Sh. Dharam Singh vs The Sub Divisional Officer(C), Exercising the powers of Collector, Sub Division, Barsar, District Hamirpur, H.P. and Others

Justice Dharam Chand Chaudhary, Judge

The petitioner feeling aggrieved and dissatisfied with the orders Annexure P-5 dated 10th April, 2006, Annexure P-7, dated 24th May, 2006 passed by the 2nd respondent and Annexure P-8 dated 5th September, 2006 passed by the 1st respondent, has approached this Court by way of present writ petition for setting aside the same. The impugned orders have been passed by the 1st and 2nd respondents against the petitioner, consequent upon a complaint Annexure P-1 made against him by respondents No. 3, 5 & 6 and Sh. Baldev Singh, the predecessor of respondents No. 4a to 4d. The legality and validity of the impugned orders has been questioned on the grounds inter-alia that keeping in view the nature of the dispute between the parties qua the user of so called path could have only been determined by a Civil Court having jurisdiction over the matter, therefore, 1st and 2nd respondents should have not entertained the complaint made by respondents No. 3 to 7 and passed the impugned orders. The impugned order Annexure P-5, whereby the petitioner has been directed to remove the bricks and open the path and Annexure-P-7, imposing a sum of Rs. 25/-, as fine upon the Petitioner are stated to be illegal and without any jurisdiction vested in 2nd respondent. Similarly, the impugned order Annexure P-8 passed by the 2nd respondent in an appeal preferred by the petitioner against the impugned orders Annexure P-5 and Annexure P-7 are also stated to be wrong illegal and without any jurisdiction.

The respondents though were put to notice of this writ petition however, it is only the 1st respondent who has put in appearance and filed reply whereas respondents No. 2 to 6 opted not to put in appearance and contest the petition despite service.

The 1st respondent in support of the order Annexure P-8, has raised the only plea that the 2nd respondent had passed the order Annexure P-5 directing thereby the petitioner to remove the obstruction after affording the parties due opportunity of being heard. The rest of the contentions in the petition have not been disputed. AS regards the plea of jurisdiction raised by the petitioner, it is submitted that the same was raised in the writ petition for the first time.

It will be seen from the record that 2nd respondent has passed the impugned order Annexure P-5 as per provisions contained u/s 12 of the H.P. Panchayati Raj Act, 1994 which reads as under:-

Power of removal of encroachments and nuisance.-(1) A Gram Panchayat, on receiving a report of other information and on taking such evidence, if any, as it thinks fit, my make a conditional order requiring, within a time to be fixed in the order-

(a) The owner or the occupier of any building or land-

(i) to remove any encroachment on a public street, place or drain;

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If coming to the facts of this case, no order in the nature of Annexure P-5 could have been passed by the 2nd respondent, because the dispute in the present lis is not qua encroachment on a public street, place or drain, as contemplated u/s 12(i) supra and rather qua the user of path which as per Annexure P-1, the complaint made by the respondents No. 2 to 6 was being used by them since time immemorial. Such dispute could have not been adjudicated upon without taking on record the evidence such as the existence of the path in question and the right of the user thereof by respondents No. 3 to 6 and their predecessor-in-interest. Such dispute thus could have only been decided by a Civil Court having jurisdiction over the matter after putting the parties to trial and taking on record the evidence. The 2nd respondent has not recorded any evidence except for a passing reference in the spot inspection report Annexure P-3 that there exist a path, which is old one and lead through the court-yard of the petitioner. Further that the villagers present on the spot have disclosed that it is being used by them since time immemorial. No direction in the nature as in the impugned order Annexure P-5 could have been issued without recording satisfaction with the assistance of cogent, reliable and plausible evidence that there was a public path in existence and that the same was being used by the local residents since time immemorial. It could have been established so with the help of revenue record and other evidence oral as well as documentary. The impugned order Annexure P-5 is thus, not only without any jurisdiction but illegal and whimsical also. Once it is concluded so, the impugned orders Annexure P-7 and Annexure P-8 also do not stand the test of judicial scrutiny by this Court and as such deserves to be set aside and quashed.

In view of all the reasons hereinabove, this petition succeeds and the same is accordingly allowed. Consequently, the impugned orders Annexure P-5 and Annexure P-7 passed by the 2nd respondent and Annexure P-8 by the 1st respondent are set aside and quashed. No orders as to costs. With the above observations, the writ petition stands disposed of, so also the pending application(s), if any.