against the encroachment, he is liable to adopt the procedure provided by the provisions of the Act including Section 7(1). This Court in exercise of its inherent jurisdiction under Articles 226/227 of the Constitution of India is not to embark upon an inquiry to consider whether the demarcation report dated 13.5.2008 (Annexures P3 and P4) depict the actual position for that is the concern of the Assistant Collector under the Act in case proceedings are initiated before him.
Accordingly, the writ petition is dismissed. However, the order would not preclude an inhabitants of the village or the Gram Panchayat for seeking ejectment of the persons who are stated to be in unauthorised possession of the Panchayat or the Shamlat deh land in accordance with the provisions of the Act.
(S.S. SARON) JUDGE September 1, 2009 amit