Jaswant Singh v. State of Punjab & Ors.

Shri H.C.Arora, a learned counsel of this court is appointed as the Commissioner who will submit his report after due verification within a period of six weeks from today. Shri Arora will be paid a consolidated fee of Rs.50,000/- for his efforts which will be paid to him by the State of Punjab after submission of the necessary report by Shri Arora. List on 04.05.2012. Needless to say, the court-appointed Commissioner Shri Arora will be at liberty to call for and have a meeting with the concerned officers of the revenue department and such other departments/corporations that may be necessary. For the performance of the duties assigned to him by this order, Shri Arora shall inspect the court record and copies of all relevant papers as may be pointed out by him will be furnished to him by the registry forthwith.” In terms of the aforesaid order, Shri H.C.Arora, Advocate was appointed as Local Commissioner who submitted his report dated

16.05.2012, which reads as under:- “Total area of land which has been registered as ‘gair CWP No.7017 of 2010 (O&M) [ 6 ] ***** mumkin nadi’

1. That the expression `gair mumkin nadi’ indicates the area of land, which is part of water channel etc. of permanent nature, and which takes away the lands for being used for agricutltural purposes. However, it has been conveyed to me both by the learned Counsel for the petitioner, and the officials of revenue and drainage department, that the most of the land under `gair mumkin nadi’ in village Baltana is used for sowing wheat crop in the bed of Sukhna Choe, although during the rainy season from July to September every year, on account of floods,the land cannot be used for cultivation.

2. That as per Misal Hakiat for the year 1959-60, obtained by me from Revenue Patwari, Halqa Lohgarh, Sh. Jaspal Singh, the land measuring 828 Bighas, 14 Biswas was recorded as ‘gair mumin nadi’. A true copy of the aforesaid document is enclosed as Annexure LC-2 with this report.

3. That as per the jamabandi for the year 2007-08, 614 Bighas, 11 Biswas land has been recorded as ‘gair mumkin nadi’. A true translated copy of the aforesaid jamabandi for the year 2007-08 is enclosed as Annexure LC-3. Thus, during the period from the year 1959-60, the land measuring 214 Bighas, 3 Biswas, which was earlier shown as gair mumkin nadi has been converted into cultivable land and/or some structures have come up on the same. I have personally checked and totaled the figures given in the said Jamabandi, and found that an area of 614 Bighas, 11 Biswas is the area shown in that Jamabandi as “gair mumkin nadi”.

4. That as per information given to me by Revenue Patwari, Sh. Jaspal Singh, the jamabandi for the year 2007-08 is the latest jamabandi prepared by the Revenue Department. Thus, as per revenue records, the land measuring 614 Bighas, and 11 Biswas falling under Village Baltana is registered as CWP No.7017 of 2010 (O&M) [ 7 ] ***** ‘gair mumkin nadi’ on which the Sukhna Choe, as on date, is flowing.

5. That on my request, Revenue Patwari, Sh. Jaspal Singh, has produced before me a Shajra Killabandi of village Baltana (i.e., Physical map of village Baltana, showing measurements through a system of squares and rectangles) showing the area under Sukhna Choe. A true copy of the aforesaid map, with the captions and scheme of colours showing the type of land and construction, translated by me only to the relevant extent, is enclosed as Annexure LC-4. The route over which the natural water of Sukhna Choe flows at present is shown in black coloured line. The huge variation/difference in the extent of land that was shown as “gair mumkin nadi” under Sukhna Choe in the year 1959-60, viz-a-viz the extent of area now shown under the said Sukhna Choe cannot be explained with the help of aforesaid map. The area shown in orange colour shows Radha Swami Satsang Bhawan constructed with the area of Sukhna Choe in Khasra No.1017. The present route of Sukhna drain (during non-rainy season) is shown in blue colour. A perusal of the aforesaid map, annexure LC-4, shows that there is a police chowki in Khasra No.933, a cremation ground in Khasra No.934 and a park in Khasra Nos.935 and 932. Sh. Jaspal Singh, Revenue Patwari, also told me that certain areas falling under Sukhna Choe, on which public passage, burial place, park, Radha Swami Satsang Bhawan etc. have come up, have been excluded while showing the total area of Sukhna Choe as “gair mumkin nadi” in the jamabandi for the year 2007-2008. Thus, the total area over which water of Sukhna Choe flows (during rainy season) in village Baltana at present, as per revenue records, extends over 614 Bighas and 11 Biswas.

7. That a perusal of the notification, annexure LC-1/3, CWP No.7017 of 2010 (O&M) [ 8 ] ***** issued under Section 55 of the Northern Indian Canal & Drainage Act, 1873, also reveals Khasra Nos.932/933/934/935/1017, on which the Radha Swami Satsang Bhawan (Khasra No.1017), Park (Khasra No.932/935), Burial place (Khasra No.934), and Police Chowki (Khasra No.933) have come up, are also included in the area from which the obstructions are required to be removed in pursuance to the said notification. It has been conveyed to me by the learned counsel for the petitioner, and the officials of revenue and drainage department also, that during July to September every year, the rain water of Sukhna Choe overflows the Park, the burial place and the Police Chowki (Police Post), whereas the Radha Swami Satsang Bhawan is not affected by rain water of Sukhna Chow, as its plinth has been raised to a considerable height. MY FINDING ON THE ISSUE REFERRED TO ME Thus, my finding is that as per revenue records, the area over which water of Sukhna Choe, as on date flows (during rainy season) in village Baltana, and which has been shown as “gair mumkin nadi” in the revenue records, extends over 614 Bighas, and 11 Biswas.” In view of the aforesaid report, following order was passed by this Court on 10.07.2012:- “At the time of arguments, it has been brought to our notice that the very small portion of Sukhna Choe carrying the flow of the rainy water is in existence and its large portion has been encroached up. Let State of Punjab ascertain the above said fact and also put up a scheme as to how much land is available to widen the said Sukhna Choe so as to increase the flow of water; whether it can be brick-lined or not. Affidavit of Secretary, Department of Irrigation and Draining indicating CWP No.7017 of 2010 (O&M) [ 9 ] ***** the above facts be filed before the next date of hearing. If need be, the demarcation of the area falling under Sukhna Choe be done for the said purpose before the date fixed. On request, adjourned to 11.09.2012.” In view of the aforesaid order, an affidavit dated 07.09.2012 of K.B.S.Sidhu, Principal Secretary, Department of Irrigation, Punjab was filed in the Court. The relevant extract of the affidavit is as follows:- “3. That as per site it is submitted that during lean period creek of Sukhana Choe is flowing in a width varying from about 35 to 75 ft. but during heavy rains/floods the water flows by spreading in entire bed width of Sukhna Choe which is minimum 275 ft. or more as verified at site. There are encroachments in the Sukhana Choe bed but they are prior to issuing of notification under Section 55 of Northern India Canal & Drainage Act, 1873 dated 22.02.2011 (Annexure R-1).

4. That the available minimum land width of Sukhana Choe is approximately 275 ft. or more. The ownership of land as per Zamabandi for the year 2003-04 stands in the name of Zimedars/Panchayats etc. and the type of land has been shown as Gair Mumkin Nadi/Barani etc. etc. The nature of most of the land is Gair Mumkin Nadi.

5. That a scheme can be prepared for widening and brick lining of Sukhana choe by constructing embankments on both sides. The parameters will be worked out after proper design keeping in view catchment area, discharge and other date. Sukhana choe is in private/panchayat land and for the implementation of any scheme/project land will have to be acquired.” The second prayer of the petitioner is for taking immediate steps to stop unauthorized and illegal construction of narrowing down the CWP No.7017 of 2010 (O&M) [ 10 ] ***** Sukhna Choe in village Baltana. It is admitted by the Principal Secretary, Department of Irrigation, Punjab that there are encroachments in the Sukhna Choe Bed and it has also come in the report of the Local Commissioner that Sukhna Choe area has been squeezed from 828 Bighas 14 Biswas to 614 Bighas 11 Biswas. Moreover, as per Jamabandi for the year 1959-60 of village Baltana, the entire land which forms the course of the Choe is recorded as Gair Mumkin Nadi owned and possessed by the Nagar Panchayat Deh but as per Jamabandi for the year 2007-08, the land underneath the Gair Mumkin Nadi, which vests in the Nagar Panchayat, has been sold, prima facie without any title. In the aforesaid circumstances, in order to protect the Sukhna Choe, a natural rain water rivulet, and to save other areas of town from flooding during the heavy rains, we direct the respondent No.1:- (i) to demarcate the land under the Sukhna Choe; (ii) initiate action for removal of unauthorized construction which has been raised in the Sukhna Choe Bed by purchasing the land from the persons who had no transferable title; and (iii) frame a scheme for widening and brick lining of Sukhna Choe by constructing embankments on both sides, within a period of 6 months from the date of passing of the order. With the aforesaid directions, the present writ petition is disposed of. (A.K.SIKRI) (RAKESH KUMAR AJIN) CHIEF JUSTICE JUDGE October 15, 2012 vinod*