IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 3491 of 2009 Date of Decision : July 09, 2009 Gram Panchayat of village Awan .....Petitioner Versus Gurmit Singh and others .....Respondents CORAM : HON’BLE MR JUSTICE T.P.S. MANN Present : Mr. Baldev Kapoor, Advocate Mr. Mukesh Kumar Bhatnagar, Advocate T.P.S. MANN, J. The plaintiffs-respondents, who are residents of village Awan, District Amritsar, had filed a suit against the Gram Panchayat of the village seeking a decree for permanent injunction so as to restrain it from forcibly and illegally dispossessing or interfering in their peaceful and lawful possession as tenants over the land measuring 106 Kanals, except in due course of law. Alongwith the suit, they also filed an application under Order XXIX Rules 1 and 2 read with Section 151 of the Code of Civil Procedure with a prayer for the grant of ad interim injunction. The said application was allowed by the learned trial Court on April 20, 2009. This order was challenged by the defendant- petitioner by filing an appeal but the same was dismissed by the learned lower appellate Court on May 27, 2009. Aggrieved of the same, the defendant filed the present revision under Article 227 of the Civil Revision No. 3491 of 2009 -2- Constitution of India with a prayer for setting aside of the impugned order granting ad interim injunction. The plaintiffs claimed themselves to be in possession of the suit land as tenants for the last more than 20 years under the defendant- Gram Panchayat and paying rent regularly. According to them, with a view to usurping the suit land from them, the Gram Panchayat made an abortive attempt to dispossess them a week prior to the institution of the suit. On the other hand, the case, as set up by the defendant-Gram Panchayat, was that the plaintiffs were not tenants over the suit land, instead, it was the Gram Panchayat, which was its owner and in possession thereof. The suit land has been rented out to M/s Azure Power (Punjab) Private Limited, Amritsar for installation of Electricity Power Plant. Pursuant thereto, the Company has been in possession of the suit land as a tenant of the Gram Panchayat. As the Gram Panchayat was owner in possession of the suit land, it was competent to deal with the same in any manner as it liked and also for development and betterment of the Gram Panchayat and residents of the village. It may not be out of place to mention here that the suit was filed by all the four respondents. However, later on, Dhir Singh respondent No.4-plaintiff made an application in writing for withdrawal of the suit. Apparently, that is the reason as to why Dhir Singh has not joined Gurmit Singh, Satnam Singh and Surjit Singh-defendants to oppose the present revision filed by the Gram Panchayat when three of Civil Revision No. 3491 of 2009 -3- them lodged a caveat for being heard by this Court before passing any order in the eventuality of a revision petition being filed by the Gram Panchayat against the order of ad interim injunction. The revision came up for preliminary hearing on June 12, 2009, when notice of motion was issued and learned counsel appearing for the Caveator-respondents accepted the notice. The hearing was adjourned to July 07, 2009 on which date arguments were heard in part and it was adjourned for today for remaining arguments. Learned counsel for the defendant-Gram Panchayat has submitted that M/s Azure Power (Punjab) Private Limited, Amritsar is a subsidiary company of Azure Power (India) Private Limited, New Delhi. It was selected by Punjab Energy Development Agency (for short 'PEDA') to design, construct, own, operate and maintain 2 megawatt Solar Photovoltaic Power Plant in village Awan and signed and executed a Memorandum of Understanding on April 17, 2008. The project has been sponsored by the Government of Punjab to generate power by setting up Solar Photovoltaic Power Project, which is environment friendly and pollution free. Such like projects are eligible for Carbon Credits under CDM and would lead to solar revolution in the country which would ultimately bring down the cost of solar power generation, create enhanced capacity and also build economies of scales in the said sector. In order to get the said environment friendly Solar Photovoltaic Plant installed in the village and in pursuance of letter Civil Revision No. 3491 of 2009 -4- dated 17.9.2008 of Block Development and Panchayat Officer, Ajnala as also letter dated 25.6.2008 of PEDA, whereby 12 acres of Shamlat land of the Gram Panchayat was demanded for setting up of the above environment friendly and pollution free project, the Gram Panchayat, vide resolution dated 29.9.2008 resolved to give 98 Kanals out of its Shamlat land measuring 406 acres to M/s Azure Power (Punjab) Private Limited, Amritsar on long lease of 32 years. A similar resolution was also passed by the Gram Panchayat on 11.10.2008. Vide memorandum dated 29.1.2009, the Government of Punjab, Department of Science, Technology and Environment intimated Secretary-cum-Director, Rural Development and Panchayats, Punjab that PEDA has allocated development of 2 megawatt capacity Solar Photovoltaic Power Project on built, own and operate basis, on the basis of competitive bidding to M/s Azure Power (Punjab) Private Limited, Amritsar but it required 12 acres of land to implement and commission the project to sell the generated power to Punjab State Electricity Board Grid. The Rural Development and Panchayat Department was requested that as the project was sponsored by the Department of Science, Technology and Environment and non conventional energy, the amount of lease per acre may be finalized between the Gram Panchayat and individual private developer. After considering the resolutions dated 29.9.2008 and 11.10.2008 passed by the Gram Panchayat as also the Jamabandi for the year 2006-07, the Government of Punjab granted its sanction for giving 98 Kanals of Shamlat land of the defendant-Gram Panchayat on long Civil Revision No. 3491 of 2009 -5- lease for 32 years at the rate of Rs.20,000/- per acre per year vide order dated 20.2.2009 passed in exercise of the powers under Rule 12 of the Punjab Village Common Lands (Regulation) Act, 1964 (for short 'the Act'). Pursuant to the order of the Government of Punjab, lease deed was executed between the Gram Panchayat and M/s Azure Power (Punjab) Private Limited, Amritsar on 27.2.2009 and registered in the office of Sub Registrar, Ramdas on the same day. According to the terms of the lease, it was for a period of 32 years w.e.f. March 01, 2009 to 28.2.2041. The lease deed was executed by the Gram Panchayat after receipt of the whole of the amount of three years' lease for the land measuring 98 Kanals. As M/s Azure Power (Punjab) Private Limited, Amritsar deposited whole of the amount of three years of lease money for 98 Kanals of Shamlat land, the Gram Panchayat ratified the lease deed in its meeting held on 4.3.2009 and handed over vacant physical possession of the suit land to the Company. On a proper application made to the Tehsildar, Ajnala, the demarcation of 98 Kanals of Shamlat land was made by the concerned Patwari and the demarcation report recorded in the roznamcha register as Rapat No. 304 dated 4.3.2009. At the time of handing over of vacant possession of the suit land measuring 98 Kanals and demarcation of the same, burjis were fixed after proper measurement. However, no one either obstructed or objected to the handing over of vacant possession and demarcation of the land. After taking over physical possession of 98 Kanals of Shamlat land on 4.3.2009, the Company has already spent huge amount in fencing the Civil Revision No. 3491 of 2009 -6- land, constructing the security office, laying foundation and doing designing. It is also submitted that while deciding prayer for interim injunction, where public properties and public interest is involved, besides three ingredients, namely, a strong prima facie case, balance of convenience and irreparable injury to the plaintiff, the Courts have to keep in mind as to whether the grant of injunction would be conducive or detrimental to the public interest. As the land measuring 98 Kanals had been given on lease to the Company for setting up 2 megawatt capacity Solar Photovoltaic Power Project for generating electricity under the environment friendly and pollution free circumstances, besides the fact that it has been agreed to give preference to eligible residents of the village in the matter of appointment, the grant of ad interim injunction against the Gram Panchayat by the learned Courts below was detrimental to the public interest. It is also submitted that the suit filed by the plaintiffs-respondents was not maintainable as the jurisdiction of the civil Court was barred because under the provisions of the Act, the question of title, right or interest in the property in dispute could only be considered by the Collector, who alone was the competent authority under the Act. Prayer has, accordingly, been made for acceptance of the revision, setting aside of the order of ad interim injunction and dismissal of the application filed by the plaintiffs under Order XXXIX Rules 1 and 2 read with Section 151 of the Code of Civil Procedure. Civil Revision No. 3491 of 2009 -7- On the other hand, learned counsel for the plaintiffs- respondents submitted that the plaintiffs had taken the suit property on lease from the Gram Panchayat and are in possession of the same for the last more than 20 years. The present Sarpanch of the village Gram Panchayat was inimical towards them and wanted to oust them from the land on lease with them. It is also submitted that as the plaintiffs were in settled possession over the suit land, an injunction can even be granted against true owner of the property. As the defendant-Gram Panchayat was out to oust the plaintiffs from their settled possession over the suit property, they were justified in approaching the civil Court and to ask for the grant of interim injunction against their dispossession. After hearing learned counsel for the parties and perusing the orders passed by the learned Courts below, this Court is of the view that the present revision requires acceptance. It is an admitted fact that the suit land is Shamlat land. While the plaintiffs claim themselves to be in possession of the same for the last 20 years as lessees under the Gram Panchayat, whereas according to the defendant-Gram Panchayat, the suit land was lying vacant on 4.3.2009 when its vacant possession was handed over to the Company. The version of the defendant-Gram Panchayat about handing over of the vacant possession of the suit land to the Company is corroborated by the demarcation report which stands entered in the roznamcha as Rapat No. 304 dated 4.3.2009 wherein it is mentioned Civil Revision No. 3491 of 2009 -8- that after reaching the spot, the Patwari demarcated it with a measuring tape followed by placement of temporary Burjis at the spot. No one obstructed or objected to the demarcation. In case the plaintiffs were in possession of the suit property, they could have raised their objection at the time of demarcation by the Patwari. Nothing of that sort was done by the plaintiffs. Though the plaintiffs claim themselves to be in possession of the suit land, being the lessees under the Gram Panchayat, yet, they did not produce any lease deed or any other document to prima facie establish that the suit land, which was part of the Shamlat land, was leased out to them. The only document relied upon by them is copy of the lease register maintained by the Zila Parishad, Amritsar, wherein it stands mentioned that they had taken some portion out of the suit land on lease from the Gram Panchayat after paying the lease money. However, entries in the lease register pertain to the year 2008. There is no material referred to by plaintiffs about the leasing out of the Shamlat land by the Gram Panchayat in their favour for the year 2009-10. Learned lower Courts required of the Gram Panchayat to establish its possession on the suit land by producing the revenue records as only after coming in possession of the suit land, it could have handed over its possession to the Company on lease against payment of Rs.1,98,000/-. This Court is of the view that it was upon the plaintiffs to prima facie establish that they were in possession of the suit land in pursuance of some lease agreement. Civil Revision No. 3491 of 2009 -9- Though the plaintiffs did not set up their title or ownership in the suit land while filing the suit yet they were claiming interest in the same as tenants. Under Section 13 of the Act, whenever a person claims any title, right or interest in the shamlat land either as owner or as tenant, the only remedy available to him is to approach the Collector, who alone was the competent authority under the Act. The jurisdiction of the civil Court stood barred. The Court while dealing with grant of injunction is required to satisfy itself as to whether a strong prima facie case was made out in favour of the plaintiff, the balance of convenience was in favour of the plaintiff and in the event of non-grant of ad interim injunction, irreparable injury was likely to be caused to the plaintiff. However, in cases involving public properties and public interest, the Courts are further required to consider as to whether the grant of injunction would be conducive or detrimental to public interest. The Courts have to take note of the fact that government lands belonging to the public at large and the community as a whole is entitled to enjoy the properties belonging to the government. In the case of any attempt made by an individual or a group of individuals to misappropriate/misuse or otherwise interfere with the enjoyment of public property by the people in general, the Courts have to be extremely cautious in granting injunction in favour of such person only on the ground that he is in possession of the property. The possession of public property by such an individual or a group of individuals was no possession in the eyes of Civil Revision No. 3491 of 2009 -10- law and such a person could not claim any right, whatsoever, on the basis of unlawful occupation of the public property and Courts would not hesitate in declining any assistance to such a person. These observations were made by Hon'ble Justice G.S.Singhvi of this Court, as he then was, in Mohan Lal v. Mohan Singh, 1996(1) Civil Court Cases 30, while referring to the various guidelines, which were required to be considered by the Court before the grant of ad interim injunction, especially in relation to public properties. The observations made are reproduced herein-in-below :- “Apart from the three ordinary ingredients which must be satisfied for grant of injunction in favour of a plaintiff/petitioner, namely, a strong prima facie case, balance of convenience and irreparably injury, in cases involving public properties and public interest, the Courts have to bear in mind as to whether the grant of injunction would be conducive or detrimental to public interest. The Courts have to take note of the fact that Government land belonging to the public at large and the community as a whole is entitled to enjoy the properties belonging to the Government. In fact, the Government holds property as a trustee of the people and, therefore, where any attempt is made by an individual or a group of individuals to misappropriate/misuse or otherwise interfere with the enjoyment of public property by the people in general, the Courts have to be Civil Revision No. 3491 of 2009 -11- extremely cautious in granting injunction in favour of such person only on the ground that he is in possession of the property. Possession of public property by such an individual or a group of individuals is no possession in the eyes of law. Such a person cannot claim any right whatsoever on the basis of unlawful occupation of the public property and Courts would be justified in declining any assistance to such a person. In such like case, a plaintiff cannot claim parity with a person who has a dispute with another individual over a private property. Moreover, the Courts have to act as guardian of the public property and should not pass an order of injunction in favour of a person who has made unauthorised encroachment of the public property. For these reasons, I hold that the order passed by the learned Additional District Judge does not suffer from any jurisdiction error or any other legal infirmity requiring interference by this Court.” As regards the argument submitted on behalf of the plaintiffs-respondents that as they were in possession of the suit property, they were entitled to grant of an injunction against the Gram Panchayat, who was its true owner and reliance in this regard placed on Rame Gowda (D) by LRs and another v. Mr. Varadappa Naidu (D) by LRs and another, (2004)1 SCC 769, there is no dispute. However, the judgment in the aforementioned case is distinguishable as it pertained to Civil Revision No. 3491 of 2009 -12- a dispute between two parties over a private property, whereas in the present case it is the public property which is involved and the same is being put to a use which is for betterment of the Gram Panchayat and the villagers. In the present case it is apparent that the Gram Panchayat has leased out the suit property to M/s Azure Power (Punjab) Private Limited, Amritsar so as to set up environment friendly Solar Photovoltaic Power Plant with 2 megawatt capacity on built, own and operate basis. In the memorandum of understanding it has been agreed that preference would be given to the residents of the village in employment. In such a situation, ends of justice required that no injunction ought to have been granted in favour of the plaintiffs as it was not conducive but detrimental to public interest. In view of the above, the revision is accepted, impugned orders passed by the learned Courts below in granting ad interim injunction, are set aside and the application filed by the plaintiffs- respondents under Order XXXIX Rules 1 and 2 read with Section 151 C.P.C. is dismissed. ( T.P.S. MANN ) July 09, 2009 JUDGE satish To be referred to the reporter: Yes