Satbir Singh And Others v. State Of Haryana And Others

Satbir Singh And Others v. State Of Haryana And Others

(High Court Of Punjab And Haryana)

CWP-1269-2020 | 21-04-2023

SURESHWAR THAKUR, J.

1. Gram Panchayat Khera-Khurampur, Tehsil Farukhnagar, District Gurugram through Sarpanch Sh. Ram Niwas instituted, on 12.09.2018, case No.72/SDO/PVCL, before the learned Collector concerned. The said case was instituted under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter in short referred to as ‘the PVCL Act’). The respondents in the said petition were averred to make encroachments, upon land owned, and, possessed by the Gram Panchayat concerned, thus, they were asked to become ordered to be evicted from the petition land(s).

2. The learned Collector concerned, through an order made on 10.04.2019, on case (supra), order whereof becomes enclosed, in (Annexure P-5), proceeded to make an order for evicting the respondents from the petition land(s).

3. The above order was made on the ground, that the demarcation reports as made by the Local Commissioner concerned, respectively on 11.11.2017, on 15.11.2017, on 16.11.2017, and, on 23.03.2017, making patent speakings about the defendants making encroachment(s), upon the land owned by the Gram Panchayat concerned, which but are respectively designated in the revenue record, as Firni, Cremation grounds, and, Johar lands. The aggrieved from the order as carried in Annexure P-5, preferred an appeal thereagainst, before the statutorily designated appellate authority concerned. The said appeal became assigned case No.21/RE/Collector. Through a decision made on the said appeal, on 06.09.2019, verdict whereof is enclosed as Annexure P-6, the learned appellate authority concerned, after agreeing with the verdict, as became earlier rendered by the learned Collector concerned, proceeded to make a concurrent therewith verdict of eviction against the appellants in the said appeal. The aggrieved appellants from the verdict enclosed in Annexure P-6, yet preferred thereagainst a revision petition, before the learned Revisional Court concerned, but through a decision made on 25.10.2019, upon the apposite revision petition concerned, the revisional court concerned dismissed, the said revision on the premise qua the said revision petition being not maintainable, inasmuch as, no statutory empowerment, being assigned to any aggrieved appellant, to file a revision before the revisional Court concerned, especially when the motion to the revisional court concerned, travels in a lis, hence, initially cast under the provisions of Section 7 of the PVCL Act.

4. Resultantly, the aggrieved are led to challenge the above concurrently made orders of eviction, through theirs casting the instant petition before this Court.

Submissions of learned counsel appearing for the petitioners

5. Learned counsel for the petitioners, has vehemently argued before this Court, that all the demarcations, as were conducted, besides became relied upon by the statutory authorities below, were completely infirm, inasmuch as, there was no valid participation thereins rather of the aggrieved concerned.

Reason as assigned by the authorities below to disagree with the above submission.

6. However, the statutory authorities below, in not accepting the afore made submissions, of the learned counsel for the petitioners, grooved it, in the factum, that since, the aggrieved from the demarcation report(s), rather had appended his/their signatures on the reports concemed, thereupon, they became barred from raising any contest that their presence was neither elicitated by the demarcating officer concemed, at the site concerned, nor they can well argue, that the demarcating officer concerned, carried an ex-parte demarcation of the site concerned, nor thus, the said demarcation(s) can be construed to be flawed.

7. Be that as it may, this Court for dispelling the aura of doubt purportedly enveloping the demarcation reports, as became relied upon by the authorities below, had made the hereinafter extracted order, on 27.01.2010:-

“Before proceeding further, we direct the State Counsel, Mr. Ravi Dutt Sharma, Deputy Advocate General, Haryana, to summon the Officer concerned and explain the variance in the Demarcation Report relied upon by the Authorities below, and the one conducted on 04.08.2018 available at Page Nos. 72 to 79 of the paper-book (which was placed on record) and totally ignored by the Authorities below.

Adjourned to 04.03.2020.

A copy of the paper-book has been furnished to the State Counsel during the course of hearing.”

8. In compliance to the said order, hence as revealed, by an order made on 20.12.2022, order whereof becomes extracted hereinafter, the revenue officer concerned, proceeded to render an explanation in respect of the rife, inter se variations, as were apparently occurring in the multiple demarcation reports (supra). 

“Learned counsel for the respondent-State, on instructions from Mr. Narender, Naib Tehsildar, Farukhnagar, District Gurugram, who is present in Court submits that variation in the demarcation reports which is apparent may have occurred due to variety of reasons including improper handling of the DGPS Machine or incorrect fixation of pucca points. However, the exact reason can be clarified only after jresh demarcation of the area is conducted.

Learned counsel for the petitioners submits that petitioners shall remain present as and when called upon for demarcation and it is further undertaken by them that in case, they are found to be in illegal possession on any part of the Gram Panchayat land, they shall handover vacant peaceful possession within a period of six (06) weeks thereafter.

In view of the above, let fresh demarcation of the area in question be conducted under the direct supervision of a senior official of the revenue department within three (03) weeks after associating all concerned parties including the petitioners.

List on 07.03.2023.

Demarcation report be submitted before the next date of hearing.”

9. Moreover, a reading of the above extracted order, as made on 20.12.2022, further reveals, that this Court had deemed it fit, and, appropriate to order for a fresh demarcation being conducted of the disputed sites hence by the demarcating officer concerned. In consequence thereof, the apposite demarcation report became prepared, and, becomes appended as Annexure R-1 to the reply, on affidavit. A perusal of Annexure R-1 discloses that the petitioners herein have not made any encroachment(s), upon, the petition lands.

10. However, for the reasons to be assigned hereinafter, this Court refrains from accepting Annexure R-1, nor this Court, at this stage, can procced to assign any probative sanctity to Annexure R-1. Emphasisingly, though this Court or any appellate Court can proceed to make an order for a fresh demarcation being conducted of the relevant site, but only when there exist strong lawful reasons, in the order hence directing the makings of a fresh demarcation of the relevant site(s). It appears that the reason(s) which prevailed, upon, this Court to not assign credence to the demarcation reports, as, were placed before the statutory authorities below, became grooved, in the factum that there were rife variations interse the multiple demarcation reports (supra). Therefore, but obviously this Court was well constrained to order for a fresh demarcation.

Reason for this Court making an order of remand of the lis to the Court of the learned first instance Court

11. Any demarcation of the site concerned, is required to be made, in terms of the relevant provisions, as are carried in Volume 1 of the High Court Rules and Orders, relevant portions whereof, become extracted hereinafter:-

“(1) Procedure in "Hadd Shikni" cases.

1. In "Hadd-Shikni" suits and other suits of boundary disputes of land falling within the jurisdiction of a Civil Court it is generally desirable that enquiry be made on the spot. This can usually be done in the following ways:

(a)by suggesting that one party or the other should apply to the Revenue Officer to fix the limits, under section 101 (1) of the Punjab Land Revenue Act. Time for such purpose should be granted under Order XVI, Rule 3, of the Code of Civil Procedure;

(b) by appointing a local Commissioner, and

(c)by the Court itself making a local enquiry.

2. An order of the Revenue Officer made under Section 101 of the Land Revenue Act is not conclusive; but when his proceedings have been held in the presence of, or after notice to, the parties of the suit, and contain details of enquiry and of the method adopted in arriving at the result, it would be a valuable piece of evidence. It may be noted that an Assistant Collector of the second grade can deal with cases in regard to boundaries which do not coincide with the limits of an estate.

3. Similarly the report of the local Commissioner should contain full details so that the Court may satisfactorily deal with the objections made against it.

No person other than a Revenue Officer (or retired Revenue Officer) not below the rank of a Field Kanungo should usually be appointed a local Commissioner. The appointment of retired Revenue Officers is to be preferred as these Officers have the spare time and the inclination for completing the work with expedition. A commission issued to a Revenue Officers in service necessitates the obtaining of permission of the higher authorities and this along with the fact that such Revenue Officers are usually busy often results in delay in the disposal of the case. The wishes of the parties in regard to the appointment of a particular individual as commissioner for local investigations should be taken into consideration while making such appointments.

4. On the motion of the Judges, the Financial Commissioners have issued the following detailed instructions for the guidance of Revenue Officials or Field Kanungos appointed as Local Commissioners in Civil suits of this nature.

(Financial Commissioner's Instructions)

(i) If a boundary is in dispute, the Field Kanungo should relay it from the village map prepared at the last Settlement. If there is a map which has been made on the square system he should reconstruct the squares in which the disputed land lies. He should mark on the ground on the lines of the squares the places where the map shows that the disputed boundary intersected those lines, and then to find the position of points which do not fall on the lines of the squares. He should with his scale read on the map, the position and distance of those points from a line of a square, and then with a chain and cross staff mark out the position and distance of those points. Thus he can set out all the points and boundaries which are shown in the map. But if there is not a map on the square system available, he should then find three points on different sides of the place in dispute, as near to it as he can, and, if possible, not more than 200 kadams apart which are shown in the map and which the parties admit to have been undisturbed. He will chain from one to another of these points and compare the result with the distance given by the scale applied to the map. If the distances, when thus compared, agree in all cases, he can then draw lines Joining these three points in pencil on the map and draw perpendiculars with the scale from these lines to each of the points which it is required to lay out on the ground. He will then, lay them out with the crossstaff as before and test the work by seeing whether the distance from one of his marks to another is the same as in the map. If there is only a small dispute as to the boundary between two fields the greater part of which is undisturbed then such perpendiculars as may be required to points on the boundaries of these fields as shown in the field map can be set out from their diagonals, as in the field book and in the map, and curves made as shown in the map.

(ii) In the report to be submitted by him, the Field Kanungo must explain in detail how he made his measurements. He should submit a copy of the relevant portion of the current Settlement field map of the village showing the fields, if any, with their dimensions (karu kan) of which he _ took measurements, situated between the points mentioned in Instruction No. (i) above and the boundary in dispute. This is necessary to enable the Court to follow the method adopted and to check the Field Kanungo's proceedings.

(iii) If a question is raised as to the position of the disputed boundary according to the field map of the Settlement preceding the current Settlement, that also should be demarcated on the ground, so far as this may be possible, and also shown in the copy of the current field map to be submitted under Instruction No. (ii).

(iv) On the same copy should be shown also, the limits of existing actual possession.

(v) The areas of the fields, abutting on the boundary, in dispute, as recorded at the time of the last Settlement and those arrived at as a result of the measurement on the spot should be mentioned in the Field Kanungo's report with an explanation of the cause or causes of the increase or decrease, if any, discovered.

vi) When taking his measurements the Field Kanungo should explain to the parties what he is doing and should enquire from them whether they wish anything further to be done to elucidate the matter in dispute. At the end, he should record the statements of all the parties to the effect that they have seen and understood the measurements that they have no objection to make to this (or if they have any objection he should record it together with his own opinion) and that they do not wish to have anything further done on the spot. It constantly happens that when the report comes before the Court, one or other party impugns the correctness of the measurements and asserts that one thing or another was left undone. This raises difficulties which the above procedure is designed to prevent.

vii) The above instructions should be followed by Revenue Officers or Field Kanungos whenever they are appointed by a Civil Court as Commissioners in suits involving disputed boundaries.”

12. The necessary principles which can be culled out or the necessary norms governing the makings of a valid demarcation of the disputed sites, are;-

1. The demarcating officer is required to be carrying the apposite musavi to the site concerned.

2. He is required to be making an intimation to all the affected parties about the date when he chooses to make demarcation of the disputed sites.

3. The demarcating officer is required decipher from the musavi, rather the accurate fixed points, wherefrom he proposes to commence, the demarcation(s) and thereafter, he is required to be relaying onto the ground(s), the said ascertained fixed points, thus from the musavi.

4. The method for relaying of the fixed points as ascertained from the musavi, are mentioned in the hereinabove extracted rules.

5. In his making measurements of the relevant fields, and, or after his making measurement(s) of the relevant disputed fields, or khasra numbers, he is required, to, in case he notices any encroachment by any person on land owned, and possessed by the adversary litigants, rather prepare a tatima qua such encroachment(s).

13. The impact of the above culled out norms from the above extracted regulatory principles governing the making of a valid demarcation of the disputed sites, is that, the said norms are also required to be inked by the demarcating officer, besides the report of the demarcating officer is required to be proven by the author of the demarcation report, through his stepping into the witness box. Only on the author of the demarcation report stepping into the witness box, would be led to make an able testification, qua his obeying the above norms, hence in his preparing the demarcation report, but leading to an exhibition mark being made on such a tendered demarcation report, before the Court/authority concerned.

14. Since, the demarcation report is a documentary evidence, and, though it is prepared in the discharge of official duties, and, as such enjoys a rebuttable presumption of truth, hence within the realm of Section 35 of the Evidence Act. However, since only a rebuttable presumption of truth, is assignable to the demarcation report. Therefore but to ensure that said presumption, is not assigned any further exparte conclusivity, thus an adequate opportunity qua adduction of rebuttal thereto evidence, rather is required to become also afforded to the aggrieved from the demarcation report, but necessarily through, the author of the demarcation report, after his recording his testification in his examination-in-chief, becoming subjected to the ordeal of a crossexamination, whereins, suggestions may be put to the author of the demarcation report, rather to bely his stating in his examination-in-chief, that he had applied the norms (supra) in his preparing the demarcation report. The above would definitely dispel any aura of doubt, in respect of any purported procedural departures, rather being made by the demarcating officer concerned, in his making demarcation(s), besides, would allay the apprehension of the aggrieved concerned that the demarcation is not validly carried out. Moreover besides, would obviously enable the Courts concerned, to after making a thorough reading of the entire deposition of the demarcating officer, hence analyse whether the norms (supra), as regulate the holding of a valid demarcation, becoming complied with or becoming transgressed or departed from, rather by the demarcating officer concerned.

15. Moreover in case, the aggrieved from the demarcation report prefers to raise objections, then the said permission is to be imperatively granted to the aggrieved, and, also subsequently a reasoned order, rejecting his objections to the demarcation report rather is to be recorded. However, in case the objections are allowed, thus, the Civil Court concemed, or the statutory authority concerned, can proceed to make a valid order for the making of a fresh demarcation report.

16. In consequence, even if Annexure R-1 is prepared by the demarcating officer in terms of the orders, made by this Court, yet straightway, no probative sanctity cannot be assigned thereto, as yet Annexure R-1, is yet to be ensured to be proven in accordance with law, and, for ensuring that Annexure-R1, is proven in accordance with law, the said annexure, is required to be tendered into evidence only before the authority concerned, besides is required to be only proven there. The above tendering into evidence of Annexure R-1, cannot take place before this Court, as this Court, at this stage, cannot become the Court of first instance. Contrarily, valid proof qua the valid drawings of Annexure R1, can become adduced only before the Court of the first instance. Moreso when only after its being there tendered into evidence by its author, besides, there a valid exhibition mark being made thereons, that an imperative opportunity would be made available to the aggrieved therefrom, to cross examine the author of Annexure R-1. Emphatically also when the availment of the said opportunity, would allay the grievance, if any, of the aggrieved concerned, that the officer who prepared Annexure R-1, had departed or had transgressed from the norms appertaining to the holding of a valid demarcation.

17. In nutshell, this Court, though at this stage, assigns only prima facie credence to Annexure R-1, yet it also deems it fit, to set aside, and, quash the impugned orders. Moreover this Court after setting aside the impugned orders, makes an order of remand upon the learned remandee Court or upon the Court of the first instance, to after its restoring the lis to its original number, to permit the tenderings into evidence of Annexure R-1, by its author, so that subsequently he is subjected to cross examination, by the aggrieved therefrom, but with suggestions to him, appertaining to, qua in his preparing the demarcation report(s), his departing or transgressing from norms (supra). The remandee Court, but is directed to after restoring the lis to its original number, hence issue notice(s) to all the litigants concerned, in the said petition, and, thereafter, is directed to issue summons to the author of Annexure R-1, for ensuring his stepping into the witness box to prove Annexure R-1, whereafter it shall permit the aggrieved therefrom to cross-examine him. Subsequently, the learned court of first instance or the remandee Court, shall make a fresh lawful decision, on case No.72/SDO/PVCL. The said exercise be ensured to be completed within six months from today.

Advocate List
Bench
  • HON'BLE MR. JUSTICE SURESHWAR THAKUR
  • HON'BLE MR. JUSTICE VIKRAM AGGARWAL
Eq Citations
  • REPORTABLE
  • 2024 (1) RCR (Criminal) 122
  • LQ/PunjHC/2023/3439
Head Note

**Headnote:** **Key Legal Issue:** Validity of demarcation reports in proceedings under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (PVCL Act). **Relevant Sections:** - Section 7, Punjab Village Common Lands (Regulation) Act, 1961 - High Court Rules and Orders, Volume 1 **Case Reference:** High Court of Punjab and Haryana **Significant Findings:** 1. Variation in demarcation reports may occur due to factors like improper handling of equipment or incorrect fixation of points. 2. Fresh demarcation can be ordered by the court only when there are strong legal reasons, such as variations in multiple reports. 3. Demarcation must be made in accordance with the procedure laid down in the High Court Rules and Orders. 4. The demarcating officer must relay fixed points from the musavi onto the ground, make measurements, and prepare a tatima in case of encroachment. 5. Demarcation report is a rebuttable presumption of truth under Section 35 of the Evidence Act. 6. The author of the demarcation report must testify in court and be subject to cross-examination. 7. Aggrieved parties must be given the opportunity to object to the demarcation report and adduce rebuttal evidence. 8. In case of objections, the court can order a fresh demarcation. **Order:** 1. Impugned orders quashed. 2. Case remanded to the court of first instance. 3. Court of first instance to restore lis to its original number and issue notices to parties. 4. Author of Annexure R-1 to be summoned for examination and cross-examination. 5. Fresh lawful decision to be made within six months.