Punjab-Haryana High Court
Satbir & Others vs State Of Haryana & Others on 7 October, 2013
Bench: Sanjay Kishan Kaul, Augustine George Masih
Civil Writ Petition No.5879 of 2013 (O&M) {1}
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Writ Petition No.5879 of 2013
Date of Decision: October 07, 2013
Satbir & others
...Petitioners
Versus
State of Haryana & others
...Respondents
CORAM: HON'BLE MR.JUSTICE SANJAY KISHAN KAUL, CHIEF JUSTICE
HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH, JUDGE
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr.C.B.Goel, Advocate,
Mr.Nitin Jain, Advocate and
Mr.Shiv Kumar, Advocate,
for the petitioners.
Mr.Ajay Gupta, Addl.A.G.Haryana,
for respondent Nos.1 to 6.
Mr.A.K.Chopra, Senior Advocate with
Mr.Ashish Chopra, Advocate,
for respondent Nos.7 to 10.
Mr.Sachhin Puri, Advocate,
Ms.Namitha Mathews, Advocate and
Mr.Shubham Agarwal, Advocate,
for respondent Nos.11 to 13.
*****
SANJAY KISHAN KAUL, CHIEF JUSTICE (ORAL) Petition styled as a Public Interest Litigation has been filed by three petitioners seeking to assail the order dated 5.8.2011 (Annexure P-6) Kumar Ramesh 2013.10.11 10:29 I attest to the accuracy and integrity of this document High Court Chandigarh Civil Writ Petition No.5879 of 2013 (O&M) {2} passed by the State of Haryana/respondent No.1 qua exchange of land of the Gram Panchayat of Village Mujehri, Tehsil Ballabgarh, District Faridabad with the land of private colonizers/builders with them arrayed as respondent Nos.11 to 13 being in violation of the provisions of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as the "said Act") and the Punjab Village Common Lands (Regulation) Rules, 1964 framed thereunder (hereinafter referred to as the "said Rules"). The sequitur relief of quashing of the order dated 12.8.2011 of the Deputy Commissioner, Faridabad sanctioning the mutation on account of the aforesaid exchange has also been made.
The petitioners claim to be residents of village Mujehri, Tehsil Ballabgarh, District Faridabad and seek to invoke the jurisdiction of this Court in that capacity alleging glaring irregularities, illegalities and fraud in the exchange of the land at the behest of the Sarpanch of Gram Panchayat Mujehri. The Gram Panchayat has been arrayed as respondent No.7 while the Sarpanch as respondent No.8. Respondent Nos.9 and 10 are the brothers of respondent No.8-Sarpanch and respondent Nos.8 to 10 are stated to have collectively owned land measuring 48 kanals, which was sold vide two sale deeds dated 17.3.2011 to the colonizers out of a total land measuring 77 kanals 3 marlas, which forms subject matter of the exchange. It is the post the sale of this land to respondent Nos.11 to 13 that the exchange took place with the Gram Panchayat.
It is averred in the petition that a resolution dated 12.6.2011 for exchange of land categorized as prime and valuable land of the Gram Panchayat was passed as against the land of respondent Nos.11 to 13 Kumar Ramesh 2013.10.11 10:29 I attest to the accuracy and integrity of this document High Court Chandigarh Civil Writ Petition No.5879 of 2013 (O&M) {3} mentioned aforesaid. The land of the Gram Panchayat is alleged to be a big chunk and prime land, whereas the land belonging to respondent Nos.11 to 13 is in strips, which is stated to be apparent from the Aks Shajra. The resolution was sent to the Block Development and Panchayat Officer and then to the District Development and Panchayat Officer and the Deputy Commissioner, who assessed the value of the two lands at par while the allegation of the petitioners is that the land of the Gram Panchayat was more valuable. The proposal was thereafter sent to respondent No.1/State of Haryana which accorded sanction vide order dated 5.8.2011. Whereafter, a communication dated 12.8.2011 was issued and the exchange was implemented vide a resolution passed on 14.8.2011 by the Gram Panchayat resulting in the mutation.
We may add here that the present writ petition has been filed only on 15.3.2013 after about more than one and a half years of the implementation of the exchange.
The action of the Gram Panchayat is stated to be in violation of Rules 7A and 12 of the said Rules, which deal with sale, gift, exchange, transfer, alienation, lease contract and agreement detrimental to the interests of the Panchayat and the purposes for which the land may be sold under the provisions of the said Act respectively. We may add here that there does not appear to be any relevance of these rules herein as we are not concerned with the sale of any land but with only the exchange of the land. The submissions made by the learned counsel for the petitioners are not in respect of these provisions but rather based on Section 5 of the said Act read with Rule 5 of the said Rules, which have not even been alleged or pleaded. Kumar Ramesh 2013.10.11 10:29 I attest to the accuracy and integrity of this document High Court Chandigarh
Civil Writ Petition No.5879 of 2013 (O&M) {4} One of the objection at the threshold raised by the respondents is that such a Public Interest Litigation cannot be entertained and that the Public Interest Litigation consists of incomplete facts or non-disclosure of material facts, which in any case disentitle any relief being granted to the present petitioners. In this behalf, it is pointed out that petitioner No.1 was Ex-Sarpanch of the Gram Panchayat while petitioner Nos.2 and 3 are his nephews, which fact has not been disclosed. It has been further stated that these petitioners are not even actually residing in the area as notices sent to them have been received back unserved with the said report, copy of which envelope has been placed on record. It has also been alleged that there was illegal encroachment of the village common land by petitioner No.1 for which a notice dated 2.7.2012 (Annexure R7/1) was sent. The notice alleges illegal encroachment on village common land by constructing a boundary wall which had created obstruction in ingress and outgress and that wall was asked to be removed. Thereafter, another notice dated 12.7.2012 was served, which has apparently been followed by demolition action of which photographs have been produced in the Court. In nutshell, the plea is that petitioner No.1 aggrieved by the said action of removal of his encroachment has filed the present petition as a counter blast.
The other important aspect seeking to stop the PIL at the threshold is the plea of the colonizers/respondent Nos.11 to 13 based on delays and laches in approaching the Court during which period of time, the said colonizers have taken action and spent huge amounts. It is their say that they had acquired the land from the village owners through various sale deeds. The land was acquired even from respondent Nos.8 to 10 vide Kumar Ramesh 2013.10.11 10:29 I attest to the accuracy and integrity of this document High Court Chandigarh Civil Writ Petition No.5879 of 2013 (O&M) {5} registered sale deeds. This land was measuring 77 kanals 3 marlas out of the total ownership of the developers of about 102 acres. Out of these 77 kanals and 3 marlas of land, 48 kanals was owned by respondent Nos.8 to
10. It has been specifically pleaded that pursuant to these transactions of land, the developers applied for the grant of licence to develop a residential colony on a total land measuring 102.194 acres and Letter of Intent (LOI) was issued on 22.12.2011. On complying with the terms and conditions of the LOI and depositing the requisite charges, Licence No.5 of 2012 was issued in their favour on 24.1.2012. Thereafter, development work has also gone on till interim orders against construction were obtained from this Court by filing the present writ petition on 19.3.2013, which order has continued since then. The counsel for the developers asserts that the factum of wide advertisement for the proposed colony starting from 2009, thereafter in 2011 and 2012 pursuant to the licence being granted has been pleaded and not specifically denied, but what is stated is that the same is not relevant. There was stated to be wide publication in this behalf also.
On the issue of entertaining a Public Interest Litigation, reliance has been placed on the judgment of the Hon'ble Supreme Court in Dr.B.Singh Versus Union of India and others, (2004) 3 Supreme Court Cases 363 to contend that when personal disputes or vendetta are camouflaged as public interest writ petition, it deserves to be thrown out at the threshold. There has to be real and genuine public interest involved in the litigation and concrete or credible basis for maintaining that cause before a court and not merely an adventure of knight errant borne out of wishful thinking. This Court should be satisfied about the credentials of the Kumar Ramesh 2013.10.11 10:29 I attest to the accuracy and integrity of this document High Court Chandigarh Civil Writ Petition No.5879 of 2013 (O&M) {6} applicants and the gravity and seriousness of the situation involved and the Court would, thus, strike a balance between the two conflicting interests. The other aspect pointed out is that what permeates through the petition is alienation of valuable land of the Gram Panchayat being bartered away. It has been alleged that it is chargaha land and that is valuable and not capable of being exchanged. The stand taken by the respondents, specifically on the basis of inter-alia response to the right to information obtained, is that it is not chargaha land and ceased to be so in 1961, a fact which was in the knowledge of at least petitioner No.1 being the Sarpanch of the Gram Panchayat and, thus, a wrong impression was sought to be given to the Court. Most part of the land is stated to be as per revenue record banjar kadim.
If the aforesaid facts are taken into account in totality, we believe that the petition does appear to be an endeavour of the petitioners to get their back for a slight on account of demolition of their wall. Petitioner No.1 himself, being an Ex-sarpanch of the village, was expected to be careful about his conduct and the pleadings in the present petition. He was, in fact, found to be an encroacher on public land blocking passage which formed the part of the panchayat land and was demolished. The other aspect which weighs with us is also the time period which has gone by within which time the colony developers not only took action for purchasing the lands but also obtained the requisite LOI and the licence and activity was thereafter carried out for more than one and a half years. There was stated to be wide publicity to the same. Be that as it may, petitioner No.1 again cannot profess ignorance of these facts when more than 102 acres of land Kumar Ramesh 2013.10.11 10:29 I attest to the accuracy and integrity of this document High Court Chandigarh Civil Writ Petition No.5879 of 2013 (O&M) {7} had been acquired/purchased by the developers in the village. To permit such a petition to continue would give rise to proceedings akin to blackmailing a developer by blocking the development post acquisition of the land and obtaining the requisite permission.
In our view, the aforesaid is enough to disentitle the petitioners to any further consideration but since we have heard the parties at a great length, we are also considering the other aspects on merits.
We may note that there is one site plan which has been filed by the petitioners while another site plan has been filed by the developers. The petitioners have made an endeavour to build a case as if the land of the Gram Panchayat, which has been exchanged, was in one block and now land spread over in different areas has been allotted in exchange. This is apparently not so and, in fact, to an extent it is conceded that there were three portions of the land of the Gram Panchayat which have been exchanged with the land of the builders. Some portion of the land of the Gram Panchayat exchanged with the builders is almost surrounded by the land already acquired by the builders through private purchases made from the land owners.
In so far as the valuation of the land is concerned, the concerned revenue authorities have bestowed their consideration on the basis of sale deeds executed and the prevalent area rates to say that both the lands are almost identically valued. Learned counsel for the petitioners did endeavour to make out a case of some portion of the Gram Panchayat land being more valuable on account of its proximity to a road which was developed in the process of colonization, but in our view that would not Kumar Ramesh 2013.10.11 10:29 I attest to the accuracy and integrity of this document High Court Chandigarh Civil Writ Petition No.5879 of 2013 (O&M) {8} suffice to overturn the findings of the revenue authorities that the valuation is almost similar. This Court would certainly not sit in appeal over that aspect.
We may add that another objection raised by the respondents is that initial resolution of the Gram Panchayat proposing exchange has not even been challenged but only the subsequent decision.
We may at this stage take note of the written statement filed by respondent Nos.2 to 5 which is almost identical to that of respondent No.1, i.e., a common stand by the Government authorities. As to how the valuation took place and the exchange occurred has been set out in the following paragraphs, which are self-explanatory:-
"2. That as a matter of fact, the Gram Panchayat- respondent no.7 was having land measuring 77 kanal 3 marla including other land situated within the revenue estate of village Mujheri and said land was situated at a distance of one kilometer from the village abadi and the said land was also not situated and located on main road of the village, rather, the land was on 24 meter internal road. The said land was being leased out and income from the said land was Rs.1500/- to Rs.2500/- per acre for two years. Apart from above, a Gas pipe line was also underneath of the above said Panchayat land.
That a proposal for exchange of above land was received from the respondents no.11 to 13 companies and keeping in view the following facts and circumstances and in the interest of public/inhabitants of village at large, the decision for Kumar Ramesh 2013.10.11 10:29 I attest to the accuracy and integrity of this document High Court Chandigarh Civil Writ Petition No.5879 of 2013 (O&M) {9} exchange of land was taken by the respondents authority Respondent No.1 as well as the respondent no.7.
1. The Panchayat land was Banjar Kadim land whereas the exchanged land was agricultural land now a developed land.
2. There was 24 meter road of Gram Panchayat land whereas, the present exchanged land touches to 45 meter road.
3. A Gas Pipe line was underneath of the Gram Panchayat land whereas, the present exchanges land is free from such things.
4. The above Gram Panchayat land was at a distance of one kilometer from Panchayat/abadi land whereas, the present exchanged land is situated at a distance of 300 meter.
5. Income from the above Gram Panchayat land was Rs.1500/- to Rs.2500/- per acre in per two years whereas, the present exchanged land has been leased out for Rs.1,25,000/-.
6. The rate/market value of both the land are equal and at par and rate of both the land was assessed to be Rs.90,00,000/- per acre.
The aforementioned facts are solely for the benefit, interest and welfare of the villagers/inhabitants and Gram Panchayat and section 5 of Punjab Village Kumar Ramesh 2013.10.11 10:29 I attest to the accuracy and integrity of this document High Court Chandigarh Civil Writ Petition No.5879 of 2013 (O&M) { 10 } Common Lands (Regulations) Rules, 1964 clearly speaks that the land of Panchayat may be disposed of in the interest and benefit and welfare of the Gram Panchayat/ inhabitants of village. In view of public interest and benefit, the above land of Gram Panchayat has been exchanged by the Government order No.158 issued vide endst.No.SBA-4-2011/40227-31 dated 5.8.2011 which is legal, valid, constitutional. Thus, the present writ petition being devoid of any merit deserved to be dismissed."
The only other aspect which needs to be examined arises from the plea of the petitioners based on the provisions of the said Act and the Rules. In this behalf, our attention has been invited to Section 2(d), which defines "inhabitant of a village" as under:-
"2. Definitions.-- In this Act, unless the context otherwise requires,-
(a) to (c) xxx xxx xxx
(d) "inhabitant of a village" means a person, whether a
proprietor or a non-proprietor, who ordinarily resides in the village:
Provided that temporary absence or absence in relation to employment elsewhere shall not affect his residence in the village."
It was next pointed out that the regulation of use and occupation of the lands of the Panchayats would be as per Sub-section (1) of Kumar Ramesh 2013.10.11 10:29 I attest to the accuracy and integrity of this document High Court Chandigarh Civil Writ Petition No.5879 of 2013 (O&M) { 11 } Section 5 which reads as under:-
"Regulation of use and occupation, etc., of lands vested or deemed to have been vested in Panchayats.--(1) All lands vested or deemed to have been vested in a Panchayat under this Act, shall be utilised or, disposed of by the Panchayat for the benefit of the inhabitants of the village concerned in the manner prescribed.
Provided that where two or more villages have a common Panchayat, Shamilat deh of each village shall be utilised and disposed of, by the Panchayat for the benefit of the inhabitants of that village:
Provided further that where there are two or more shamilat tikkas in a village, the Shamilat tikka shall be utilised and disposed of, by the Panchayat for the benefit of the inhabitants of that tikka:
Provided further that where the area of land in shamilat deh of any village so vested or deemed to have been vested in Panchayat is in excess of twenty-five per cent of the total area of that village (excluding abadi deh) then twenty-five per cent of such total area shall be left to the Panchayat and out of the remaining area of shamilat deh an area up to the extent of twenty five per cent of such total area shall be utilised for the settlement of landless tenants and other tenants ejected or to be ejected of that village and the remaining area of shamilat deh, if any, shall be utilised for distribution to small land owners of Kumar Ramesh 2013.10.11 10:29 I attest to the accuracy and integrity of this document High Court Chandigarh Civil Writ Petition No.5879 of 2013 (O&M) { 12 } that village subject to the provisions relating to [permissible area under the Haryana Ceiling on Land Holdings Act, 1972, by the Assistant Collector of the first grade] in consultation with the Panchayat [in such manner and on payment of such amount as may be prescribed.]"
In the aforesaid context, out attention has also been drawn to Rule 5 of the said Rules, which reads as under:-
"[5. Exchange of land. Sections 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 State 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 Kumar Ramesh 2013.10.11 10:29 I attest to the accuracy and integrity of this document High Court Chandigarh Civil Writ Petition No.5879 of 2013 (O&M) { 13 } equivalent value.]"
The submission of the learned counsel for the petitioners is that a company which acquires land cannot be an inhabitant of the village in view of the observations of the Division Bench of this Court in Khushi Ram and others Versus State of Haryana and others, 2012(4) R.C.R. (Civil) 404. It has also been submitted that the sale of the panchayat land was struck down in Civil Writ Petition No.10526 of 2012 Nafe Singh Versus State of Haryana and others, decided on 11.9.2012 (Annexure P12).
We agree with the contention of the learned counsel for the respondents that the exchange of the land has to be for the benefit of the inhabitants and not that the exchange should be by the "inhabitants". Thus, the first judgment would not have any application to the present case. The second judgment in any case deals with sale of land when there was no requirement of moneys while the present case is one of exchange of the land.
In the end, we may note that the petition has gone wrong on two principal facts; (i) that the land, which was being transferred, was chargaha land while it ceases to be so in 1961 and is largely banjar kadim; and (ii) that the whole of the land which was exchanged, i.e, 77 kanals 3 marlas was owned by respondent Nos.8 to 10 while the fact is that only 48 kanals of this land was owned by respondent Nos.8 to 10 while the rest was of others.
We are, thus, of the view that the writ petition must fail both on the preliminary objections as well as on merits and is accordingly dismissed Kumar Ramesh 2013.10.11 10:29 I attest to the accuracy and integrity of this document High Court Chandigarh Civil Writ Petition No.5879 of 2013 (O&M) { 14 } with costs quantified at `20,000/-. The costs would be deposited with the Mediation Centre of the High Court within two weeks.
Interim orders stand vacated.
( SANJAY KISHAN KAUL )
CHIEF JUSTICE
October 07, 2013 ( AUGUSTINE GEORGE MASIH )
ramesh JUDGE
Kumar Ramesh
2013.10.11 10:29
I attest to the accuracy and
integrity of this document
High Court Chandigarh