IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. (I) C.W.P. No. 10728 of 2008 DATE OF DECISION : 05.11.2008 Inder Singh .... PETITIONER Versus The State of Haryana and another ..... RESPONDENTS (II) C.W.P. No. 10729 of 2008 DATE OF DECISION : 05.11.2008 Sunita Devi .... PETITIONER Versus The State of Haryana and another ..... RESPONDENTS (III) C.W.P. No. 10730 of 2008 DATE OF DECISION : 05.11.2008 Kanta Devi .... PETITIONER Versus The State of Haryana and another ..... RESPONDENTS (IV) C.W.P. No. 10743 of 2008 DATE OF DECISION : 05.11.2008 Hari Ram .... PETITIONER Versus The State of Haryana and another ..... RESPONDENTS CWP No. 10728 of 2008 -2- (V) C.W.P. No. 10744 of 2008 DATE OF DECISION : 05.11.2008 Azad Singh .... PETITIONER Versus The State of Haryana and another ..... RESPONDENTS (VI) C.W.P. No. 10746 of 2008 DATE OF DECISION : 05.11.2008 Ram Bhaj .... PETITIONER Versus The State of Haryana and another ..... RESPONDENTS CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE JASWANT SINGH Present: Mr. Vikram Singh, Advocate, for the petitioners. Mr. Sudhir Makkar, Senior DAG, Haryana, for the respondents. * * * SATISH KUMAR MITTAL , J. This order shall dispose of 6 petitions, filed by 6 different persons, who have been removed from the post of Panches by the Deputy Commissioner, Jind (respondent No.2 herein), in exercise of the powers conferred under Section 51 (3) (d) of the Haryana Panchayati Raj Act, 1994 CWP No. 10728 of 2008 -3- (hereinafter referred to as `the Panchayati Act'), and their posts of Panches have been declared vacant under Section 177 of the Act. In all these petitions, the petitioners have challenged the orders dated 24.1.2008 (Annexure P-3) and 27.5.2008 (Annexure P-4), passed by the Deputy Commissioner, Jind as well as the the Financial Commissioner, Haryana, Chandigarh, whereby the appeal filed by the petitioner has been dismissed and the order dated 24.1.2008 has been upheld. In the present case, in the year 1965, the land measuring 94 Kanals 6 Marlas, belonging to the Zumla Mushtarqa Malkans was mutated in favour of Gram Panchayat, Village Amrawali Khera, District Jind. Subsequently, the proprietors of the village filed CWP No. 12985 of 1995, challenging the constitutional validity of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as `the Act'), Haryana Amendment Act, 1992 (Act No. 9 of 1992) and for setting aside the aforesaid mutation sanctioned in favour of the Gram Panchayat in the year 1965. The said writ petition was disposed of by this Court in terms of its Full Bench decision in CWP No. 5877 of 1992, reported in Jai Singh and others v. State of Haryana, 2003 (1) PLJ 429, wherein it was held that if the mutations were sanctioned on the basis of the Act No. 9 of 1992 in favour of the Gram Panchayat, then those mutations shall stand cancelled/set aside, leaving open for the Gram Panchayats to file an application for eviction under Section 7 of the Act, if the lands are such, which have since been earmarked for common purposes under the scheme CWP No. 10728 of 2008 -4- and the proprietors are in unauthorised occupation or the title suit under Section 13-A of the Act, as the case may be; and if the proprietors claim title over such land, which form part of the Bacat land, then they have to file a title suit claiming the said land, asserting their title on it. In the instant case, though the mutation of the Zumla Mushtarka land was not changed in the name of the Gram Panchayat on the basis of Act No. 9 of 1992, but the proprietors of the village in connivance with the members of the Gram Panchayat got sanctioned the mutation of the aforesaid land in their favour, without filing the title suit under Section 13- A of the Act and establishing their right in the same on the basis of the aforesaid ground. When this fraud came to the knowledge of the authorities, the Block Development and Panchayat Officer, Pillukhera directed the Sarpanch of the Gram Panchayat to file an appeal against the aforesaid illegal mutation sanctioned in favour of the proprietors. The Sarpanch convened the meeting of the members of the Gram Panchayat on 17.10.2005 to take a decision for filing an appeal against the said mutation. During the proceedings of the meeting, all the petitioners refused to pass the resolution with regard to filing an appeal against the aforesaid mutation. Since all the petitioners were in majority, the said resolution could not be passed. It is alleged against the petitioners that they, being the proprietors, are beneficiaries of the illegal mutation. Therefore, they deliberately and consciously have acted against the interest of the Gram Panchayat. On these allegations, after issuing show cause notice and initiating the regular CWP No. 10728 of 2008 -5- enquiry against them and after providing an opportunity of hearing to them, all the petitioners were removed from the posts of Panches under Section 51 (3) (d) of the Panchayati Act. Learned counsel for the petitioners submits that merely because the petitioners did not sign the resolution dated 17.10.2005, they cannot be removed, because their said conduct can neither be termed as mis-conduct nor incur any disqualification to them under the Panchayati Act. He further submits that the Deputy Commissioner, without taking into consideration the detailed reply given by the petitioners, has passed a totally non-speaking order. Learned counsel submits that the Naib Tehsildar sanctioned the mutation in favour of the proprietors, after adopting proper procedure. It has been further submitted that the petitioners did not sign the resolution dated 17.10.2005, because on earlier occasions they and the other members of the Gram Panchayat had already passed the resolution dated 29.9.2005, in pursuance of which mutation was sanctioned in favour of the Zumla Mushtarka Malkans. The petitioners were under the impression that if a contrary resolution is passed, then the Gram Panchayat would be liable to contempt of court, therefore, they did not sign the resolution. After hearing learned counsel for the parties, we do not find any force in the contention of learned counsel for the petitioners. In this case, mutation of the land measuring 94 Kanals 6 Marlas, belonging to the Zumla Mushtarqa Malkans was sanctioned in favour of the Gram Panchayat, in the year 1965. The said mutation was not changed in the name CWP No. 10728 of 2008 -6- of the Gram Panchayat on the basis of the amendment made by Act No. 9 of 1992. Therefore, on the basis of the decision of this Court in Jai Singh's case (supra), the mutation of this land was not be set aside and changed in favour of the proprietors. However, the petitioners in connivance with the other proprietors got passed a resolution from the Gram Panchayat on 29.9.1995 for sanctioning of the mutation of this land in favour of the proprietors. When the Gram Panchayat was asked to file an appeal against the aforesaid illegal mutation sanctioned in favour of the proprietors, the petitioners refused to sign the resolution with regard to filing an appeal against the aforesaid mutation, as they were directly going to be adversely effected. In our opinion, the mutation could have been sanctioned in favour of the proprietors, if on filing the title suit by them under Section 13-A of the Act, they were able to successfully establish their title on such land. The Gram Panchayat was also given liberty to file eviction petition against the unauthorised occupants of such land under Section 7 of the Act or to file a title suit under Section 13-A of the Act. In this case, the petitioners, who are 6 out of 10 members of the Gram Panchayat, instead of passing a resolution, taking a decision to file eviction petition against the unauthorised occupants, passed a resolution giving consent to the effect that the Panchayat has no objection if the mutation of the Zumla Mushtarka Malkans' land be sanctioned in favour of the proprietors. Thus, in connivance with the members of the Gram Panchayat, proprietors of the village got illegally sanctioned mutation of the land in their favour, without CWP No. 10728 of 2008 -7- getting any order/decree from the competent court under Section 13-A of the Act. When this grave illegality/fraud came to the knowledge of the authorities, the Gram Panchayat was asked to pass the resolution for filing an appeal against the illegal sanction of the mutation. However, the petitioners, who are the beneficiaries of the sanction of the illegal mutations, consciously and deliberately refused to sign the resolution, so that no appeal could have been filed against the illegal mutation. In our opinion, such act and conduct of the petitioners has been rightly taken as grave mis-conduct, as they have not only failed to discharge their duties as Panches, but have acted against the interest of the Gram Panchayat. In view of the above, in our opinion, no interference in the impugned order is required by this Court, in exercise of its powers under Article 226 of the Constitution of India. Dismissed. ( SATISH KUMAR MITTAL ) JUDGE November 05, 2008 ( JASWANT SINGH ) ndj JUDGE