Punjab-Haryana High Court
Surjit Singh And Another vs State Of Punjab And Others on 21 August, 2013
Bench: Jasbir Singh, G.S. Sandhawalia
CM No. 11903 of 2013 in/and
CWP No. 2348 of 2011 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
*****
CM No. 11903 of 2013 in/and
CWP No. 2348 of 2011 (O & M)
Date of decision : 21.8.2013
Surjit Singh and another ........Petitioners
Vs.
State of Punjab and others ....Respondents
CORAM: Hon'ble Mr. Justice Jasbir Singh
Hon'ble Mr. Justice G.S. Sandhawalia
Present:- Mr. Puneet Sharma, Advocate, for the petitioners
Mr. K. K. Gupta, Addl. AG, Punjab
Mr. Sanjeev Sharma, Advocate, for respondents No. 5 to 7
Mr. Hitesh Kaplish, Advocate, for respondent No.8
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Jasbir Singh, J. (Oral)
CWP No. 2348 of 2011 (O & M) :
By filing this writ petition, the petitioners have laid challenge to an order dated 19.11.2010, ordering exchange of Gram Panchayat's land, falling in Khasra No. 7//9 min (5-18), 7//10 min (2-2), measuring 8 kanals, with land, owned by respondents No. 6 and 7, falling in Khasra No. 12//13 (3-2), 12//18/2/1 (4-18) kitte 2.
It is on record that the said exchange was effected with a view to store sullage water of the village, away from the village abadi.
We have seen the site plan Annexure P-1. The pond (shown in Blue colour) was earlier existing in Khasra No. 4, which is just about one acre away from the village abadi. Upto that pond, by now, the Kumar Ashwani 2013.08.30 10:49 I attest to the accuracy and integrity of this document CM No. 11903 of 2013 in/and CWP No. 2348 of 2011 -2- residents might have extended their residences. Noting, it is very near to the village, decision was taken to shift the pond about three acres away from the village, in the land shown in Brown colour in the site plan. To effect exchange of land, resolution was passed on 14.12.2007 by the Gram Panchayat.
It is primary grievance of counsel for the petitioners that without getting approval for exchange, the Gram Panchayat and the villagers dug up the pond at the spot and their action being contrary to the provisions of Rule 5 of the Punjab Village Common Lands (Regulation) Rules, 1964 (in short 'the Rules'), cannot be sustained.
It is on record that the pond was dug up in the year 2008. To stop the process, the petitioners went to the Civil Court by filing a Civil Suit on 29.3.2008. Application for interim injunction was made, which was dismissed by the Civil Court on 12.5.2010. Averments of the petitioners that exchange was mala fide, were rejected by the Civil Court.
It was also noticed that in the meantime, the Gram Panchayat had dug up the pond at the exchanged land and it will not be proper to stop its use at that stage.
Against that order, the petitioners filed an appeal. However, without waiting for its decision, they came to this Court by filing this writ petition in the month of February 2011. Notice of motion was issued on 8.2.2011. It is stated at the bar that thereafter, Civil Suit was withdrawn on 28.9.2011.
When notice of motion was issued on 8.2.2011, following order was passed by this Court :-
Kumar Ashwani 2013.08.30 10:49 I attest to the accuracy and integrity of this documentCM No. 11903 of 2013 in/and CWP No. 2348 of 2011 -3- "Learned counsel contents that the land that has been dug for use of village pond is sought to be exchanged with the private respondents No. 5 to 7. The action of the respondents is contrary to the provisions of Rule 5 of the Punjab Village Common Lands (Regulation) Rules, 1964.
Notice of motion for 10.3.2011.
Official respondents have been served in Court through Mr. G.S. Attariwala, Addl. AG, Punjab. Requisite number of copies of the writ petition have been handed over to him. Let private respondents be served by way of dasti process.
Director, Rural Development and Panchayat, Jalandhar is directed to visit the site and file an inspection report clearly stating the justification of the proposed action of the Gram Panchayat and endorsement by the Government.
In the meantime, status quo shall be maintained." Directions were issued to the Director, Rural Development and Panchayats to visit the spot and file a report justifying shifting pond to the land, now taken in exchange by the Gram Panchayat. Report dated 3.5.2011 has come on record. Perusal thereof indicates that the site was inspected by a Divisional Deputy Director, Rural Development and Panchayats, Jalandhar on 2.5.2011, in the presence of the petitioners and other villagers. That report reads thus :-
"As per directions of Hon'ble Punjab & Haryana High Court in CWP No. 2348 of 2011, I visited Village Daula on
2.5.2011. Besides Sh. Surjit Singh (Petitioner), Sarpanch & Panchayat Members, about 40-50 villagers were also present. The Sarpanch & Panchayat Members explained that during the consolidation of holdings of this village, no land was reserved for pond which could have been used for disposal of sullage water of the village. It was also brought to my notice Kumar Ashwani 2013.08.30 10:49 I attest to the accuracy and integrity of this document CM No. 11903 of 2013 in/and CWP No. 2348 of 2011 -4- by the villagers that for the last 20-25 years the 80% of the sullage water of the village was being collected in Khasra No. 11//4 (8-0) & 11//7 (5-11) by digging a small pond in about 3 kanals. As per revenue record, these khasra numbers are the ownership of Jumla Mushtarka Malkan and reserved for village school. Rest of about 20% of the sullage water is being collected in about 2 kanals of Khasra No. 38 min which is at present a private property. The Gram Panchayat has about 5 acres of agriculture land towards the west of the village but as per the villagers this land is about 1 KM from the village and natural slope is not in that direction, thereby ruling out the feasibility of using this land for sullage water disposal. With the view to find a suitable land for sullage water disposal, the Gram Panchayat vide its resolutions dated 4.10.2008 and 12.7.2010 and Gram Sabha resolutions dated 14.12.2007 and 25.9.2008 had sought to exchange its shamlat land bearing Khasra No. 7//9 min (5-18) and 7//10 min (2-2) total land 8 kanals with Khasra No. 12//13 (3-2) and 12//18/2/1 (4-18) total 8 kanals owned by Sh. Gurmukh Singh and Sh. Iqbal Singh both sons of Sh. Roor Singh. The land of Sh. Gurmukh Singh and Sh. Iqbal Singh is situated at a distance of about 250 meters towards the eastern side of the village. It is pertinent to mention that the Gram Panchayat effected this exchange of land by digging pond in the land of Sh. Gurmukh Singh and Sh. Iqbal Singh and disposing of sullage water into this pond during the month of February 2008 without obtaining the approval of the State Government.
Sh. Surjit Singh's main objection to this exchange of land is that he has his agricultural land adjoining the land where the Gram Panchayat has dug up new pond for disposal of sullage water and during rainy season the water in the pond is likely to overflow and submerge his land thereby causing loss to the crops.
Kumar Ashwani 2013.08.30 10:49 I attest to the accuracy and integrity of this documentCM No. 11903 of 2013 in/and CWP No. 2348 of 2011 -5- As discussed above, it is evident that there was no pond in this village as such to collect sullage water of the households. Also the shamlat land of the village was not suitable for disposal of sullage water as it is about 1 KM from village abadi and natural slope does not allow the movement of water towards that direction. Secondly, the land where the sullage water used to collect previously, is reserved for school as per the revenue record. The Gram Panchayat vide its resolutions mentioned above moved a case to the State Government to exchange its shamlat land bearing Khasra No. 7//9 min (5-18) and 7//10 min (2-2) total land 8 kanals with Khasra No. 12//13 (3-2) and 12//8/2/1 (4-18), total 8 kanals owned by Sh. Gurmukh Singh and Sh. Iqbal Singh both sons of Sh. Roor Singh for the purpose of digging a pond for sullage water disposal. The State Government accorded its approval to this land exchange by an order dated 19.11.2010 which was issued vide Endst. No. 09/32/10/LD-2/20937-43 dated 23.11.2010. The new pond dug up by the Gram Panchayat in 8 kanals of land exchanged with Sh. Gurmukh Singh and Sh. Iqbal Singh has sufficient capacity to absorb the disposal water of the village and it is not likely to overflow . In the light of facts discussed above, this exchange of land appears to be need based and justified."
It was noticed that the land taken in exchange, is suitable for discharge of sullage water of the village and it is situated at one kilometer away from the village abadi. Natural flow of the water is also in that direction. It is further noticed that the old pond was situated in the land reserved for a school. It has also come on record that pipelines have been dug up, upto the pond to take sullage water of the village. It has also come on record that the State Government has approved the proposal of the Kumar Ashwani 2013.08.30 10:49 I attest to the accuracy and integrity of this document CM No. 11903 of 2013 in/and CWP No. 2348 of 2011 -6- Gram Panchayat for exchange of land on 19.11.2010. It was also reported that digging up of the pond, at the place in dispute was justified. If the dug up pond now is ordered to be filled up with earth and take the sullage water to the old place, from where the pond was shifted, it will be wastage of money and time of public.
The petitioners failed in the injunction application before the Civil Court. Their appeal was pending when they came to this Court.
Categoric finding has been given by the Civil Court that there was no mala fide in exchanging land by the Gram Panchayat with the private respondent. That finding was not taken to the logical conclusion by the petitioners and in the midway they withdrew their suit. By that time the work was over.
Under the circumstances, no order can be passed at this stage.
On request made by the petitioners, we direct the Gram Panchayat to ensure that the water should not overflow to the fields of the petitioners, situated next to the pond. For that purpose, if need arises, a brick wall be constructed along with the pond.
During arguments, it has been brought to our notice that the private respondents are in un-authorised occupation of Gram Panchayat's land. It was so reflected in the report made by SDM on 4.3.2008 (P-6).
Taking note of the same, we direct the Block Development and Panchayats Officer concerned to initiate action as per law, for ejectment of the un- authorised occupants on the Gram Panchayat's land. BDPO shall also ensure that the land of the old pond be taken in possession by the Gram Panchayat to use it as per requirement.
Kumar Ashwani 2013.08.30 10:49 I attest to the accuracy and integrity of this documentCM No. 11903 of 2013 in/and CWP No. 2348 of 2011 -7- Needful shall be done within two months from the date of receipt of a copy of this order.
CM No. 11903 of 2013 :
In view of above observation, this application has become infructuous and disposed of accordingly.
(Jasbir Singh) Judge (G.S. Sandhawalia) Judge 21.8.2013 Ashwani Kumar Ashwani 2013.08.30 10:49 I attest to the accuracy and integrity of this document