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High Court Of Himachal Pradesh
P.D.DESAI
KEWAL RAM - Appellant
Versus
GRAM PANCHAYAT, BHUTTI - Respondent
CMP (Main) No. 193 of 1986
Decided On : 04/30/1987
GRAM PANCHAYAT - ENCROACHMENT ON PUBLIC PLACE - ABADI DEH - PUBLIC PLACE - DEFINITION - INTERPRETATION - JUDICIAL PRECEDENTS - VILLAGE SITE - CHARACTERISTICS - PARTITION - REVENUE RECORDS - LAND REVENUE ACT - SETTLEMENT MANUAL - LAND ADMINISTRATION MANUAL - JOINT OWNERSHIP - PROPRIETARY INTEREST - VACANT SITES - PUBLIC USE - JURISDICTION - POWER - AUTHORITY.
Fact of the Case:
The petitioner was accused of encroaching on a public place, a piece of land forming part of Khasra No. 426, by constructing a shed. The Gram Panchayat initiated proceedings against him under Section 19 of the Himachal Panchayati Raj Act, 1968, and ordered him to remove the encroachment. The petitioner appealed to the Deputy Commissioner, who partly allowed the appeal and ordered the petitioner to hand over vacant and peaceful possession of the disputed land within two months, failing which the Gram Panchayat's decision would remain fully operative.
Finding of the Court:
The Court held that the disputed land, being part of Abadi Deh, was not a public place within the meaning of Section 3(1)(y) of the Act. It noted that Abadi Deh is the inhabited site of the village, consisting of residential plots, small attached plots for cattle, manure, and straw, empty sites, and common plots for public use. The Court found that the disputed land was in the petitioner's occupation and that he had constructed a shed over it. It also noted that the land was not earmarked by the proprietors as a common plot for public use.
Issues: 1. Whether the disputed land, being part of Abadi Deh, is a public place within the meaning of Section 3(1)(y) of the Himachal Panchayati Raj Act, 1968? 2. Whether the Gram Panchayat had the power and authority to initiate proceedings against the petitioner under Section 19 of the Act and order his eviction from the disputed land?
Ratio Decidendi: 1. The Court interpreted the definition of "public place" in Section 3(1)(y) of the Act in light of the nature, characteristics, and ordinary incidents of Abadi Deh, as explained in the Settlement Manual and Land Administration Manual. It held that Abadi Deh is jointly owned by the members of the village community and that they have a proprietary interest in it. The Court found that the disputed land, being part of Abadi Deh, bore the impress of joint property and did not satisfy the requirements of a "public place" as defined in the Act. 2. Since the disputed land was not a public place, the Court held that the Gram Panchayat lacked the power and authority to initiate proceedings against the petitioner under Section 19 of the Act and order his eviction from the disputed land.
Final Decision: The Court quashed and set aside the impugned decision of the Deputy Commissioner, which had confirmed with some modification the decision of the Gram Panchayat. It also left open the question of whether any person or body of persons having a joint interest in the disputed land could seek possession thereof by partition or otherwise.
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 : "19(1) A Gram Panchayat, on receiving a 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 street, place or drain; xxx xxx xxx xxx 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 pot 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 in the prescribed manner. (3) Any person aggrieved by an order under Sub-Section (1) may file an appeal within thirty days of the passing of such order before the Deputy Commissioner who after holding such enquiry as he may deem fit, may set aside, modify or confirm the said order and his decision thereon shall be final."
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 expressi
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