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HARDAYAL SINGH versus JOINT DEVELOPMENT COMMISSIONER, PUNJAB

High Court of Punjab and Haryana, Chandigarh

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Hardayal Singh v. Joint Development Commissioner, Punjab - CWP-13993-2005 [2006] RD-P&H 3897 (10 July 2006)

C.W.P.No.13993 of 2005 [1]

THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

C.W.P.No.13993 of 2005

Date of Decision: 7-7 - 2006

Hardayal Singh ........Petitioner

v.

Joint Development Commissioner, Punjab .........Respondents and others

CORAM: HON'BLE MR.JUSTICE ASHUTOSH MOHUNTA
HON'BLE MR.JUSTICE P.S.PATWALIA

***

Present: Mr.M.S.Kang, Advocate

for the petitioner.

Mr.Sarbir Singh, Advocate

for State of Punjab.

Mr.Sudhir Pruthi, Advocate

for respondent No.3.

***

P.S.PATWALIA, J.

The present writ petition has been filed challenging the orders passed by the Collector, Jalandhar on an application filed by the Gram Panchayat under Section 7 of the Punjab Village Commons Lands Act, 1961 (hereinafter to be referred as `the Act') seeking the vacation of un-authorised possession of the petitioner from a Panchayat Gali and the orders passed by the Commissioner dismissing the appeal as also an application filed for reviewing the order rejecting the appeal in the absence of the counsel for the applicant.

The Gram Panchayat of Village Damounda, Tehsil and District C.W.P.No.13993 of 2005 [2]

Jalandhar filed an application under Section 7 of the Act pointing out that the petitioner had encroached upon a village road (Gali) by constructing a wall thereon. The result was that people were facing great difficulty in going up and down on this account. Moreover, a drain built by the Panchayat in the year 1991 in this area was also blocked and the flow of dirty water in the village had stopped, as a result of which the same had accumulated at the site causing great hardship to the villagers. It was also pointed out that an electric pole had also been put at the site which was encroached upon.

When the application came up before the Collector, it was decided with the following order:-

"On 8.11.01 arguments of both the ld. Counsel for the parties was heard. Both the parties expressed their consent that decision be made after inspecting the spot in the village and the same will be acceptable to them. With the consent of both the parties the spot was seen in the presence of both the parties on 19.11.01. On the spot second party has made constructed by illegally occupying the Gali of the Panchayat and path has been closed which is causing great difficulty to the people of the village in coming and going and dirty water of the whole village is running in the streets.

Therefore, after hearing the arguments of ld. Counsel for the parties, after examining the record and inspecting/seeing the spot I, Desh Raj Bhagat District Development & Panchayat Officer-cum- Collector have reached the conclusion that 2nd party has made

illegal possession on Panchayat street. I order ejectment of 2nd party

from this street and accept the application of the first party." A perusal of the order would show that before the Collector both the parties consented that the Collector should decide the matter after inspecting the spot at the village and decision of the Collector would be acceptable to them. The C.W.P.No.13993 of 2005 [3]

Collector therefore visited the spot and found that as a matter of fact the petitioner had illegally occupied a path of the village (Gali) which had therefore been closed causing great difficulty to the people of the village and as a result of that the dirty water of the village was over flowing in other streets. It was therefore that the ejectment of the petitioner was ordered from the street.

In spite of having granted consent before the Collector, the petitioner preferred an appeal against the said order. When the appeal came up for hearing, counsel for the petitioner did not appear in spite of the fact that the case was called out thrice. The appeal was therefore dismissed with the following order:- "This case was today fixed for arguments. The Ld. Counsel for appellant did not appear despite of the fact that the case was called up thrice. On account of non-appearance of any body on behalf of appellants, appeal is liable to be dismissed in default.

However, keeping in view the fact that the issue involved concerns general welfare of the village community as a whole, I think it prudent to decide the matters on merits with the consideration of grounds of appeal and meticulous appreciation of evidence on the lower court file.

A perusal of the impugned order and documents on the lower court file reveals that before passing the impugned order the Ld.

Collector by way of abundant caution with consent of both parties visited the disputed site on 19.11.2001. During the inspection of the spot, it was discovered by Ld. Collector that the appellants have blocked a public path by carrying out illegal construction and this illegal/unauthorisied act of appellants is causing great hardship to the general public of the village. Even at the time of spot inspection stagnant water was found accumulated on the spot as flow of water had stopped due to the unauthorised occupation of disputed land.

C.W.P.No.13993 of 2005 [4]

Thereupon after spot inspection as well as on the basis of record on the file and also considering arguments of Ld. Counsels of the parties, the Ld. Collector passed the impugned order for ejectment of the appellants from encroached portion of the public path.

In view of above noted circumstances, when the Ld. Collector has taken due precaution to visit the spot before passing the impugned orders and has reached a conclusion after due consideration of his observations at the spot as well as record, I do not find any infirmity in the order dated 11.12.2001 passed by the Collector. In fact for deciding disputes of such nature, a spot visit by concerned officer is the most appropriate way to discern the truth and impart injustice in a most transparent manner. In view of aforementioned discussion the appellant cannot be allowed to continue blockage of public path merely on the strength of a sale deed which in fact does not confer any rights upon him vis-a-vis disputed land as Ld. Collector after spot visit and appreciation of evidence on file gave a finding that the disputed land is comprised in a public path. Needless to stress that all village roads come within ambit of the definition of `shamlat deh'. Accordingly, order dated 11.12.2001 passed by Collector is upheld and appeal is dismissed." Against this order, the petitioner preferred a review application for setting aside the same which was, however, dismissed by the Collector.

At the time of hearing, counsel for the petitioner contended that the appeal should not have been dismissed on merits without hearing the counsel for the petitioner and that the order passed in appeal should be set aside and the case remanded back to the Appellate Authority for a fresh decision on merits after hearing the counsel for the petitioner. It was also pointed out that the petitioner had not trespassed on Panchayat land and rather had raised construction on his C.W.P.No.13993 of 2005 [5]

own plot which he had purchased.

We are not inclined to agree with the submission of learned counsel for the petitioner. A reading of the order passed by the Collector makes it clear that the Collector himself visited the site with the consent of both the parties who had agreed to abide by the decision made by him after visually examining the site.

On an inspection of the site, the Collector found that the petitioner had trespassed on a village street. Not only the passage of the villagers was blocked but even a public drain had been blocked, as a result of which the dirty water of the village was flowing in other street. We find no reason to disbelieve the finding given by the Collector, especially since it had been upheld in appeal. In the facts of this case, we are not inclined to remand the case back for a fresh decision on the appeal in view of the categoric findings recorded by the Collector with the consent of both the parties including the petitioner.

For the reasons aforementioned, we find no merit in this writ petition and the same is consequently dismissed. There shall, however, be no order as to costs.

( P.S.PATWALIA )

JUDGE

( ASHUTOSH MOHUNTA )

July 7, 2006. JUDGE

RC


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