Punjab-Haryana High Court
Baldev Singh And Others vs State Of Haryana And Others on 3 February, 2012
Author: Rajive Bhalla
Bench: Rajive Bhalla, Jora Singh
CWP No.16133 of 2010 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No.16133 of 2010 (O&M)
Date of decision:03.02.2012
Baldev Singh and others ..... Petitioners
Versus
State of Haryana and others ..... Respondents
CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA
HON'BLE MR. JUSTICE JORA SINGH
Present: Mr.Sandeep Punchhi, Advocate for the petitioners.
Ms.Shruti Jain, AAG, Haryana for respondents No.1 to 3.
Mr.S.K.Sharma, Advocate with
Mr.Ashok Arora, Advocate
for respondent No.4-Gram Panchayat.
*****
RAJIVE BHALLA, J The petitioners pray for issuance of a writ in the nature of certiorari for quashing order dated 11.02.2010, passed by the Financial Commissioner and Principal Secretary to Government of Haryana, Department of Rural Development and Panchayats, under Section 5B (2) of the Punjab Village Common Lands (Regulation) Act, 1961 (as applicable to the State of Haryana) (for short the 'Act'), cancelling the approval accorded by the Deputy Commissioner, Sirsa, for exchange of land.
The Gram Panchayat village Khaja Khera, forwarded a proposal to exchange 5 acres and 2 marlas of its land with 6 acres and 1 marla belonging to the petitioners, for allotment to homeless of the CWP No.16133 of 2010 (O&M) -2- village. The exchange was approved by the Deputy Commissioner, Sirsa. A mutation of exchange was sanctioned and physical possession of the land was exchanged. As certain complaints were received by the Government, the complaints were forwarded to the Divisional Commissioner, Hisar Division, for an enquiry. A fact finding enquiry was conducted by the Commissioner, Hisar Division and forwarded to the Financial Commissioner.
After consideration of the report, the Financial Commissioner, issued notices dated 07.01.2010 to the Gram Panchayat and the petitioners, calling upon them to show cause why the exchange should not be cancelled. The petitioners and the Gram Panchayat filed their respective replies, justifying the exchange. After considering the enquiry report, the replies filed by the petitioners and the Gram Panchayat, the Financial Commissioner, cancelled the exchange vide order dated 11.02.2010.
Counsel for the petitioners submits that it is true that 70 families, who were eligible, could have been adjusted on 2 acres of land but as the Government decided that plots should be allotted to backward classes families also, the total number of eligible applicants/families rose to 185. The Gram Panchayat had to, therefore, seek exchange of more land. It is further submitted that market value of the petitioners' and the Gram Panchayat's land was assessed and it was found that land belonging to the Gram Panchayat was marginally more valuable. The petitioners, therefore, agreed to give an acre extra CWP No.16133 of 2010 (O&M) -3- i.e. 6 acres and 1 marla in exchange for 5 acres and 2 marlas. It is further argued that as the exchange was approved, there was no need to execute an exchange deed much less get the exchange registered. A gift deed executed by the petitioners for providing a path to the land has been ignored by the Financial Commissioner. The report prepared by the Commissioner that Panchayat land has commercial potential, and its value is not less than Rs.1 crore per acre whereas the market value of the petitioners' land is less than Rs.50 lacs per acre, is factually incorrect. The value of the land was duly verified by the Tehsildar and the Sub Divisional Magistrate, pursuant to orders passed by the Deputy Commissioner. The finding that as the Gram Panchayat offered its land at Rs.4.95 crores, to the Housing Board clearly reveals that the Gram Panchayat land is more valuable, is irrelevant as the Gram Panchayat offered a rate higher that the market value so as to save its land. It is further submitted that proper procedure has not been followed by the Financial Commissioner as no opportunity of hearing was granted to the petitioners before cancellation of the exchange. Counsel for the Gram Panchayat supports the submissions made by counsel for the petitioners.
Counsel for the State of Haryana submits that a detailed enquiry was conducted into the exchange and it was found as a matter of fact that the petitioners' land is zig zag, has no passage, is situated behind a school, is away from the main road, is four feet deep, and more money will have to be spent to provide water. The Financial CWP No.16133 of 2010 (O&M) -4- Commissioner was, therefore, justified in exercising powers under Section 5-B(2) of the Act, and cancelling the exchange. The Gram Panchayat had itself while considering a request from the Housing Board to purchase Gram Panchayat land, passed a resolution that its land is valued @ Rs.4.50 crores. It is, therefore, apparent that the value of Gram Panchayat land is far higher than the value assessed by the officer, who approved the exchange.
We have heard counsel for the parties, perused the paper book and the impugned order.
The Deputy Commissioner approved an exchange of 6 acres and 1 marla of land belonging to the petitioners with 5 acres and 2 marlas of land belonging to the Gram Panchayat on the basis of a valuation report prepared by the Sub Divisional Officer, (Civil) Sirsa, that both the sets of land are of equal value i.e. Rs.50 lacs per acre. On complaints received regarding the exchange, the Financial Commissioner directed the Divisional Commissioner, Hisar to conduct an enquiry. The Commissioner found that:- the Gram Panchayat land abuts the auto market near the city whereas the land belonging to the petitioners is at a distance from the city, at a distance from the main road and is behind a school in the village, the petitioners' land is zig zag in shape, whereas the Gram Panchayat's land is square, the petitioners' land is four feet deep, the school purchased its land, which abuts the road, for Rs.10-11 lacs per acre, about three to four years ago,the valuation of the two sets of land is incorrect as it was recorded CWP No.16133 of 2010 (O&M) -5- without visiting the land, the Gram Panchayat had offered to sell a part of this land to the Housing Board, for Rs.4.50 lacs per acre, and as only 70 families were to be rehabilitated there was no need to exchange 5 acres and 2 marlas.
After considering the finding recorded in the report, the Financial Commissioner issued notices to the petitioners and the Gram Panchayat calling upon them to show cause why the exchange should not be cancelled on the following grounds: -
"1. That only 70 eligible families were identified for allotment of plots in village Khajakhera upto the last date i.e. 31.10.08 for finalization of the eligible families and only two acres of land was required for allotment of plots to these 70 families. As per second proviso clause of rule 5 of the Punjab Village Common Lands (Regulation) Rules, 1964, the Deputy Commissioner was competent to accord approval for exchange of lands to the extent it was required for allotment of plots under Mahatma Gandhi Gramin Basti Yojana. Therefore, the order of Deputy Commissioner permitting the Gram Panchayat to exchange land exceeding 2 acres is void being without jurisdiction.
2. That pursuant to the order of the Deputy Commissioner, Sirsa dated 1.5.09 mutation of exchange of lands was sanctioned without getting any deed of exchange registered.
3. As per provision under rule 5 of the Punjab Village Common Lands (Regulation) Rules, 1964, both the lands should be of equivalent value. But, in the present case, as per the report of the Commissioner Hisar Division, the Panchayat land measuring 5 acre 3 marla has a commercial potential because of its location being near the Sirsa Town and Auto Market and therefore, its value is not less than Rupees one crore per acre, whereas the market value of the private land is less than Rs.50 lakh per acre because of its location and zigzag shape.
4. That the Gram Panchayat Khajakhera, in its resolution dated 25.3.2008 had proposed the market value of the said Panchayat land at Rs.4.95 crore, while proposing it to be sold to the Housing Board, Haryana, whereas the CWP No.16133 of 2010 (O&M) -6- Gram Panchayat in its resolution dated 14.12.2008 described the value of both the lands (proposed for exchange) is of equivalent value."
The petitioners and the Gram Panchayat filed separate replies. After a detailed appraisal of the enquiry report and the replies. The Financial Commissioner, vide order dated 11.02.2010, cancelled the exchange in the exercise of powers conferred by Section 5B(2) of the Act, by recording the following findings: -
"a. Only two acres of land was required for allotment of plots to 70 families whereas the land exchanged is more than 5 acres.
b. No deed of exchange was executed between the Gram Panchayat and the petitioners prior to sanction of mutation of exchange.
c. The market value of the Gram Panchayat land is much more than the market value of the petitioners' land. d. The land belonging to the Gram Panchayat has commercial potential as it is situated near the auto market of Sirsa town whereas land belonging to the petitioners has no commercial potential."
In support of the finding that there is a marked difference between the market value of the two sets of land, the Financial Commissioner has referred to the following facts:- (a) the petitioners' land, is zigzag in shape whereas the Gram Panchayat's land is in the shape of a square; (b) the petitioners' land is situated behind a school, away from the main road whereas land belonging to the Gram Panchayat is situated in close proximity to the auto market of Sirsa town; the Gram Panchayat's land, therefore, has commercial potential; (c) the petitioners' land is four feet deep and money would CWP No.16133 of 2010 (O&M) -7- have to be spent to provide water and sanitation; and (d) the Gram Panchayat itself offered its land to the Housing Board for Rs.4.50 lacs.
The order passed by the Financial Commissioner reveals that show cause notices were issued to the Gram Panchayat and the petitioners. The Financial Commissioner has dealt with the averments in the replies, the contentions raised and only after dealing with them, in detail, has recorded a finding that the exchange is not in the interest of Gram Panchayat.
Section 5B(2) of the Act, empowers the Government or any officer authorised by it to suo moto examine the record of an exchange, and if found detrimental to the interest of villagers, order its cancallation. Section 5-B(2) of the Act, reads as follows: -
"5B(2) The Government or any officer authorized by it may, either suo moto or on application made to him by a panchayat or an inhabitant of the village or the Block Development and Panchayat Officer, examine the record for the purpose of satisfying himself as to the legality or propriety of any sale, lease, gift, exchange, contract or agreement executed before or after commencement of this Act, if such sale, lease, gift, exchange, contract or agreement is found detrimental to the interest of the villagers and is no longer required in the interest of the Panchayat, the Government may, after making such enquiry as it may deem fit, cancel the same and no separate proceedings under any law shall be required to cancel the sale, lease, gift or exchange. The panchayat shall be competent to take over the possession of such premises including the constructions thereon. If any, for which no compensation shall be payable."
An exchange of land is permissible, if the value of two parcels of land is more or less equal and the exchange is for the benefit of the CWP No.16133 of 2010 (O&M) -8- village. The valuation of land depends upon location, its quality, its potential, use of the land to residents of the village and other relevant factors. The argument that the Financial Commissioner has ignored the fact that additional land was required for allotment of land to persons belonging to other backward classes, may be correct, but this does not detract from the correctness of the finding that Gram Panchayat's land is more valuable. As is apparent, Gram Panchayat's land abuts the auto market and a part of this land has already been sold by the petitioners. The vendee from the petitioners has constructed a showroom.
A last submission made by counsel for the petitioners is that as mutation has been entered and petitioners have sold a part of land, it would lead to serious complications, in our considered opinion, does not make any difference to the merits of the controversy and cannot be pressed in service to affirm an illegal exchange.
In view of what has been stated hereinabove, as we do not find any error in the exercise of power by the Financial Commissioner, the writ petition is dismissed with no order as to costs.
[ RAJIVE BHALLA ]
JUDGE
03.02.2012 [ JORA SINGH ]
shamsher JUDGE