Sumer Singh vs Deputy Director, Panchayats, Haryana

A.L. Bahri, J.

This writ petition has been filed on peculiar facts challenging order of the Deputy Director, Panchayats, Haryana dated January 5, 1981 (Annexure P.2) whereby he accepted appeal filed against the order of the Gram Panchayat, Chandanwas (Annexure P.1).

Summer Singh petitioner is owning house in village Gurawara, tehsil Rewari, district Mohindergarh. He constructed gate to his house which was demolished by covillagers Balwant Singh alias Balli and Lal Singh, respondents No. 3 and 4 and others. Sumer Singh approached the Gram Panchayat alleging that gate of his house was wrongly demolished by Balwant and others and he should be permitted to raise the construction of the gate. The case was transferred from the Panchayat of village Gurawara to the panchayat of village Chandanwas. The panchayat of village Chandan was held an inquiry, recorded statements of the witness produced by the parties and thereafter passed order, Annexure P1, holding the Balwant and others caused harm by intentionally dismantling to gate of Sumer Singh petitioner and thus he was granted permission to construct the aforesaid gate with the further warning that if Balwant and others would raise any obstruction, they would be liable to pay compensation. As already noticed above, this order was challenged in appeal by Balwant and others. The Deputy Director in his order, Annexure P.2 held after inspection of the spot that only house of Sumer Singh was situated in the street encroaching it to the extent of about four feet. Otherwise, the street was quite sufficiently wide and this extension of the house in the thoroughfare did not cause any obstruction at all. An another stage, he observed that it was difficult to arrive at the definite conclusion regarding the unauthorised possession within the abadi deh. He held that Sumer Singh had already encroached upon the thorough fare and to allow him to construct the gate would meet no objective except beautification of his house. By granting sanction, there will be encroachment of unauthorised occupation in the village. The order of the Gram Panchayat was thus set aside. This order is under challenge in this petition filed under Articles 226 and 227 of the Constitution.

The written statement has been filed by Balwant Singh and Lal Singh, respondents Nos. 3 and 4, inter alia, maintaining that Sumer Singh raised construction of the gate encroaching four feet of the street through the agency of the Panchayat and he wanted to perpetrate the same. At the time of arguments, learned counsel for the petitioner has produced two photographs, Mark `A'' and `B'' to show the situation of the house of the petitioner. I have heard learned counsel for the petitioner. On behalf of the respondents, nobody has appeared today.

Section 21 of the Punjab Gram Panchayat Act reads as under :

"21. Power to require removal of encroachments and nuisance. (1) A Gram Panchayat either suo moto or on receiving report or other information and on taking such evidence, if any, as it thinks fit may 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 place or drain;

(ii) to close, remove, alter, repair, cleanse, disinfect or put in good order any latrine, urinal, watercloset, drain, cesspool or other receptacle for filth, sullagewater, rubbish or refuse or to remove or alter any door or trap or construct any drain for any such latrine, urinal or watercloset which opens on to a street drain or to shut off such latrine, urinal or watercloset by a sufficient roof and wall or fence from the view of person, passing by or dwelling in the neighbourhood;

(iii) to cleanse, repair, cover, fill up, drain off, deepen or to remove water from a private well, tank, reservoir, pool, pit, ditch, depression, or excavation therein which may appear to the Gram Panchayat to be injurious to health or offensive to the neighbourhoods;

(iv) to remove any dirt, dung, nightsoil, manure or any noxious or offensive matter therefrom and to cleanse the land or building:

(b) the owner of any wall or building, which is deemed by the Gram Panchayat to be in any way dangerous to remove or repair such wall or buildings;

(c) the owner or occupier of any building or property to keep his building or property in a sanitary state;

(d) the owner of any dog or other animal suffering or reasonably suspected to be suffering from rabies or which is dangerous to destroy or confine or cause to be confined such dog or animal;

(e) the owner or occupier of any agricultural land to destroy pohli or any other such harmful weed from such land;

(f) the owner or occupier concerned to reclaim an unhealthy place;

(g) the owner or occupier of any building or land to maintain in proper repair the level and surface of any road or street passing in front of the building or thought his land;

(h) the owner or personincharge of private `Khal'' to keep it in a state of reasonable repair.

Or if he objects so to do, to appear before it, at a time and place to be fixed by the order, and to move to have the order set aside or modified in the manner hereinafter provided. If he does not perform such act or appear and show cause, the order shall be made absolute. If he appears and shows cause against the order, the Gram Panchayat shall take evidence and if it is satisfied that the order is not reasonable and proper, no further proceedings shall be taken in the case. If it is not so satisfied the order shall be made absolute.

(2) If such act is not performed within the time fixed, the Gram Panchayat may cause it to be performed and may recover the costs of performing it from such person."

After the Panchayat holds an inquiry as contemplated under section 21(1) of the Act, as reproduced above, and comes to the conclusion that there is encroachment by owner or occupier of a building or land, a direction can be given to such an owner to remove such an encroachment on public street, place or drain. Obviously, if no encroachment is found, no such directions are required to be given to the owner or occupier of the building abutting on the street. Order, Annexure P.1, was passed on the application of Sumer Singh under section 21 of the Act. It is only under this provision that the Gram Panchayat was required to be hold an inquiry to come to a conclusion as to whether there was encroachment on a public street, place or drain. An appeal lies against an order passed under section 21 of the Act to the Deputy Director, Panchayats, in the State of Haryana, under section 23A of the Act. Such an appeal can be filed by any person aggrieved by an order of the Panchayat made under sections 21 and 23 of the Act. The Deputy Director has thus assumed jurisdiction to pass the impugned order, Annexure P.2, under section 23A of the Act. The contention of the learned counsel for the petitioner that Deputy Director has no jurisdiction to entertain the appeal, therefore, cannot be accepted.

The order of the Deputy Director has also been challenged on merits inter alia alleging that the same is not passed on any evidence except inspection of the spot. The order does not show that any inspection note was prepared by the Deputy Director. I find that there is force in this contention. Although before the Panchayat, the only dispute was regarding construction of gate by Sumer Singh either in his own house or encroaching upon the street, whereas the Deputy Director has reported in his order, Annexure P.2, that the entire house of Sumer Singh is encroaching four feet in the street which is nobody''s case. It was in this view of the matter that the two photographs produced on behalf of the petitioner have been taken on the record showing the outer wall of the house of the petitioner as well as the main gate which is fixed therein. No doubt, these photographs show some building material in the form of debris lying in front of the door of the house. Since the order of the Deputy Director is going to be quashed, the necessary directions which can be given at this stage are only to do substantial to the parties. Sumer Singh would be permitted to remove the debars lying in from; of his house and construct the gate so that it remains in the outer wall of his own house. In this manner, he will not be encroaching upon any part of the street which is in front of his house. In case he constructs any part of his house or gate beyond the outer wall of his house, it is left to the Gram Panchayat to hold further inquiry under section 21 of the Act and to pass appropriate orders in future.

With the above directions, order Annexure P. 2 is quashed and order, Annexure P.1 stands modified as above while accepting the petition. There will be no order as to costs.