IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Writ Petition No.2163 of 2011 DATE OF DECISION : APRIL 21, 2011 MAHERDIN & ORS. ....... PETITIONER(S) VERSUS SMT. MEDHA & ORS. .... RESPONDENT(S) CORAM : HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: Mr. Sachin Mittal, Advocate, for the petitioners 1 to 3. Mr. Ashok Tyagi, Advocate, for petitioners 4 and 5. Mr. Shailendra Jain, Advocate, for respondent No.1. Mr. BS Saini, Sr. DAG, Haryana. Mr. SK Bawa, Advocate, for respondent No.3. AJAI LAMBA, J. (Oral) 1 This petition has been filed praying for issuance of a writ in the nature of certiorari quashing order dated 10.11.2008 (Annexure P-1), passed by the Director Consolidation, Haryana under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (for short 'the Consolidation Act'). 2 A perusal of order (Annexure P-1) indicates that Smt.Medha wife of Shri Sanjay Gupta son of Shri Hanuman Gupta, resident of W/6/23, DLF, Phase-III, Gurgaon, Haryana (respondent No.1) filed an application under Section 42 of the Consolidation Act against Gram Panchayat, Sehsola, District Mewat, Haryana, stating that she has certain land in the village. Civil Writ Petition No.2163 of 2011 2 A drain passes between the land holding, due to which the land has been divided into several parcels, causing inconvenience. The land may be given to the Panchayat and the land belonging to the Panchayat be given to her. It was further prayed before the Director that there is a Rasta towards the North, due to which fields are divided into two portions, causing inconvenience, which has not been entered in the revenue record. The entry of Rasta be made in the revenue record. 3 Sham Lal-Sarpanch and R. Mohammad-Panch appeared for the Gram Panchayat and gave a concession in favour of respondent No.1. 4 After recording the plea of both sides, the following order has been passed:- “After hearing both the sides and perusal of the record on the file reached the conclusion the prayer of the applicant is genuine. Keeping in view consent of both the parties and condoning delay in filing in the appeal and case of the applicant is accepted with following amendments.” 5 Learned counsel for the petitioners contend that the land under management and control of Gram Panchayat can only be exchanged under the provisions of Rule 5 of the Punjab Village Common Lands (Regulation) Rules, 1964 (for short 'the Rules'). The provisions in the Rules provide for a procedure to be followed, which has not been done and, therefore, the impugned order is arbitrary and without jurisdiction. Director Consolidation, Haryana had no legal authority to allow exchange of Gram Panchayat land. Civil Writ Petition No.2163 of 2011 3 6 It has also been pleaded that respondent No.1 is niece of the officer who was holding office of Director Consolidation. Passing of the impugned order is an act of collusion between Panchayat, respondent No.2, and respondent No.1, and is mala fide. 7 Learned counsel for respondent No.1 has argued that under Section 10-A of the Punjab Village Common Lands (Regulation) Act, 1961 (for short '1961 Act'), as applicable to Haryana, Assistant Collector Ist Grade can inquire into any exchange entered in contravention of 1961 Act. The petitioners did not invoke the said remedy and have straight-away approached this Court and, therefore, the petition is liable to be dismissed; the previous Sarpanch has not been made a party; the impugned order is based on consent having been given on behalf of the Gram Panchayat and the Gram Panchayat has been utilising the land taken in exchange and, therefore, at this juncture, it would be wholly inappropriate to set aside the impugned order. 8 Learned counsel for the Gram panchayat (respondent No.3) has argued that fraud has been played on the Gram Panchayat. No resolution was passed by the Gram Panchayat either to permit exchange of land or to authorise Sham Lal, Sarpanch, to appear before Director Consolidation. There was no Panch by thename of R. Mohammad in the village. Interest of residents of village has not been considered while passing impugned order. No notice of proceedings was even received by the Gram Panchayat, as is reflected from the record. Civil Writ Petition No.2163 of 2011 4 9 In view of peculiar nature of order passed by Director Consolidation, response was sought from the Director Consolidation. 10 Shri T.V.S.N. Prasad, I.A.S., Director, Consolidation of Holdings, Haryana, has filed his affidavit, sworn on 16.3.2011, to the effect that at the point in time when the impugned order was passed, Shri S.C. Goyal, I.A.S., was holding the post. In para-3 of the affidavit, the following has been stated by Shri Prasad:- “3. That according to rule 5 of the Village Common Lands (Regulation) Rules 1964 (for Haryana) if a Panchayat is of the opinion that it necessary to exchange Panchayat land for the benefit of the inhabitants of the village, it may transfer any land in Shamilat deh by exchange with the land of an equivalent value (value to be determined by the concerned Deputy Commissioner) with the prior approval of the Government (It is further provided that Government shall not accord any approval in cases which are not received through the Deputy Commissioner). A perusal of the case file reveals that no such prior approval of the Government is available on the case file.” 11 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 legality of the impugned order, the 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 Civil Writ Petition No.2163 of 2011 5 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." 12 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 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.” 13 As per written statement filed on behalf of the Gram Panchayat, the Gram Panchayat had not passed any resolution nor there was any Panch by the name of R. Mohammad, Civil Writ Petition No.2163 of 2011 6 therefore, the consent given on behalf of the Gram Panchayat is illegal. It has further been stated that as per the Proceedings Book of the Gram Panchayat for the period from 27.3.2007 to 15.1.2009, there is no reference or entry in regard to the receipt of notice from the Court of Director Consolidation, Haryana. It is, therefore, evident that previous Sarpanch had made the statement before the Director Consolidation in his individual capacity and not on behalf of the Gram Panchayat. It has also been stated in the reply of the Gram Panchayat that no resolution was passed by the Gram Panchayat authorising Shyam Lal, previous Sarpanch, to appear or give statement on behalf of the Gram Panchayat. An act of fraud has been committed by Shyam Lal in connivance with respondent No.1- Mrs.Medha and prime property worth crores of rupees has been allowed to be exchanged by way of illegal means. There was no Panch by name of R. Mohammad in the village. 14 So far as the legal authority and jurisdiction of respondent no. 2 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. 15 Learned counsel for respondent no. 1 also has not Civil Writ Petition No.2163 of 2011 7 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. 16 Perusal of provisions of Section 42 of the Consolidation Act extracted above shows 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 person praying for exchange of her land with the land of Gram Panchayat. Conveniently, consent was taken from the Sarpanch/Panch of the Gram Panchayat, and 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. S.C. Goyal, I.A.S., 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. 17 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 Civil Writ Petition No.2163 of 2011 8 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. 18 In para-9 of the writ petition, the following has been pleaded to aver that the impugned order has been passed on account of mala fide, respondent No.1 being the niece of the then officer, who was discharging the duties of Director Consolidation:- “9. That the Petitioners are constrained to apprise this Hon'ble court of the fact that the entire act of filing the application by respondent no.1 namely Smt. Medha Gupta, the consent given by the Panchayat and the order passed by the authority is an act of total collusion and malafide. So far as respondent no.1 is concerned she is Niece of respondent no.2 who passed the impugned order. Besides that the care taker of this land of respondent no.1, Mr. Shahid entered in to an agreement with a company namely M/s DSC for providing the earth to the said company. Accordingly out of the land previously owned by her prior to the exchange, she has evacuated a huge quantity of earth and as per categorical information of the petitioners, she has sold the same to the above said company for a sum of Rupees 31 lacs. It is thereafter she has obtained another piece of land by filing the petitioner under rule 42.” In effect, it has been pleaded that on account of greed, the entire exercise has been carried out. 19 The fact that respondent No.1-Medha Gupta is niece of the officer, who was then serving as Director Consolidation, Civil Writ Petition No.2163 of 2011 9 Haryana, has not been denied in response to the pleadings in para-9 of the petition. In preliminary objection No.3, there is a denial to this asserted fact. The other facts in regard to taking benefit on account of the exchange of land, have been denied and an attempt has been made to explain the position. 20 Ten affidavits have been filed as Annexure P-2 (collectively) to say that Director Consolidation has allowed exchange of Jumla Maalkan panchayat land of the inhabitants of the village with the land of Niece of the officer, in misuse of power. The deponents' have stated that they never signed any resolution that pertains to exchange of land. The deponents' were Panches during period 13.3.2005 to 12.5.2010. It needs to be noticed that the impugned order has been passed on 10.11.2008 i.e. during the period when the persons, who have sworn the affidavits, placed on record as Annexure P-2 (collectively), were the Panches of the village. 21 In the case in hand, the benefit of the inhabitants of the village has not been seen or considered. The State Government admittedly did not give any permission to transfer any land in Shamlat Deh by exchange with the land of respondent No. 1. 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 forwarded the case for exchange. The Civil Writ Petition No.2163 of 2011 10 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. The order is fanciful, injudicious, irresponsible and unaccountable. 22 The jurisdiction or legal authority of Director Consolidation under 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-1 was not passed by Director Consolidation for legal considerations, as they flow from the Statute. 23 Certain safeguards have been provided under Rule 5 of the Rules, for compliance by the authorities under 1961 Act. As per the admitted case of Shri Prasad in his affidavit, no such compliance has been made insomuch as, the Government had not given prior approval. Property falling in shamlat deh can only be exchanged if the provisions of 1961 Act and the Rules are complied with not only in letter but also in their spirit. In the case in hand, none of the conditions provided under Rule 5 of the Rules has been followed, rather, under a Statute which is alien to the issue, exchange of Gram Panchayat land has been allowed. This Court expresses its concern over the way land meant for common purposes is being dealt with by the authorities, who should be acting as its custodians, protectors and managers of such land. 24 The affidavit filed on behalf of the Gram Panchayat Civil Writ Petition No.2163 of 2011 11 clearly indicates that a fraud has been played on the Gram Panchayat insomuch as no resolution was passed authorising the Sarpanch or the Panch to give the concession on behalf of the Gram Panchayat before Director Consolidation to allow exchange of land on the application of respondent No.1. Surely, the authority viz. respondent No.2, was required to refer to the document which authorised the person representing and appearing on behalf of a body corporate viz. Gram Panchayat. Conveniently, no such exercise has been conducted by Shri S.C. Goyal, I.A.S., who was then posted as Director Consolidation, Haryana. Respondent No.2, therefore, enabled the fraud to be played on the Gram Panchayat, resulting in the Gram Panchayat losing its land. The written statement filed on behalf of the Gram Panchayat shows that there has not been any Panch by the name of R. Mohammad. Perusal of impugned order shows that a person named R. Mohammad appeared as Panch and gave statement giving concession in favour of respondent No.1, which has been accepted by respondent No.2 as sufficient reason to pass the impugned order. 25 A perusal of the impugned order indicates that convenience of respondent No.1 has been seen. The application filed by respondent No.1 indicates that it was inconvenient to the said respondent to cultivate the land because of reasons given in the application and, therefore, the same be exchanged with the land of the Gram Panchayat. Respondent No.2 has not even referred to the interest of the Gram Panchayat or the residents of the village. Civil Writ Petition No.2163 of 2011 12 26 In view of peculiar facts and circumstances of the case, the case cannot be relegated to the authority under 1961 Act under Section 10-A of 1961 Act. The impugned order has not been passed under 1961 Act or the Rules, rather purportedly, has been passed under Section 42 of the Consolidation Act. The order has been found to be without jurisdiction. The Director Consolidation had no authority vested by law in him to allow exchange of Gram Panchayat land. The exchange of land had not been allowed under the provisions of 1961 Act and the Rules and, therefore, the argument of learned counsel for respondent No.1 cannot be accepted. 27 The facts and circumstances emanating from the record clearly indicate, even commission of criminal offences, including that of fraud. Deputy Commissioner, Mewat is directed to enable initiation of criminal proceedings. 28 In view of the above, this petition is allowed. Order dated 10.11.2008 (Annexure P-1) is hereby quashed. 29 Copy of the order be forwarded to the Chief Secretary, Haryana, for his notice. 30 Copy of the order be given under the signatures of the Bench Secretary. April 21, 2011 ( AJAI LAMBA ) Kang JUDGE 1.To be referred to the Reporters or not? 2.Whether the judgment should be reported in the Digest?