Dismissed

Dinesh Kumar v. State of Haryana and Ors.

Punjab & Haryana HC8 Nov 2012CWP/9428/2008

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging an ejectment order. The petitioner claimed authorization via NOC and sale deeds. The Court held that the State owned the disputed land and rejected the petitioner's challenge to the fresh demarcation report prepared with modern machinery under judicial supervision, finding the petitioner in unauthorized possession.

What did the court decide?

The writ petitions filed by the petitioner were dismissed, upholding the ejectment order and affirming the petitioner's unauthorized possession.

Dinesh Kumar Vs State of Haryana and Ors. — Property and Title | Punjab & Haryana HC (2012)

¶1

CIVIL WRIT PETITION NO.9428 OF 2008 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

¶2

DATE OF DECISION: NOVEMBER 08, 2012

Dinesh Kumar

.....Petitioner

VERSUS

State of Haryana and others

¶7

....Respondents

¶8

CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH

¶9

Whether Reporters of local papers may be allowed to see the judgement?

¶10

To be referred to the Reporters or not?

¶11

Whether the judgment should be reported in the Digest?

¶12

Present: Mr. S. K. Garg Narwana, Sr. Advocate with Mr. Naveen Gupta, Advocate, for the petitioner.

¶13

Mr. Sunil Nehra, Sr.DAG, Haryana, for the State.

¶14

¶15

RANJIT SINGH, J.

¶16

This order will dispose of Civil Writ Petition Nos.9428 of 2008 ( Dinesh Kumar Vs. State of Haryana and others) , 8845 of 2008 ( Dr.Anand Kumar Goyal Vs. State of Haryana and others) , 8849 of 2008 ( Daya Kishan Vs. State of Haryana and others) , 8852 of 2008 ( Shiv Dayal Vs. State of Haryana and others) , 8853 of 2008 ( Smt.Saroj Rani and another Vs. State of Haryana and others) , 8858 of 2008 ( Mohinder Singh Vs. State of Haryana and others) and 9088 of 2008 ( Sham Lal Vs. State of Haryana

¶17

and others) as the common question of facts and law arises in these

¶18

CIVIL WRIT PETITION NO.9428 OF 2008 :{ 2 }:

¶19

cases. The facts have been noted from CWP No.9428 of 2008.

¶20

The petitioner purchased a shop bearing Municipal No.1374/4 Ambala Hisar Road, Kaithal as per the boundaries mentioned in the sale deed annexed with the petition as Annexure P- 1. The petitioner claims to be owner in possession of this site and the superstructures for last so many years after this Ambala Hisar road was constructed. The predecessor-in-interest of the petitioner had erected this building and same is being used without there being any objection. The petitioner further claims to have obtained NOC from PWD Authorities and also has a sanctioned plan from the Municipal Committee to show in its support.

¶21

On the basis of demarcation report (Annexure P-9), respondent No.4 filed an ejectment petition on 9.12.2002 seeking ejectment of the petitioner under the provisions of Sections 4 and 5 of the Public Premises Act. It is alleged that the shop in question and some adjoining shops were constructed on a land of PWD B&R Department, Haryana comprised in Khewat No.204. As per the petitioner, this demarcation report was prepared at the back of the petitioner without associating him or them. Petitioner would also allege that no notice under Section 4 of the Act was given to the petitioner nor was he impleaded in the petition as respondent. His tenant Sahara India Pariwar was impleaded as respondent, besides two other ladies, who had no concern with the shop. It is disclosed that Smt.Saroj is the owner of the adjacent shops, who had contested this ejectment application. The petitioner, however, went unrepresented and did not engage even an Advocate. It is only after

¶22

CIVIL WRIT PETITION NO.9428 OF 2008 :{ 3 }:

¶23

the ejectment order that the petitioner has learnt about the same when the respondents have issued a notice for demolition as well.

¶24

Lady Smt.Saroj and the other owners of the adjacent shops had contested the ejectment petition on the ground that the demarcation report was prepared at their back and they have not been associated with the demarcation in contravention of the reports issued by the Financial Commissioner in terms of the Rules made by Punjab & Haryana High Court. It is also alleged that the demarcation was not done in a proper manner inasmuch as no fixed three pucca points were marked for doing the demarcation.

¶25

The Department had examined two witnesses to prove its case. One of the witness stated that except for the demarcation report, there is no other evidence to show in support of the case of the respondents. The Kanungo, who had carried out the demarcation, admitted that those who were in an unauthorised possession were not impleaded and that he could not establish three pucca points for the purpose of carrying out demarcation. Still, only on the basis of demarcation report, the Collector had ordered the ejectment of the petitioner on the ground that he had encroached the land of the Municipal Committee.

¶26

The neighbourer of the petitioner filed appeal alleging that the question of title was involved and the same could not be decided in a summary proceeding. Ejectment application was also termed as time barred and that the demarcation was statedly not carried out as per the procedure and was rather held in violation of principle of natural justice. On 28.6.2006, the Commissioner remanded the case

¶27

CIVIL WRIT PETITION NO.9428 OF 2008 :{ 4 }:

¶28

by observing that the khasra No.204 is owned by the State Government and in the column of possession, name of Sukhdayal is mentioned and type of land is mentioned as Gair Mumkin Houses. Khasra No.506 is shown to be owned by Sukhdayal and in the column of possession PWD is recorded and the land is recorded as Gair Mumkin Road. Thus, as per the record, road had been constructed on Khasra No.506 and the houses were constructed on Khasra No.204. As per the Commissioner, it was a case of exchange. The Commissioner also referred to a NOC given by PWD Department to show that there is no construction raised by the petitioner on the land owned by the Government.

¶29

When the matter came up before the Collector, he again passed an order of ejectment on 28.8.2007, which was confirmed by the Commissioner on 27.2.2008 on the ground that the land of Sukhdayal was not covered in this case. As per the petitioner, both the authorities did not return any finding how the shop of the petitioner was constructed on the encroached Government land, especially when the Commissioner himself in an earlier order had observed that Sukhdayal had raised construction on the land of Khasra No.204, whereas the Government had constructed road on Khasra No.506. On the basis of this order, respondents had issued notice to the petitioner for removal of the structures or otherwise the same was to be removed at the risk and costs of the owner. The petitioner accordingly has challenged the order of ejectment and the order whereby notice of demolition has been issued.

¶30

The Court issued notice of motion on 27.5.2008, besides

¶31

CIVIL WRIT PETITION NO.9428 OF 2008 :{ 5 }:

¶32

notice in regard to stay. After completion of pleadings, the case was heard on 15.7.2010. The Court made reference to the order passed by Civil Judge (Senior Division), Kaithal in his judgment dated 2.3.2007 that 2 kanals 16 marlas from Khasra No.204 was exchanged by PWD (B&R) with one Sukhdayal as PWD had constructed a road through his land in Khasra No.506. The court accordingly directed the respondents to file an affidavit setting out the total area of Khasra No.204 and area of Khasra No.204 min on part of which the petitioner had raised construction. The necessary affidavit was accordingly filed. The case was again adjourned on various dates. On 15.2.2011, this court directed that the demarcation of the land be conducted by Collector-cum-Sub Divisional Magistrate (Civil) with further direction to file a clear report as to whether construction has been raised by the petitioner in Khasra No.204. It was also to be disclosed whether PWD (B&R) has constructed a road through Khasra No.506 owned by Sukhdayal or if 2 kanals 16 marlas land of Sukhdayal had been so encroached.

¶33

A few adjournments again followed when the counsel for the petitioner submitted before the court that the alleged demarcation report was no demarcation report in the eyes of law. The court found that the demarcation has been done in a casual manner without fixing any pucca point at the spot or without mentioning the way of the measurement, as to how the demarcation had been carried out. On 7.3.2012, SDM, Kaithal was directed to carry out fresh demarcation after giving notice to the concerned parties. The authorities were directed to first determine the pucca points from the

¶34

CIVIL WRIT PETITION NO.9428 OF 2008 :{ 6 }:

¶35

pillars which were to be traced out by them from the fields. If there is abadi, then the authorities could take the help of laser system for measurement of the area. The SDM was directed to submit the detailed report . The said directions of the court were complied with and the demarcation report has now been placed on record. The petitioner has raised the same very objections against this demarcation report and has contested the same on various grounds by filing objections which are on record.

¶36

The demarcation report would show that Satwant Singh, Proprietor Gur Parshad Land Solution and Land Surveyor (Hansi) Hisar, with total survey machine alongwith Rahul T.S.Operator, Parveen Kumar, Assistant TS Operator accompanied by Retired Naib Tehsildar in the presence of SDO (Civil), Kaithal had gone together for demarcation of Khasra Nos.204 and 506 at the spot. Halqa Kanungo, Sadar Kanungo, Patwari Halqa and Shiv Dayal, Shri Devinder Advocate, Dr.Anand Kumar Goyal, Arun Bhatia, SDO, PWD B&R and Amit JE also came present. The list of the persons present is enclosed with the demarcation report. In the presence of aforesaid persons, the action of the machine was shown and they all agreed with the same. The persons present there gave their option for demarcation. In the presence of Shri Hawa Singh, SDO (Civil), the demarcation was commenced. A Machine was installed at point `A'. At point A at the northern western corner of Mustil No.114, where the point with stone was depicted. From point A, stone fixed at Mustil No.115 was not visible due to intervention of houses. From point A temporary number B as shown in the site plan was fixed. Fixing the

¶37

CIVIL WRIT PETITION NO.9428 OF 2008 :{ 7 }:

¶38

Machine at point A on the focus of point B, where prism was fixed, the Machine was put at zero degree point and while going in the data collecting software of the machine for demarcation, it was fixed at 0-0 and from point B, the machine was back sighted. From point A, the measurement towards east was found to be 2000 feet 8 inches and while going towards north, it was found to be 0-0. From point A on the roof of the house, point C was fixed, whose measurement from point A while going towards east came to be 2020 feet 2½ inches and towards southern, it was found to be 15 feet 7 inches. The machine was fixed at point C and at point A, the target prism was fixed and in this manner, the distance was examined which was found to be correct. From Machine now point -D was created, whose distance from point A while going towards east was measured to be 2246 feet and half inch and towards southern side it was found 41 feet 3½ inches. Thereafter, while installing the machine at point D, the Machine was back sighted from point C and the middle distance was examined which was found to be correct. Having done the demarcation in this manner and after going into the data collection, software of the machine, the measurement was started and the position at point A was found to be zero. Having done the demarcation in this manner, situation of the north concern of Khasra No.204 was examined and as a result thereof, it was found that the following persons had constructed the shops by encroaching the area:-

¶39

Kuldeep son of Kanhiya Lal 8 sq.yards.

¶40

Gali share-am 22½ sq.yards.

¶41

CIVIL WRIT PETITION NO.9428 OF 2008 :{ 8 }:

¶42

Shish Pal, resident of village Atela, 32 sq.yards.

¶43

Madhu Sweets House 45 sq.yards.

¶44

Shiv Dayal son of Basanna Ram, 54 sq.yards.

¶45

Dr.Anand, 94 sq.yards.

¶46

Durga Parshad son of Jai Kishan, 17 sq.yards.

¶47

Vijay son of Sham Lal, 53 sq.yards.

¶48

Gali 46 sq.yards.

¶49

10.Vijay son of Sham Lal, 43 sq.yards.

¶50

11.Palki Hotel, 48 sq.yards.

¶51

12.Davinder Advocate, 43 sq.yards.

¶52

13.Vijay son of Sham Lal, 30 sq.yards.”

¶53

Still, the petitioner would contest this demarcation report

¶54

to be wrong and illegal and in violation of the procedure prescribed. Without any basis, the report is termed as false. It is stated that the signatures of the petitioner were obtained by the SDO while carrying out the demarcation. The petitioner still would allege that the demarcation was carried out from one place where there was no pucca point existing. The petitioner raised a challenge, but the SDO refused to show the same. The petitioner states that in fact, the demarcation statedly was carried out on 28.6.2012, when the SDO (Civil) did not call the petitioner, Dr.Anand, Vijay, Mr.Dinesh, Devinder, S.Mohinder, whereas only Shiv Dayal and Daya Krishan went to see the demarcation. It is stated that as per the law, department report must be prepared by Field Kanungo, who must explain in detail how he made his measurement. He is required to submit copy of the relevant portion of the current settlement of the

¶55

CIVIL WRIT PETITION NO.9428 OF 2008 :{ 9 }:

¶56

field map of the village. Reference is made to the guidelines prescribed in Chapter I Part M of Volume-1 of Punjab & Haryana Rules and Orders, which require Field Kunagun to carry out demarcation, whereas no such demarcation was carried out. While preparing the demarcation report, certain instructions issued by the Financial Commissioner were statedly not adhered to as are disclosed in the objections so filed. Allegation is that the demarcation report is carried out by private person.

¶57

The detailed manner in which the SDO (Civil) got this demarcation conducted has been noted above. The Court had clearly left discretion with the SDM to carry out fresh demarcation by taking help of Laser System if there is an abadi. Under the circumstances, the demarcation has been done. There is no reason or cause with the SDM to carry out demarcation to prejudice the petitioner in any manner. He apparently has performed his duties well and proper which finds that the petitioner has encroached the land to an extent as indicated in the demarcation report. The petitioner had participated at the time of demarcation, but did not raise any objection. He had signed on the demarcation report, but now has unnecessarily raised objections to the demarcation report, which are raised for the purpose of raising such objections.

¶58

The petitioner, in my view, cannot be heard to raise objections to this demarcation report. The petitioner otherwise, has relied on two documents, i.e., Annexures P-4 and P-6. Annexure P-4 is the No Objection Certificate stated to have been issued by PWD (B&R) Branch, Kaithal raising no objection to the construction of

¶59

CIVIL WRIT PETITION NO.9428 OF 2008 :{ 10 }:

¶60

boundary wall from the road point of view. Annexure P-6 is the inspection report indicating that there is no mention about the unauthorised possession over the land. Reference is also made to the No Objection Certificate for construction of the boundary wall from the road point of view, which bears the signatures of Sub Divisional Engineer (Annexure P-4). This is a report by Naib Tehsildar to Sub Divisional Officer, Kaithal.

¶61

Mr.Nehra, on the other hand, would contest all the contentions raised on behalf of the petitioner. As per Mr.Nehra, the sale deed which the petitioner relies upon does not carry any khasra number or khewat number. Mr.Nehra has relied upon jamabandi for the year 1965, which shows this land to be of PWD. As per Mr.Nehra, notice of ejectment in this case was issued to the person who was tenant of the petitioner as he was found present and in possession of the shop which had been constructed by encroaching the PWD land. The reference made by the counsel for the petitioner to the judgment in the case of Sukhdayal is answered by Mr.Nehra in a manner that the petitioner had bought this land from someone, who had no concern with Sukhdayal and accordingly it is pleaded that the judgment in the case of Sukhdayal would not have any relevance for deciding the aspect of encroachment on the part of the petitioner. Otherwise, the petitioner statedly did not raise any objection to the demarcation and has now unnecessarily raised the objections to the demarcation, which has been carried out under the orders of this court and strictly in accordance with the directions given by this Court. The State counsel accordingly would urge that Smt.Saroj

¶62

CIVIL WRIT PETITION NO.9428 OF 2008 :{ 11 }:

¶63

Rani, Smt.Monika Anand and Sahara India Company are in illegal possession of Khasra No.204, which is a Gair Mumkin Road owned by the State Government. The NOC obtained by the petitioner is denied as it is stated that the same is not signed by any competent authority.

¶64

Perusal of the record would show that the decision in the case of Sukhdayal relied upon by the petitioner apparently has no relevance. The respondents had sought ejectment of the petitioner from a land measuring 4 kanals 16 marlas comprising Khewat No.1112-1001 Khatoni No.1458, 1466, 1467 min, khasra No.204 min (1-0), Khasra No.204 min (1-0) and min 204 (2-16), whereas the case of Sukhdayal and others concerns khasra No.204 min, 2 kanals 16 marlas, whereas the request is for ejectment from land measuring 4 kanals 16 marlas. Total area of Khasra No.204 is 4 kanals 16 marlas. Sukhdayal has claimed 2 kanals 16 marlas out of this land. The petitioner has raised construction in 0.88 kanals which is different from the land constructed by Sukhdayal. There is no possession of Sukhdayal in Khasra No.204. It is, thus, urged that if the land of Sukhdayal and of the respondents had been common, they would have been made parties. The case was filed only by Sukhdayal. The sale deeds tendered by the petitioner in evidence were concerning Khasra No.419 and do not concern the land in dispute. On the basis of evidence led, the authorities have come to the conclusion that ownership of Khasra No.204 measuring 4 kanals 16 marlas is recorded to be that of Provincial Government and even in the column of cultivation, PWD is recorded. In subsequent

¶65

CIVIL WRIT PETITION NO.9428 OF 2008 :{ 12 }:

¶66

jamabandi 1965-66, the ownership of the Provincial Government in Khasra No.204 in collusion with the revenue officer by making some cutting instead of 4 kansls 16 marlas, 2 kanals 16 marlas Gair Mumkin Road has been mentioned in the column of ownership. In this manner, in jamabandi 70-71, possession of Sukhdayal is shown in khasra no.204 min 2 kansls 16 marlas and entries on 1 kanals 0 marla are recorded in the name of Balwant Singh and others. On this basis, Sukhdayal had filed a civil suit and obtained a decree on 2.3.2007. On an appeal filed by the respondent-Government, the Addl.District Judge had stayed the order passed by the lower court. The petitioner who was staking his claim on the basis of this suit is not the party in the said suit. Thus, disputed Khasra No.204 is in the ownership of the Provincial Government. The Jamabandies for the year 1965-66 and 1970-71 have been tampered with in the column of cultivation in collusion with the revenue officials. The case has been examined deeply after affording due opportunities to the parties concerned, who have produced their evidence and, thus, the finding is returned that the respondent-State is owner of the land in dispute and the petitioner is in an unauthorised possession of the land.

¶67

The counsel for the petitioner has referred to Mahabir and another Versus Surta and others, 2006(2) R.C.R.(Civil) 153 , Smt.Basant Kaur and others Versus Sanjiv Kumar Bassi and others, 1994(3) S.L.J. 1942 , Rajinder Parshad Versus Raj Singh, 1995(3) P.L.R.465 and Ram Murti Goyal, Advocate and others Versus Smt.Basant Kaur and others, 1991 PLJ 147 in support of his plea in regard to the manner in which the demarcation is to be

¶68

CIVIL WRIT PETITION NO.9428 OF 2008 :{ 13 }:

¶69

conducted. In Mahabir's case (supra) , the court observed that Local Commissioner did not fix pucca points in accordance with the norms prescribed by the High Court Rules and Orders and the report of the Local Commissioner not reliable in the eyes of law. In the present case, the court had left a discretion with the SDO(Civil) to conduct demarcation with the help of Laser Machine and so such objection in the facts of this case would be without any weight. Similarly, in Smt.Basant Kaur's , Rajinder Parshad and Raj Murti Goyal's cases(supra), the manner of demarcation as commented upon would not have much relevance having regard to the factual position in this case, where the demarcation has been carried out as per the directions issued by this Court.

¶70

In view of this factual finding returned on the basis of evidence on record and on the basis of the fresh demarcation done under the directions of this court, the illegal possession of the petitioner on the Government land is clearly established and his ejectment has rightly been passed by the authorities concerned. No case for interference in exercise of writ jurisdiction is made out.

¶71

The writ petition is accordingly dismissed.

¶72

(RANJIT SINGH ) JUDGE

¶73

November 08, 2012 ramesh

Dinesh Kumar v. State of Haryana and Ors.

Case brief

What is this about?

What did the court decide?

Dinesh Kumar v. State of Haryana and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sahida and Ors. Vs State of Haryana

Yash Pal Vs Commissioner, Ambala Division etc.

Karnail Singh and Ors. Vs Commissioner, Ambala Division & Ors.

Renu Ranga and Anr. Vs Pt. Bhagwat Dayal Sharma Univ. of Health Science, Rohtak and Anr.

Rashpinder Singh and Anr. Vs State of Punjab Thru Commissioner and Ors.

Sukhblas Singh Vs F.C. Appeals-I, Punjab & Ors.