In the High Court of Punjab and Haryana at Chandigarh ...... Civil Writ Petition No.6263 of 2006 ..... Date of decision:21.8.2009 Mewa Singh and another .....Petitioners v. State of Punjab and others .....Respondents .... Present: Mr. Ashish Aggarwal, Advocate for the petitioners. Mr. H.S. Gill, Deputy Advocate General, Punjab for respondents No.1 to 6. Mr. S.D. Sharma, Senior Advocate with Ms. Bindu Goyal, Advocate for respondent No.7. ..... S.S. Saron, J. This petition under Articles 226/227 of the Constitution of India has been filed seeking quashing of the order dated 2.12.2005 (Annexure-P.18) passed by the Deputy Director (Land Development), Punjab (respondent No.2) wherein it has been held that as the exchange of land between the petitioners and the Gram Panchayat, Village Rurki (respondent No.7) had not been accepted by the Government and regarding the exchange there was no satisfaction of the parties and accordingly the letter No.22148 dated 17.8.2005 (Annexure-P.17) issued by the office of Deputy Director (Land Development) is withdrawn. The Gram Panchayat was directed to get the unauthorized possession removed immediately and to prosecute cases pending in the Court and if there was any stay of the Court, then proceedings be taken to get the same vacated. C.W.P. No.6263/2006 [2] The facts of the case are that the petitioners are owners of land measuring 5 Bighas 6 Biswas comprised in Killa No.2019/1756/795 (4-19) and 2117/1754/794 (0-7). The said land is situated near the `Abadi' of the Village and adjoins Bhadson road. It is stated to be valuable land as the same is near the residential and commercial area, which was being used for commercial purposes. The Gram Panchayat, Rurki (respondent No.7) vide resolution No.129 dated 25.9.1995 (Annexure-P.1) resolved by majority to exchange the land of the Gram Panchayat measuring 18 Bighas 1 Biswa comprised in Khasra No.2225, Killa No.1640 (4-12), 1641 (5-18), 1642 (6- 5) and Khasra No.2254, Killa No.1640 (1-6) with the aforesaid land of the petitioners measuring 5 Bighas 6 Biswas. It is stated that more land was agreed to be given by the Gram Panchayat, Rurki (respondent No.7) in lieu of the exchange as the gram panchayat land was `Banjar' and was situated at a distance of 2 kms. from the village. The same is stated to be uneven and of inferior quality. After passing the above resolution (Annexure-P.1), the Gram Panchayat, Rurki (respondent No.7) filed a petition under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (`1948' – for short) before the Additional Director Consolidation with the prayer for sanctioning the exchange of the above lands. The Additional Director, Consolidation vide order dated 24.1.1996 (Annexure-P.2) ordered the exchange of the lands by accepting the petition filed by the Gram Panchayat, Rurki (respondent No.7). Against the order of the Additional Director, Consolidation one Surjit Singh son of Raunak Singh filed a petition before the Additional Director, Consolidation under Section 42 of the 1948 Act which was dismissed vide order dated 6.2.1997 C.W.P. No.6263/2006 [3] (Annexure-P.3) by the Director, Consolidation of Holdings. Thereafter, the Gram Panchayat, Rurki (respondent No.7) filed a petition under Section 11 of the Punjab Village Common Lands (Regulation) Act, 1961 (`1961 Act' – for short) claiming that it is owner of the land comprised in Khewat No.256, Khasra No.1640 (5-18), 1641 (5-18) and 1642 (6-5), that is, the land measuring 18 Bighas 1 Biswa which the Gram Panchayat, Rurki (respondent No.7) had given in exchange. The Collector/DDPO, Fatehgarh Sahib vide order dated 16.12.1998 (Annexure-P.5) held that the Director, Consolidation had no right to order exchange of panchayat land with the land of any person. The exchange of panchayat land it was observed could only be made by the competent departmental officer. Therefore, the application was allowed and the order of exchange dated 24.1.1996 (Annexure-P.2) passed by the Additional Director, Consolidation, Punjab, Mohali was set aside being without jurisdiction and the Gram Panchayat, Rurki (respondent No.7) was declared owner of the land in dispute as described in the head not of the application. The petitioners Mewa Singh and Nahar Singh filed an appeal against the order dated 16.12.1998 (Annexure-P.5) passed by the Collector/DDPO, Fatehgarh Sahib before the Director-cum-Special Secretary, Government of Punjab, Rural Development and Panchayat Department (exercising the powers of Commissioner under the 1961 Act). The learned Commissioner after considering the matter came to the conclusion that the Additional Director, Consolidation had already exchanged the land of the Gram Panchayat (respondent No.7) measuring 18 Bighas 1 Biswa with that of the petitioners measuring 5 Bighas 6 Biswas. It was observed that the exchange was carried out for increasing the area of C.W.P. No.6263/2006 [4] the school. Therefore, even if the Consolidation Officer had no jurisdiction to order such an exchange but the exchange was carried out in public interest, therefore, the order dated 16.12.1998 (Annexure-P.5) passed by the Collector/DDPO, Fatehgarh Sahib was modified and the petitioners and Gram Panchayat (respondent No.7) were directed to get the price of both the lands assessed from the Collector and this exchange was to be carried out again with the approval of the Government. With the said modification, the appeal was disposed of vide order dated 19.10.2001 (Annexure-P.6). The Gram Panchayat, Rurki (respondent No.7) then passed resolution dated 25.3.2004 (Annexure-P.7). It was resolved that the Director-cum-Special Secretary, Government of Punjab, Rural Development and Panchayat Department, Punjab (exercising the powers of the Commissioner under the 1961 Act) had directed that the case be sent after getting market price of both the lands assessed. Thus, in compliance with the directions of the higher officer it was considered that the market price of both the lands be got assessed. Accordingly, Gram Panchayat, Rurki (respondent No.7) by way of the said resolution dated 25.3.2004 (Annexure-P.7) requested the District Collector, Fatehgarh Sahib to assess the market price of both the lands. The office of Deputy Commissioner, Fatehgarh Sahib (DRA Branch) vide memo dated 24.1.2005 (Annexure-P.8) received a report from the Sub Divisional Magistrate, Fatehgarh Sahib. On the basis of the report received, the market price of the land was determined to the effect that the land of the Gram Panchayat measuring 18 Bighas 1 Biswa was assessed at the rate of Rs.6 Lacs per acre while that of the petitioners measuring 5 Bighas 6 Biswas was assessed at the rate of Rs.22 Lacs per acre. The Block C.W.P. No.6263/2006 [5] Development and Panchayat Officer, Sirhind thereafter addressed letter dated 17.5.2005 (Annexure-P.9) to the District Development and Panchayat Officer, Fatehgarh Sahib inter alia mentioning that the exchange be got carried out with the approval of the Government. Along with the letter dated 17.5.2005 (Annexure-P.9) the Block Development and Panchayat Officer also enclosed resolution No.129 dated 25.9.1995 (Annexure-P.1) passed by the Gram Panchayat, Rurki (respondent No.7) besides other documents. It was certified vide certificate (Annexure-P.10) that the land has not been reserved for any common purposes. In terms of certificate (Annexure-P.11) it was certified that by the said land, there would be no personal gain to any Sarpanch or Panch. Certificate (Annexure-P.12) was to the effect that regarding exchange no case was pending in any Court nor there was any dispute regarding this land. In terms of certificate (Annexure- P.14) it was certified by the Block Development and Panchayat Officer that he had inspected the spot of the land. It was stated that the exchange was in public interest and after exchange more than 50% of the land remains with the Panchayat and by which there was no financial loss to the Panchayat. The District Development and Panchayat Officer, Fatehgarh Sahib vide letter dated 23.5.2005 (Annexure-P.14) addressed to the Director, Rural Development and Panchayats mentioned that the exchange was being carried out keeping in view the future of the children and for the purpose of the school. It was also mentioned that regarding the exchange of the land the Director-cum-Special Secretary, Government of Punjab, Rural Development and Panchayat Department, Punjab vide order dated 19.10.2001 (Annexure-P.6) had directed that process for exchange be C.W.P. No.6263/2006 [6] initiated and price of both the lands was again asked to be got assessed from the Collector in public interest. The exchange was to be carried out with the approval of the Government. The Block Development and Panchayat Officer had also addressed a letter dated 27.6.2005 (Annexure-P.15) to the District Development and Panchayat Officer, Fatehgarh Sahib asking for guidance as to whether auction of the land can take place in the pending case regarding exchange. Besides, it had come to the notice of the office of the Block Development and Panchayat Officer that the possession and mutation of the concerned land is with the concerned party of exchange and the complainant had also informed that due to non-auction of the `Shamilat' land, financial loss was being caused to the Gram Panchayat. The DDPO, Fatehgarh Sahib addressed letter dated 2.9.2005 (Annexure-P.16) to the Additional Deputy Commissioner (Development), Fatehgarh Sahib in which it is mentioned that Gurjit Singh, Sarpanch of Gram Panchayat, Rurki (respondent No.7) in his statement stated that mutation of exchange was made in favour of Mewa Singh and Nahar Singh (petitioners). The exchange in fact had not taken place during his tenure as Sarpanch. He had received a letter from the BDPO for getting the price assessed, if the Panchayat so desires to do and both the parties agree to the same. Mewa Singh in his statement had stated that in the year 1996 their land was exchanged with the land of the Panchayat and the mutation was also sanctioned. Thereafter, the Administrator filed a case before the DDPO, Fatehgarh Sahib and against him an ex parte order was passed. He had filed an appeal in Court of Director, Rural Development and Panchayats, Punjab (exercising the powers of Commissioner under the 1961 Act) and the Director had passed C.W.P. No.6263/2006 [7] an order that the price of the land be assessed. Now the price had been assessed. After considering the statements of both the parties, the DDPO, Fatehgarh Sahib found that the Director, Rural Development and Panchayat vide order dated 19.10.2001 (Annexure-P.6) had directed the Gram Panchayat to get the price again assessed of both the lands from the Collector and in public interest the exchange be carried out with the approval of the Government. In compliance with the said order and with the approval of the Gram Panchayat the price of the lands of the Gram Panchayat (respondent No.7) and that of Mewa Singh and Nahar Singh (petitioners) had been assessed by the Deputy Commissioner, Fatehgarh Sahib and moreover the Panchayat was also agreeable and in this regard they had passed a resolution. Therefore, the exchange, it was requested be carried out properly. The Deputy Director (Land Development), Punjab, Chandigarh in his communication dated 17.8.2005 (Annexure-P.17) addressed to the Block Development and Panchayat Officer, Sirhind directed both the parties to appear in his office on 31.8.2005 at 11.00 a.m. Thereafter, the impugned order dated 2.12.2005 (Annexure-P.18) was passed observing that exchange had not been accepted by the Government and regarding the exchange there was no satisfaction of both the parties, therefore, letter No.22148 dated 17.8.2005 (Annexure-P.17) issued by the office was withdrawn. The Gram Panchayat, Rurki (respondent No.7) was directed to get unauthorized possession removed immediately and to prosecute the cases pending in the Court and if there is any stay then proceedings be taken to get the same vacated. The said order dated 2.12.2005 (Annexure-P.18) is assailed in the present petition. C.W.P. No.6263/2006 [8] After hearing learned counsel for the parties and perusing the record, it may be noticed that the Gram Panchayat, Rurki (respondent No.7) and the petitioners had initially agreed to exchange the Gram Panchayat land measuring 18 Bighas 1 Biswa with the land of the petitioners measuring 5 Bighas 6 Biswas. The exchange was accepted by the Additional Director, Consolidation in proceedings under Section 42 of the 1948 Act. In this regard, it may be noticed that the consolidation authorities had no jurisdiction to carry out or accept the exchange of land between the Gram Panchayat and the petitioners. Therefore, the order dated 24.1.1996 (Annexure-P.3) passed by the Additional Director, Consolidation, Punjab was coram non-judice and it had no effect in the eyes of law and was a nullity. The exchange of land between a Gram Panchayat and the private persons is to be carried out only in accordance with the provisions of Rule 5 of the Punjab Village Common Lands (Regulation) Rules 1964 (`1964 Rules' – for short) which reads as under:- “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 shamilat deh by exchange with the land of an equivalent value.” Therefore, the exchange of the land between land of the Gram Panchayat for the benefit of the inhabitants can be done only with the approval of the Government. Such an exchange could not have been effected by the Consolidation authorities under the 1948 Act. Besides, mutations that have been effected on the basis of such an exchange in the absence of Government approval are also a nullity. Admittedly, the C.W.P. No.6263/2006 [9] Government has not given any approval in this regard. The only reference which is there to a Government order is contained in the impugned order dated 2.12.2005 (Annexure-P.18) passed by the Deputy Director (Land Development) wherein it is mentioned that the details of the exchange of `Shamilat' land of the Gram Panchayat which was signed by the DDPO, Fatehgarh Sahib had been consigned to the record for want of approval by the Government. Nothing has been placed on record to show whether the Government has considered the matter for the grant of approval or it was merely filed. In any case, it may be noticed that it is the case of the petitioners that ever since the exchange of the land was effected in terms of the order dated 24.1.1996 (Annexure-P.2) passed by the Additional Director, Consolidation, Punjab, the petitioners are in possession of the land measuring 18 Bighas 1 Biswa which is owned by the Gram Panchayat, Rurki (respondent No.7). It is also submitted that they have carried out improvements in the said land. It may, however, be noticed that the Director-cum-Special Secretary, Government of Punjab, Rural Development and Panchayat Department (exercising the powers of Commissioner under the 1961 Act) vide order dated 19.10.2001 (Annexure-P.6) had observed that the resolution was presented by the Gram Panchayat, Rurki (respondent No.7) with majority consent and the Block Development and Panchayat Officer vide letter No.442 dated 24.3.2004 had directed the panchayat to get the market price assessed as the exchange was to be carried out for increasing the area of the school and even though the Consolidation Officer had no jurisdiction to order such an exchange but because this exchange C.W.P. No.6263/2006 [10] was carried out in public interest, therefore, while modifying the order dated 16.12.2008 (Annexure-P.5) passed by the Collector under the 1961 Act, the petitioners and the Gram Panchayat, Rurki (respondent No.7) were directed to again get the price of both the lands assessed from the Collector and this exchange be carried out with the approval of the Government. The said order dated 19.10.2001 (Annexure-P.6) is now final between the parties and has not been assailed. In consequence of the said order the Gram Panchayat, Rurki (respondent No.7) had passed a resolution on 29.5.2004 (Annexure- P.7) requesting the Collector to assess the market rate. Thereafter, the office of the Deputy Commissioner, Fatehgarh Sahib (DRA Branch) vide memo dated 24.1.2005 (Annexure-P.8) had received a report from the Sub Divisional Magistrate, Fatehgarh Sahib. On the basis of the said letter, the office of the Deputy Commissioner Fatehgarh Sahib had assessed the land of the Gram Panchayat measuring 18 Bighas 1 Biswa at the rate of Rs.6 Lacs per acre and that of the petitioners measuring 5 Bighas 6 Biswas at the rate of Rs.22 Lacs per acre. The said letter has been signed on behalf of the Deputy Commissioner, Fatehgarh Sahib and is not shown to be having the approval of the Deputy Commissioner himself. The grievance of the Gram Panchayat, Rurki (respondent No.7) in its written statement is that the said assessment has been done at the behest of one Mohan Lal, Patwari and the Gram Panchayat, Rurki (respondent No.7) was not associated in the determination of the value. Be that as it may, it is apparent that the exchange of the land between the Gram Panchayat, Rurki (respondent No.7) and the petitioners cannot be said to be valid for want of sanction of the State Government C.W.P. No.6263/2006 [11] which is required in terms of Rule 5 of the 1964 Rules. However, since the order dated 19.10.2001 (Annexure-P.6) passed by the Director-cum-Special Secretary, Government of Punjab, Rural Development and Panchayat Department (exercising the powers of Commissioner under 1961 Act) has not been challenged by either of the parties, the proceedings are liable to be carried out from that stage itself as it stood on 19.10.2001. In other words the Collector i.e. Deputy Commissioner, Fatehgarh Sahib shall assess the market value of the two lands to which learned counsel for the respective parties agree shall be at the present rate. In the assessment process, the Deputy Commissioner shall associate both the parties and after making assessment of the value shall forward his report to the State Government. The State Government shall thereafter consider the case for exchange in accordance with Rule 5 of the 1964 Rules. In case there is any difference between the market price it will be open to the Government to consider whether the difference can be paid by either of the parties. With the above directions, the writ petition is disposed of. It is hoped that the Deputy Commissioner, Fatehgarh Sahib/Collector carries out the exercise as expeditiously as possible and the State Government also considers the case regarding exchange of two parcels of lands as expeditiously as possible and the exercise is completed preferably within a period of six months from the date copy of this order is received by the authorities. Till the matter is disposed of by the State Government, the parties shall maintain status quo with regard to the land measuring 5 Bighas 6 Biswas which is in possession of the Gram Panchayat and the land C.W.P. No.6263/2006 [12] measuring 18 Bighas 1 Biswa which is in possession of the petitioners. Besides, till the matter is finally considered by the State Government, the proceedings in the petition (Annexure-P.19) filed by the Gram Panchayat, Rurki (respondent No.7) under Section 7 of the 1961 Act shall remain stayed. Copy of this order be given dasti to Mr. H.S. Gill, learned counsel for the State for necessary compliance. August 21, 2009. (S.S. Saron) Judge *hsp* NOTE: Whether to be referred to the Reporter or not:Yes