Punjab-Haryana High Court
Mangal vs State Of Haryana And Others on 22 May, 2013
Author: Rajive Bhalla
Bench: Rajive Bhalla, Rekha Mittal
CWP No.5441 of 2011 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No.5441 of 2011 (O&M)
Pronounced on: 22nd May, 2013
Mangal ..... Petitioner
VERSUS
State of Haryana and others ..... Respondents
CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA
HON'BLE MRS. JUSTICE REKHA MITTAL
Present: Mr.Ashwani Kumar Chopra, Senior Advocate, with
Mr.Harminder Singh, Advocate, for the petitioner.
Mr.D.Khanna, Addl.A.G.,Haryana, for respondents No.1 to 3.
None for respondent No.4.
Mr.Adarsh Jain, Advocate, for respondent No.5.
Mr.Arun Jain, Senior Advocate, with
Mr.Alok Jain, Advocate, for respondent No.7.
*******
RAJIVE BHALLA, J.
CM No.6096 of 2013
Allowed as prayed for.
CM No.6097 of 2013 Application is allowed and reply filed on behalf of respondent No.7, is taken on record.
CWP No.5441 of 2011
The petitioner prays for issuance of a writ of certiorari, quashing order dated 11.11.2010 (Annexure P-6), whereby approval has been accorded by the Financial Commissioner and Secretary Development and Panchayats, Haryana, to the exchange of Shamilat CWP No.5441 of 2011 (O&M) -2- land belonging to the Gram Panchayat with land belonging to respondent No.7. The petitioner also prays for issuance of a writ of mandamus, directing respondents No.1 to 4 to take appropriate steps to restore the land, in illegal possession of respondent No.4, to Gram Panchayat Pavta, District Faridabad, Before we record the respective submissions, it would be appropriate to refer to the facts.
The petitioner and 28 others filed a complaint before the Deputy Commissioner, Faridabad, alleging that respondent No.7 has encroached upon 3 acres of land belonging to the Gram Panchayat by raising a boundary wall and as a result, has encroached upon land reserved as a "hadda rori" (land for skinning carcass of dead animals) and for a 11' wide common path. The complainants also alleged that about 600-700 truckloads of earth have been removed from the said land. The Deputy Commissioner, Faridabad, passed an order, on 21.03.2007, directing an inquiry. The Field Kanungo carried out a demarcation on 20.09.2007 and his report revealed the following encroachments: -
"a) Sh.Brij Bhan s/o Sh.Dungar has included Khasra No.7/15 measuring 1-5 Gair Mumkin Hadda Rori inside his boundary wall in his field and has taken possession by ploughing it.
b) Sh.Brij Bhan, the owner of Killa Nos.5/22-23, 7/2-9/2 has by encroaching two karams width on Northern side and one karam on southern side of Killas 5/22-23, 7/21-19 has been encroached upon Gair Mumkin Rasta Silwari No.67 No.67 by raising boundary wall.
c) Sh.Brij Bhan has raised a pucca boundary wall and illegally encroachd upon the land 7 karam width towards western side of Killa No.20 and to the extent of 8 karams towards lower side of Killa No.22/1 of Killa No.8/20-22/1 of CWP No.5441 of 2011 (O&M) -3- Nallah comprised in Khasra No.70.
d) Sh.Brij Bhan, the owner of Khasra No.8/12-19, has encroached upon land 11 karam in width and 35+34 karams in length of Khasra No.72 of Panchayat Deh towards eastern side of Killa No.8/12."
The District Development and Panchayat Officer (DDPO), Faridabad, recorded the statements of various persons and submitted a report, dated 16.11.2007, to the Deputy Commissioner, confirming that respondent No.7 has encroached upon 2 acres of Gram Panchayat land, including land reserved for "hadda rori", and has removed earth from Panchayat land. A second inquiry report, dated 29.02.2008, was submitted by the DDPO, Faridabad, indicting Smt.Dharamwati (ex- Sarpanch) for concealing the fact that respondent No.7 has filed a suit against the Gram Panchayat, and that she has failed to protect the interest of the Gram Panchayat.
The District Public Relations and Grievances Redressal Committee (hereinafter referred to as the "District Committee"), forwarded a proposal put-forth by respondent No.7, for payment of the price of the land, or for giving alternate land, to the Gram Panchayat. The Gram Panchayat passed a resolution, dated 19.03.2008, rejecting the proposal and sought restoration of its land. A relevant extract from resolution, dated 19.03.2008, reads as follows: -
"After due consideration, the 9 Members Panchayat unanimously decided that the whole of the land of the Gram Panchayat illegally possessed by Brij Bhan s/o Dungar be got vacated from him. We do not want anything else. A copy of the resolution be sent to BDO for necessary action. Resolution passed and adopted."CWP No.5441 of 2011 (O&M) -4-
The Gram Panchayat passed another resolution on 27.03.2008, accepting the offer made by respondent No.7, for providing alternative land. The resolution and the petitioner's complaint came up for consideration before the District Committee, on 16.04.2008, which ordered that the price of earth removed from Panchayat land be recovered from the concerned persons and resolution, passed by the Gram Panchayat, be forwarded to the Director, Panchayats, Haryana, for consideration.
The petitioner filed CWP No.11739 of 2008 titled as "Mangal and others V/s State of Haryana and others", to challenge resolution, dated 27.03.2008, which was disposed of, on 25.07.2008, in the following terms: -
"Accordingly, the instant writ petition is disposed of with a direction to the Director Development and Panchayats, Haryana, to take a final decision on the legal notice dated 19.05.2008 (Annexure P-) by passing a well reasoned speaking order within three months from the date of receipt of a certified copy of this order. It would be appreciated if the Director, Development and Panchayats, Haryana affords an opportunity of hearing to the petitioners as also allows them to place further material before him, if they are so advised.
Disposed of accordingly."
The Director, Panchayats, Haryana, held a detailed inquiry and thereafter rejected resolution, dated 27.03.2008, by holding that respondent No.7 is not owner of the alternative land offered by him. The Director, Panchayats, also held that the Gram Panchayat has committed a forgery in the resolution by adding khasra numbers of the alternative land offered by respondent No.7 and therefore, directed the CWP No.5441 of 2011 (O&M) -5- Deputy Commissioner, Faridabad, to hold an inquiry into the forgery etc. The Deputy Commissioner, Faridabad, in turn, directed the SDO (Civil) Faridabad to hold an inquiry. The SDO (Civil) submitted his report dated 19.06.2009 and recorded the following conclusions: -
"i) That there was cutting in the Panchayat Resolution dated 27.03.2008 as on the date of said resolution, Sh.Brij Bhan Badhana was not the owner of the alternative land and he purchased it subsequently.
ii) Sh.Brij Bhan Badhana had encroached upon Panchayat land and had included the same with a boundary wall.
iii) That the Sarpanch had sold earth from the Panchayat land resulting in decreasing the quality of Panchayat land and loss to the Gram Panchayat Pavta.
iv) That the report of the Kanungo dated 20.09.2007 clearly showed that there was encroachment upon the Panchayat land.
v) That in the report dated 16.11.2007 and 29.02.2008 made by the DDPO, it was established that the Sarpanch had got the encroachment upon the Panchayat land by colluding with Sh.Brij Bhan Badhana."
The report confirms that respondent No.7 has encroached upon Gram Panchayat land and illegally removed earth, in collusion with the then Sarpanch.
The petitioner and two others, addressed a registered letter dated 08.02.2010 to respondents No.1 to 3 and to the Governor of Haryana for initiating appropriate proceedings against the Panchayat and respondent No.7.
The Gram Panchayat, passed a resolution on 09.01.2009 for exchange of its land with land which was subject matter of its earlier resolution dated 27.03.2008 by recording that as Panchayat land is uneven, exists in small fragments, and land earmarked for Hadda Rori CWP No.5441 of 2011 (O&M) -6- does not have a passage, approval may be accorded for exchange of the land offered by respondent No.7 which is cultivable and abuts other land belonging to the Gram Panchayat. It was also recorded that the exchange is in the interest of residents of the village. The Deputy Commissioner, Faridabad, forwarded the resolution, by recording that though 9 kanals and 19 marlas of Gram Panchayat land is in unauthorised possession of respondent No.7 and the Gram Panchayat land cannot be used as it is uneven and exists in small fragments, it may be exchanged with land offered by respondent No.7 which is cultivable, abuts other Panchayat land and can be leased out by the Gram Panchayat. The Deputy Commissioner also recorded that market value of Gram Panchayat land is Rs.20 lacs per acre whereas market value of land offered by respondent No.7 is Rs.24 lacs per acre. The resolution and the reports were considered by the council of ministers in their meeting on 09.11.2010 and approved after considering the following facts: -
"a) that there was no passage to approach the land bearing khasra No.7//15 (1 kanal-5 marla) earmarked for Hadda Rori.
The Gram Panchayat may earmark the area for Hadda Rori out of the private land taken in exchange;
b) that the Panchayat land was uneven and in pieces and even if it was got vacated, it could not be utilized for any common purpose of the village, whereas the private land is cultivable land abutting to the other Panchayat land and it can be leased out by the Gram Panchayat;
c) that the market value of the Panchayat land was determined at Rs.20 lac per acre whereas the market value of the private land was determined at Rs.24 lacs per acre;
d) that the Gram Panchayat was proposed to b given 10 kanal of land in exchange against its 9 kanal and 19 marla land;
e) that it was reported that there would be no hindrance to CWP No.5441 of 2011 (O&M) -7- the traffic and passers-by, if the proposed Panchayat land is given in exchange; and
f) that the District Dispute and Grievances Redressal Committee had also directed that a proposal for exchange of lands be sent to the Director Panchayats, Haryana to settle the dispute."
After approval by the council of ministers, the Financial Commissioner and Principal Secretary to Government of Haryana passed an order that the Governor of Haryana is pleased to grant approval to Gram Panchayat, Pavta, to exchange its land in Shamilat Deh, measuring 9 kanals and 19 marlas, with land measuring 10 kanals, under Rule 5 of the Punjab Village Common Lands (Regulation) Rules, 1964, as applicable to the State of Haryana (hereinafter referred to as the "1964 Rules").
The petitioner challenges this order and prays that land in unauthorised occupation of respondent No.7 be restored to the Gram Panchayat.
Counsel for the petitioner submits that, admittedly, respondent No.7 is in unauthorised possession of Gram Panchayat land which has been ordered to be exchanged, with land belonging to respondent No.7. The Gram Panchayat was coerced politically or otherwise, into passing a resolution for exchange within seven days of passing a resolution refusing to accept the exchange. It is further submitted that initially the Director Panchayats rejected a similar resolution but has lateron recommended the exchange. The council of ministers have accorded approval to the exchange, without considering the provisions of the Punjab Village Common Lands (Regulation) Act, CWP No.5441 of 2011 (O&M) -8- 1961 (hereinafter referred to as the "1961 Act") or the facts of the case. It is further submitted that all other matters apart, respondent No.7 is, admittedly, an unauthorised occupant of Gram Panchayat land and, therefore, could not be shown any consideration much less acceptance of his offer for exchange. The ground that the Gram Panchayat land is in small fragments, is uneven, and is surrounded by land belonging to respondent No.7, is irrelevant as Shamilat Deh can only be exchanged if it is necessary to do so for benefit of inhabitants of the village, as required by Rule 5 of the 1964 Rules. A perusal of the resolution, the approval granted by the council of ministers and the order of approval, do not reveal any consideration of Rule 5 of the 1964 Rules or any facts that may give rise to an inference that it is necessary to transfer Gram Panchayat land. The facts of the case, indicate that the exchange was necessary for respondent No.7 as the land, in dispute, abuts his land. In the absence of any material to infer that it is necessary for the Gram Panchayat to affect the exchange or any consideration, in respect thereof, the impugned resolution and orders are a nullity and may, therefore, be set aside.
Counsel for respondent No.7 (the contesting respondent) submits that the writ petition should be dismissed summarily as the petitioner is guilty of suppressing a material fact that before filing the writ petition, a civil suit was filed by Tek Chand son of Dongar and Tek Ram son of Mathu, in representative capacity, challenging the resolution and the approval which are impugned in the present CWP No.5441 of 2011 (O&M) -9- petition. As the suit pending before the civil court is identical to the lis in the present petition and as evidence has been led and the suit is fixed for arguments, the present petition should be dismissed. It is further submitted that the plea that respondent No.7 is an influential person, is incorrect. Even otherwise, as better and more valuable land has been offered to the Gram Panchayat in return for its uneven and fragmented land, the exchange is necessary for the Gram Panchayat to put its land to optimum use. A perusal of the Aks-sajra would reveal that land belonging to the Gram Panchayat, allegedly encroached by respondent No.7, is a narrow strip, surrounded on both sides by land belonging to respondent No.7. The hadda rori is a small triangular piece of land surrounded on all sides by land belonging to respondent No.7. The hadda rori does not have any passage and, therefore, cannot be used by the Gram Panchayat. The Gram Panchayat rightly passed a resolution accepting the offer of exchange so as to put the land to its optimum use. The petitioner has not been able to plead or prove any prejudice to the Gram Panchayat or to the rights of inhabitants of the village. The earlier resolution was rejected on the ground that respondent No.7 was not owner of the land offered for exchange. The matter was reconsidered after respondent No.7 purchased this land. The question of exchange has been duly considered and accepted by the council of ministers. The impugned orders do not call for interference.
Counsel for the State of Haryana submits that it is true that respondent No.7 is in unauthorised occupation of Gram Panchayat land CWP No.5441 of 2011 (O&M) -10- but as Gram Panchayat land is uneven, exists in small fragments, is surrounded by land belonging to respondent No.7 and land reserved for hadda rori, does not have a passage, it was necessary for the Gram Panchayat to exchange the land so as to generate income from the land, offered by respondent No.7. The question whether it is necessary for the Gram Panchayat to exchange its land, cannot be considered in isolation but after taking into consideration all relevant facts. If all relevant facts are taken into consideration, they clearly prove that the exchange is for benefit of the Gram Panchayat. The mere fact that respondent No.7 is in unauthorised occupation of Gram Panchayat land, is irrelevant.
Counsel for respondent No.5 adopts the arguments raised by counsel for the State of Haryana and counsel for respondent No.7.
We have heard counsel for the parties and perused the pleadings as well as the resolutions and the impugned order.
Apart from the fact that respondent No.7 is, admittedly, in unauthorised occupation of the Gram Panchayat land, which we shall deal with later, the point that arises for adjudication is whether resolution passed by the Gram Panchayat seeking approval for an exchange and the order granting approval to the exchange are in consonance with the statutory provisions of the 1961 Act and the 1964 Rules that empower a Gram Panchayat to exchange its land.
A Gram Panchayat, may, in accordance with the power conferred by Section 5 of the 1961 Act, sell, exchange, lease etc. its CWP No.5441 of 2011 (O&M) -11- land. Rule 5 of the 1964 Rules prescribes the procedure for exchange of Gram Panchayat land and reads as follows: -
"5 Exchange of land. Section 5 and 15 (2) (f):-
A Panchayat, if it is of opinion that it is necessary so to do for the benefit of the inhabitants of the village may, with the prior approval of the Government, transfer any land in Shamilat deh by exchange with the land of an equivalent value to be determined by the Deputy Commissioner in whose jurisdiction the land is situate:
Provided that State Government shall not accord any approval in cases which are not received through the Deputy Commissioner concerned:
Provided further that for the purpose of allotment of residential plots to the eligible families identified under the scheme approved by the State Government, to allot house-sites to the Scheduled Castes' families and the families living below poverty line, the concerned Deputy Commissioner or Sub- Divisional Officer (Civil), as may be authorized by the State Government, shall be competent to accord approval for transfer any land in shamilat deh, by way of exchange, with the land of equivalent value."
A perusal of Rule 5 of the 1964 Rules, reveals that a Gram Panchayat may exchange its land only if the Gram Panchayat is of the opinion that ".....the exchange is necessary so to do for the benefit of the inhabitants of the village....." The expressions "necessary so to do"
and "for the benefit of the inhabitants of the village," are a key to the exercise of the power under Rule 5 of the 1964 Rules and, therefore, place a duty upon the Gram Panchayat, to consider and disclose facts that render it necessary to exchange its land. A Gram Panchayat would be required to consider, before accepting an offer for exchange, of its land whether the exchange is necessary for the benefit of the inhabitants of the village or to put it differently if the exchange is not CWP No.5441 of 2011 (O&M) -12- affected would the interest of inhabitants of the village suffer. An element of "necessity" as opposed to a mere need or desire, for exchange, must underline the exercise of power to exchange. A Gram Panchayat shall, when it seeks approval of an exchange, pass a resolution recording its opinion disclosing why it is necessary to exchange Gram Panchayat land. The mere fact that an exchange may benefit a Gram Panchayat or lead to the Gram Panchayat getting a larger parcel or a more valuable piece of land, would not raise an inference that the exchange is "necessary" for inhabitants of the village.
An element of "benefit" may be read into the word 'necessity' but as these words are neither synonymous nor interchangeable, the mere fact that a proposal for exchange is for benefit of the Gram Panchayat, may not make it "necessary". Factors like more valuable land, a large piece of land, better location, quality of land, are merely enabling factors which in the absence of necessity, cannot be held to be sufficient to effect or approve a valid exchange.
A perusal of the resolution passed by the Gram Panchayat, the approval granted by council of ministers (both of which we have reproduced in extenso), and the impugned order do not disclose any material that may raise an inference that the exchange is "necessary"
for inhabitants of the village. The fact that the land is in fragments or the hadda rori does not have a passage, may be relevant factors but in the absence of the element of necessity, cannot raise an inference that the exchange is necessary for inhabitants of the village. CWP No.5441 of 2011 (O&M) -13-
As referred to in the narrative of facts, respondent No.7 is, admittedly, in unauthorised occupation of Gram Panchayat land sought to be exchanged. The necessity, if any, is of respondent No.7 and not of the Gram Panchayat. The Gram Panchayat can always initiate proceedings for obtaining a passage to the "hadda rori", if not provided during consolidation and seek eviction of respondent No.7 from its land and put it to suitable use. The necessity of respondent No.7, is clearly proved by the fact that his land surrounds Gram Panchayat property, which he has encroached and merged into his farmhouse. The existence of Gram Panchayat land, in between land owned by respondent No.7 is an irritant to respondent No.7, who has occupied this land without any right, title or interest and, therefore, seeks to coerce the Gram Panchayat into exchanging its land with land offered by him. The preliminary objection regarding pendency of a civil suit, does not prohibit the adjudication of the present petition. The suit may have been filed, by certain residents of the village, in representative capacity but as the resolution and the impugned order are contrary to law, we are not inclined to dismiss the writ petition on this preliminary objection.
The resolution which has been passed by the Gram Panchayat to benefit an unauthorised occupant of Gram Panchayat land and the approval granted, in our firm opinion, are contrary to Rule 5 of the 1964 Rules.
In view of what has been stated hereinabove, the writ CWP No.5441 of 2011 (O&M) -14- petition is allowed, the resolution dated 19.03.2008 and impugned order dated 11.11.2010, are set aside and the Deputy Commissioner, Faridabad, is directed to ensure that the Gram Panchayat takes appropriate steps to obtain possession of the land, in dispute.
No order as to costs.
[ RAJIVE BHALLA ]
JUDGE
22nd May, 2013 [ REKHA MITTAL ]
shamsher JUDGE