Himachal Pradesh High Court
Shri Rajinder Singh vs Shri Yashpal Bansal on 11 May, 2022
Bench: Mohammad Rafiq, Sandeep Sharma
.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
ON THE 11th DAY OF MAY 2022
BEFORE
HON'BLE MR. JUSTICE MOHAMMAD RAFIQ, CHIEF JUSTICE
&
HON'BLE MR. JUSTICE SANDEEP SHARMA
LETTERS PATENT APPEAL NO. 34 of 2019
Between:
1. SHRI RAJINDER SINGH,
SON OF SHRI SURAJ PAL SINGH
AGE 70 YEARS.
2. SHRI NARINDER SINGH,
SON OF SHRI SURAJ PAL SINGH
3. SHRI SOMINDER SINGH,
SON OF SHRI SURAJ PAL SINGH
4. SHRI RANDEEP SINGH,
SON OF SHRI SURAJ PAL SINGH
RESIDENTS OF THAKUR
COLONY, TARA DEVI, SHIMLA-
171010.
....APPELLANTS/RESPONDENTS NO. 3 TO 6
(MS. SUNITA SHARMA,
SENIOR ADVOCATE WITH
MR. RANBIR, ADVOCATE)
AND
1. SHRI YASHPAL BANSAL,
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2
SON OF SHRI VIR CHAND.
.
2. SMT. AMITA BANSAL
WIFE OF SHRI YASHPAL BANSAL.
BOTH RESIDENTS OF TARA
REGENCY, TARA DEVI, SHIMLA-
171010.
....RESPONDENTS/PETITIONERS
3. MUNICIPAL CORPORATION, SHIMLA,
THROUGH ITS COMMISSIONER.
4. STATE OF HIMACHAL PRADESH
THROUGH COLLECTOR, SHIMLA.
....RESPONDENTS
(MR. G.C. GUPTA, SENIOR
ADVOCATE, WITH MS.
MEERA DEVI, ADVOCATE,
FOR RESPONDENTS NO. 1
AND 2)
(MR. NARESH K. GUPTA,
ADVOCATE FOR
RESPODNENT NO.3.)
(MR. ANIL JASWAL,
ADDITIONAL ADVOCATE
GENERAL, FOR
RESPONDENT NO.4.)
Whether approved for reporting?.
This appeal coming on for admission this day, Hon'ble Mr. Justice
Sandeep sharma, passed the following:
JUDGMENT
Instant Letters Patent Appeal lays challenge to the judgment
.
dated 12.3.2019, passed by the learned Single Judge in CWP No. 5513 of
2010, Rajinder Kumar and Ors v. M.C. Shimla and Ors, whereby the writ
petition having been filed by the petitioners/respondents No.1 and 2
herein, seeking therein direction to respondents No. 3 to 6/appellants
herein, to repair and reconstruct the public path comprised in Khewat
Khatauni No. 39 Min/67 Min, khasra Nos. 23 and 34, measuring 0-01-52
hectares, situate at up Mohal Tara Devi, Mauja Badhai, Tehsil and District
Shimla, came to be allowed. Since learned Single Judge while passing the
aforesaid direction specifically restrained appellants/ respondents No. 3 to
6 from causing any hindrance in the execution of the said work, they have
approached this Court in the instant proceedings, praying therein to set-
aside the aforesaid impugned judgment passed by the learned Single Judge
2. Precisely, the facts of the case as emerge from the record are
that respondents No. 1 and 2 filed writ petition, seeking therein direction to
the respondent-Municipal Corporation to reconstruct the public path
leading to the house of the respondents/petitioners. Municipal Corporation,
Shimla in its reply apprised the court that Corporation has no objection as
far as development of this particular public path is concerned, but it is
unable to do the needful on account of hindrance created by the private
respondents i.e. the appellants herein. Appellants herein, who were
.
respondents, before the court below also filed their reply, stating therein
that the respondents/petitioners have already filed CS No. 56 of 2009
against them, seeking relief regarding the construction of passage
comprised in khasra Nos. 23 and 34 and same is pending adjudication
before this Court. Petitioners also claimed that though this court while
passing order in OMP No.355 of 2009 in CS No. 56 of 2009 has held that
respondents/petitioners have no right to maintain the path themselves, but
yet they are trying to maintain the path themselves forcibly with a view to
change the nature of the path. The appellants-respondents also claimed
that respondents/petitioners are not entitled for the relief when the other
residents of the area are not seeking relief from them to repair/reconstruct
the road in question in khasra Nos. 23 and 34 because this path is being
used by the residents of the area for taking their cattle to their fields and
their cowsheds. Appellants/respondents further claimed before the court
below that a building is being constructed by the petitioners, but they are
not the owner of the rest of the property and khasra Nos. 23 and 34 are
owned by respondent No.2, but it is surrounded by the agricultural land of
the replying respondents and other residents of the area.
3. The learned Single Judge on the basis of pleadings adduced on
.
record by the respective parties disposed of the writ petition with direction
to the Municipal Corporation/State authorities to re-construct/metal the
path in issue either themselves or at the expenses of the petitioners. While
passing the aforesaid order, learned Single Judge restrained the
appellants/respondents from causing any hindrance in the execution of the
said work, but categorically recorded that in the process of re-
construction/metelling of the path in question, the authority shall take into
consideration the fact as to whether path is used for the purpose of taking
the cattle by local residents to the fields and if it is so, necessary provision
in this regard be made as has been assured by the learned counsel for the
corporation.
4. Being aggrieved with the aforesaid direction issued by the
learned Single Judge, appellants/ respondents have approached this Court
in the instant proceedings, praying therein to set-aside the aforesaid
impugned judgment.
5. Having heard learned counsel for the parties and perused the
material available on record vis-à-vis reasoning assigned in the judgment
impugned in the instant proceedings, this Court finds that precisely,
challenge to the impugned judgment has been laid on the ground that land
comprising khasra Nos. 23 and 34 is not owned by the
.
respondents/petitioners, rather by the appellants/respondents and as
such, no direction could be issued by the learned Single Judge to construct
the road through their private land.
6. Though Ms. Sunita Sharma, learned Senior Counsel appearing
on behalf of the appellants/respondents while making this Court to peruse
various documents adduced on record, made a serious attempt to persuade
this court to agree with her contention that suit land comprising khasra
Nos. 23 and 34 measuring 0-01-52 hectares, situate at up Mohal Tara Devi,
Mauja Badhai, Tehsil and District Shimla, belongs to the
appellants/respondents, but aforesaid plea of her is not substantiated by
the record, whereas reply filed by the respondents itself suggests that
aforesaid land is not owned and possessed by the appellants/respondents,
rather the land comprising khasra Nos. 92, 93, 94, 97 and 98 owned and
possessed by the appellants/respondents No. 2 and 3 is abutting to the
land of the respondents/petitioners comprising khasra Nos. 23 and 34.
7. Most importantly, respondent No.3 has categorically stated in
its reply that construction in question was made by the
respondents/petitioners themselves and neither Sh. Shiv Raj Singh (actual
owner of the land) constructed any structure nor Sh. Narinder Kumar
(owner of the land as per the sale deed) constructed the structure. All the
.
payments were made by the respondents/petitioners themselves from the
very beginning of the construction. It has been further averred in the reply
that plan for residential purpose with four storeys plus parking was
sanctioned by the Special Area Development Authority, Totu. As per the
appellants/respondents parking floor was sanctioned without verification
on the spot, especially when there is no motorable path/road. In the
aforesaid para, appellants/respondents themselves have admitted that
there is only public path comprising khasra Nos. 23 and 34 against which,
respondents/petitioners are seeking relief to repair and reconstruct.
8. Since it stands duly established on record that land comprising
khasra Nos. 23-34, over which public path exists is not owned and
possessed by the appellants/respondents, no illegality can be said to have
been committed by the learned Single Judge while allowing the writ petition
filed by the respondents/petitioners. While allowing the writ petition
learned Single Judge taking note of the claim of the appellants/respondents
that path is being used for the purpose of taking the cattle by the local
residents to their fields, has specifically recorded in the judgment impugned
in the instant proceedings that in the process of re-construction/metalling
of the path in question, authority shall take into consideration the fact that
path is being used for the purpose of taking the cattle by the local residents
.
to their fields and if it is so, necessary provision in this regard be made.
9. Consequently, in view of the above, this Court finds no illegality
and infirmity in the judgment impugned in the instant proceedings passed
by the learned Single Judge and as such, same is upheld. As a
consequence of which, present appeal fails and dismissed being devoid of
any merit. All pending applications also stand disposed of accordingly.
r ( Mohammad Rafiq ),
Chief Justice
(Sandeep Sharma),
Judge
11th May, 2022
manjit
