IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA C.W.P. No.374 of 2006 Date of decision: 22.4.2008. Vinit Kumar Thakur ….. Petitioner -Versus- State of H.P. and others …. Respondents Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice Rajiv Sharma, Judge. Whether approved for reporting? Yes For the Petitioner: Ms.Jyotsna Rewal Dua, Advocate For Respondents: Mr.R.M.Bisht, Dy.A.G. for R-1&2. Mr.Deepak Kaushal, counsel for R-5. Deepak Gupta, J. The present petition clearly proves how public property is squandered away and given off to persons close to people in power without following any law or the procedure prescribed. The State of Himachal Pradesh owns some land in village Dadahu, District Sirmour in which there was a dilapidated Gram Sevak Hut and a godown. It appears that the Block Development Officer, Nahan, District Sirmour sent a letter on 28.3.2000 to the Director, Rural Development Department, Himachal Pradesh requesting that the aforesaid land be transferred in favour of the Panchayat. The Deputy Director of the Rural Development Department vide letter dated 6th June, 2000 (Annexure P-1) wrote to the BDO, Nahan that the Department had no objection to transfer the land. It would however be important to note that the land had not 2 been transferred on that date and only a no objection had been issued. On 5.9.2000 a meeting of the Gram Sabha of the Gram Panchayat, Dadahu was held under the Chairmanship of Sh.Ravinder Gupta, Pradhan. In this meeting it was decided that the land, Gram Sevak Hut and godown would be rented out to one Sh.P.L. Sood son of Sh.R.D. Sood, respondent No.5 herein on a monthly rent of Rs.1000/-, Rs.500/- and Rs.200/- respectively. It was further decided to lease out of these properties w.e.f. 1.10.2000. Surprisingly this decision was taken even before the land was transferred in favour of the Gram Panchayat. Thereafter, on 11th January, 2001, the Collector, District Nahan transferred the possession of the ruined gram sevak hut comprised in khasra No.977/874 and land measuring 0-17 bighas to the Gram Panchayat, Dadahu for the purpose of construction of building/parking complex. In this letter it was clearly stated that the land will remain in the ownership of the State Government and in the possession of the Rural Development Department through the Gram Panchayat Dadahu which was required to put the said land to use for the aforesaid purpose within 2 years. On the next day itself, i.e. on 12th January, 2001 an agreement was entered into between the Gram Panchayat and respondent No.5 whereby the land, gram sevak hut and godown were leased out in favour of Sh.P.L.Sood without even seeking permission of the State Government. The matter was reported to the Collector, Sirmour who issued a notice to the Gram Panchayat to show cause how the 3 Panchayat had leased out the land and whether it had obtained prior sanction from the prescribed authority under Section 112 of the H.P. Panchayati Raj Act and Rule 121 of the H.P. Panchayati Raj Rules for creation of the lease deed. No such approval had been taken from the State Government before creating the lease deed and it was found that the lease deed had been created without sanction of the Government. Thereafter, the SDO( C), Nahan passed an order on 7.11.2001 quashing the agreement as well as the Resolution passed by the Panchayat. Despite such orders having been passed the Panchayat took no action to take back the possession of the land from the respondent No.5. Thereafter, the present petition was filed. When the petition came up for admission on 19.5.2006 we had passed the following order: “Notice to respondents No.3 to 5. In the meanwhile, we direct respondent No.2 to ensure that the land forming the subject matter of this petition is not used by respondent No.5 for any purpose. We hold respondent No.2 responsible to ensure the implementation and compliance of this order without any delay whatsoever.” After notice was issued, the State has filed the reply supporting the case of the petitioner. The respondent No.5 filed reply in which it was stated that he has filed some case before the Civil Judge (Senior Division), Nahan which is still pending. No details of the suit have been given nor was it pointed out as to what has happened to the suit. From the perusal of the various documents it is apparent that the Panchayat had no authority whatsoever to lease out the land to respondent No.5. The Gram Panchayat is not even the owner of the 4 land. It is the State Government which is the owner of the land and the Gram Panchayat has only been given permission to raise building and make a parking complex on the said land. This building and parking was to be used for the benefit of the public. It was not meant to be used for the benefit of a private individual. In the petition it has been alleged that the agreement in question was entered into on 12.1.2001 after elections to the Gram Panchayat had already taken place and when Sh.Ravinder Kumar had not been elected and was bound to handover office to the person duly elected. The property of a Gram Panchayat cannot be leased out without the sanction of the State Government. Section 112 of the Panchayati Raj Act reads as follows: “112.(1)No immovable property vested or belonging to a Panchayat shall be transferred by sale, gift, mortgage or exchange or by lease or otherwise except with the sanction of the State Government or any officer authorized by it in this behalf. (2)The procedure of transfer of immovable property shall be such as may be prescribed.” A bare reading of this section clearly shows that the immovable property vested in or belonging to a Panchayat cannot be transferred by any means including lease without sanction of the State Government or an officer authorized by the State Government. Rules 121 and 122 of the Himachal Pradesh Panchayati Raj (General) Rules, 1997 read as follows: “121.Lease or sale of any property or public place (section-119)-(1) A Panchayat may lease out or sell any property or public place belonging to or vesting in it, if it can be leased out profitably. A Panchayat may hold or acquire, as the case may be, any property. 5 Provided that the previous sanction for sale or lease or acquire or hold shall be obtained from the Deputy Commissioner if the value of the property or public place does not exceed one lakh and of the Director, if the value of the property or public place does not exceed two lakh and of the Government, if the value of the property or public place exceeds two lakh rupees: Provided further that the Government or the Director or the Deputy Commissioner, as the case may be, may not accord sanction for the sale or lease or acquire or hold of the property or public place, if such sale or lease or acquisition or hold is not in the interest of the Panchayat or cause inconvenience to the public. (2)All sales or lease shall be by auction after giving publicity as laid down in rule 122 by tender or in such other manner as may be decided by the State Government. 122.Mode of publicity.—When any property or public place is to be sold or given on lease the Panchayat shall publish an auction notice in Hindi. The auction Notice shall be displayed properly on the notice board and publicity shall be made by beat of drums in the locality. Panchayat shall invite the objection from the affected persons within the period of 30 days before acquiring or holding any property.” These Rules clearly lay down that when any property belonging to a Panchayat is to be sold or given to lease the same shall be done by auction after giving wide publicity. This can only however be done after taking prior permission of the Deputy Commissioner where the value of the property is less than Rs.one lakh, in case the value if more than Rs.one lakh but does not exceed Rs.2 lakhs the permission can be accorded by the Director and if the value is more than Rs.2 lakhs then the permission can only be granted by the Government. The Gram Panchayats have been established to look after the interest of the general public. The Gram Panchayat acts as trustees for and on behalf of all the villages. The Act and the Rules clearly lay down that the property of the Panchayat cannot be leased out except after receiving prior sanction of the prescribed authority. Further the process of leasing out must be done by auction after giving 6 wide publicity. This has been provided for, to ensure that there is transparency and that the Panchayat receives the maximum consideration for its property. In the present case even though the Panchayat was not the owner of the property the property was transferred in a totally illegal manner. No sanction was taken, no publicity was done, no offers were invited from any other person. Behind closed doors a deal was entered into between some members of the Gram Panchayat and respondent No.5. Respondent No.4 who was the Pradhan of the Gram Panchayat cannot be absolved of his responsibility. The material on record clearly indicates that in fact the Gram Panchayat approached the State Government for the transfer of the property to the Gram Panchayat, not for its own benefit but for the benefit of the respondent No.5. Another surprising fact is that despite the orders dated 7.11.2001 having been passed, the respondent No.5 continues to be in possession of the property. It has been contended on behalf of respondent No.5 that this order has been passed behind his back without giving him a hearing. This petition was filed in the year 2006. Notice was given to the respondent No.5 and he put in appearance in 2006 itself. Despite having notice of this order till date the said order had not been challenged by respondent No.5 in any forum. We have heard respondent No.5 in detail and his counsel has failed to justify the action of the Gram Panchayat in leasing out the 7 property to respondent No.5 without taking permission of the prescribed authority and giving due publicity as per the Rules. Keeping in view the aforesaid discussion, we are of the considered view that the writ petition has to be allowed and we accordingly direct the respondent No.2 to take over possession of the property. The respondent No.5 is directed to handover the vacant and peaceful possession of the entire property i.e. land, gram sevak hut as well as godown to the respondent No.2 on or before 31st May, 2008 failing which he shall be liable to pay use and occupation charges of Rs.1500/- per day. The respondents 4&5 are also directed to pay Rs.10,000/- each as costs of the litigation. The costs shall be paid to the Deputy Commissioner, District Sirmour at Nahan who shall utilize the said sum of Rs.20,000/- recovered as costs for creating some public utility at Dadahu. In case the respondent No.5 does not handover possession the respondent No.2 shall be entitled to use force to take over the possession of the land, gram sevak hut and godown. The petition is allowed in the aforesaid terms. ( Deepak Gupta ), Judge April 22, 2008. ( Rajiv Sharma ), PV Judge.