Civil Writ Petition No.5585 of 2008 (O&M) : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: FEBRUARY 06, 2009 Sucha Singh & others .....Petitioners VERSUS State of Punjab & others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.Vikas Bahl, Advocate, for the petitioners. Mr.Praveen Chander Goyal, Addl.A.G.Punjab, for respondent Nos.1 to 6. Mr.S.S.Goraya, Advocate, for respondent Nos.7 to 11. Mr.Ashok Aggarwal, Senior Advocate with Mr.Vipul Aggarwal and Mr.Anandeshwar Gautam, Advocates for respondent Nos.12. **** RANJIT SINGH, J. Twenty five residents of village Sukhgarh, Tehsil and District Sahibzada Ajit Singh Nagar (Mohali) have come forward to challenge the action of Panchayat of the concerned village to Civil Writ Petition No.5585 of 2008 (O&M) : 2 : exchange the shamlat land of village Sukhgarh with the land in village Raipur Khurd, owned by a Colonizer (respondent No.12). They have termed the action of Panchayat to be illegal and exchange for extraneous consideration, which is also stated to be in violation of the rule governing the exchange of shamlat land. The Panchayat and the Colonizer of-course would attempt to justify this exchange by terming it to be beneficial for the Panchayat. They, however, were unable to satisfy the queries, which would naturally come to mind and were put to them. First and foremost query was as to how did private Colonizer became interested in exchange. What was the interest of Panchayat?. How did the meeting of mind regarding exchange came about?. How a private builder became interested in exchange if it for the benefit of Panchayat or is it for his and his benefit alone?. A question would also arise as to why would a private Colonizer show benevolence to the Panchayat and take a shamlat land in exchange of a land owned by him in a different village. Not only this, the private builder simultaneously has exchanged his land with Sham Lal in another village. Is he so benevolent that he has become interested in benefiting different Panchayats?. Real purpose appears to be his own benefit and Panchayat appears to be conniving with respondent No.12. Laborious efforts on the part of either the Panchayat and the counsel representing the Colonizer could not remove the lurking doubts concerning this exchange, which, of-course is termed by the petitioners being on account of extraneous consideration to benefit the Colonizer. The petitioners have accordingly prayed for the quashing of the resolution dated 5.8.2006 (Annexure P-5) passed by Civil Writ Petition No.5585 of 2008 (O&M) : 3 : the Gram Panchayat village Sukhgarh and have also prayed for issuance of writ of certiorari for quashing orders dated 24.9.2007/17.10.2007, (Annexure P-15), and 26.9.2006 (Annexure P- 12) and 5.9.2006 (Annexure P-17) vide which this exchange has been approved. The petitioners claim that the Gram Panchayat has sacrificed the interests of the inhabitants of the village by exchanging the shamlat land of the village with the land of the Colonizer. The land in exchange measures 111 kanals 10 marlas, which is vesting in the Gram Panchayat. This land belonging to village Sukhgarh is statedly situated at a prime location as per the Master Plan of S.A.S.Nagar (Mohali). It is claimed that in view of the Mega projects having been sanctioned, the value of the land in question has increased in its value manifolds. As claimed by the petitioners, the value of the land per acre is Rs.1.60 crores. In this regard, reliance has been placed on some sale deeds, copies of which have been annexed with the petition as Annexures P-1 and P- 2. According to these sale deeds, the value of the land in the year 2006 would work out to be Rs.1.60 crores per acre. Another sale deed, Annexure P-3, has also been referred to in this regard. This land, as per the Master Plan lay out, falls in the residential and commercial zone of Sector 85 of S.A.S.Nagar, Mohali. The petitioners would urge that some members of the Gram Panchayat of the village in collusion with Colonizer (respondent No.12), have passed a resolution for exchange of the said land with a land belonging to respondent No.12 in village Raipur Khurd. Undisputed facts are that the land belonging to respondent Civil Writ Petition No.5585 of 2008 (O&M) : 4 : No.12 falling in village Raipur Khurd falls in Institutional Zone as per the master lay out plan. It is averred that the land, which falls in Institutional Zone, can only be acquired by the Government and allotted to the Institutions and as such does not have much potential and is stated to be only 1/10th in value of the land falling in residential or commercial zone. It is pleaded that the value of the land in Institutional Zone is about Rs.12.00 lacs per acre and the sale deed dated 5.11.2007 of an area measuring 4 kanals was registered for a sum of Rs.20.00 lacs. This is stated to be best piece of land available in Sector 84, which is an Institutional Zone and the value of land now being exchanged rather carries no potential. It is in this background pleaded that the Gram Panchayat of village has passed a resolution dated 5.8.2008 just to help respondent No.12 and this is on account of a collusion between the Panchayat and the said respondent and is only due to some extraneous consideration. Grievance further is that the Panchayat had decided to exchange the whole shamlat land of village with that of land in village Raipur Khurd. This resolution for exchange is stated to be in violation of the statutory provisions inasmuch as that only three members , i.e., Jaspal Kaur, Amarjit kaur and Bant Singh have passed this resolution, whereas this was required to be passed by 3/4th of the requisite majority of the Gram Panchayat. The Gram Panchayat has five Panches and one Sarpanch and 3/4th majority of this number would be more than four members. In this regard, reliance is placed on Rule 12 (2) of the Punjab Village Common Lands (Regulation) Rules, 1964 (for short “1964 Rules”), which is reproduced below:- “Rule 12 Purpose for which land may be sold Section 5 Civil Writ Petition No.5585 of 2008 (O&M) : 5 : and 15(2) 6 of the Act: *-*-* (1)xxx xxx xxx xxx xxx (2) Where it is proposed to sell land in Shamilat Deh under sub-rule (1), the Panchayat shall forward to government a copy of its Resolution passed by a majority of the three-fourth, of its members proposing to sell the land through the panchayat Shamilat and Divisional Deputy Director Panchayati Raj stating.........” Though this Rule regulates the sale of shamlat land, but as per the counsel for the petitioners, this provision would regulate the exchange of land as well. In fact, Rule 5 of the said Rules would also be relevant in regard to exchange of land and it 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 Government, transfer any land in Shamilat Deh by exchange with the land of an equivalent value: [Provided that where the land is required, in connection with the Integrated Rural Development Programme sponsored by the Government the Panchayat may, with the approval of the Collector, transfer any land in shamilat Deh by exchange with the land of an equivalent value.]” It is accordingly pleaded that the sale and exchange Civil Writ Petition No.5585 of 2008 (O&M) : 6 : being almost identical in nature are to be regulated by the provisions of Rule 12 and, thus, Panchayat would have passed a resolution proposing exchange with only 3/4th majority and not otherwise. Respondent No.12 appears to have purchased land in village Raipur Khurd. It must have been with the purpose of a colonization, he being a Colonizer. The fact that respondent No.12 is a Colonizer is not in much dispute. This land happens to fall in Institutional Zone and, thus, respondent No.12 cannot build a residential colony in the land which he has purchased. The efforts made by respondent No.12 in this background to exchange his land with that of shamlat land in village Sukhgarh, which falls in a residential/commercial zone, would need appreciation. One need not stretch much to find that land which is in a Institutional Zone would certainly not be equal in value to the land which is in residential/ commercial zone. What interest of the Panchayat would be served to exchange this valuable land with the land belonging to respondent No.12 could not be explained during the course of arguments despite much efforts by the counsel for the Panchayat as well as for respondent No.12. It was made out that the land belonging to Gram Panchayat is surrounded by built up area and there is no provision for water and the land has not been given on lease due to this reason. How the private builder has become interested in looking after the interest of the Panchayat would be rather intriguing. How would he contact the Panchayat and how would Panchayat readily agree for exchange unless something else was at play?. In this background, the allegation by the petitioners that Gram Panchayat Civil Writ Petition No.5585 of 2008 (O&M) : 7 : had not acted to watch the interest of the inhabitants of the village while agreeing to exchange this land would not be much off the mark. How would the Panchayat benefit from the land getting in exchange which is located at different village and which, as per the petitioners, could be reached after covering a distance of 5 kilometers. It is also stated that the land in village Sukhgarh is in one block, whereas the land offered in exchange is divided into six parts. What would be for the benefit of Panchayat in getting a land in exchange which is not situated in the same village cannot easily be explained?. Rather the petitioners would refer to a resolution passed by the Panchayat for exchange of this land to say that role of respondent No.12 can clearly be seen from the manner in which the resolution is passed and exchange of the land allowed. The petitioners would say that it cannot be a coincidence that two neighbouring villages simultaneously would decide to exchange their land with the land owned by respondent No.12 at the same time. The land offered in exchange is statedly not having any Rasta. Giving all these facts, the petitioners would plead that the land offered in exchange is not in equal value which is first and the mandatory requirement in this regard before this exchange could be permitted. In addition, the petitioners have placed strong reliance on the recommendation made by Secretary, Rural Development and Panchayats on 11.7.2007 (Annexure P-6). Having noticed that B.D.O. Kharar, D.D.P.O. Mohali and Deputy Director, Patiala recommended that the price/value of the land situated in village Sukhgarh, village Sambhalki and Raipur is approximately equal and exchange is in the interest of Gram Panchayat, the Secretary has Civil Writ Petition No.5585 of 2008 (O&M) : 8 : observed that he has examined the case and came to the conclusion that exchange is not in the interest of Panchayat on account of the reasons noticed in the order, which are as follows:- “(1) There is a huge difference in the rate of the land which the Panchayat is getting and the land which is being given by the Panchayat. As per the sale deeds produced by the complainant, the sale deed in respect of land measuring 7 Kanals 13 Marlas situated in Village Sukhgarh has been executed for a sum of Rs.1 Crore 48 Lacs on 5.5.2006 and one sale deed has been executed on 24.7.2006 in respect of land measuring 4 Kanals 6 Marlas for a sum of Rs.83 Lacs. As such, the average rate of one Kanal of land in Village Sukhgarh comes to Rs.19 to 20 Lacs. On the contrary, the sale deed in respect of land measuring 5 Bighas 10 Biswas situated in Village Raipur Khurd, the Village in which the land is to be given to the Panchayat in exchange, has been executed for Rs.68 Lacs and similarly,another sale deed has been executed in respect of land measuring 15 Bighas 18Biswas for a sum of Rs.1.98 Crore and the average rate comes to Rs.7-8 Lacs per Kanal. As such the land of the Panchayat, which is being given in exchange, is costlier by about 2-1/2 times. (2)The complainants have mentioned in the writ petitions in the High Court that the land situated in Village Sukhgarh and Sambhalki has been reserved for residential and commercial area in the Master Plan of Civil Writ Petition No.5585 of 2008 (O&M) : 9 : Mohali whereas the land of Village Raipur Khurd, which the Panchayats are getting in exchange, has been reserved for institutions. It is clear that the land which comes under the area of City, it makes no difference in its value/rate as to whether it is cultivable/irrigated. Rather, it is decided on the basis of the purpose for which it is reserved in the Master Plan of the City. The land which is reserved for commercial or residential purpose, has much higher rate/value than the land reserved for institutions. As such there is difference in the `Land use' of land under exchange, which is not in the interest of the Panchayat. (3) The value of the land in Village Raipur Khurd is approximately Rs.60-Rs.70 Lacs per acre and the said land is reserved for institutions. As per the sale deed, the rate of land in Village Sukhgarh is appx. Rs.1.60 Crore per acre. In case we assess the income to the Colonizer from one acre of land, the same will be as under:- Total Area : 1 Acre Total Plots to be carved : 50% 4 Kanals Rate fixed by the Colonizer: 15000/- per sq.yard Rs.3.60 Crores Converse charges Rs.1.00 Crore per acre Net income Rs.2.60 Crores per acre In case the land is commercial, then the income per acre would have been even more. As such, with this Civil Writ Petition No.5585 of 2008 (O&M) : 10 : exchange, the Colonizer shall have profit at the rate of Rs.2.00 Crore per acre and the Panchayats shall suffer loss. Thus, it is clear that the rates of the land under exchange is not equal and the exchange is never in the interest of the Panchayats. (4) As mentioned by the Office, the land which is being given is in 1 or 2 plots but the land which the Panchayats are getting are in 6-7 plots, which is clear from the site plan also. This also affects the rate/value of the land. Secretary, Rural Development accordingly recommended that the exchange should be rejected. Still, the power of Colonizer was so overwhelming that Rural Development and Panchayat Minister on 30.7.2007 directed that the land in Raipur Khurd be re- assessed from the Committee. The Minister appointed Deputy Commissioner as the Chairman of the Committee and sought the report within a period of 1/1-2 months. It is the case of the petitioners that this exchange would only benefit the Colonizer, who would make a profit of Rs.2.00 crores per acre and resultant loss to the Gram panchayat. According to the petitioners, the whole village up in arms and as many as 308 persons had signed the requisition for convening an emergent extraordinary general meeting of Gram Sabha in terms of the provisions of the Punjab Panchayati Raj Act, 1994 (for short “1994 Act”) to say that the proposed exchange is against the interest of Gram Panchayat Sukhgarh. The copy of the requisition signed by 308 persons is annexed as Annexure P-7. Two of the Members Panchayat are petitioners No.1 and 17, who have Civil Writ Petition No.5585 of 2008 (O&M) : 11 : filed the present petition. In fact, their grievance is that while passing the resolution, permitting exchange, no notice in regard to the meeting of the Gram Panchayat was given to the members of the Panchayat. This is in violation of Section 23 of the 1994 Act. A reference is also made to earlier writ petition filed on behalf of the residents of the village, wherein notice of motion was issued and status-quo in regard to property directed to be maintained. Reference is also made to a letter dated 26.9.2006 where the pricing/value of the land in village Raipur Khurd was assessed at Rs.60.00 lacs per acre and in village Sukhgarh to be Rs.58,69,760/- per acre. This, as per the petitioners, was without working out any details. No reference was made to the sale deeds etc. Even the fact that village Sukhgarh now falls in residential zone, whereas the land in village Raipur Khurd falls in Institutional Zone, as per the Master Plan, has also not been taken into consideration. Reference is also made to the instructions issued by Government of Panchayat and Department of Revenue containing guidelines while assessing the value of the land, which are as under:- “..........Very often the recommendations of the District Land Price Fixation Committees are sketchy and non- speaking giving an impression of arbitrariness in price fixation...... ..........Chhant at the initial stage also result in temptation to acquire more land than necessary, resulting in unwarranted dislocation of local population. 4. Since compensation has to be determined on the basis of market price the only guiding factor can be as to Civil Writ Petition No.5585 of 2008 (O&M) : 12 : what is the price on which an owner would be willing to sell his land and what is the price a buyer would be willing to pay if acquisition proceedings were not to take place......... ..........8. As brought out in Para 4 above the guiding factor for determining the basis of market price would be what is price at which an owner would be willing to sell his land and what is the price a buyer would be willing to pay if acquisition proceedings were not to take place. With increase in urbanization and the land becoming a scarce commodity, locational factors like proximity to a road, a town, an urban agglomeration or even the direction in which a City is expanding have assumed far greater importance than whether a land is Chahi or Barani or even Banjar..... .............13. Constitution of District Land Price Fixation Committee (DLPFC): *-*-* For the determination of market price there shall be a Standing Committee at the District Level by the name of District Land Price Fixation Committee. The Committee 1. Deputy Commissioner-Chairman 2. M.P. of the Area; 3. M.L.A. of the Area; 4. (For Rural Area) (a) Chairman, Block Samiti and where there is no Civil Writ Petition No.5585 of 2008 (O&M) : 13 : Chairman the Block Development & Panchayat Officer; (b) Sarpanch of the Village concerned (For Urban Area) Mayor/President of Municipal Corporation/ Municipal Committee/Nagar Panchayat where there is no Mayor/President, the Commissioner of the Municipal Corporation or the Executive Officer, as the case may be. 5. District Revenue Officer: 6. Sub Divisional Magistrate-Convener Where the land to be acquired falls in more than one district the Commissioner of the Division shall chair the meeting of the District Land Price Fixation Committee and in case the land falls in two or more Divisions then the meeting shall be chaired by the Commissioner, who is senior amongst them. Even in that case the main responsibility guidance and coordination shall rest with the Deputy Commissioner in whose District the major portion of the area to be acquired is situated. District Land Price Fixation Committee shall also associate the District Level Representative of the Acquiring Department/ Public Senior Undertaking concerned with Civil Writ Petition No.5585 of 2008 (O&M) : 14 : every meeting of the Committee as also with the Site visit, if conducted.......”. Accordingly, this valuation is put to a serious challenge by the petitioners. The said writ petition, however, was disposed of as the final decision in regard to exchange was yet to be given. The direction was given to the Government to take a decision within four weeks from the date of the receipt of copy of the order. When the matter was under consideration, the law officer gave his note saying that the following facts were necessarily required to be kept in view:- “1. The proposal is forwarded by the Divisional Deputy Director, Rural Development and Panchayat. 2. It is necessary that the D.D.P.O. and B.D.P.O. should inspect the lands under exchange and as to whether the said exchange is liable to be made or not? 3. There is no personal benefit to any Sarpanch/Panch or his close relative with the said exchange. 4. It is mandatory to get assessed the value of the lands under exchange from the D.C. 5. After the exchange, the Gram Panchayat has 50% of the cultivable area. 6. The Resolution regarding exchange should have been passed by 3/4th Members of the Gram Panchayat and the same should be attested by the B.D.P.O. 7. The Jamabandi of the Gram Panchayat should not be of the years prior to 1999-2000 and in the Resolution, Civil Writ Petition No.5585 of 2008 (O&M) : 15 : all the khasra numbers under exchange should be mentioned and the same khasra numbers should have been mentioned in the Jamabandi. 8. Photocopy of the Latha showing the lands in different colours should be attached. 9. The exchange is in public interest. 10. The land to be taken by Gram Panchayat in exchange is free from any encumbrance, meaning no dispute or court case should be pending. 11. The Private Party, whose land is to be given to the Panchayat in exchange, has given the No Objection Certificate in respect of the said land.” The law officer further noticed and sought information whether the resolution for exchange was passed by majority of the members or not. In this regard, he observed as under:- “Besides, it will also be pertinent to mention that out of the objections raised by the department vide letter dated 17.10.06, regarding Point No.4, vide which it was inquired as to whether the Resolution passed by the Gram Panchayats Sambhalki and Sukhgarh regarding exchanging the land with private party, had the majority of the Members or not. In this regard,.....S.A.S.Nagar, Mohali has not intimated as to how many Members were there in said Gram Panchayats and how many gave their consent, meaning thereby whether the Resolutions were passed in majority or not. Besides this, regarding exchange of the land of both these Gram Panchayats, it Civil Writ Petition No.5585 of 2008 (O&M) : 16 : has been mentioned regarding objection No.6 that Civil Writ Petition No.16096/2006 regarding the Shamlat land of Gram Panchayat Sambhalki is pending in the Hon'ble Court. Regarding the case of Gram Panchayat, Sukhgarh, Civil Writ Petition No.15587 of 2006 is pending in the Hon'ble Court”. Ignoring all these aspects, which were under consideration, while taking the decision, another Committee was constituted to carry out the re-assessment of the market value of the land. This is stated to be an illegal action with malafide intention done with a purpose to favour respondent No.12. The Secretary, Rural Development, who had earlier rejected the proposal for exchange, this time endorsed the report which was then approved by the Minister without much fuss. How and why the Secretary came to change his view would not be very difficult to find. Apparent display of influence of respondent No.12 seems to be at play. This time, proposal was agreed without any analysis. The same value was assessed by the Committee, though it was done after expiry of period of one year. How could have the value assessed been identical