Punjab-Haryana High Court
Pritam Singh vs State Of Punjab And Others on 1 February, 2013
Author: Rameshwar Singh Malik
Bench: Rameshwar Singh Malik
Civil Writ Petition No. 6121 of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Writ Petition No. 6121 of 2011
Date of Decision: 1.2.2013
Pritam Singh
.....Petitioners.
Versus
State of Punjab and others
.....Respondents.
CORAM: HON'BLE MR.JUSTICE RAMESHWAR SINGH MALIK
Present: Mr. Vikas Bahl, Advocate
for the petitioner.
Mr. Pankaj Mulwani, DAG, Punjab
for the State.
Mr. S.C.Jindal, Advocate
for respondent No.4.
***
RAMESHWAR SINGH MALIK J.
The present writ petition is directed against order dated 13.12.2010 (Annexure P-14), passed by Financial Commissioner- respondent No.2, upholding the order dated 3.9.2010 (Annexure P-
13), passed by the Director, Rural Development and Panchayat, Punjab-respondent No.3, whereby resolution dated 30.12.2008 (Annexure P-8) and 29.6.2009 (Annexure P-12), were declared legal.
The brief facts of the case, necessary for the disposal of this matter, are that Gram Sabha of village Ramgarh, Block Balachaur, District Shaheed Bhagat Singh (Nawanshahar), vide its resolution No. 3 dated 30.12.2008 (Annexure P-8), decided to shift Civil Writ Petition No. 6121 of 2011 2 the cremation ground of the village from Khasra No. 7//7/1/2, measuring 1 kanal 3 marlas, to khasra No. 11//11/1, measuring 2 kanals 13 marlas. However, this resolution No. 3 dated 30.12.2008 was opposed by as many as 34 persons of the village, vide a self contained representation dated 6.1.2009 (Annexure P-9). Again, another representation dated 4.2.2009 (Annexure P-10), signed by more than 50 persons, was sent to the authorities concerned opposing the shifting of the cremation ground. Apprehending that the above said representations may not be considered in the right perspective, the petitioner filed a petition under Section 199 of the Punjab Panchayati Raj, Act , 1994 (hereinafter referred to as 'the Act'), seeking cancellation of the above said resolution No. 3 dated 30.12.2008. This petition dated 14.5.2009 is appended as Annexure P-11. However, it seems that during the pendency of the above said petition before Director, Rural Development and Panchayat Punjab- respondent No.3, another resolution No. 2 dated 29.6.2009 (Annexure P-12), came to be passed by the Gram Sabha on the same lines, as the earlier Resolution No.3 was passed. This fact was also brought to the notice of respondent No.3, before whom the above said petition under Section 199 of the Act, filed by the petitioner, was pending decision. The above said petition filed under Section 199 of the Act, was dismissed by respondent No.3, vide impugned order dated 3.9.2010 (Annexure P-13).
Dissatisfied with the above said order, petitioner approached the Financial Commissioner under Section 199 (4) of the Act against the order dated 3.9.2010, passed by respondent No.3, Civil Writ Petition No. 6121 of 2011 3 but this revision petition was also dismissed by the Financial Commissioner, vide impugned order dated 13.12.2010 (Annexure P-
14).
Feeling aggrieved against the above said impugned orders, petitioner has approached this Court, invoking its writ jurisdiction under Articles 226/227 of the Constitution of India, seeking a writ in the nature of Certiorari, for quashing of the above said impugned orders. That is how, this Court is seized of the matter.
Notice of motion was issued and pursuant thereto, joint written statement was filed on behalf of respondent No.3, whereas a separate reply was filed on behalf of Gram Panchayat-respondent No.4. Petitioner filed his replication to the written statement filed by official respondents No. 1 to 3 and also to the written statement filed by respondent No.4.
Learned counsel for the petitioner vehemently contended that the impugned resolutions were passed for extraneous considerations, because the same were clearly against the interest of all the residents of the village. The proposed site for the cremation ground was situated at a distance of 1½ Kms. from the village. It was situated across the river and also across the G.T. Road. He relies upon the site plan (Annexure R-4/3), appended with the reply filed by the official respondents, to contend that there is heavy traffic on the G.T. Road. There is not even a hand pump installed at the proposed site. He further submits that the only reason for shifting the cremation ground was that abadi of the village has come closer to the existing cremation ground, because plots of Tarsem Singh etc. Civil Writ Petition No. 6121 of 2011 4 were adjoining to the cremation ground, was wholly misconceived. In this regard, he submits that once Tarsem Singh etc. have purchased these plots, from earlier owners with open eyes knowing fully well about the cremation ground, it could not have been resolved to shift the cremation ground to far off place only for the benefit of two or three persons, thereby creating a constant cause of harassment and serious inconvenience to the entire village population. He next contended that since respondent No.2 and 3 failed to appreciate this serious and practical difficulty, which will be constantly faced by the residents of the village, the impugned orders have resulted in a serious miscarriage of justice and the same were liable to be set aside. He submits that Tarsem Singh had filed a suit for permanent injunction, which was dismissed as withdrawn, vide order dated 26.10.2009 (Annexure P-6). Learned counsel also submits that the action of the Gram Sabha, while passing the impugned resolutions, was also without jurisdiction.
To buttress his arguments, learned counsel relies upon a Division Bench judgment of this Court in Gram Panchayat Saskaur, versus State of Punjab and others 2009 (3) RCR (civil) 665. Finally, he prays for setting aside the impugned orders, by allowing the present petition.
Per contra, learned counsel for the State submits that impugned orders were factually correct and legally justified, in view of the fact situation prevailing at the site. However, learned State counsel could not deny this factual aspect of the matter that the proposed site was at a distance of 1½ Kms. from the village and it Civil Writ Petition No. 6121 of 2011 5 was across the river and the G.T. Road. He concluded by the submitting the since the impugned orders were legally justified, the present writ petition was liable to be dismissed.
Similarly, learned counsel for respondent No.4, while supporting the contentions raised by learned counsel for the State, submits that no prejudice was caused to the residents of the village in shifting the cremation ground. Since the new proposed site of the cremation ground was easily accessible, no resident of the village shall face any kind of difficulty. He submits that since the writ petition was misconceived, the same was liable to be dismissed.
Having heard the learned counsel for the parties at considerable length, after careful perusal of the record of the case and giving thoughtful consideration to the rival contentions raised, this Court is of the considered opinion that the impugned orders passed by respondents No. 2 and 3 are not sustainable in law, being contrary to the interest of residents of the village and also against the law laid down by this Court. To say so, reasons are more than one, which are being recorded hereinafter.
It is a matter of record that the District Development and Panchayat Officer, Nawanshahar, vide his detailed and a comprehensive report dated 2.8.2005 (Annexure P-3/A), submitted to the Deputy Commissioner, Nawanshahar, pointed out that the Panchayat Officer of the village was directed to conduct spot inspection and submit report thereof, accordingly. The Panchayat Officer, inspected the spot and gave his report that existing cremation ground was at about 2/3 acres away from the village. The proposed Civil Writ Petition No. 6121 of 2011 6 site for cremation ground was at a distance to 1½ Kms. from the village. There was no installation of tap/hand pump at the proposed site. The DDPO, Nawanshahar, also reported that it would be problematic for the residents of the village, if the cremation ground was shifted across the river. It would also be difficult to cross the G.T. Road, because there is usually heavy traffic and there is no other way to reach the proposed cremation ground. Further, the land of the proposed site for cremation ground, had been given on lease by the Gram Panchayat and the Gram Panchayat was getting income from the same. However, it seems that respondent No.3 as well as respondent No.2 failed to appreciate this serious and practical difficulty, which will have to be faced by every resident of the village, if the existing cremation ground is ordered to be shifted to the proposed site for cremation ground.
In this view of the matter, this Court feels no hesitation to hold that the impugned orders suffer from patent illegality and perversity, because respondents No. 2 and 3 have failed to appreciate the fact situation obtaining at the site, which is crystal clear from their own document Annexure R-4/3 i.e. site plan. No compulsive necessity has been shown by either of the learned counsel for the respondents, which may even remotely justify the shifting of the existing cremation ground to the proposed site. It is an admitted position on record and also clear from Annexure R-4/3 that the proposed site for cremation ground is at a distance of 1½ Kms. from the village. It is also situated across the river and G.T. Road. It is common knowledge that as and when any funeral Civil Writ Petition No. 6121 of 2011 7 procession would cross the busy road, like the G.T. Road in the present case, it may cause traffic jams and also the possibility of frequent road accidents cannot be ruled out. In such a situation, it is not understandable as to in whose benefit the impugned resolutions were passed by the Gram Sabha, who did not even have the jurisdiction to do so.
The Gram Sabha might be justified in shifting the existing cremation ground to a reasonable distance of few acres from the existing cremation ground, by way of an exchange of the land with a willing resident of the village, if any. The entire village community cannot be forced to face a constant and serious problem by shifting the existing cremation ground to a distance of 1½ Kms. away and that too across the river as well as the G.T.Road. Thus, it is unhesitatingly held that neither the resolutions were justified on facts, nor the impugned action appeals to reason. Similarly, since respondent No.2 and 3 have failed to consider this material aspect of the matter, while passing their respective impugned orders, the same cannot be sustained.
In addition to what has been observed hereinabove, on the factual aspect of the matter and merits of the case, the Division Bench judgment of this Court in Gram Panchayat Saskaur's case (supra) has held that the Gram Sabha has no jurisdiction to pass a resolution for shifting the cremation ground from one place to another even if the land was belonging to the Gram Sabha. It has been further observed that if any such resolution is passed by the Gram Sabha, the same shall be without jurisdiction and the Director would Civil Writ Petition No. 6121 of 2011 8 be competent to cancel the same, while exercising his powers under Section 199 of the Act.
The relevant observations made by the Division Bench of this court, which aptly apply in the present case, read as under:--
"After hearing learned counsel for the parties, we do not find any ground to interfere in the impugned orders, passed by the authorities under the Act. In our opinion, even the resolution of `the Gram Sabha', if the same is without jurisdiction and contrary to the provisions of the Act, can be cancelled by the Director in exercise of the powers conferred upon him under Section 199 of the Act. In our opinion, `the Gram Sabha' has no power under the Act to take a decision to shift a cremation ground from one place to any other land, belonging to the Gram Panchayat. Such a decision can only be taken by the elected members of the Gram Panchayat. Therefore, the resolution dated 6.1.2006, passed by the Gram Sabha, was wholly without jurisdiction. Even if, the contention of the petitioner Gram Panchayat that under Section 199 of the Act, resolution passed only by a Gram Panchayat can be cancelled by the Director is accepted, even then this writ petition cannot be allowed and the order of the Director cannot be set aside, because setting aside of the said order will result into revival of an illegal and void resolution. Thus, we do not find any ground to interfere in the impugned orders, which have been passed by the competent authorities in the best interest of the inhabitants of the Civil Writ Petition No. 6121 of 2011 9 village, after inspecting the spot and coming to the conclusion that the new site is not fit for cremation ground of the village"
Reverting back to the facts of the present case, it is not in dispute that existing site as well as the proposed site for the cremation ground, are owned by the respondent Gram Panchayat. In view of this factual aspect of the matter, it was only the Gram Panchayat, which was competent to pass the resolution as per the law laid down by the Division Bench of this Court in Gram Panchayat Saskaur's case (supra). Since respondents No. 2 and 3 also failed to delve deep into this aspect of the matter, the impugned orders are illegal.
No other argument was raised.
Under the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, the impugned resolutions dated 30.12.2008 (Annexure P-8) and 29.6.2009 (Annexure P-12) are declared to be illegal. The impugned orders dated 3.9.2010 (Annexure P-13) passed by respondent No.3 and also the order dated 13.12.2010 (Annexure P-14), passed by respondent No.2, are, hereby, ordered to be set aside.
Resultantly, the instant writ petition stands allowed.
(RAMESHWAR SINGH MALIK) JUDGE 1.2.2013 AK Sharma