RAMPAT Vs. COMMISSIONER,ROHTAK DIVISION

JUDGEMENT

(1.) The petitioners pray for issuance of a writ of certiorari quashing orders dated 08.10.2007(Annexure P-5), 05.11.2009 (Annexure P-6) and 16.09.2010(Annexure P-8), passed by the District Revenue Officer-cum-Assistant Collector Ist Grade, Sonepat and the Commissioner, Rohtak Division, Rohtak, respectively. Counsel for the petitioners submits that Dariyao Singh (since deceased), owner of plot No. 10, now represented by respondents No. 11 to 14, filed an application, on 09.05.1988, for eviction of respondents No. 4 to 6, under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as 'the 1961 Act'). The Assistant Collector Ist Grade, Sonepat, vide order dated 26.07.1988, held that Bharat Singh son of Surat Singh, respondent No. 5, is in unauthorised occupation of 238 sq. yards of the street and, therefore, ordered his eviction. Bharat Singh filed an appeal before the Collector, Sonepat. Petitioner No. 1 and father of petitioner No. 2 also filed an appeal. Vide order dated 21.03.1989, the Collector, Sonepat, set aside the order and remanded the case to the Assistant Collector Ist Grade, Sonepat, to consider whether there was any encroachment in the ten foot wide street. The Assistant Collector Ist Grade, vide order dated 26.06.1994, ordered eviction of Bharat Singh, respondent No. 5, from area demarcated as "ABCD". The order of eviction has been upheld upto the Hon'ble Supreme Court.

(2.) It is further submitted that in an execution petition, Bharat Singh connived with respondent Nos. 7 to 14 and got them to file objections to the execution petition by pleading that the demarcation is faulty as plots on the other side of the street have not been measured/demarcated. Though, the eviction order was to be executed without any variation, the Assistant Collector Ist Grade, Sonepat, appointed the Halqa Girdawar, Murthal, Halqa Patwari, Dodua and Halqa Patwari, Tajpur and Jagdish to demarcate the street. The Assistant Collector Ist Grade, thereafter, passed an order dated 08.10.2007, holding that respondents No. 7 to 14 are not in unauthorised occupation of the street, as it has been encroached by owners of plots No. 11 to 15. Zile Singh son of Hari Singh, respondent No. 4, filed a revision against this order, which was dismissed by the Commissioner, Rohtak Division, Rohtak, on 05.11.2009. The petitioners, filed an application on 01.07.2010 before the Commissioner, for re-calling order dated 05.11.2009, on the plea that they were not affording an opportunity of hearing, before the revision was dismissed. The petitioners pointed out that the Assistant Collector Ist Grade had no jurisdiction to vary order dated 26.06.1994, as he was exercising power of an executing court. The Commissioner, Rohtak Division, Rohtak, however, dismissed the application on 16.09.2010. The impugned orders are illegal and void as they are contrary to order dated 26.06.1994. The Assistant Collector Ist Grade has no jurisdiction, while executing this order, to direct a fresh demarcation and to hold that other persons, including the petitioners, are in unauthorised occupation of the street.

(3.) Counsel for respondent No. 5 submits that the petitioners are guilty of concealing material facts. The petitioners have not disclosed that during execution proceedings, respondent No. 5 was evicted, from the encroached area, as recorded in Rapat Roznamcha, dated 30.12.1999, Annexure R-5/2. The execution application filed by Dariyao Singh was, thereafter, consigned to record on 12.12.2001, for want of the complete plan. The legal representative of Dariyao Singh, filed a revision, Vide order dated 02.09.2005, the order was set aside and the matter was remanded. The Assistant Collector Ist Grade appointed a Local Commissioner to demarcate the alleged encroachment on the ten foot wide street. A perusal of the demarcation report, dated 18.11.2005, Annexure P-5/4, reveals that there was no encroachment on the part of respondent No. 5 as encroachment had already been removed on 30.12.1999. In April, 2006, respondent No. 5, filed a petition under Section 7 of the 1961 Act, seeking the ejectment of legal representatives of Dariyao Singh and others from the street. The petition was tagged with the execution application. Pursuant to a demarcation report, it was discovered that respondents No. 4 to 6 and respondents No. 7 to 14, have encroached upon the street. As the unauthorised occupants of the street assured the Assistant Collector Ist Grade that they would remove the encroachments, the file was consigned to records. Against this order, respondent No. 4 filed a revision before the Commissioner, which was dismissed on 05.11.2009. The petitioners did not file a revision, but, instead filed a review application, which was rightly dismissed by the learned Commissioner, as not maintainable. It is submitted that as encroachments, referred to in order dated 26.06.1994, had already been removed and the petitioners and other respondents were found in unauthorised possession in a fresh application, filed under Section 7 of the 1961 Act, the writ petition should be dismissed.