KEWAL RAM Vs. GRAM PANCHAYAT BHUTTI

JUDGEMENT

(1.) ORDER :- The petition arises out of a proceeding initiated against the petitioner by the first respondent (Gram Panchayat, Bhuttij, at the instance of the third respondent (Mahila Mandal, Bhutti) under S.19 of the Himachal Panchayati Raj Act, 1968 (hereinafter referred to as 'the Act') on the allegation that a piece or parcel of land (hereinafter referred to as "the disputed land") forming part of Khasra No. 426, admeasuring 9 bighas and 6 biswas, situate in Village Bhutti. Tehsil Kumarsain, District Shimla, which was a public place, was encroached upon by the petitioner by the construction of a dhara (shed). Be it stated that the third respondent is a social organisation carrying on activities for the welfare of women and that the land in dispute was claimed by it to have been allotted in its favour by the first respondent for the construction of building from which its diverse activities could be usefully carried on. The first respondent, vide its resolution No. 5 passed on April 11, 1986 (Annexure P-2, ordered the petitioner to remove the alleged encroachment on or before May 10, 1986 having found that he had made an unauthorized construction on the disputed land which was a public place within the meaning of S.19(1)(a)(i) of the Act and imposed upon him a penalty in the sum of Rs. 20/- and further directed that in case he failed to remove the alleged encroachment within the time limited, he shall be liable to a recurring penalty in the sum of Re. 1/- per day (but not exceeding Rs. 500/- in all) for the continuing breach. The order with respect to penalty was passed in the purported exercise of the powers conferred by S.22 of the Act. An appeal carried to the second respondent (Duputy Commissioner, Shimla) against the said decision was partly allowed on August 16, 1986 vide Annexure P-3 and it was ordered that the penalty of fine in the sum of Rs. 20/- would not be recoverable if the petitioner handed over vacant and peaceful possession of the disputed land pursuant to the decision of the first respondent but in case he failed to do so within a period of two months, the said decision would remain fully operative. This decision of the second respondent is under challenge in the present petition.

(2.) Section 19, insofar as it is relevant for the present purposes, reads as follows :

(3.) It is apparent that before an order could be made under the aforesaid provision it must be established that the encroachment is made on a "public street, place or drain." The impugned order is made against the petitioner on the footing that he had encroached upon a "public place". The expression "public place'' is defined in S.3, Sub-Sec. (1) Cl. (y) of the Act to mean "a space not being private property which is open to use or enjoyment of the public whether such space is vested in Gram Sabha or not". It is incontrovertible that the disputed land forms part of Abadi Deh. Para 2 of the impugned order and para 1 of the affidavit-in-reply filed by the second respondent reflect this position as to the classification of the disputed land. The jamabandi for the year 1980-81, which is on the record of the original proceedings, also shows that the disputed land is a part of the land which is entered in the column of ownership and occupancy as Abadi Deh. The precise question which, therefore, falls for decision in the present case against the aforesaid legal and factual backdrop is whether the disputed land forming part of Abadi Deh is a place which is not private property and which is open to use or enjoyment of the public (whether such place is vested in the Gram Sabha or not).