Raj Kumar Vs. the Collector Karnal and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1153931
CourtPunjab and Haryana High Court
Decided OnJul-01-2014
AppellantRaj Kumar
RespondentThe Collector Karnal and Others
Excerpt:
cwp no.11875 of 2014 1 in the high court of punjab & haryana, chandigarh cwp no.11875 of 2014 date of decision: 01.07.2014 raj kumar ....petitioner versus the collector karnal and others ....respondents present: - mr.saurabh bajaj, advocate for the petitioner. coram: hon'ble mr.justice hemant gupta hon'ble mr.justice fateh deep singh hemant gupta, j (oral) the challenge in the present writ petition is to the orders passed in proceedings under section 7 of the punjab village common land (regulation) act, 1961 (in short 'the act') whereby the petitioner was ordered to be evicted from the land measuring 0 kanal 3 marla comprising in khasr.no.370, khewat no.338 and khatoni no.506. sumer chand respondent no.5 filed a petition under section 7 of the act asserting that he is recorded as owner in possession of residential plot no.128 and that there is common street on the land as mentioned above i.e.16 feet 6 inches in width and 53 feet in length which connect the plot of the applicant to the village passage (phirni).it is the only passage to ingress and egress to his plot. sumer chand respondent no.5 has further referred to that he moved an application for demarcation of jyoti 2014.07.04 09:40 i attest to the accuracy and integrity of this document high court chandigarh cwp no.11875 of 2014 2 this common street. som nath retired kanungo was appointed as commission by the tehsildar, who inspected the spot on 26.01.2011. the petitioner was found to be an encroacher upon the area of common street. with the said pleading, the eviction of the present petitioner was sought through the petition under section 7 of the act filed on 3.3.2011. in reply, the stand of the present petitioner is that his forefathers and forefathers of sumer chand respondent no.5 had compromised whereby the forefathers of sumer chand has taken money from his forefathers and passage was given to the forefathers of sumer chand respondent no.5 but now with a view to harass him, the present petition has been filed. in reply on merits, it was denied that there was a common street. learned assistant collector passed an order of eviction after getting the spot inspected by block development and panchayat officer, panipat. the penalty of `10,000/- per hectare per year was also imposed upon the petitioner. such order was affirmed in appeal. however, in revision, the learned commissioner recorded finding that as per jamabandi for the year 2005-06 on record, gram panchayat is owner of the disputed land which is shown as gair mumkin gali. the learned commissioner further held that there is no document on record to prove the oral exchange. learned counsel for the petitioner has vehemently argued that the learned assistant collector has proceeded to decide the petition under section 7 of the act without giving any opportunity of hearing to the petitioner. in the absence of any opportunity to lead evidence, the petitioner could not ordered to be evicted as he has not been given any opportunity to jyoti 2014.07.04 09:40 i attest to the accuracy and integrity of this document high court chandigarh cwp no.11875 of 2014 3 defend himself. we have heard learned counsel for the petitioner and find no merit in the present petition. the categorical stand in petition under section 7 of the act was that the land in question is common street. the petitioner raised the plea that such part of the common street has been exchanged. as per the jamabandi produced on record, gram panchayat is the owner of the disputed land which is reflected in the revenue record as a public street. there was a demarcation carried out prior to filing of a petition under section 7 of the act. the spot inspection was carried out even after filing of the petition. as per report dated 06.05.2011, it has been again found that the land in question is a public street. therefore, the plea of exchange of a public street is without any merit. no part of public street could be exchanged by an individual so as to deprive the right of usage of street by the inhabitants. in view of the above, we do not find any merit in the present petition. dismissed. (hemant gupta) judge (fateh deep singh) judge july 01, 2014 jt jyoti 2014.07.04 09:40 i attest to the accuracy and integrity of this document high court chandigarh
Judgment:

CWP No.11875 of 2014 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH CWP No.11875 of 2014 Date of Decision: 01.07.2014 Raj Kumar ....PETITIONER VERSUS The Collector Karnal and others ....RESPONDENTS PRESENT: - Mr.Saurabh Bajaj, Advocate for the petitioner.

CORAM: HON'BLE Mr.JUSTICE HEMANT GUPTA HON'BLE Mr.JUSTICE FATEH DEEP SINGH HEMANT GUPTA, J (Oral) The challenge in the present writ petition is to the orders passed in proceedings under Section 7 of the Punjab Village Common Land (Regulation) Act, 1961 (in short 'the Act') whereby the petitioner was ordered to be evicted from the land measuring 0 kanal 3 marla comprising in khaSr.No.370, khewat No.338 and khatoni No.506.

Sumer Chand respondent No.5 filed a petition under Section 7 of the Act asserting that he is recorded as owner in possession of residential plot No.128 and that there is common street on the land as mentioned above i.e.16 feet 6 inches in width and 53 feet in length which connect the plot of the applicant to the village passage (Phirni).It is the only passage to ingress and egress to his plot.

Sumer Chand respondent No.5 has further referred to that he moved an application for demarcation of Jyoti 2014.07.04 09:40 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No.11875 of 2014 2 this common street.

Som Nath retired kanungo was appointed as Commission by the Tehsildar, who inspected the spot on 26.01.2011.

The petitioner was found to be an encroacher upon the area of common street.

With the said pleading, the eviction of the present petitioner was sought through the petition under Section 7 of the Act filed on 3.3.2011.

In reply, the stand of the present petitioner is that his forefathers and forefathers of Sumer Chand respondent No.5 had compromised whereby the forefathers of Sumer Chand has taken money from his forefathers and passage was given to the forefathers of Sumer Chand respondent No.5 but now with a view to harass him, the present petition has been filed.

In reply on merits, it was denied that there was a common street.

Learned Assistant Collector passed an order of eviction after getting the spot inspected by Block Development and Panchayat Officer, Panipat.

The penalty of `10,000/- per hectare per year was also imposed upon the petitioner.

Such order was affirmed in appeal.

However, in revision, the learned Commissioner recorded finding that as per jamabandi for the year 2005-06 on record, Gram Panchayat is owner of the disputed land which is shown as gair mumkin Gali.

The learned Commissioner further held that there is no document on record to prove the oral exchange.

Learned counsel for the petitioner has vehemently argued that the learned Assistant Collector has proceeded to decide the petition under Section 7 of the Act without giving any opportunity of hearing to the petitioner.

In the absence of any opportunity to lead evidence, the petitioner could not ordered to be evicted as he has not been given any opportunity to Jyoti 2014.07.04 09:40 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No.11875 of 2014 3 defend himself.

We have heard learned counsel for the petitioner and find no merit in the present petition.

The categorical stand in petition under Section 7 of the Act was that the land in question is common street.

The petitioner raised the plea that such part of the common street has been exchanged.

As per the jamabandi produced on record, Gram Panchayat is the owner of the disputed land which is reflected in the revenue record as a public street.

There was a demarcation carried out prior to filing of a petition under Section 7 of the Act.

The spot inspection was carried out even after filing of the petition.

As per report dated 06.05.2011, it has been again found that the land in question is a public street.

Therefore, the plea of exchange of a public street is without any merit.

No part of public street could be exchanged by an individual so as to deprive the right of usage of street by the inhabitants.

In view of the above, we do not find any merit in the present petition.

Dismissed.

(HEMANT GUPTA) JUDGE (FATEH DEEP SINGH) JUDGE July 01, 2014 jt Jyoti 2014.07.04 09:40 I attest to the accuracy and integrity of this document High Court Chandigarh