Punjab-Haryana High Court
Jagir Singh And Another vs State Of Punjab And Others on 6 July, 2012
Author: Rakesh Kumar Jain
Bench: Rajive Bhalla, Rakesh Kumar Jain
CWP No.13002 of 2003 [1]
CWP No.17418 of 2004
::::::::
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
(1) CWP No.13002 of 2003
Date of decision:06.07.2012
Jagir Singh and another ...Petitioners
Versus
State of Punjab and others ...Respondents
(2) CWP No.17418 of 2004
Date of decision:06.07.2012
Dashmesh Truck Body Builders and others ..Petitioners
Versus
State of Punjab and others ...Respondents
CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA
HON'BLE MR. JUSTICE RAKESH KUMAR JAIN
Present: Mr. Karan Bhardwaj, Advocate,
for the petitioners.
Mr. J.S.Puri, Addl. A.G., Punjab,
for respondent No.1.
*****
RAKESH KUMAR JAIN, J.
By way of this order, we shall dispose of two writ petitions, namely, CWP No.13002 of 2003 titled as "Jagir Singh and another Vs. State of Punjab and others" [for short "first petition"] and CWP No.17418 of 2004 titled as "Dashmesh Truck Body Builders and others Vs. State of Punjab and others" [for short "second petition"] as a similar question of law namely "whether the Director Consolidation, has jurisdiction in terms of Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 [for short "1948 Act"] to pass order of exchange CWP No.13002 of 2003 [2] CWP No.17418 of 2004 ::::::::
of land of the Gram Panchayat or the jurisdiction vests with the State Government, in terms of Section 5 of the Punjab Village Common Lands (Regulation) Act, 1961, as applicable to Punjab [for short "1961 Act"] read with Section 15(2)(f) of the 1961 Act and Rule 5 of the Punjab Village Common Lands (Regulation) Rules, 1964, as applicable to Punjab, [for short "Rules"]" is involved in both the writ petitions.
In both the aforesaid writ petitions, order dated 27.04.1998 passed by the District Development and Panchayat Officer, exercising the powers of Collector, Rupnagar, and the order dated 07.09.2001, passed by the Director-cum-Special Secretary, Punjab Government, Rural Development and Panchayat Department, Chandigarh (exercising the power of Commissioner), allowing the exchange of shamlat deh bearing Khasra Nos.26//8/2 (1-15), 13(3-1) and 27//1/1 (1-10), total measuring 6 Kanals 6 Marlas, with the land of Hazura Singh son of Mariya, bearing Khasra Nos.1/15/1/1 (2-10), have been challenged by way of a petition filed under Section 11 of the Act, by proprietors of the village.
It is pertinent to mention that the first petition is filed by Jagir Singh and Hazura Singh as right-holders of the village, whereas the second petition is filed by Dashmesh Truck Body Builders (petitioner No.1), who claims to have purchased some land out of Khasra Nos.26//8/2 and 13/1 through 5 registered sale deeds from Hazura Singh. Sukhdev Singh (petitioner No.2) purchased some part of land out of the aforesaid Khasra numbers from Hazura Singh by way of 3 registered sale deeds. Ashok Kumar (petitioner No.3) has purchased some portion of the aforesaid land by way of 2 registered sale deeds.
The petitioners in the second petition are vendees from Hazura Singh etc., who had effected an exchange of his land measuring 02 Kanals 10 Marlas with the land of Civil Panchayat measuring 06 Kanals 06 Marlas, vide order of the Additional Director (II), Consolidation of Holdings, Punjab.
The case set up by Hazura Singh/vendor is that the land in question was exchanged vide order Annexure P-1 by way of a civil court decree passed in his favour along with his co-proprietors pursuant to CWP No.13002 of 2003 [3] CWP No.17418 of 2004 ::::::::
consent given by the Gram Panchayat. It is also alleged that a petition was filed by Jagir Singh (petitioner No.1 in the first petition) before the Director Consolidation, averring that though he has been in possession of Khasra Nos.991, 1003, 1155, 1488 and 1832, as co-sharer in shamlat deh and the consolidation staff has shown him as Hissedar Kabaz in Khatauni Istemal, but entry to that effect has not been shown in Khatauni Paimaish.
The Director Consolidation, remanded the case to the Consolidation Officer on 30.09.1987, who passed order dated 27.11.1987, against which the Gram Panchayat filed CWP No.17106 of 1996, which was dismissed on 12.08.1996. It is also alleged that Jagir Singh, along with other co-sharers of the village, filed a petition under Section 11 of the 1961 Act for declaration that they are owners in possession of the land comprised in Khewat No.313 and 370, Khasra Nos.1//15/1/1, 19//23/1, total measuring 10 Kanals 05 Marlas, which was allowed by the Collector, Rupnagar on 06.12.2001 to the extent of their title. It was, thus, submitted by counsel for the petitioners that the subsequent petition filed under Section 11 of the 1961 Act by the co-proprietors, allowed vide impugned orders dated 27.04.1998 and 07.09.2001, is patently illegal as there is already a declaration to the extent of share of Jagir Singh by the Collector, Rupnagar and also by the Civil Court.
The second petition is filed by the subsequent purchasers who have basically relied upon the order of exchange (Annexure P-1) by which their vendor Hazura Singh has got transferrable title of shamilat land.
Counsel for the respondents has submitted that the land, which was transferred by virtue of order Annexure P-1, was recorded as shamilat deh being Hadda Rori and Gair Mumkin Shamshan Ghat, which was used for common purposes. Jagir Singh (petitioner No.1 in the first petition) was the then Sarpanch of the Gram Panchayat. He exchanged the land of Hadda Rori and Gair Mumkin Shamshan Ghat with the land of Hazura Singh (petitioner No.2 in the first petition). It is further submitted that not only Jagir Singh (petitioner No.1 in the first petition) played a fraud with the Panchayat in exchanging its 6 Kanals 6 Marlas of land with only 2 Kanals 10 Marlas of his land, but also it has not been specified that the aforesaid CWP No.13002 of 2003 [4] CWP No.17418 of 2004 ::::::::
exchange is for the benefit of the inhabitants of the village. He further submitted that the Director Consolidation has no jurisdiction at all to effect an exchange.
We have heard counsel for the parties and perused the record with their able assistance.
Before dealing with the respective submissions of counsel for the parties, it would be relevant to refer to Section 42 of the 1948 Act, Sections 5 and 15(2)(f) of the 1961 Act and Rule 5 of the Rules, which are as under:
Section 42 of the 1948 Act "42. Power of State Government to call for proceedings.-- The State Government may at any time for the purpose of satisfying itself as to the legality or propriety of any order passes, scheme prepared or confirmed or repartition made by any officer under Act, call for and examine the record of any case pending before or disposed of by such officer and may pass order in reference thereto as it thinks fit;
Provided that no order or scheme or repartition shall be varied or reversed without giving the parties interested notice to appear and opportunity to be heard except in cases where the State Government is satisfied that the proceedings have been vitiated by unlawful consideration."
Sections 5(5) and 15(2)(f) of the 1961 Act
5. Regulation of use and occupation, etc., of lands vested or deemed to have been vested in Panchayats.--
(1) to (4) xxx xxx xxx
(5) Notwithstanding anything contained in the
preceding sub-sections, on land vested or deemed CWP No.13002 of 2003 [5] CWP No.17418 of 2004 ::::::::
to have been vested in a panchayat under this Act, shall be disposed of by way of sale, gift or exchange, so as to leave with the Panchayat, culturable area which is less than fifty per cent of the total culturable area vested or deemed to have been vested in the Panchayat."
"15. Power to make rules.--
(1) xxx xxx xxx (2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for--
(a) to (e)
(f) the manner and the circumstances in
which any such land may be disposed
of, transferred or sold;
Rule 5 of the Rules
"5. Exchange of land. [Sections 5 and 15(2)(f) of the Act].-- 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 shamlat deh by exchange with the land of an equivalent value."
Section 42 of the 1948 Act empowers the State Government to call for the record of any order passed, scheme prepared or confirmed or re-partition made by any officer under the Act. It is, therefore, obvious that authority exercising power under Section 42 of the 1948 Act cannot examine any order, which has not been passed by any officer under the 1948 Act.
Section 5 of the 1961 Act provides for disposal of the land vested in the Panchayat for the benefit of inhabitants of the village in the CWP No.13002 of 2003 [6] CWP No.17418 of 2004 ::::::::
manner prescribed.
Section 15(2)(f) of the 1961 Act deals with the power of the State Government to lay down the manner and circumstances in which such land may be disposed of, transferred or sold. In terms of aforesaid provisions, Rule 5 of the Rules was enacted, to provide that it is for the Panchayat to form an opinion that the exchange is necessary for the benefit of inhabitants of the village and then also with prior approval of the Government with the land of equivalent value.
From a bare reading of the aforesaid provisions, it is evident that order Annexure P-1, root cause of this controversy, could not have been passed by the Director Consolidation, as he does not possess power under the 1961 Act to effect an exchange of shamlat land with the land of the proprietary body of the village as the jurisdiction to exchange its land vests with the Gram Panchayat, who would first form an opinion that the exchange of shamlat deh is necessary for the benefit of inhabitants of the village and then forward it to the State Government for its approval. The exchange would come into being only after formal approval is given by the Government, which has to be as per the parameters laid down in Rule 5 of the Rules.
In view of the aforesaid discussion, we do not find any error in the impugned orders and hence, the present writ petitions are hereby dismissed.
No costs.
A photocopy of this order be placed on the file of other connected case.
(RAKESH KUMAR JAIN) JUDGE
06.07.2012 (RAJIVE BHALLA) vinod* JUDGE