MEHAR CHAND Vs. STATE OF HARYANA

JUDGEMENT

(1.) Mehar Chand has filed this petition under Articles 226 and 227 of the Constitution of India, for the issuance of an appropriate writ, order or direction, quashing the order of the Deputy Commissioner, Gurgaon, exercising powers under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter referred to as the Act), dated the 4th February, 1969 (copy Annexure 'B' to the petition).

(2.) The only contention that has been raised before me by Mr. Bahri, learned counsel for the petitioner, is that the Deputy Commissioner had no jurisdiction under Section 42 of the Act to order removal of encroachment and that the proper remedy for the aggrieved party was to have approached the civil or the criminal Court.

(3.) After hearing the learned counsel for the parties, I am of the view that there is considerable force in the contention of the learned counsel for the petitioner. There is no dispute that path No. 57 was provided in the scheme of consolidation prepared under the Act. It is also an admitted fact that about the alleged encroachment on path No. 57, respondent No. 2 and some others filed a complaint under Section 133 of the Code of Criminal Procedure and that the proceedings in that complaint were stayed by the Sub-Divisional Magistrate, vide his order dated the 19th January, 1967 (copy Annexure 'A' to the petition), till the final adjudication of the matter by the civil Court. It seems that instead of getting the matter settled from the civil Court respondents 2 to 7 filed an application under Section 42 of the Act on which the impugned order was passed by the Deputy Commissioner. From the bare reading of Section 42, I have no hesitation in holding that the Deputy Commissioner had no jurisdiction to order removal of encroachment on the path in exercise of his powers under that section. Mr. Hans Raj Aggarwal, learned counsel for respondent No. 2 is unable to support the impugned order. In this view of the matter, I have no other alternative but to quash the impugned order.