Punjab-Haryana High Court
Vinod Kumar vs Assistant Collector Ist Grade on 3 July, 2013
Bench: Jasbir Singh, G.S.Sandhawalia
In the High Court of Punjab and Haryana, at Chandigarh
1. Civil Writ Petition No. 9790 of 1995
Vinod Kumar
... Petitioner
Versus
Assistant Collector Ist Grade, Kurukshetra and Others
... Respondents
2. Civil Writ Petition No. 12302 of 1993 Raunak Lal ... Petitioner Versus Assistant Collector Ist Grade, Kurukshetra and Others ... Respondents
3. Civil Writ Petition No.1872-A of 1994 Sohan Lal ... Petitioner Versus Assistant Collector Ist Grade, Kurukshetra and Others ... Respondents
4. Civil Writ Petition No. 9787 of 1995 Surjit Singh ... Petitioner Versus Assistant Collector Ist Grade, Kurukshetra and Others ... Respondents
5. Civil Writ Petition No. 9788 of 1995 Hakikat Rai ... Petitioner Versus Assistant Collector Ist Grade, Kurukshetra and Others ... Respondents Bhardwaj Deepak Kumar 2013.07.31 15:36 I attest to the accuracy and integrity of this document High Court Chandigarh Civil Writ Petition Nos. 9790 of 1995, 12302 of 1993, 2 1872-A of 1994, 9787-89, 9791, 13075, 13078, 13090, 13091 and 16969-76 of 1995
6. Civil Writ Petition No. 9789 of 1995 Pritam Singh ... Petitioner Versus Assistant Collector Ist Grade, Kurukshetra and Others ... Respondents
7. Civil Writ Petition No. 9791 of 1995 August Muni ... Petitioner Versus Assistant Collector Ist Grade, Kurukshetra and Others ... Respondents
8. Civil Writ Petition No. 13075 of 1995 Mam Chand ... Petitioner Versus Assistant Collector Ist Grade, Kurukshetra and Others ... Respondents
9. Civil Writ Petition No. 13078 of 1995 Raj Pal ... Petitioner Versus Assistant Collector Ist Grade, Kurukshetra and Others ... Respondents
10. Civil Writ Petition No. 13090 of 1995 Om Parkash ... Petitioner Versus Assistant Collector Ist Grade, Kurukshetra and Others ... Respondents Bhardwaj Deepak Kumar 2013.07.31 15:36 I attest to the accuracy and integrity of this document High Court Chandigarh Civil Writ Petition Nos. 9790 of 1995, 12302 of 1993, 3 1872-A of 1994, 9787-89, 9791, 13075, 13078, 13090, 13091 and 16969-76 of 1995
11. Civil Writ Petition No. 13091 of 1995 Tarlok Singh ... Petitioner Versus Assistant Collector Ist Grade, Kurukshetra and Others ... Respondents
12. Civil Writ Petition No. 16969 of 1995 Kashmira Singh ... Petitioner Versus Assistant Collector Ist Grade, Kurukshetra and Others ... Respondents
13. Civil Writ Petition No. 16970 of 1995 Dhian Singh ... Petitioner Versus The Assistant Collector Ist Grade, Kurukshetra and Others ... Respondents
14. Civil Writ Petition No. 16971 of 1995 Waryam Singh ... Petitioner Versus Assistant Collector Ist Grade, Kurukshetra and Others ... Respondents
15. Civil Writ Petition No. 16972 of 1995 Avtar Singh ... Petitioner Versus Assistant Collector Ist Grade, Kurukshetra and Others ... Respondents Bhardwaj Deepak Kumar 2013.07.31 15:36 I attest to the accuracy and integrity of this document High Court Chandigarh Civil Writ Petition Nos. 9790 of 1995, 12302 of 1993, 4 1872-A of 1994, 9787-89, 9791, 13075, 13078, 13090, 13091 and 16969-76 of 1995
16. Civil Writ Petition No. 16973 of 1995 Som Nath ... Petitioner Versus Assistant Collector Ist Grade, Kurukshetra and Others ... Respondents
17. Civil Writ Petition No. 16974 of 1995 Ashwani Kumar ... Petitioner Versus Assistant Collector Ist Grade, Kurukshetra and Others ... Respondents
18. Civil Writ Petition No. 16975 of 1995 Ram Kishan ... Petitioner Versus Assistant Collector Ist Grade, Kurukshetra and Others ... Respondents AND
19. Civil Writ Petition No. 16976 of 1995 Gurmukh Singh ... Petitioner Versus Assistant Collector Ist Grade, Kurukshetra and Others ... Respondents Date of Decision: 3.7.2013 CORAM: Hon'ble Mr. Justice Jasbir Singh, Judge.
Hon'ble Mr. Justice G.S.Sandhawalia, Judge. Bhardwaj Deepak Kumar 2013.07.31 15:36 I attest to the accuracy and integrity of this document High Court Chandigarh Civil Writ Petition Nos. 9790 of 1995, 12302 of 1993, 5 1872-A of 1994, 9787-89, 9791, 13075, 13078, 13090, 13091 and 16969-76 of 1995 Present: Mr. Jagdish Manchanda, Advocate for the petitioners.
Mr. Vinod S. Bhardwaj, Additional Advocate General, Haryana, for respondents No.1 to 3 and 5. None for respondent No.4.
Jasbir Singh, Judge (Oral) This order will dispose of 19 writ petitions viz. Civil Writ Petition Nos. 9790 of 1995, 12302 of 1993, 1872-A of 1994, 9787 to 9789, 9791, 13075, 13078, 13090,13091, 16969 to 16976 of 1995, filed by Vinod Kumar, Raunak Lal, Sohan Lal, Surjit Singh, Hakikat Rai, Pritam Singh, August Muni, Mam Chand, Raj Pal, Om Parkash, Tarlok Singh, Kashmira Singh, Dhian Singh, Waryam Singh, Avtar Singh, Som Nath, Ashwani Kumar, Ram Kishan and Gurmukh Singh, respectively. To dictate order, the facts are being taken from Civil Writ Petition No. 9790 of 1995.
Petitioners, in all these writ petitions, belong to poor section of the society and are residents of village Ismailbad, Tehsil Thanesar, District Kurukshetra. They are in possession of land owned by the Gram Panchayat ranging between 100 to 200 square yards. Total land in their possession is 3 kanals & 4 marlas. It is their case that they are sitting on the land for the last more than four decades; have constructed their residential houses and after making openings, some are using small portions of their respective houses as shops.
Gram Panchayat of village Ismailbad filed an application for their ejectment, under Section 7 of the Punjab Village Common Lands Bhardwaj Deepak Kumar 2013.07.31 15:36 I attest to the accuracy and integrity of this document High Court Chandigarh Civil Writ Petition Nos. 9790 of 1995, 12302 of 1993, 6 1872-A of 1994, 9787-89, 9791, 13075, 13078, 13090, 13091 and 16969-76 of 1995 (Regulation) Act, 1961 (As applicable to Haryana) (hereinafter referred to as "the Act"). The Assistant Collector 1st Grade, Kurukshetra, vide order dated 13.8.1991 disposed of that application ordering that price of the land be recovered from the petitioners/occupants. It was directed that five years' average value be procured from the Revenue Patwari and the petitioner, in this case, was ordered to pay an amount of ` 13,980 towards price of the land under his possession. It was further ordered that in case price is not deposited, the Gram Panchayat would be at liberty to get possession of the land in dispute.
It is necessary to mention here that the above order was passed taking note of a resolution passed by the Gram Panchayat on 20.6.1991 opting to sell the land in dispute to the occupants against price. It is evident here that in response to an order passed, as referred to above, the petitioner deposited an amount of ` 2,330 with the Gram Panchayat on 5.2.1992. Another resolution was passed by the Gram Panchayat on 3.2.1992 and it was further resolved that market price be charged uptill 31.12.1991. The authority was given to the Sarpanch to do the needful. In the meantime, the Gram Panchayat also went in appeal against order dated 13.8.1991. That order was set aside on 18.6.1992 and the matter was remitted back to the Assistant Collector 1st Grade, Kurukshetra for fresh hearing. Both the parties led evidence and vide order dated 19.11.1992, by noting that the Gram Panchayat is owner of the land in dispute and the petitioner is sitting unauthorizedly thereon, his ejectment was ordered. He was directed to pay penalty of Bhardwaj Deepak Kumar 2013.07.31 15:36 I attest to the accuracy and integrity of this document High Court Chandigarh Civil Writ Petition Nos. 9790 of 1995, 12302 of 1993, 7 1872-A of 1994, 9787-89, 9791, 13075, 13078, 13090, 13091 and 16969-76 of 1995 ` 50 per marla towards use and occupation of the land in dispute. The petitioner and others went in appeal which was dismissed by the Appellate Authority vide order dated 19.5.1993, relevant portion whereof reads thus:-
"I have heard both the parties and perused the record carefully. I found that the appellants themselves admitted in their statement that the land in dispute is a Shamilat Deh and which is owned by Gram Panchayat, Ismailabad. They have also admitted that they are ready to pay the costs which is to be settled by the Government or Panchayat. In such situation, then (sic) appellants themselves admitted the ownership of the Gram Panchayat on the land in dispute. The(sic) it cannot be said that this land is now owned by the Gram Panchayat at then besides this appellant has not produced any evidence which proved that the construction has been made on the land in dispute before the year 1981. So, appellant is unsuccessful to produce the evidence on the question of ownership/title and the lower court has given visible decision on the point of title and the lower court has granted full opportunities to the appellant to produce their evidence and appellant closed his evidence after recording his statement. So, I consider that there is no defect in the order under appeal and appellant party has been dispossessed in right manner and appellants are unable to prove their appeal. So, the present appeals are baseless which are dismissed. A copy of this order be placed in all appeals filed."
It is necessary to mention here that a review petition, filed against both the orders, as referred to above, was dismissed by the competent authority on 18.8.1993. It is further necessary to mention here that Bhardwaj Deepak Kumar 2013.07.31 15:36 I attest to the accuracy and integrity of this document High Court Chandigarh Civil Writ Petition Nos. 9790 of 1995, 12302 of 1993, 8 1872-A of 1994, 9787-89, 9791, 13075, 13078, 13090, 13091 and 16969-76 of 1995 resolutions dated 20.6.1991, 18.10.1994 and 26.4.1995 passed by the Gram Panchayat, also did not find favour with the Director of Panchayat, Haryana on 26.4.1995 and they were accordingly ejected.
The ejectment order was passed simply by noting that Gram Panchayat is owner of the land in dispute and the petitioner is in unauthorized occupation thereof. It was not noticed that the petitioner, in this case and others were members of poor section of the society and had constructed their respective houses over small portion of the land and if they are ordered to be ejected at this stage, their families will be on the road without having any place to live in. It was also not noticed that even before passing of an order by the Assistant Collector 1st Grade, Kurukshetra, ordering sale of land in favour of the petitioner on 13.8.1991, the Gram Panchayat had already passed a resolution on 20.6.1991 opting sale of land in dispute to the occupants against market price. The orders, thereafter, were passed by the Assistant Collector 1st Grade, Kurukshetra and the Appellate Authority in a stereotyped manner without noting as to how serious ramifications of the orders were going to be so far as the occupants are concerned.
Counsel for the petitioner has vehemently contended that during pendency of writ petition, the State of Haryana, on realizing difficulty of the members of poor section of society having no house and sitting on gram panchayat's land, have effected an amendment in the Act and by adding Section 5A thereto, gift, sale, exchange, lease etc. of the gram panchayat's land has been provided. It is further stated that Bhardwaj Deepak Kumar 2013.07.31 15:36 I attest to the accuracy and integrity of this document High Court Chandigarh Civil Writ Petition Nos. 9790 of 1995, 12302 of 1993, 9 1872-A of 1994, 9787-89, 9791, 13075, 13078, 13090, 13091 and 16969-76 of 1995 the State of Haryana has also floated a Scheme known as Mahatma Gandhi Gramin Basti Yojna to allot 100 square yards plots to the members of weaker section of the society, for residential purposes. To claim relief, reference was also made to the provisions of Rule 12(4) of the Punjab Village Common Lands (Regulation) Rules, 1964 (As applicable to Haryana) (hereinafter referred to as "the Rules"), Mr. Vinod S. Bhardwaj, Additional Advocate General, Haryana has supported the orders passed by the authorities below ordering ejectment of the petitioner from the land in dispute stating that, at the time when the above orders were passed, there was no provision in the Act or the Rules to transfer, sale, gift, lease property of the Gram Panchayat to any right-holder.
After hearing counsel for the parties, we are of the opinion that the petitioner being a person from weaker section of the society needs compassion of this Court. The impugned orders, if upheld, are going to cause huge loss to the petitioner as his only house will be demolished and he will be evicted from the land measuring about 100 square yards of the Gram Panchayat. When orders under challenge were passed, there was no provision under which the Gram Panchayat could have transferred its land for residential purposes to the members of the weaker section of the society. The State of Haryana has added provision of Section 5A in the Act in the year 2007. The above provision reads thus:-
Bhardwaj Deepak Kumar 2013.07.31 15:36 I attest to the accuracy and integrity of this document High Court Chandigarh
Civil Writ Petition Nos. 9790 of 1995, 12302 of 1993, 10 1872-A of 1994, 9787-89, 9791, 13075, 13078, 13090, 13091 and 16969-76 of 1995 "5A. Disposal of lands vested or deemed to have been vested in Panchayat. - (1) A Panchayat may, on such terms and conditions as may be prescribed, gift, sale, exchange or lease the land in shamilat deh . vested in it under this Act to the members of Scheduled Castes and Backward Classes of the village in which such land is situated and to the persons of any other category.
(2) The gift, sale, exchange or lease of the land in shamilat deh already made shall be deemed to have been made under sub-section (1)".
The Gram Panchayat is permitted to gift, sale, exchange or lease its land to the members of the weaker section of the society. To the same effect is the provision of Rule 12(4) of the Rules, which was added subsequent to adding of the above said provision in the Act. The provision of Rule 12(4) reads thus:-
"12(4). The Gram Panchayat may with the prior approval of the State Government, sell its non-cultivable land in shamilat deh to the inhabitants of the village who have constructed their houses on or before the 31st March, 2000, not resulting in any obstruction to the traffic and passers-by, along with open space upto 25% of the constructed area or an appurtenant area upto a maximum of 200 square yards at not less than collector rate, floor rate or market rate, whichever is higher."
This provision also permits the Gram Panchayat to sell its non-cultivable land to the inhabitants of the village who have constructed their houses on or before 31.3.2000 if such construction does not cause any hindrance in free flow of traffic. Counsel for the petitioner stated that if there is such provision, why benefit thereof be not given to the petitioner. Bhardwaj Deepak Kumar 2013.07.31 15:36 I attest to the accuracy and integrity of this document High Court Chandigarh Civil Writ Petition Nos. 9790 of 1995, 12302 of 1993, 11 1872-A of 1994, 9787-89, 9791, 13075, 13078, 13090, 13091 and 16969-76 of 1995 There is nothing on record to show that the construction made by the petitioner is causing any hindrance in the free flow of traffic or otherwise it was detrimental to the interest of other habitants of the village. The petitioner is residing in the land in dispute for the last more than three decades and if at this stage, his house is ordered to be demolished, it will cause great loss to him. The Gram Panchayat is supposed to show compassion to such like members of weaker section of the society.
Under the circumstances, we allow all the writ petitions. The impugned orders are ordered to be quashed. The Deputy Commissioner, Kurukshetra is directed to get market value of the land assessed; convey it to the petitioner(s) by issuing notice to them and upon calculation, so made, they shall deposit the amount with the Gram Panchayat within one month. If any amount, so deposited earlier by any of the petitioners, is not refunded and is still lying with the Gram Panchayat, it be adjusted towards price of the land. If the said amount already stands refunded to any of the petitioners, the same be got deposited towards price of the plot.
(Jasbir Singh) Judge (G.S.Sandhawalia) Judge July 3, 2013 "DK"
Bhardwaj Deepak Kumar 2013.07.31 15:36 I attest to the accuracy and integrity of this document High Court Chandigarh