Petitioner challenged an order appointing a Local Commissioner to measure land despite prior civil litigation. The court noted that a Civil Court order was already final and upheld by this Court, making the Deputy Commissioner's intervention contrary. The writ petition was disposed of as futile pending a final order.
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Civil Writ Petition No.17937 of 2002 (O&M) : 1 :
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Date of Decision: November 05, 2012
Digh Ram
...Petitioner
Versus
Deputy Commissioner, Rewari & others
...Respondents
CORAM: HON'BLE MR.JUSTICE RANJIT SINGH
Present: Mr.Kashmir Singh, Advocate, for the petitioner.
Mr.Sunil Nehra, Sr.DAG, Haryana, for respondent No.1.
Mr.Himanshu Aggarwal, Advocate and Mr.Sanjeev Gupta, Advocate, for respondent No.2.
Mr.Tapan K.Yadav, Advocate, for Mr.Jai Vir Yadav, Advocate, for respondent No.3.
RANJIT SINGH, J.
The petitioner purchased land measuring 5 marlas vide registered sale deed comprised in Khasra No.318/2 being 5/643 share of land measuring 32 kanals 3 marlas, situated at Bawal, District Rewari from one Shri Kalu Ram. After having purchased this land, the petitioner laid the foundation of boundary wall and applied for sanction of the site plan to respondent No.2-Municipal Committee.
Civil Writ Petition No.17937 of 2002 (O&M) : 2 :
The Committee, however, rejected the prayer of the petitioner under Section 205 of the Haryana Municipal Act (for short “the Act”). The petitioner appealed against this order under Section 240 of the Act. Respondent No.1 allowed the same on 16.4.1996. The petitioner then raised a construction upto plinth level as per the approved site plan. In the meanwhile, one Makhan Singh filed a suit for permanent injunction alongwith application under Order 39 Rule 1 & 2 CPC. The application for interim injunction was dismissed. Appeal filed against the said order was also dismissed. The order was challenged before this court, but the revision was dismissed on 30.5.1997.
The petitioner had then to file a civil suit when the respondents wanted to demolish the construction. That suit was decreed on 15.9.1999 in terms of the statement of the parties.
The petitioner had to file another civil suit on 14.1.2002 against respondent No.3 and others seeking permanent injunction for restraining them from interfering in raising the construction over the property. The petitioner filed an application under Order 39 Rule 1 & 2 CPC when other persons objected to the constructions being carried out by the petitioner. The application for interim order was dismissed by the Civil Judge on 31.1.2002. The appeal filed against this order was allowed by the Addl.District Judge on 2.3.2002. Respondent No.3 filed a revision against this order, which was dismissed on 20.3.2002. Still, the respondents were interfering in the construction. The petitioner filed contempt petition in the court of Civil Judge where a statement was made.
Respondent No.3 then filed an application on 1.5.2002
Civil Writ Petition No.17937 of 2002 (O&M) : 3 :
before respondent No.1 for setting-aside the order sanctioning the building plan. This application was illegally entertained. The petitioner filed reply when the impugned order (Annexure P-11) is passed appointing Naib-Tehsildar as a Local Commissioner. As per the petitioner, this order has been passed without application of mind and by ignoring the earlier orders. The application and the proceedings thereunder are, therefore, challenged through the present writ petition on the ground of being illegal. As per the petitioner, this application is not maintainable.
Vide the impugned order, the Deputy Commissioner has noticed that Deegh Ram had submitted before him that there is no drain/nala on the spot. He accordingly decided to detail NaibTehsildar, Bawal as a Local Commissioner for measurement of Khasra No.318/2 of Bawal. The Naib-Tehsildar was to verify whether construction raised by Deegh Ram son of Heera Singh is on the land which is Gair Mumkin Drain (Nala). The appeal file of the court titled “Deegh Ram Vs. Municipal Council” has also been summoned. It is against this order that the petitioner has approached this court.
The impugned order appears to be an innocuous order, as the Deputy Commissioner is yet to pass any final order. He has only detailed the Naib-Tehsildar to visit the site and report to him whether the site purchased by the petitioner is falling in Nala or not and whether construction has been done at the site, which is purchased by the petitioner. He has also summoned the case file where the plan was sanctioned. The petitioner appears justified in raising objection to the maintainability of this application. The
Civil Writ Petition No.17937 of 2002 (O&M) : 4 :
petitioner has been made to contest one litigation after another and still the Deputy Commissioner has intervened to entertain this application. The order passed by the civil court has acquired finality even upto this Court and order dated 20.3.2002 in this regard is on record. The Deputy Commissioner cannot ignore these developments and the order passed by the civil court, which has been upheld by this court. Any order which the Deputy Commissioner would pass would have to be keeping in view the order passed by the civil court and so also the earlier orders and no contrary order thereto possibly can be passed as it may then amount to nullifying those orders. The Deputy Commissioner apparently cannot go against the order passed by this court in essence or otherwise.
Since the Deputy Commissioner is yet to pass a final order, it would be futile to keep this petition pending before this court. The writ petition is accordingly disposed of. If the Deputy Commissioner passes any adverse order, the petitioner would be at liberty to challenge the same in accordance with law.
November 05, 2012 ( RANJIT SINGH ) ramesh JUDGE
3 issues framed by the court
Whether the Deputy Commissioner could maintain an application to appoint a local commissioner to measure land despite prior civil court orders and this Court's disposal of a revision.
Whether the impugned order setting aside the site plan sanction was maintainable in view of the finality of the Civil Court order.
Whether it would be futile to keep the writ petition pending given that the Deputy Commissioner had not passed a final order yet.
Digh Ram
Deputy Commissioner, Rewari
Municipal Committee, Bawal
Jai Vir Yadav
Ranjit Singh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
