Suraj Bhan vs Dy. Commnr., Sonepat & Ors

Suraj Bhan ...Appellant(s)

VERSUS

Dy. Commnr., Sonepat & Ors. ...Respondent(s)

JUDGMENT

TARUN CHATTERJEE, J.

1. Leave granted.

2. The present appeal is filed at the instance of the

appellant against the impugned judgment dated

4th of January, 2005 passed by the High Court of

Punjab and Haryana at Chandigarh in Civil Writ

Petition No. 12158 of 2003 whereby the High

Court dismissed the Writ Petition filed by the

appellant.

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3. The brief facts leading to the filing of this appeal may be narrated as under:

The appellant alleged that he was in

possession of the land in dispute measuring

40.3' ft x 5 ft., consisting of a bathroom thereon

since the time of his father (hereinafter referred to

as the `said land'). In respect of the said land, the

respondent Nos. 5 to 7 filed a civil suit for

mandatory injunction in the Court of Subordinate

Judge, 1st Class, Rohtak against the appellant for a

direction upon him to remove the bricks lying in the

said land and also for a direction to the father of the

appellant to close his door opened on the plot of the

Chopal. The Civil Court decreed the suit on 16th of

August, 1976.

First appeal was filed by the father of the

appellant in the Court of Additional District Judge,

Rohtak, against the aforesaid judgment, which was

dismissed. Being aggrieved and dissatisfied by the

2 judgment of affirmance passed by the courts below,

the father of the appellant filed a regular second

appeal before the High Court, which was dismissed

by the judgment dated 2nd of June, 1987, against

which a SLP was filed in this Court, in respect of

which leave was granted.

4. This Court while disposing of the said appeal

passed an order allowing 3 feet passage to the

appellant in the said land for ingress and egress to

his house on payment of compensation.

5. The Gram Panchayat Barona, Respondent

no.4 herein, filed an ejectment application against

the appellant, under Section 7 (2) of the Punjab

Village Common Lands (Regulation) Act, 1961

alleging that the appellant had illegally encroached

upon some area of Khasra no. 33/100, which was

reserved in the consolidation for Harijans Chopal

and vested in Gram Panchayat. The said application

3 was allowed by Assistant Collector, Ist Grade,

Sonepat by order dated 29th of March, 1994.

Against the aforesaid order an appeal was filed

before the Collector, Sonepat and the Collector vide

order dated 22nd of September, 1994 directed the

appellant to get a resolution passed from

respondent no.4 for the purchase of the said land

within six months and get the proceedings for the

purchase of land in order, failing which he would be

treated as dispossessed.

Thereafter, the appellant submitted an application

dated 29th of November, 1994 to the respondent

no.3 for permission to deposit the amount.

6. It is the case of the appellant that the Gram

Panchayat passed a resolution on 22nd of April,1995

requiring the appellant to deposit Rs.8000/- and

further requiring the case to be sent to the Director

Panchayat, Haryana for approval. Accordingly, the

4 appellant deposited the above mentioned amount

on 22nd of April,1995.

7. However it was alleged by the Gram Panchayat

that no resolution dated 22nd of April,1995 was ever

passed by it.

8. Thereafter a representation was filed by one

Zile Singh and other residents of Village Barona

before the Deputy Commissioner, Sonepat,

respondent no.1 herein, for cancellation of order

dated 22nd of September, 1994. The appellant also

approached the respondent for getting the

registration of sale in his favour. The Respondent

No.1 passed an order dated 29th of July,2003,

holding that since the above mentioned amount of

Rs.8000/- was not deposited by the appellant

within the stipulated period mentioned in the order

dated 22nd of September,1994, the possession of the

appellant was illegal and unauthorized. Respondent

No.1 further directed Respondent Nos.3 & 4 to take

5 steps to remove the appellant from being in

unauthorized possession of the said land.

Respondent No.4 was further directed to refund the

amount deposited by the appellant to him.

9. Aggrieved by the aforesaid order, the appellant

filed writ petition no. 12158 of 2003 before the High

Court for quashing the order dated 29th of

July,2003 and for directing the Respondent to

execute sale deed in favour of the appellant. The

High Court dismissed the Writ Petition of the

appellant by its judgment dated 4th of

January,2005.

10. Being aggrieved and dissatisfied with the

aforesaid order of the High Court, the SLP was filed,

which on grant of leave was heard in presence of

the learned counsel for the parties.

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11. We have heard the learned counsel for the

parties and we have also examined the materials on

record including the orders of the High Court as

well as of the other authorities as mentioned herein

above. After hearing the learned counsel for the

parties and after going through the materials on

record, we do not find any reason to interfere with

the order passed by the High Court.

12. A bare perusal of the order of the High Court

would show that a stand was taken by the appellant

that the amount of Rs.8000/- was deposited by him

in compliance with the resolution of Gram

Panchayat dated 22nd of April,1995. It also appears

from the order of the High Court that the Gram

Panchayat had taken a specific stand that as per

their record, no resolution dated 22nd of April, 1995

was ever passed by it and that the Gram Panchayat

neither had sent any resolution to the Director,

Panchayats, for approval of the same nor any

7 approval was ever granted for transfer of the land

which was mandatory as per Rule 8(3) of the Punjab

Village Common Lands (Regulation) Rules 1964 (in

short `the Rules'). The High Court on consideration

of Rule 8(3) of the Rules and other materials came

to a conclusion that neither any resolution was

passed nor the same was ever approved by any

competent authority. The High Court went on to

consider that in view of Rule 8(3) of the Rules, the

Gram Panchayat was competent to pass the

resolution subject to approval by the Director. Since

the Collector before passing the order dated 22nd of

September, 1994 ought to have considered that

such resolution ought to have been taken in terms

of Rule 8(3) of the Rules and approval of the

Director was also mandatorily required, the High

Court held that the order passed by the Collector on

22nd of September, 1994 was without jurisdiction

and therefore no effect could be given on the said

order of the Collector and accordingly the appellant

8 became illegal occupant of that portion of the land.

It is also evident from the record that this Court in

an earlier proceeding admittedly allotted only 3 feet

wide street from the land of the Harijans Chopal to

the appellant but in spite of that allotment made by

this Court, the appellant encroached upon 5 feet

more area to widen the street. Keeping in mind the

conduct of the appellant as well as the fact that no

resolution was passed by the Gram Panchayat nor

any approval was taken from the Director, the High

Court refused to interfere with the order dated 29th

of July, 2003 passed by the Deputy Commissioner,

Sonepat. We also find that the order passed by the

Collector directing the appellant to get a resolution

passed from the Gram Panchayat, for the purchase

of the disputed land was without jurisdiction as the

same was passed without complying with Rule 8(3)

of the Rules and such order even if it was passed

had to be approved by the Director which was

admittedly not done. That apart, admittedly the

9 appellant did not fulfill the condition of the order of

the Collector, as he failed to get the sale

proceedings completed within the time stipulated in

the aforesaid order. Therefore, the High Court while

exercising its discretionary power under Article 226

of the Constitution was fully justified in holding

that no interference could be made in respect of the

order dated 29th of July, 2003 passed by the Deputy

Commissioner, Sonepat. Such being the position, in

our view, in the exercise of our power under Article

136 of the Constitution, we do not find any ground

to interfere with the impugned order of the High

Court.

13. Further more, in the earlier occasions, this

Court had taken into consideration the entire facts

and directed that the appellant should be allowed 3

feet space and after getting possession and

allotment of 3 feet space, it is now an admitted

position that the appellant had encroached a

10 further 5 feet which should not be permitted to

continue.

14. For the reasons aforesaid, we do not find any

substance in this appeal and the appeal is thus

dismissed. There will be no order as to costs.

...............

.........J. [Tarun Chatterjee]

New Delhi; ........................J. August 19, 2008. [P.Sathasivam]

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