Punjab-Haryana High Court
Kulwinder Kaur vs State Of Punjab And Others on 28 February, 2012
Author: Paramjeet Singh
Bench: Paramjeet Singh
CWP No.22833 of 2010, -1-
CWP No.1423 of 2011 &
CWP No.688 of 2011
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
Date of Decision: February 28, 2012
(1) CWP No.22833 of 2010
Kulwinder Kaur
.....Petitioner
Versus
State of Punjab and others
....Respondents
(2) CWP No.1423 of 2011
Baljinder Singh and others
.....Petitioners
Versus
State of Punjab and others
....Respondents
(3) CWP No.688 of 2011
Balwinderjit Kaur and others
.....Petitioners
Versus
State of Punjab and others
.....Respondents
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH Present: Mr. Veneet Sharma, Advocate for the petitioner(s).
Mr. B.K. Gupta, Sr. DAG, Punjab Mr. B.S. Jaswal, Advocate for respondent No.4 in all three cases.
CWP No.22833 of 2010, -2-CWP No.1423 of 2011 & CWP No.688 of 2011 Paramjeet Singh, J This order of mine shall dispose of three writ petitions i.e. CWP No.22833 of 2010, CWP No.1423 of 2011 & CWP No.688 of 2011 filed under Articles 226/227 of the Constitution of India as these arise out of same impugned order i.e. order dated 26.07.2010 (Annexure P-4) passed by Director, Rural Development and Panchayat Department, Punjab whereby possession of the lease-holder(s)/petitioner(s) has been ordered to be taken. For the sake of convenience facts are being taken from CWP No.22833 of 2010.
Brief facts of the case are that respondent No.4-Panchayat Samiti, Jandiala Guru, District Amritsar through its Chairman allotted 20 plots on a lease hold basis for a period of five years on 02.01.2004, in an open auction. Petitioner being the highest bidder was allotted land measuring 2 kanals comprised in Khasra No.54//11-12 as per terms and conditions mentioned in the lease deed.
The issue under consideration in the present writ petition(s) is not with regard to the earlier lease rather it is with regard to cancellation of resolution dated 19.12.2007 vide which lease period has been extended up to 01.01.2014 before expiry of earlier lease period.
On notice, separate replies have been filed on behalf of respondents No.1 to 3 and respondent No.4 respectively.
I have heard learned counsel for the parties and perused the record.
Admittedly the earlier lease was subsisting up to 01.07.2009. Before expiry of earlier lease period, the same has been extended up to CWP No.22833 of 2010, -3- CWP No.1423 of 2011 & CWP No.688 of 2011 01.01.2014 vide resolution No.34 dated 19.12.2007. Apparently the lease period has been extended to give undue advantage to the petitioner by the Panchayat Samiti. It is also an admitted fact that this fact came into notice of authorities when a complaint was received and enquiry was held. In pursuance of the enquiry report the Director-respondent No.2 has cancelled the resolution No.34 dated 19.12.2007 passed by the Panchayat Samiti and ordered that possession be taken from the petitioner/lease-holders as per rules and instructions after the expiry of earlier lease period.
Learned counsel for the petitioner has submitted that the resolution has been cancelled without affording an opportunity of hearing to the petitioner and they had never been associated during the enquiry. This contention of the learned counsel for the petitioner has been opposed by learned counsel for the respondents. Learned counsel for the respondents states that opportunity of hearing was provided at the time of enquiry. The facts are not in dispute that the Panchayat Samiti whose term was about to expire had intentionally extended the lease on 19.12.2007 although the lease period was to expire on 01.07.2009. The term of the Panchayat Samiti was to expire in April, 2008 and election was to be held in May, 2008.
Before I advert to the rival contentions of learned counsel for the parties, I deem it appropriate to reproduce Section 199 of the Punjab Panchayati Raj Act, 1994 (hereinafter to be referred as 'the Act'). Section 199 of the Act reads as under:
"199. Power to cancel or suspend resolutions of Panchayat:-
(1) The Director may, by order in writing, cancel any resolution passed by a Panchayat, if, in his opinion, such resolution:- CWP No.22833 of 2010, -4-
CWP No.1423 of 2011 & CWP No.688 of 2011
a) is not legally passed; or
b) is in excess of abuse of the powers conferred by or under this Act or any other law; or
c) is contrary to the interests of the public or, likely to cause waste or damage of Samiti Fund or Zila Parishad Fund or of property of a Panchayat Samiti or Zila Parishad; or
d) on its execution is likely to cause danger to human life health or safety or is likely to lead to a riot or affray.
2) The Director shall, before taking action under Section (1) give the Panchayat an opportunity for explanation.
3) If in the opinion of the Deputy Commissioner, immediate action is necessary to suspend a resolution on any of the grounds referred to in clause (c) of sub section (1), he may, by order in writing, suspend the resolution and make a report to the Director.
4) The State Government may, either suo motu or on a representation made by the Panchayat Samiti or the Zila Parishad aggrieved by the order made under Sub-Section (3) call for the record of the case in which such order was made and pass such order in relation thereto as they may deem fit but the Government shall not pass any order prejudicial to the Panchayat unless it is given an opportunity for explanation."CWP No.22833 of 2010, -5-
CWP No.1423 of 2011 & CWP No.688 of 2011 A reading of the above Section makes it clear that Director before taking any action to cancel or suspend the resolution, is required to give notice to the Panchayat as per Section 199 (2) of the Act for explanation. The word 'Panchayat' has been defined in Section 2(zj) of the Act, which reads as under:
Section 2(zj) "Panchayat" means a Gram Panchayat, Panchayat Samiti and Zila Parishad constituted under this Act; Section 2(zj) makes it crystal clear that word 'Panchayat' includes Panchayat Samiti also.
So in the present case notice has rightly been issued to the Panchyat Samiti which had passed the wrong resolution, which has been cancelled. There is no specific provision for providing opportunity to the petitioner. However, in the present case the petitioner was associated during the enquiry proceedings. When the connivance of the respondent-Panchayat Samiti with the petitioner is apparent then there is no necessity of giving further opportunity of hearing to the petitioner. Even otherwise, if the petitioner was also aggrieved against the order of the Director-respondent No.2, he could have filed the petition before the State Government, which has inherent powers to call for record under Section 201 as well as under
Section 202 of the Act, can look into the grievance of the petitioner. There is categorical finding recorded by the enquiry officer that the Panchayat Samiti had passed a resolution intentionally and extended the lease period without waiting for the expiry of initial lease period which was to expire on 01.07.2009. There was no occasion for the Panchayat Samiti to pass the resolution in the year 2007 when the lease was still subsisting and was to CWP No.22833 of 2010, -6- CWP No.1423 of 2011 & CWP No.688 of 2011 expire two years later i.e. 2009. The malafide on the part of Panchayat Samiti to pass resolution dated 19.12.2007 in advance to extend the subsisting lease for further five years, is clear from the fact that term of the Panchayat Samiti was to expire in April, 2008 and next election was to be held in May, 2008. The Panchayat Samiti passed resolution contrary to the interests of the public. No public auction was held for extension of lease.
The allegations are to the effect that land is on the National Highway No.1 and very valuable and Government officials in connivance with the members of Panchayat Samiti passed resolution before expiry of earlier subsisting lease against the public interest and have caused loss of crores of rupees. Finding has been recorded in enquiry that resolution in question is against the public interest. Learned counsel for the petitioner failed to give reasonable explanation that what was the necessity for Panchayat Samiti to pass resolution extending the lease when earlier lease was subsisting up to 01.07.2009 and the term of the Panchayat Samiti was about to expire and next election was due in May, 2008.
It is pertinent to mention here that the Director has the powers to cancel the resolution when he comes to a conclusion that there is excessive use of powers by the Panchayat Samiti and damage is caused to the public property. This action has been taken on the complaints made by the residents of the village. Otherwise this issue would have remained buried in the files of the Panchayat Samiti. In these circumstances, the action of the Director- respondent No.2 is legal and valid and cannot be set aside on the flimsy grounds when the connivance of the petitioner with the Panchayat Samiti is CWP No.22833 of 2010, -7- CWP No.1423 of 2011 & CWP No.688 of 2011 apparent whose term was going to expire and fresh election was to be held in May, 2008.
In view of above discussion, I do not find any ground to interfere in the impugned order passed by the Director-respondent No.2. Hence, all the three writ petitions fail.
Dismissed.
No order as to costs.
28.02.2012 (PARAMJEET SINGH) vcgarg JUDGE CWP No.22833 of 2010, -8- CWP No.1423 of 2011 & CWP No.688 of 2011
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.1423 of 2011 Date of Decision: February 28, 2012 Baljiner Singh and others .....Petitioners Versus State of Punjab and others ....Respondents CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH Present: Mr. Veneet Sharma, Advocate for the petitioners.
Mr. B.K. Gupta, Sr. DAG, Punjab Mr. B.S. Jaswal, Advocate for respondent No.4.
Paramjeet Singh, J Dismissed.
For detailed orders, see order passed in CWP No.22833 of 2010 titled as Kulwinder Kaur Vs. State of Punjab and others,of even date.
28.02.2012 (PARAMJEET SINGH) vcgarg JUDGE CWP No.22833 of 2010, -9- CWP No.1423 of 2011 & CWP No.688 of 2011
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.688 of 2011 Date of Decision: February 28, 2012 Balwinderjit Kaur and others .....Petitioners Versus State of Punjab and others .....Respondents CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH Present: Mr. Veneet Sharma, Advocate for the petitioners Mr. B.K. Gupta, Sr. DAG, Punjab Mr. B.S. Jaswal, Advocate for respondent No.4.
Paramjeet Singh, J Dismissed.
For detailed orders, see order passed in CWP No.22833 of 2010 titled as Kulwinder Kaur Vs. State of Punjab and others,of even date.
28.02.2012 (PARAMJEET SINGH) vcgarg JUDGE