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SURESHWAR THAKUR, J. –

1. There is no wrangle amongst the contesting litigants, about a designated revenue rasta, being the nerve centre of the controversy, hence besetting the contesting litigants. The present petitioner is alleged to make an encroachment upon the designated revenue rasta. Therefore, if the alleged encroachment, as made, on the designated revenue rasta, was but proven by a validly drawn demarcation report, through the same becoming tendered, besides, also becoming proven in accordance with law, thereupon, the petitioner was amenable to face an order of eviction from the revenue rasta concerned.

2. However, what pains this Court, is that, the procedure established by law, inasmuch as, the one contemplated in Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as the ‘Act of 1961’), as appertains to the institution of a petition thereunder(s), for a valid order of eviction being made upon the encroacher(s), upon the Panchayat land(s), rather has not been adopted.

3. Contrarily, there is complete departure, at the instance of the authorities concerned, from the legally contemplated mode (supra), for ensuring the makings of a valid order of eviction, upon the petitioner from a ‘Gair Mumkin Rasta’. The reason for making the above conclusion is firmly rooted, in the factum, that a perusal of Annexure P-4, reveals that it is simply an office order drawn by the officer concerned. Obviously, the said drawn office order, has not been drawn on a petition filed under Section 7 of the Act of 1961, nor, has it been drawn after adopting the procedure, as contemplated in Section 7 of the Act of 1961. Therefore, since Section 7 is the apt recoursable remedy for ensuring that a valid order of eviction is passed against the encroacher(s) concerned, thus, it was, but, imperative for the authorities concerned to recourse the said remedy, rather than theirs merely instituting a complaint before the officer, who drew Annexure P-4. However, when the said procedure has not been adopted, thus, it was but incumbent upon the officer concerned to not draw Annexure P-4, and that too, merely upon a complaint becoming instituted before him. Moreover, it was also but incumbent upon the officer concerned to direct the Sarpanch of the Gram Panchayat concerned, to hence institute a petition under Section 7 of the Act of 1961, for thereon(s), a valid order of eviction being made against the encroacher(s) concerned.

4. Enigmatically, the above contemplated statutory mode, for ensuring that a valid order of eviction is made, against the present petitioner rather has remained completely breached, but, at the instance of the officer, who drew Annexure P-4. Therefore, Annexure P-4 is quashed, and, set aside.

5. Even though, the appellate authority concerned, concurred with the drawing of Annexure P-4, but, the order of the appellate authority, as becomes enclosed in Annexure P-5, is also co-equally ridden with a similar vice of jurisdictional incapacity, inasmuch as, the appellate authority concerned, could well exercise a valid appellate jurisdiction, but, only when the officer, who drew Annexure P-4, had drawn it, only on a petition filed before him under Section 7 of the Act of 1961. However, when as stated above, the above remedy was not recoursed, therefore, it was incumbent upon the appellate authority concerned, to decline to exercise appellate jurisdiction, upon the relevant statutory appeal, than to affirm the infirmly, or, defectively drawn order, as enclosed in Annexure P-4. Thus, in the appellate authority concerned, rather inaptly concurring with the office order (supra), has likewise committed a gross illegality, and, a material impropriety, in its proceeding to exercise jurisdiction upon the relevant misconstituted statutory appeal.

6. In consequence, this Court finds merit in the instant writ petition, and, the same is allowed. The impugned orders are quashed, and, set aside, however, with a direction to the Sarpanch of the Gram Panchayat concerned, and/or, to the B.D.O. concerned, to forthwith institute a petition under Section 7 of the Act of 1961, before the learned Collector concerned. On such a petition being forthwith filed before the learned Collector concerned, the latter shall make a speaking decision thereon, after granting an opportunity of hearing to all affected concerned, but, positively within 6 months of its preferment before him.

Petition allowed.

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