- (1.) Proceedings under Section 41 of the Land Revenue Act, 1901 were initiated by the father of the respondent nos.4 and 5. In such proceedings the petitioner was subsequently made a party. It is claimed that the petitioner is in possession over Plot No.1757/1 since 2002 and has also constructed a house thereon. The application which was filed by the respondent nos. 4 and 5 does not mention Plot No.1757/1. Application under Section 41 of the Act,1901 was finally decided ex-parte by order dated 07.6.2011. The petitioner claims that he had no knowledge about the aforesaid proceedings as no notice etc., were served upon him. The respondents appear to have moved an application on 10.6.2014 for complying with the order dated 07.6.2011 and on the said application itself the Sub Divisional Magistrate made a note for Tehsildar to enquire if there is any encroachment made by the petitioner on the respondents land in Gata Nos.1770 and 1768. In return, it appears that the Tehsildar on the same application required the police authorities to remove the encroachment.
(2.) According to the learned counsel for the petitioner pursuant to the order dated 07.6.2011, which in the first place was an ex-parte order, no survey was made and no inquiry was conducted to indicate whether the petitioner had in fact made any encroachment on the land of the respondents. It appears that even on the application of the respondents dated 10.6.2014 when no action was taken, the respondents filed a writ petition before this Court being Writ Petition No.56373/2014 and this Court vide its order dated 17.10.2014 issued a direction to the Collector that in case the order which is sought to be implemented i.e. the order dated 07.6.2011 have not been stayed by any higher Court, then he shall ensure the implementation within a period of two months. Since this order was also not being complied with, it appears that contempt petition was filed being Contempt Petition No.4058/2015 and this Court directed the Collector to comply with the order and report. At this juncture, now a notice has been issued to the petitioner by the Collector being notice dated 25.11.2015 asking the petitioner to remove the construction or else the same shall be demolished. Upon coming to know about the aforesaid order, the petitioner for the first time came to know about the proceedings initiated under Section 41 of the Act, 1901 and immediately moved an application for recall of the order dated 07.6.2011 and for staying the further proceedings. On the said application by one line order the said application has been rejected.
(3.) According to the learned counsel for the petitioner in an ex-parte proceedings and without there being any enquiry or survey, the petitioner's construction which is standing on the Plot No.1757/1 since 2002 is being sought to be demolished. It is further submitted that even in the writ petition filed by the respondents before this Court the petitioner was not made a party so he had no opportunity to defend himself against the orders passed. I have considered the submission of the learned counsel for the petitioner. At this juncture, in my view, the only option left with the petitioner was to move an application for recalling the order passed under Section 41 of the Act, 1901 and staying the further proceedings. It is to be noted that proceedings initiated under Section 41 of the Act, 1901 are summary in nature and does not create any right and are subject to decisions by which rights can be determined, but the authorities below appear to be proceeding under the threat of contempt. Admittedly, the order dated 07.6.2011 is an ex-parte order and any person who is affected by such an order has a right for recall of such an order for which the petitioner has already moved an application along with the stay application. It appears, that the stay application has been rejected only on the ground that contempt proceedings have been drawn by this Court without, assigning any reason.;