CWP No. 15130 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 15130 of 2009 DATE OF DECISION: February 28, 2011 The Gram Panchayat, Village Behrampur .........PETITIONER(S) VERSUS The Director Consolidation, Haryana and another ......RESPONDENT(S) AND CWP No. 15132 of 2009 Ram Kishan and others .........PETITIONER(S) VERSUS The Director Consolidation, Haryana and another ......RESPONDENT(S) CORAM:HON'BLE MR. JUSTICE AJAI LAMBA Present: Mr. Ashish Aggarwal, Advocate, for the petitioner(s). Mr. S.S. Nara, Sr. DAG, Haryana. Mr. Jaswant Jain, Advocate, for respondent no. 2. AJAI LAMBA, J. (ORAL) 1. This shall dispose of two writ petitions viz. CWP No. 15130 of 2009 entitled The Gram Panchayat, Village Behrampur vs. The Director Consolidation, Haryana and another and CWP No. 15132 of 2009 entitled CWP No. 15130 of 2009 2 Ram Kishan and others vs. The Director Consolidation, Haryana and another. 2. CWP No. 15132 of 2009 has been filed by Ram Kishan and others, residents of village Behrampur, who are aggrieved by order Annexure P-7 passed by Director, Consolidation Haryana purportedly while exercising jurisdiction under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (for short 'The Consolidation Act'). Being the residents of the village, it has been made out by learned counsel for the petitioners that in case the Gram Panchayat land that is in the nature of Gair Mumkin Bandh/Dam is allowed to be given in exchange to the respondent-Colonizer, the interest of the residents shall be adversely effected, hence the petition. 3. Since both the petitions have been filed against a common order, both the petitions are being decided by virtue of this order. For reference to record, CWP No. 15130 of 2009 entitled The Gram Panchayat, Village Behrampur vs. The Director Consolidation, Haryana and another is being taken up. 4. The sequence of facts that led to passing of the impugned order needs to be noticed. The facts are not in dispute. 5. Proprietors of Village Behrampur filed a case under Section 13-A of the Punjab Village Common Lands (Regulation) Act, 1961 (for short 'The Act'), as applicable to Haryana, claiming title in land measuring 7420 kanals 6 marlas. Vide order Annexure P-1 dated 20.06.1988 passed by Assistant Collector Ist Grade, Gurgaon, the suit was decreed thereby holding that out of total Shamlat Deh measuring 1586 Bighas 15 Biswas of land, 917 Bighas 5 Biswas of land does not vest in Gram Panchayat Behrampur, which falls CWP No. 15130 of 2009 3 in the share of the plaintiffs and other co-owners and, therefore, the same vests in the plaintiffs/proprietors. 6. The Gram Panchayat filed an appeal, which was dismissed by the Collector vide order dated 13.12.1988. The Gram Panchayat preferred a revision petition. The Commissioner, on presentation of the revision petition, passed the following order on 21.07.1989:- “Presented today by Sh. S.D. Chaudhary, Legal Officer, Panchayat, Gurgaon. I have heard him. The operation of the order of A.C. Ist Grade, Gurgaon dated 20.6.88 and of Collector, Gurgaon, dated 13.12.1988 is hereby stayed till further orders. No further action will be taken by the respondents to change its nature in any way till further orders.” 7. In the interregnum period, however, some of the proprietors sold the land to a number of builders/property dealers etc. All the said persons were impleaded as parties before the Commissioner. After hearing the matter finally, the revision petition has been allowed vide order dated 23.07.1992, placed on record as Annexure P-3, thereby setting aside the orders passed by the Collector and Assistant Collector Ist Grade. 8. The purchasers of land/builders filed CWP No. 11821 of 1992. While the petition was pending adjudication before this Court, on 30.06.2009, the petitioner no. 12 in the civil writ petition namely Shankar Lal Sharma sold the land at issue in the present petition measuring 44 kanals 16 marlas in favour of respondent no. 2 i.e. B & B Mercantile Pvt. Ltd. 9. While the above mentioned petition was still pending, the respondent no. 2 filed an application under Section 42 of the Consolidation CWP No. 15130 of 2009 4 Act before respondent no. 1 for exchange of land with the land of Gram Panchayat, Behrampur. Vide impugned order Annexure P-7 dated 17.08.2009, the exchange has been allowed by Director (Consolidation), Haryana, Panchkula. 10. Contention of learned counsel for the petitioner Gram Panchayat is that the land of Gram Panchayat that has been given to respondent no. 2 is to subvert the process of law. Civil Writ petition in regard to title of the vendor of the respondent no. 2 was still pending at the point in time when the impugned order has been passed. 11. On the second count, it has been argued that the Director Consolidation had no jurisdiction to allow exchange. The land is Shamlat Deh and the land could only be dealt with in terms of Rule 5 of the Punjab Village Common Lands (Regulation) Rules, 1964 (for short 'The Rules'), as applicable to Haryana. 12. Learned counsel for respondent no. 2 contends that the writ petition was still pending at the time when respondent no. 2 purchased the land. An application was made under Section 42 of the Consolidation Act, which has been allowed. The Gram Panchayat conceded to the request of the respondent no. 2 and, therefore, no illegality in the order can be traced. 13. Learned counsel for the respondent no. 2, however, has not been able to dispute the fact that the writ petition filed by the vendor of respondent no. 2 and other builders/persons has been dismissed vide decision dated 06.10.2010 by Division Bench of this Court. 14. I have considered the contentions of the learned counsel. I have also gone through the relevant documents towards which my attention has been drawn. Before examining as to the leality of the impugned order, the CWP No. 15130 of 2009 5 relevant statutory provisions need to be referred to. Section 42 of the Consolidation Act read as under:- "42. Power of [State] Government to call for proceedings.-- [State] Government may at any time for the purpose of satisfying itself as to the legality or propriety of [any order passed, scheme prepared or confirmed or repartition made by any officer under Act], call for and examine the record of any case pending before or disposed of by such officer and may pass order in reference thereto as it thinks fit. Provided that [no order or scheme or repartition shall be varied] or reversed without giving the parties interested notice to appear and opportunity to be heard [except in cases where the State Government is satisfied that the proceedings have been vitiated by unlawful consideration]." 15. Rule 5 of the Punjab Village Common Lands (Regulation) Rules, 1964 (for short 'The Rules'), as applicable to Haryana 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 CWP No. 15130 of 2009 6 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 elilgible families identified under the scheme approved by the State Government, to allot house-sites to the Scheduled Castes' families land 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 equivalent value.].” 16. Respondent no. 2 purchased the land from the petitioner in CWP No. 11821 of 1992. Considering the sequence of events, it is made evident that the issue whether Gram Panchayat was the owner of the land or the proprietors were the owners of the land was still pending adjudication before the Authorities under the Act and thereafter before this Court. All the transactions took place during the currency of the period when litigation was still alive and the rights of the parties were still fluid. This Court having dismissed the writ petition of the vendor from whom the respondent no. 2 purchased the land, a better title could not have flowed to respondent no. 2. 17. The land has been held by this Court in decision dated 06.10.2010 in CWP No. 11821 of 1992 titled M/s Bhanot Leasing Limited and others vs. The Commissioner, Gurgaon Division, Gurgaon and others by implication to be in the ownership of Gram Panchayat and, therefore, the respondent no. 2 had no right, title or interest in the land so as to even make CWP No. 15130 of 2009 7 an application under Section 42 of the Consolidation Act for exchange of land with land of the Gram Panchayat. I am constrained to observe that the respondent no. 2 and earlier to him, his vendor have tried to subvert the process of law by dealing in land, the ownership of which was still to be decided. 18. So far as the legal authority and jurisdiction of respondent no. 1 to deal with the issue is concerned, affidavit has been filed by Sh. T.V.S.N. Parsad IAS, Director Consolidation of Holdings, Haryana, Chandigarh clearly stating that exchange of land of Panchayat was only possible for the benefit of inhabitants of the village. It could only be done with prior approval of the Government. Perusal of the case file reveals that no such prior approval of the Government was ever taken and, therefore, exchange of Shamlat land is not in conformity with provisions in Rule 5 of the Rules. 19. Learned counsel for respondent no. 2 also has not been able to draw attention of the Court towards any statutory provision which would allow Director, Consolidation to deal with the issue of exchange of land of Gram Panchayat, de hors the provisions of Village Common Lands Act. 20. Perusal of provisions of Section 42 of the Consolidation Act extracted above show that the provisions do not even deal with exchange of land belonging to Gram Panchayat. Section 42 of the Consolidation Act empowers the Government to satisfy itself as to the legality or propriety of any order passed, scheme prepared or confirmed or repartition made by any Officer under the Act. The present case does not even relate to partition or consolidation proceedings. Rather an application has been made by a private builder praying for exchange of his land with the land of Gram Panchayat. Conveniently, consent was taken from the Gram Panchayat, and CWP No. 15130 of 2009 8 the Director Consolidation Haryana has allowed the exchange, de hors the powers vested in Director Consolidation under Section 42 of the Consolidation Act. The officer then serving as Director Consolidation namely Sh. Anil Kumar, IAS was required to at least examine his legal authority to deal with the application of the private respondent under Section 42 of the Consolidation Act. No such exercise has been conducted. 21. Exchange of Gram Panchayat land is permissible only under Rule 5 of the Rules, as reproduced above. Rule 5 provides that a Panchayat, if it is of the opinion that it is necessary so to do for the benefit of the inhabitants of the village, may with the approval of the State Government transfer any land in Shamlat Deh by exchange with the land of a equivalent value to be determined by the Deputy Commissioner, in whose jurisdiction it is situate. 22. In the case in hand, the benefit of the inhabitants of the village has not been seen. The State Government admittedly did not give any permission to transfer any land in Shamlat Deh by exchange with the land of respondent no. 2. The issue of equivalent value was required to be determined by the Deputy Commissioner. There is no determination. In fact, as per the first proviso to Rule 5, the State Government is required to consider granting approval in only those cases which are received through Deputy Commissioner concerned. In the case in hand, the Deputy Commissioner has not even forwarded the case for exchange. The exchange of land of Gram Panchayat allowed by Director Consolidation under the Consolidation Act, therefore, is clearly arbitrary, unreasonable and for reasons de hors the law that governs such issues. 23. The jurisdiction or legal authority of Director Consolidation under CWP No. 15130 of 2009 9 Section 42 of the Consolidation Act could not possibly have been confused with the legal authority or jurisdiction vested in the State Government under Rule 5 of the Rules. In such circumstances, I am constrained to observe that order Annexure P-7 was not passed by Director Consolidation for legal considerations, as they flow from the Statute. 24. Certain safe guards have been provided in Rule 5 of the Rules for compliance by the authorities under the Act. As per the admitted case of respondent no. 1, no such compliance has been made. The property falling in Shamlat Deh under management and control of Gram Panchayat can only be saved if provisions in the Act and Rules are complied with, in not only letter, but also their spirit. In the case in hand, none of the conditions provided under Rule 5 has been followed, rather under a Statute that is alien to the issue, exchange of Gram Panchayat land has been allowed. The Court expresses its concern over the way the land meant for common purposes is being dealt with by the authorities who should be acting as custodians, protectors and managers of such property. 25. I have also considered that the land belonging to Gram Panchayat has been shown as Gair Mumkin Bandh/Dam in the revenue record. Before dealing with the issue of exchange of land belonging to the Gram Panchayat which is in the nature of a Bandh, the respondent no. 1 was required to consider whether at all the said land can be given to a private person for use. Perusal of the impugned order does not indicate that any such exercise had been conducted. In case land that is in the nature of a Bandh is given to a private person and nature of the land is changed, the ecology of the area would be disturbed. In times of heavy rains, due to change of nature in land, there can be substantial damage to the area. Under the circumstances, CWP No. 15130 of 2009 10 considering the nature of land itself, exchange of land could not have been allowed. In any case the respondent no. 2 had no title in the land and, therefore, question of exchange of land does not even arise. 26. In view of the above, this petition is allowed. Order Annexure P- 7 is hereby quashed. 27. Before parting with the order, I have to observe that the land falling in Shamlat Deh that is under the management and control of Gram Panchayat which is required to be used for common purposes is being dealt with by the authorities casually, de hors the statutory provisions and de hors the interest of the Gram Sabha. One such example has been set up by Mr. Anil Kumar, IAS, Director, Consolidation, Haryana, Panchkula, who, in total abuse of powers and authority vested by law has allowed exchange of land that belongs to the Gram Panchayat. 28. Let a copy of the order, in the peculiar facts and circumstances of the case, be sent to Chief Secretary, Haryana, Chandigarh. 29. Copy of the order be given to Sh. S.S. Nara, Sr. DAG, Haryana for onward transmission. 28.02.2011 (AJAI LAMBA) shivani JUDGE 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest?