Chander Pal and Others vs The Collector and Others

H.S. Brar, J.—Brief facts giving rise to this writ petition are that Balraj Singh respondent No. 3 filed an application u/s 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as the Act'') against the petitioners. In the application he pleaded that on the Eastern side of the house of the petitioners was a public street vesting in the Gram Panchayat. It was further pleaded that the petitioners herein had done some filling and had closed that part of the street which touched their property situated on the Western side of the said street by a brick wall on one side and fixing a door on the other. He further pleaded that the flow of water was through the said street from South to North and as a result of the closing of the street by the petitioners, the water, especially rain water, collected in front of his own house, causing difficulties for him. The petitioners contested the application and took the stand that there was no public street at the place alleged by the applicant. In fact, the land in dispute was part of their property and the gate in question had been affixed about 30 yards ago the Assistant Collector, 1st Grade recorded evidence of the parties and inspected the spot on September 8, 1992. Ultimately by order Annexure P-3 dated February 10, 1993, Assistant Collector, 1st Grade dismissed the application. Aggrieved by the order, respondent No. 3 dated February 10, 1993, Assistant Collector, 1st Grade dismissed the application. Aggrieved by the order, respondent No. 3 preferred an appeal, which was allowed by the Collector by order, respondent No. 3 preferred an appeal, which was allowed by the Collector by order Annexure P-4 dated October 11, 1993. It is the order passed by. the Collector which has been assailed in this writ petition on various are besides the official respondents, Balraj Singh who was applicant before the Assistant Collector, 1st Grade and the Gram Panchayat. The Gram Panchayat has supported the case set up by Balraj Singh in the written statement filed in this Court. Written statement has also been filed by respondent No. 3.

Mr. I.S. Balhara, learned counsel for the petitioners, has contended: -

(i) That street is not covered in the definition of ''Shamilat deh'' as defined in Section 2(g) of the Act.

(ii) That the petitioners had pleaded their own, title and it was, therefore, incumbent on the authorities under the Act to decide the application as a suit.

(iii) That there was no good reason for the Collector to upset the finding of fact recorded by Assistant Collector, 1st Grade as there was no material to show that the alleged street in question was used for common purposes.

The contention of learned counsel appearing for respondents 3 and 4, on the other hand, is that the finding recorded by the Assistant Collector, 1st Grade was that the street in question was a blind alley. It was further contended that even if that finding is assumed to be correct, even blind alley would fall within the definition of ''Samilat deh'' as defined in Section 2(g)(4) as interpreted in Jhalla Ram v. Gram Panchayat, Kosli (1982) 84 P.L.R. 77. They have further contended that question of title can be stated to have been raised only if a prima facie case is made out to that effect. No such case having been made out in the case in hand, there was no question of the case in hand, there was no question of deciding the application as a regular suit. It has also been contended that the Collector had relied on irrefutable documentary evidence in coming to the conclusion that the street in question was, in fact, a street and had been encroached upon by the petitioners sometimes after April, 1985.

After carefully considering the respective submissions of the learned counsel, we find that the Collector has recorded a firm finding that the alleged street in question was, in fact, a street. A bare perusal of the definition of ''Shamilat deh'' in Section 2(g)(4) shows that streets are included therein. The finding of the Collector is based on a reading of two sale deeds, both dated April 23, 1985. One sale deed is in favour of the petitioners themselves whereby Ram Mehar and three others sold a plot 57 yards x 27 yards in favour of the petitioners. In the four boundaries of the plot described in the sale deed, the Eastern boundary was described as Gali Share. I''m Similarly, in another sale deed of the same date in favour of respondent No. 3, the Eastern side is described as Gali Share-I''m. It is not disputed that the property of respondent No. 3 is situated on the Southern side of the property of the petitioners. The site was inspected by Assistant Collector, 1st Grade on September 8, 1992. In order to create evidence, the petitioners executed a sale deed dated September 9, 1992, in which reference to the existence of public street on the Easter side was removed. The Collector placed reliance on the description of the Eastern Boundary of the property purchased by the petitioners themselves and no fault can be found with the Collector having done so. If the plot itself was purchased by the petitioners in April 1985, there is no question of the door having been fixed 30 years ago. For these reasons, we find no case for interference. The petition is dismissed with costs which are assessed as Rs. 500/-.