Allowed

Rajkaran v. Collector Disrict Mahendergarh and Ors.

Punjab & Haryana HC22 Apr 2019CWP/1946/2017

Case brief

AI extract

What is this about?

The Court allowed a writ petition seeking to quash orders holding the petitioner in unauthorized possession of village common land. After multiple conflicting demarcations, the Court appointed commissioners who found no encroachment by the petitioner. Relying on this evidence, the Court set aside the lower authorities' orders.

What did the court decide?

Impugned orders P-4 and P-6 were set aside. Parties to bear costs of demarcations.

Rajkaran Vs Collector Disrict Mahendergarh and Ors. — Land Acquisition | Punjab & Haryana HC (2019)

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CWP 1946/2017

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IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

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CWP 1946/2017 Date of decision:22.04.2019

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Rajkaran

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..............Petitioner

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Collector,District Mahendergarh at Narnaul and others

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..............Respondents

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Coram: Hon'ble Mr.Justice Jaswant Singh Hon'ble Mr.Justice Arun Kumar Tyagi

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Present:Mr.Rao Ajender Singh,Advocate for the petitioner.

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Mr.Rajiv K.Doon,AAG Haryana for official respondents Mr.S.S.Khurana,Advocate for respondent no.4.

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Jaswant Singh,J,(Oral).

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Petitioner by way of this writ petition is seeking a writ of certiorari for quashing impugned order dated 30.9.2015 ( P-6 ) passed by Collector, Distt.Mahendergarh-respondent no.1 as also order dated 21.1.2013 ( P-4 ) passed by Assistant Collector Ist Grade,Mahendergarh, whereby he has been held to be in unauthorised possession of 4 marlas of shamlat deh comprised in khasra no.1344 (total 6K18M) recorded as Gair Mumkin Passage in the revenue estate of Village Dhanonda, Tehsil Kanina, District Mahendergarh.

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Briefly noticed, it is averred in the petition that Anil KumarRAJINDER PARSHAD JOSHIrespondent no.4 filed an application under Section 7 of the Punjab 2019.06.04 17:34 I attest to the accuracy and integrity of this document

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CWP 1946/2017

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Village Common Land Act,1961 before respondent no.2 on 9.6.2008. Notice was issued to petitioner as well as other arrayed respondents. During the proceedings, Local Commissioner was appointed to visit the spot and present demarcation report with regard to unauthorised possession over the panchyat land,if any. Accordingly Local Commissioner alongwith other revenue officials visited the spot on 19.4.2010 and prepared the demarcation report (Annexure P-1). It is alleged that at the time of demarcation petitioner was not present at the spot. However, he alongwith respondent no.4 raised objections to the said demarcation report dated 19.4.2010(P-1). Upon this, fresh demarcation was conducted on 14.7.2011. It is alleged that while submitting demarcation report dated 14.7.2011(Annexure P-2), reliance was placed upon earlier demarcation report dated 19.4.2010 conducted by the Local Commissioner. Thereafter, respondent no.2 vide order dated 21.1.2013 (P-4) held that petitioner was in unauthorised possession of 4 marlas of shamlat land and accordingly directed to vacate the same. Feeling aggrieved, petitioner filed an appeal before Collector, Distt.Mahendergarh-respondent no.1. It is further averred that besides filed the said appeal petitioner also moved an application before Naib Tehsildar-cum-Assistant Collector 2^nd Grade, Kanina to get a fresh demarcation done in his presence. Naib Tehsildar ordered a fresh demarcation and the same was conducted on 30.6.2013 and fresh report (P-5) was prepared in which it was found that petitioner was only in unauthorised possession of one tree, while respondent no.4 was found in unauthorised possession to the extent of 2 marlas of land while one RAJINDER PARSHAD JOSHI 2019.06.04 17:34 I attest to the accuracy and integrity of this document

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CWP 1946/2017

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Parmu was also found to be in unauthorised possession of four marlas of shamlat deh. Though respondent no.4 was present at the spot, but he refused to sign the demarcation report dated 30.6.2013 (P-5). It is averred that the report dated 30.6.2013 was duly submitted before respondent no.1, but he did not consider the same by observing that it was not on record and as such dismissed the appeal of the petitioner vide order dated 30.9.2015(P-6) by upholding the order dated 21.1.2013(P-4) passed by respondent no.2. It is thus claimed that as per demarcation report dated 30.6.2013 petitioner was not found in unauthorised possession of any shamlat land, but instead respondent no.4 alongwith other villagers were found to be in unauthorised possession of shamlat land. It is thus asserted that the demarcation reports dated 19.4.2010 and 14.7.2011 have wrongly been relied upon by respondent no.2 whereby petitioner was held to be in authorised possession of shamlat deh. It is further alleged that respondent no.1 illegally ignored report dated 30.6.2013 and relied upon earlier report dated 19.4.2010. Hence the present petition challenging impugned orders P-6 and P-4 passed by respondent no.1 and 2 respectively.

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At the time of hearing on 2.2.2017 petitioner had shown his willingness to get a fresh demarcation done at his cost by a Local Commissioner to be appointed by this Court so as to find out encroachment,if any by petitioner or private respondent. Accordingly notice of motion was issued and vide order dated 2.3.2017, Mr.Rishabh Gupta,Advocate was appointed as Local Commissioner

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to carry out demarcation and submit his report to this Court. RAJINDER PARSHAD JOSHI 2019.06.04 17:34 I attest to the accuracy and integrity of this document

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CWP 1946/2017

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In compliance, Local Commissioner submitted his report dated 10.5.2017 according to which the petitioner-Raj Karan owner of adjacent land bearing killa no.162//23/1,was not found to be in unauthorised possession of any shamlat land in khasra no.1344, whereas besides respondent no.4, other private respondents were found to be in unauthorised possession of shamlat land. Upon this learned counsel for respondent no.4 prayed for time to seek instructions and the matter was adjourned to 31.5.2017.

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On 31.5.2017, learned counsel for respondent no.4, in view of different demarcation reports prayed for fresh demarcation with the help of Total Station Machine at the cost of respondent no.4. Accordingly, this Court vide order dated 31.5.2017, upon deposit of amount by respondent no.4, as assessed by the Collector directed fresh demarcation report in the presence of other persons also who were allegedly found to be in unauthorised possession in the earlier demarcation reports.

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In compliance of the said order, affidavit of Sandip Singh, SDO(Civil)Kanina, Distt.Mahendergarh alongwith demarcation report dated 14.7.2017 was submitted. On perusal of the said demacation report, it was found that though numerous persons were stated to have encroached upon the Panchayat land, yet it made no clear mention as to whether the petitioner or respondent no.4 were also encroachers or not. Therefore, vide order dated 12.9.2018 passed by this Court, a clear affidavit in this regard was sought from the Field Kanungo.

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Pursuant to the order dated 12.9.2018, Ugrsain,Field RAJINDER PARSHAD JOSHI 2019.06.04 17:34 I attest to the accuracy and integrity of this document

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CWP 1946/2017

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Kanungo,Dhanounda,Tehsil Kanina,Distt.Mohindergarh has filed his affidavit dated 22.11.2018 according to which as per demarcation carried out by him on 14.7.2017 petitioner and respondent no.4 were not found to have encroached upon any land from common path bearing Khasra no.1344.

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Learned State counsel does not dispute the correctness of the demarcation report dated 10.5.2017 submitted by the Local Commissioner appointed by this Court, and the subsequent demarcation report dated 14.7.2017,whereby the petitioner has not been found to be in unauthorised possession of any land comprised in khasra no.1344 recorded as Gair Mumkin Passage . Hence the impugned orders P-4 and P-6 cannot be sustained.

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In view of the above, the present writ petition is allowed and impugned orders P-4 and P-6 are hereby set aside.

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Parties to bear the costs of demarcations carried out at

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their instance.

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11. Disposed of accordingly.

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(Jaswant Singh) Judge

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22.04.2019. joshi

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(Arun Kumar Tyagi) Judge

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Whether Yes/No Speaking/reasoned Whether Reportable Yes/No

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RAJINDER PARSHAD JOSHI 2019.06.04 17:34 I attest to the accuracy and integrity of this document

Rajkaran v. Collector Disrict Mahendergarh and Ors.

Case brief

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Rajkaran v. Collector Disrict Mahendergarh and Ors.

Case brief

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