C.W.P. No. 4214 of 2009 1 In the High Court for the States of Punjab and Haryana at Chandigarh … C.W.P. No. 4214 of 2009 Date of decision: 15.11.2011 Harbans Singh and others … Petitioners Versus State of Punjab and others … Respondents Coram: Hon’ble Mr. Justice M.M.Kumar Hon'ble Mr. Justice Rajiv Narain Raina Present: Mr.Jagdev Singh, Advocate for the petitioner. Mr. Sandeep Moudgil, DAG, Punjab for respondent Nos.1 and 2. Mr. Sukhmit Singh, Advocate for respondent No.3 Mr. J.S. Bandhowal, Advocate for respondent Nos. 4 to 6 .. 1. To be referred to the reporters or not? 2. Whether the judgment should be reported in the digest? Rajiv Narain Raina,J. 1. This petition has been filed by way of Public Interest Litigation. The petitioners aver that they are all residents of village Pandher, Tehsil and District Barnala. They have no personal interest in the litigation nor are they inimical to any person. The avowed purpose of approaching this Court in its extra ordinary writ jurisdiction is to question the resolution dated 10.10.2006(P5) of the Gram Panchayat and the orders passed by the State Government sanctioning the exchange of land on which the school in question has been constructed following C.W.P. No. 4214 of 2009 2 the earlier resolution of the Gram Panchayat village Pandher dated 6.10.2001 (P2) and that such utilization of land became earmarked in terms of Rule 3(1) (xvii) of the Punjab Village Common Lands (Regulations)Rules, 1964 (for short, the ‘Rules’)and was not available for exchange under Rule 5 of the said rules. The complaint is that the exchange of land under the impugned resolution and sanction of the Government amounts to a fraud upon the land and therefore both the impugned resolution (P5) and the sanction order dated 21.9.2006 granting approval of exchange of land of Gram Panchayat measuring field 3, 21 kanals out of shamlat land comprising khewat No.365, Khatauni No. 838, Khasra No.322(8-7), 723(9-0) and 724(3-13) out of (8-11) with land comprising Khewet No. 347, Khatauni No. 787, Khasra No,. 968(6-0), 969(6-16), Khatauni 788, Khasra No.772(10-4) total 23 kanals of Sukhraj Singh, Janak Singh and Harpal Singh for carving out one block of Gram Panchayat land with purpose of construction of games stadium under Rule 5 of the Punjab Village Common Lands (Regulation)Rules, 1964. Sukhraj Singh Janak Singh and Harpal Singh have been arrayed as respondents 4 to 6 in the cause title. 2. Before we proceed to examine the validity of the Gram Panchayat resolution dated 10.10.2006(P5) and the sanction accorded by the State Government for the exchange of land, it would be necessary to refer to the first resolution dated 16.10.2001 passed by the Gram Sabha Pandher . By resolution No.1. of 16.10.2001, the Gram Sabha in its wisdom in order to uplift the standard of education decided to establish a school in the village, it was decided to earmark vacant shamlat land measuring 2-1/4th acre from khewat No. 320 khatauni No.791 khasra No. 722 to 724 measuring 25 kanals 18 marlas for establishing the school. The Gram Sabha decided in public interest to entrust the construction of the school to three persons namely Jugraj Singh, Raj Kumar and Sushila Rani representing nearby villages. After the construction is done and the school building is complete the same would be handed over to the Gram Panchayat on payment of license fee annually with an increase of 10 % every year and that the building would belong to the Gram Panchayat. It transpires that C.W.P. No. 4214 of 2009 3 in the light of the resolution (P2), the school building stood completed and presently it has 421 students on its roll with staff strength of Principal, 27 teachers 3 class IV employees and a driver. These facts have been brought on record pursuant to an interim order dated 7.2.2011 calling upon the Deputy Commissioner, Barnala to file an affidavit with respect to the present status of the running of the school. These facts lie in the Deputy Commissioner’s affidavit dated 26.5.2011. 3. It turns out that respondents 4 to 6, i.e., Sukhraj Singh, Janak Singh and Harpal Singh had private land comprising in Khewat No.3457, Khatauni 787, Khasra No.986(6-0) 969(6-11), Khatauni 788, Khasra No.972(10- 4). It would do well to remember that the site of the school fell in khewat No.320 out of total shamlat land comprised in Khewat No.365 with khataunis and khasras described. 4. The petitioners further aver that after the school started running, the new gram panchayat vide resolution dated 14.4.2006 (P4) on the pretext that the playing field was to be provided for the welfare of the village and that land comprising khasra No.722,723 and 724 was rectangular, it decided that the said land should be exchanged with third parties to provide a playing ground for the villagers. This resolution completely concealed the fact that there was a school already running on the land. Thus, it was resolved that request be made to the State Government to allow the panchayat to transfer the panchayat land mentioned above with Gurbax Singh (non-respondent) and Janak Singh and Harpal Singh respondents 5 and 6 who were owners of private land comprising Khasra No.3617/968, 3619/969 and 3622/972. The action was purported to have been taken under Rule 5 of the Rules. Rule 5 reads as follows:- “5. Exchange of land. (Sections 5 and 15(2)(f) of the Act)- 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 Government, transfer any land in Shamlat deh by exchange with the land of an equivalent (value).” C.W.P. No. 4214 of 2009 4 5. The trick sought to be played by the Gram Panchayat in apparent collusion with Sukhraj Singh, Janak Singh and Harpal Singh was to exchange their private land for the school site thereby virtually handing over the school to these respondents in serious departure of the original resolution dated 6.10.2001 which gave only right of construction to Jugraj Singh, Kishori Lal and Sushila Rani without creating any right, interest or title in the land earmarked for the school. The complaint of the petitioners is that by the fraudulent resolution dated 10.10.2006, the running school and its land have been handed over to the said respondent on a platter unjustly and enriching them by this dubious exchange of the land. This fraudulent resolution has been approved and sanctioned by the Government by the impugned sanction order (P5-A) passed by the Secretary to Government of Punjab, Rural Development and Panchayat Department. The petitioners are before this Court crying hoarse against this fraudulent exchange of land. 6. In response to the notice issued by this Court, separate written statements have been filed by the State Government, Gram Panchayat and the private respondents 5 and 6. Additional affidavits have also been filed in response to the interim orders of this Court. Respondent No.4 has filed his separate written statement. Respondent No.4 in his written statement has explained that he has no concern with the school known as the Sant Attar Singh Academy inasmuch as he sold his share to Janak Singh and Harpal Singh respondents 5 and 6 by a registered sale dated 28.12.2007 and mutation has accordingly been sanctioned. He states that he purchased 50 % of the share in the school vide an agreement to sell dated 9.6.2005 from Janak Singh and Harpal Singh. He states that his relationship with respondents 5 and 6 came to an end on 28.12.2007 when he executed sale deeds in favour of respondents 5 and 6 for his entire share and in this manner respondents 5 and 6 are owners of the school. It would be seen that this transaction is subsequent to the impugned gram panchayat resolution and the sanction order of the Government and draws strength from it. C.W.P. No. 4214 of 2009 5 7. The Gram Panchayat in its written statement has disclosed that the petitioners are in illegal and unauthorized possession of 3 kanals 18 marlas of land which is part of the land exchanged by gram panchayat with respondents 4 to 6. The hidden motive is that if the exchange of land is cancelled then there would be likelihood of their retaining the illegal possession . They have placed on record the demarcation report dated 25.4.2009 showing the illegal possession of the petitioners (R3/1). It is then averred that Jugraj Singh, Raj Kumar and Sushila Rani constructed the school but failed to run it due to financial reasons, that is, when respondents 4 to 6 paid expenses for construction, started the school and are running it successfully where students of poor families are given free education. It is stated that the 2001 resolution for construction of school was without approval of Government. When the new Gram Panchayat was elected in 2003, it found that the land on which the private school was running stood in the name of Gram Panchayat. There were two options before the Gram Panchayat either to start litigation for eviction of respondents 4 to 6 from shamlat land or to get the land of equal value in exchange from them which they offered. In order to avoid litigation in the larger interest the Gram Panchayat decided to exchange the land. In this manner 21 kanals of land was exchanged by gram panchayat with 23 kanals land of respondents 4 to 6 which they had purchased for this purpose to end the dispute by following due procedure provided under the rules. Reliance has also been placed on subsequent resolution of Gram Panchayat dated 17.4.2009 ratifying that the exchange is in the interest of Gram Panchayat (R3/2). 8. The State of Punjab in its written statement filed by way of counter affidavit of Director, Rural Development and Panchayat is on the lines of the reply of the Gram Panchayat and have taken the stand in line with the written statement of Gram Panchayat. Both the State Government and the Gram Panchayat have apparently exchanged draft written statements before filing their respective counter affidavit before this Court. The counter affidavit of the State inspires no confidence in us. Shamlat land was involved which deserves the C.W.P. No. 4214 of 2009 6 most careful scrutiny of actions of gram panchayat which may be motivated by personal, local and private interest. 9. We have heard the learned counsel for the parties at length and have perused the record placed before us and the pleadings exchanged including the replication. 10. Learned counsel for the petitioner submits that the original resolution was passed by the Gram Sabha Pandher which is a body larger than the Gram Panchayat, consisting of all village proprietors. Once the Gram Sabha had decided to establish a school and the school was indeed established, a purpose specifically mentioned in Rule 3(1)(xvii) of the Rules, the land stood utilized . It could no longer be said to be vacant. Once the land has been utilized under Rule 3, the same would not be available for exchange under Rule 5. The land would cease to be land simpliciter. The building had come into existence prior to the impugned resolution of the Gram Panchayat dated 10.10.2006 (P5). The further argument is that the resolution of 2001 gave a mere right of construction to Jugraj Singh, Raj Kumar and Sushila Devi. Right of ownership was not transferred on completion of the building; the school had to be handed over to the Gram Panchayat on payment of license fee annually. The impugned resolution of 2006 is a fraud practiced on shamlat deh land by creating right of ownership through exchange on respondents 4 to 6. Learned counsel for the petitioner further contends that the Gram Panchayat was not correct in exercising a choice between litigation and exchange and that too only to avoid litigation, the transfer/exchange cannot be held to be legal and valid. The more reasonable and proper exercise of jurisdiction available to the Gram Panchayat would have been sought the eviction of respondent 4 to 6 in appropriate proceedings and in accordance with law. The interest of school children, staff and the villagers could not have been put at stake; to further, what appears to be a private deal between the Gram Panchayat and the private respondents. The exchange, therefore, is founded in colourable exercise of power and jurisdiction which deserves to be nullified. Learned counsel submits that it is an act of fraud C.W.P. No. 4214 of 2009 7 and fraud vitiates everything. The object of Rule 5 is not to enable private persons to establish a kingdom or an empire on shamlat land. We agree with the submissions of the learned counsel for the petitioner that the resolution dated 16.10.2001 (P2) cannot be reduced to nothingness on the plea that there was no State sanction behind it. In any case respondents 4 to 6 cannot take advantage of non-sanction at the hands of the State Government. We may note that the counter affidavit filed by the State inspires no confidence in us, therefore, want of approval of 2001 resolution would not wash it down. In para 5 of the reply on merits, the State Government speaks of the 2001 Resolution as an allotment of land by Gram Panchayat. But for the purposes of this case, we take it that the resolution of 2001 is in the nature of an 'allotment' with liability to pay license fee. 11. We are left with the feeling that the State and the Gram Panchayat are hand in glove with the private respondents. We are also convinced that a fraud has been practiced by the Gram Panchayat on shamlat land under the guise of exchange of land. The veil would have to be lifted and when we do so, we are left with no choice but to declare the impugned resolution of the Gram Panchayat (P5) and the sanction order (P5A) as arbitrary and illegal. The Private respondents can claim no better status than as encroachers upon the land belonging to the Gram Panchayat which was allotted to Jugraj Singh, Raj Kumar and Sushila Devi (Non parties). 12. For the foregoing reasons, we allow the instant writ petition and quash the impugned resolution(P5), order of the State Government sanctioning the exchange of land (P5-A) as also the subsequent resolution of the Gram Panchayat dated 17.4.2009 (R3/2) annexed to the written statement of Gram Panchayat, Pandher, Tehsil and District Barnala. We saddle the respondents 4 to 6 with costs of `50,000/-for illegally encroaching upon the land belonging to the Gram Panchayat and enjoying its mesne profits. The status quo ante is restored and the land beneath the school would remain vested in the Gram Panchayat . We direct that the school and the children admitted to it shall not be disturbed by this order. In the extra ordinary circumstances, we deem it fit to C.W.P. No. 4214 of 2009 8 appoint the Deputy Commissioner Barnala to be the Administrator of the School for the time being and responsible to pay salaries to teachers and staff from the funds of the school and till such time as permanent arrangements are made by the Gram Panchayat, Pandher to run the school in accordance with its wisdom and with due regard to law. (M.M.KUMAR) (RAJIV NARAIN RAINA) JUDGE JUDGE November 15, 2011 nk