Punjab-Haryana High Court
Murti Devi vs State Of Haryana And Ors on 6 March, 2024
Bench: Sureshwar Thakur, Lalit Batra
Neutral Citation No:=2024:PHHC:031346-DB
CWP-18359-1997 (O&M)
-1-
2024:PHHC:031346-DB
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP-18359-1997 (O&M)
Reserved on: 01.03.2024
Date of Decision : March 06, 2024
SMT. MURTI DEVI
...Petitioner
V/S
THE STATE OF HARYANA AND OTHERS
...Respondents
CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
HON'BLE MR. JUSTICE LALIT BATRA
Present : Mr. Kulvir Narwal, Advocate with
Mr. Satish Kumar, Advocate and
Mr. Shubham Chaudhary, Advocate
for the petitioner.
Mr. Ankur Mittal, Addl. AG Haryana with
Mr. Saurabh Mago, DAG, Haryana.
***
SURESHWAR THAKUR, J.
1. In a lis bearing No.116 VCL, as became constituted under
Section 7 of The Punjab Village Common Lands (Regulation) Act, 1961
(hereinafter referred to as "the Act"), against the respondents therein, thus on
the ground that the respondents had made encroachment, upon a Gair
Mumkin Phirni, thus the Assistant Collector concerned, through a decision
made thereons, on 19.07.1995 (Annexure P-3), made the hereinafter
extracted directions against the respondents-judgment debtors.
"After hearing the ld. Counsel and as per the perusal of
record on the file, I have reached the conclusion that the
1 of 6
Neutral Citation No:=2024:PHHC:031346-DB
CWP-18359-1997 (O&M)
2024:PHHC:031346-DB
respondents house is ancestral which is not in proper in the
interest of justice to get it demolished because that may cause
damage worth lakh of rupees and he is ready to give passage
from the other side adjoining phirni from other plots carved out
in consolidation in lieu of the land of passage of phirni beneath
his house. By this, none of the parties should have any objection
in this way there is no loss to any of the parties. In this regard,
the defendant has also made a statement that as per
demarcation, report dated 16.03.1994, he is ready to give land
equal to beneath his house that of phirni. I agreeing with the
statement of the respondent order that as per the demarcation
report, the land of phirni which is under his house, equal land
from his plots of consolidation be left from the plots and the
phirni passage be made good. Order announced. File be
consigned to record room after compliance."
2. A reading of the above extracted portion of Annexure P-3,
reveals that the Assistant Collector accepted the statement of the respondent,
qua his admitting the demarcation report dated 16.03.1994, whereupon, the
Assistant Collector concerned, also accepted the further statement of the
respondent, that he is ready to give land equal to the phirni land rather to the
decree-holders concerned. Resultantly, the Assistant Collector concerned,
accordingly directed that land equal to the phirni land which became
encroached upon by the judgment-debtors, thus be given to the decree-
holder from the relevant plots owned by the judgment-debtors, so that
therebys the deficiency in the phirni passage is made good.
3. An appeal became constituted thereagainst at the instance of the
aggrieved. On the said appeal bearing No.78 of 1995, Annexure P-4 became
rendered, relevant portion whereof becomes extracted hereinafter.
2 of 6
Neutral Citation No:=2024:PHHC:031346-DB
CWP-18359-1997 (O&M)
2024:PHHC:031346-DB
"I have heard both the parties very carefully and also
perused the records of the courts below carefully. As per the
statement of Nar Singh, respondent dated 19.07.1995 his
unauthorised possession over the disputed land is proved. As
per the order of Assistant Collector, Ist Grade, the unauthorised
possession of the respondent is established. The Assistant
Collector, Ist Grade, should have dispossessed the respondent
from the land in dispute. Therefore, I accept this appeal and
order dispossession of the respondents from the land in dispute.
If the respondent wants to hand over the possession instead of
the land in dispute within one month to the gram Panchayat,
from his plots then he can exchange if the panchayat is ready. If
the exchange does not materialise with the gram panchayat
then the Assistant Collector, Ist Grade, Bahadurgarh, is
directed to get the obstruction removed after one month. Order
has been pronounced."
4. A reading of the above extracted relevant portion of Annexure
P-4, reveals that thereby the Collector after accepting the appeal (supra), as
became preferred before him, at the instance of the petitioners in Misl
No.116 VCL, whereon Annexure P-3, became rendered, thus proceeded to
order for the dispossession of the judgment-debtors from the disputed phirni.
However, a direction is also made therein, that in case the judgment-debtor
intends to exchange the land in dispute with her plots, then she can do so,
but subject to a panchayat resolution becoming passed. Moreover, it was
also directed that if the said panchayat does not pass the said resolution in
respect of exchange being made inter se the encroached, upon phirni land,
and, the land owned by the judgment-debtors concerned, thereupon a
direction was made, upon the Assistant Collector, Ist Grade, Bahadurgarh
rather to ensure that the relevant obstruction becomes removed, within one
3 of 6
Neutral Citation No:=2024:PHHC:031346-DB
CWP-18359-1997 (O&M)
2024:PHHC:031346-DB
month. Annexure P-4 became pronounced, on 30.07.1996, and, the said
annexure when has acquired binding and conclusive effect, as it has
remained neither challenged nor became reversed, therefore it was required
to be most promptly and efficaciously enforced.
5. However, till date no efficacious execution of Annexure P-4 has
been made. It appears that the Assistant Collector concerned, as unfolded by
Annexure P-5, on his receiving the relevant execution petition, thus made an
observation that the apposite execution petition rather is not related to the
order of eviction, which is sought to be executed. Consequently, through
Annexure P-5, made on 12.06.1997, the Assistant Collector concerned,
sought an advise from the Collector concerned, in relation to the
demarcation report, which is required to be relied upon, thus for warrants of
possession becoming issued against the estate encroached upon, by the
judgment-debtors concerned. In pursuance to Annexure P-5, the Collector
concerned, (through Annexure P-6), directed the Assistant Collector to
proceed in terms of the demarcation report, dated 04.07.1995. Though the
said demarcation is appended with CM-18891-1998, and, thereins in the
apposite Tatima, the relevant encroachment becomes depicted. However,
since there is finality to Annexure P-4, as neither any challenge has been
made thereto nor it has succeeded. Therefore, the echoings as made in the
demarcation report as referred to, in the impugned Annexure P-5,
demarcation report whereof remains unchallenged, thus also acquire binding
and conclusive effect.
6. Importantly, yet in the order of the Collector (Annexure P-4)
there occurs a direction that in case the panchayat permits the relevant
4 of 6
Neutral Citation No:=2024:PHHC:031346-DB
CWP-18359-1997 (O&M)
2024:PHHC:031346-DB
exchange(s) inter se the encroached upon phirni lands, and, the lands of the
judgment-debtors concerned, thereupon the order of eviction may not be
executed.
7. In the face of the above, and, the panchayat passing resolution
No.1 dated 18.03.1996 (Annexure R-2), whereby the offer made by the
judgment-debtor for his land becoming exchanged with the phirni land
became declined, therebys too, it appears that the present petitioner had
acquiesced to unauthorized occupation/constructions becoming made, upon
the phirni land owned by the Gram Panchayat concerned. On the said phirni
land, the village proprietary body had right of common users thereof.
Resultantly, thereby no valid challenge can be made to the impugned
annexure (Annexure P-5), whereby a direction has been rendered upon by
the Assistant Collector concerned, to execute Annexure P-4 in terms of the
demarcation report dated 16.03.1994.
8. Though, in the face of the above, thus the instant petition, does
not merit any interference, but the declining resolution made by the
panchayat concerned, vis-a-vis the proposal of the present petitioner, to
exchange her land with the phirni land, rather appears to become rested on
the premise that there will be a total blockage of passage to house(s) of
Dharam Singh son of Kanhiya. However, it appears that the said resolution
may not be supported by the demarcation report. Therefore, if the said
ground carried in the dis-affirmative panchayat resolution, thus is not
supported by the demarcation report, whereupons there may not be a
complete blocking of ingress and egress to Dharam Singh son of Kanhiya,
thus to his lands or to his house(s). Resultantly, if the occupation of the
5 of 6
Neutral Citation No:=2024:PHHC:031346-DB
CWP-18359-1997 (O&M)
2024:PHHC:031346-DB
phirni land by the judgment-debtors concerned, falls within the domain of
the relevant rules, as such, the panchayat may re-consider the proposal as
earlier made by the judgment-debtor for exchange of her land with the
phirni land. The said panchayat resolution may be passed within one month
from today, and, if it is favourable to the judgment-debtor concerned,
thereupon, the approving authority may in accordance with law grant
approval thereto, but within two months thereafter.
9. Consequently, only upto the period of 3 months from today the
execution of Annexure P-4, in terms of demarcation report as referred in
Annexure P-5 be deferred, and, on an adversarial panchayat resolution being
passed, and, also a decision adversarial to the judgment-debtor being
rendered by the approving authority, thereupon the Assistant Collector
concerned, is directed to ensure the promptest and efficacious execution of
Annexure P-4, thus in terms of the demarcation report as referred in
Annexure A-1.
10. Disposed of accordingly.
11. Pending miscellaneous application(s), if any, stand(s), disposed
of.
(SURESHWAR THAKUR)
JUDGE
6.03.2024 (LALIT BATRA)
Ithlesh JUDGE
Whether speaking/reasoned:- Yes/No
Whether reportable: Yes/No
Neutral Citation No:=2024:PHHC:031346-DB
6 of 6
