CIVIL WRIT PETITION NO. 9180 OF 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: November 16th , 2009. Parties Name Rajbir Singh ..PETITIONER VERSUS State of Haryana and others ...RESPONDENTS CORAM: HON'BLE MR. JUSTICE JASBIR SINGH PRESENT: Mr. Shekhar Mudgil, Advocate, for the petitioner S/Shri Mahavir Sandhu and S.S. Dinarpur, Advocates, for the petitioners in the connected petitions. Mr. Hawa Singh Hooda, Advocate General, Haryana, with Mr. R.D.Sharma, Deputy Advocate General, Haryana. JASBIR SINGH, J. ORDER. This order will dispose of Civil Writ Petitions No.9180, 252, 1156, 2945, 1455, 1596, 1733, 1818, 1876, 1912, 2164, 2308, 2349, 2366, 2422, 2454, 2643, 2656, 2677, 2791, 2885, 2895, 2983, 3233, 3234, 3283, 3635, 3672, 3726, 3729, 3743, 3796, 3879, 3892, 4079, 4161, 4210, 4253, 4317, 4429, 4530, 4547, 4654, 4681, 694, 918, 2360, 920, 3022, 3105, 3333, 3306, 3419, 2939, 898, 2645, 2463, 3634, 5121, 6407, 6146, 6071, 5253, 5448, 6447, 5398, 5227, 6940, 5542, 6007, 5165, 6543, 6711, 4509, 6621, 6538, 5039, 5013, 5939, 5399, 3414, 4927, 6084, 5071, 3631, 4148, 2533, 322, 3176, 4401, 5641, 7325, 425, 4274, 324, 7367, 9049, 839, 9290, CIVIL WRIT PETITION NO. 9180 OF 2009 -2- 9376, 9252, 9185, 9178, 9335, 9805, 5553, 7237, 9809, 781, 1158, 1538, 9086, 9146, 9176, 9194, 9207, 9225, 9253, 9347, 9364, 9401, 10057, 10110, 10150, 10187, 10287, 10288, 10309, 10396, 10420, 10423, 10435, 10569, 10682, 10752, 10758, 10759, 10778, 10788, 10800, 10808, 10942, 10974, 10985, 11002, 11051, 11096, 11134, 11142, 11197, 11222, 11230, 11258, 11271, 11309, 11319, 11334, 11376, 11447, 11488, 11491, 11498, 11527, 11529, 11546, 11555, 11575, 11591, 11751, 11841, 11848, 11860, 11898, 11901, 11903, 11908, 11916, 11921, 11998, 12073, 12123, 12154, 12164, 12168, 12186, 12288, 12301, 12308, 6999, 5463, 12332, 12396, 12448, 12453, 12464, 12465, 12540, 12543, 12742, 12754, 12765, 12777, 12780, 12813, 12823, 12842, 562, 7075, 7683, 7435, 8104, 8224, 8230, 8552, 8657, 8672, 8960, 8969, 9018, 9041, 9481, 8409, 12957, 12973, 13204, 13209, 13213, 1884, 13361, 13568, 13791, 13885, 14098, 15242, 15379, 14775 and 15483, 15579, all of the year 2009, and CWP No. 18248 of 2008, as common question of law and facts is involved in all these cases. For convenience of dictating order, facts are being mentioned from Civil Writ Petition No. 9180 of 2009. In all these writ petitions, scheme,framed by the State of Haryana on February 1, 2008 (in short the Scheme), for allotment of 100 Sq. yards residential plots, to the families of the Scheduled caste and to the families living below poverty line is under challenge. Taking note of above said fact, vide order dated August 4, 2009, it was ordered that it is not necessary to file detailed reply in all these cases because issue involved was the same, i.e., validity or otherwise of the above Scheme. It was further ordered that if counsel for the petitioners in any of the writ petitions wish to get copy of the written-statement filed in this case or in CWP No. 6447 of CIVIL WRIT PETITION NO. 9180 OF 2009 -3- 2009, he may approach the Advocate General, Haryana, who was directed to supply copy of the written-statement(s) forthwith. This writ petition has been filed with a prayer to quash policy / scheme dated February 1, 2008 (P-2) being contrary to the provisions of Punjab Village Common Lands (Regulation) Act, 1961,as applicable in Haryana (in short the Act). It was further prayed that respondent- Gram Panchayat be restrained from carving out 100 Sq. yards plots, for allotment to the members of the weaker sections of the society, as envisaged in the Scheme. It was stated by the petitioner that he is a resident of village Parbnawa in district Kaithal. Being proprietor, he has interest in the common land of the village, which was left out during consolidation proceedings, after imposing a pro-rata cut on the land owners in the village. It was further asserted that only the Gram Panchayat has the power to transfer/ gift the land as per provisions of the Act and the Punjab Village Common Lands (Regulation) Rules, 1964 (in short the Rules). The Gram Panchayat cannot be forced to allot plot to any resident of the village, as has been done by directing it, to implement the Scheme. It was further stated that the Gram Panchayat is a statutory body and is elected for welfare of the village and is constituted to carry out numerous development activities in the village. Gram Panchayat is custodian of the public property and it cannot be forced to part with its property for a particular section of the village population. In the village common land, which was kept separate by imposing a cut on the land owners during consolidation proceedings, the proprietors are the owners and the property cannot be taken away without payment of the compensation. It was further stated that in his village, 3228 CIVIL WRIT PETITION NO. 9180 OF 2009 -4- Kanals 8 Marlas of land was reserved for common purposes during the consolidation proceedings. The above said land is being utilised for many common purposes like School, Cremation Ground, Dispensary etc. Out of the remaining land, the Gram Panchayat is deriving income, by auctioning the same and the money so earned is being spent on development works in the village. It was further asserted that the Gram Panchayat has right only to manage the common purpose land. As per provisions of East Punjab Holding (Consolidation and Prevention of Fragmentation) Act, 1948, the ownership shall continue to vest in the land owners. The Government has made an attempt to take away property of the petitioner and other right holders in the village without payment of compensation, as such the action is hit by the provisions of Article 31A of the Constitution of India and as such cannot be sustained. Before implementation of the policy by the Gram Panchayat, the Gram Sabha was not taken into confidence. By stating as above, an apprehension was raised that if the Scheme is implemented, as proposed, in the village, probably no land will remain available to meet the future needs of the village population. The Gram Panchayat has passed a resolution, to allot plots, to a portion of the village population under threat and coercion from the District Administration. Resolution passed is not voluntary and free. Majority of the population is not happy with the resolution passed by the Gram Panchayat. It was prayed that the Scheme and the consequent resolution, passed by the Gram Panchayat, being contrary to the provisions of the Act and the Rules be quashed. Upon notice, reply has been filed on behalf of the respondents, wherein it has been stated that the petitioner has no right to lay challenge to CIVIL WRIT PETITION NO. 9180 OF 2009 -5- the Scheme dated February 1, 2008, whereby the Government has issued certain guidelines only for uniform application of the Scheme to the Gram Panchayats in the State, to avoid discriminatory treatment to the people belonging to poor section of the society, i.e., Scheduled caste, backward class (A) and the persons living below poverty line. By issuing the scheme, mentioned above, the Gram Panchayats have been reminded of their duty, cast upon them, under the Constitution and the Act to implement the development schemes so that poor section of the society may also live in the healthy conditions. There is no idea to divest the Gram Panchayat of the control and management of the land under its ownership. It was further stated that the Scheme was formulated keeping in view the Directive Principles of the State policy contained in part IV of the Constitution of India, with a view to improve living conditions of weaker sections of the Society. The Gram Panchayat is also duty bound as per provisions of Article 243G of the Constitution of India to provide healthy atmosphere to achieve the object of social justice in a village. By issuing the scheme dated February 1, 2008, an attempt has been made to create general awareness in the members of the Gram Panchayat so that they may perform duties cast upon them under the Constitution of India, the Act and the Rules. It was further stated that allotment of residential plots to those, who do not own any house, is one of the objectives provided under Section 2 of the Act, for which the Gram Panchayat can utilise Shamlat Deh land, in a village. The land can be gifted for residential purposes subject to approval by the State Government, which has virtually been accorded by the policy , mentioned above. It was further stated that the Scheme will be implemented only when Gram Panchayat will pass a resolution and not otherwise. If the Scheme is CIVIL WRIT PETITION NO. 9180 OF 2009 -6- not implemented by a Gram Panchayat, no coercive action has been suggested. By stating as above, prayer has been made that the writ petitions having no substance be dismissed. It is an admitted fact that none of these writ petitions has been filed by any Gram Panchayat. It is also not a case of the petitioners that without getting a resolution passed from the Gram Panchayat, the Scheme has been implemented in any village. None of the petitioners in these writ petitions has stated that for non-implementation of the Scheme in a village, any coercive action has been initiated by the Department against Member of the Gram Panchayat(emphasis supplied) Shri Mahavir Singh Sandhu, Advocate, has argued with vehemence that by implementing the Scheme, the respondent – State is going to take away ownership rights of the proprietors in the land, which was kept separate during consolidation proceedings by imposing a pro-rata cut upon them. He has further argued that as per provisions of the Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, and the Rules framed thereunder, only management and control of that land will vest in the Gram Panchayat. Ownership will continue to vest in the proprietors. He has also argued that the common purpose land is meant for development of the entire village and it cannot be used to give benefit to a particular caste or a section of the village population. He has further argued that the Gram Panchayats have been asked to pass the resolution despite opposition by majority of the village population. By implementing the Scheme, an attempt has been made to make the Gram Panchayat as subservient to the Government. If the Scheme is implemented as envisaged, the Gram Panchayat will not get any income for its development work, in a CIVIL WRIT PETITION NO. 9180 OF 2009 -7- village and for future needs, no land will remain available in the village. To press his arguments, he has placed reliance upon judgment of the Hon'ble Supreme Court in Ajit Singh v. The State of Punjab and another, 1967 Punjab Law Reporter 271 and B.L.Wadhera v. Union of India, 2002(3) R.C.R. (Civil) 64. Similar arguments were raised by counsel for the petitioners in other writ petitions. Arguments, raised by counsel for the petitioners, have been controverted by Shri Hawa Singh Hooda, Advocate General, Haryana. He made a very categoric statement that for allotment of plots under the Scheme , only the Shamlat Deh land, as defined under provisions of the Act shall be utilised. He further argued that the Scheme has not been challenged by any Gram Panchayat in the State of Haryana and it is being implemented only in those Villages, where the Gram Panchayats have passed resolutions and sent list of the eligible residents for allotment of the plots. He further argued that by issuing the guidelines vide Scheme dated February 1, 2008, the State has only reminded the Gram Panchayats of their duties cast upon them under the Constitution of India, the Act and the Rules, i.e., to uplift living conditions of the weaker sections of the society. He further stated that as per provisions of Section 5-A of the Act, the Gram Panchayat has the power to gift land to members of the Scheduled caste etc. He specifically stated that in the absence of resolution, passed by the Gram Panchayat, allotment shall not be made under the Scheme in any village. During arguments, an apprehension was raised by the petitioners in all these writ petitions, that if the scheme is implemented, for future needs, to establish any institution for any common purpose, no land will be available. Shri Hooda has filed a short affidavit of Shri Alok Nigam, CIVIL WRIT PETITION NO. 9180 OF 2009 -8- IAS, Director, Panchayat, Haryana, dated August 18, 2009, along with a letter circulated by the Financial Commissioner and Principal Secretary to Government of Haryana, to all the Deputy Commissioners in the State, wherein it has been stated that in villages, where Gram Panchayats have opted to implement the Scheme, it be ensured that at least 25% of the total land in Shamlat Deh should be reserved for future common needs of the inhabitants of the village. By placing reliance upon a Division Bench judgment of this Court in Khushi Puri and others v. The State of Haryana and others, 1978 Punjab Law Journal 78 (Punjab and Haryana), a Full Bench of this Court in Bishamber Dayal v. State of Haryana and others, 1986 Punjab Law Journal 208; judgment of the Hon'ble Supreme Court in Shish Ram v. State of Haryana, 2000(3) R.C.R.(Civil) 279, and B.L.Wadhera v. Union of India and others, 2002 Punjab and Haryana Recent Revenue Reports 395, Shri Hooda argued that the Gram Panchayat has the power to change the use of common purpose land, for which it was reserved during consolidation proceedings. He further stated that the land, which is reserved for common purposes during consolidation proceedings, whether utilised or not, shall vest in the Gram Panchayat. The petitioners are not owners of the land in dispute and as such it is not open to them to raise any objection. He has further stated that in case any private person is aggrieved by a resolution passed by the Gram Panchayat, he/ she may agitate the same before the competent authority under the Haryana Panchayati Raj Act, 1994, and the Act. By making reference to the provisions of the Scheme, he tried to impress upon this Court that even after allotment of plots to the members of the weaker section of the society, ownership shall remain with the Gram CIVIL WRIT PETITION NO. 9180 OF 2009 -9- Panchayat. In case allottee is not using the plot as per terms and conditions of the Scheme and the Undertaking given, the land shall revert back to the Gram Panchayat. After hearing arguments, the matter was reserved on August 17, 2009. As discussed during the arguments, another affidavit of Shri Alok Nigam, IAS, Director , Panchayats, Haryana, dated August 18, 2009, was put on record, wherein it has been stated that out of 6155 Gram Panchayats in the State, only 3000 (approximately) Gram Panchayats have passed resolutions for allotment of plots under the Scheme. It was further stated that the Government of Haryana has also decided to provide basic amenities like streets, drinking water etc. in those villages by spending a huge amount. After hearing counsel for the petitioners, this Court feels that no case is made out to interfere at their instance. Ours is a democratic set up. Article 40 of the Constitution of India envisages that the States shall take steps to organize village Panchayats and endow them with such powes and authority as may be necessary to enable them to function as units of Self- Government. It appears that the above mentioned provision was added in part IV of the Constitution of India, in the Directive Pricniples of State Policy, keeping in view a fact that more than 80% population of the country, at the time of Independence was residing in the villages. It might have further been felt that their development/ upliftment is possible only if they are given the powers of self-governance so that the rural population can contribute in country's march towards achieving the goal of becoming a great nation. However, after looking into functioning of the Gram Panchayats for about 50 years, it was realised that grass root level Institutions have failed to achieve the purpose for which these were CIVIL WRIT PETITION NO. 9180 OF 2009 -10- constituted. These institutions had virtually become tools in the hands of bureaucrats. With a view to strengthen democratic institutions at the village level, 73rd amendment was incorporated in the Constitution of India in the year 1992. Article 243G was added in the Constitution, which reads thus: “ Powers, authority and responsibilities of Panchayat. - Subject to the provisions of this Constitution the Legislature of a State may, by law, endow the Panchayats with such powers and authority and may be necessary to enable them to function as institutions of self-government and such law may contain provisions for the devolution of powers and responsibilities upon Panchayats, at the appropriate level, subject to such conditions as may be specified therein, with respect to- (a) the preparation of plans for economic development and social justice; (b) the implementation of schemes for economic development and social justice as may be entrusted to them including those in relation to the matters listed in the Eleventh Schedule.”(emphasis supplied) A reading of the above said provision indicates that it is necessary for the Gram Panchayats to prepare plans for economic development in a village and for social justice. It is their further duty to implement schemes for the above said purposes as may be entrusted to the Gram Panchayats. In all the writ petitions, it is basic contention of counsel for the petitioners that if scheme is implemented, as it is, it will take away CIVIL WRIT PETITION NO. 9180 OF 2009 -11- proprietary rights of the petitioners in the common purpose land. This objection is completely washed out when Shri Hawa Singh Hooda, Advocate General, Haryana, made a statement, during the arguments that only the land, which falls within the definition of Shamlat Deh land as defined under the provisions of the Act shall only be utilised to implement the Scheme. In Section 2(g) of the Act, Shamlat Deh has been defined as under: “(g) “shamilat deh” includes- (1) lands described in the revenue records as (Shamilat deh or Charand) excluding abadi deh; (2)shamilat tikkas; (3)lands described in the revenue records as shamilat tarafs, pattis, pannas and tholas and used according to revenue records for the benefit of the village community or a part thereof or for common purposes of the village. (4)Lands used or reserved for the benefit of village community including streets, lanes, playgrounds, schools, drinking wells or ponds , situated within the Sabha area as defined in clause (mmm) of Section 3 of the Punjab Gram Panchayat Act, 1952, excluding lands reserved for the common purposes of a village under Section 18 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (East Punjab Act 50 of 1948) the management and control whereof vests in the State Government under Section 23-A of the aforesaid Act;) CIVIL WRIT PETITION NO. 9180 OF 2009 -12- 4(a)vacant land situate in abadi deh or gorah deh not owned by any person; (5)lands in any village described as banjar qadim and used for common purposes of the village according to revenue records. xxx xxx xxx (6)lands reserved for the common purposes of a village under section 18 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (East Punjab Act 50 of 1948), the management and control whereof vests in the Gram Panchayat under section 23-A of the aforesaid Act. Explanation-Lands entered in the column of ownership of record of rights as “Jumla Malkan Wa Digar Haqdaran Arazi Hassab Rasad”, “Jumla Malkan” or “Mushtarka Malkan” shall be shamilat deh within the meaning of this section;)” Section 4 of the Act provides for vesting of the Shamilat Deh land in the Gram Panchayat and the non-proprietors. Section 5 of the Act deals with Regulations of use and occupation of the land vested or deemed to have been vested in the Gram Panchayat. This Section specifically provides that the land mentioned above shall be utilised or disposed of by the Gram Panchayat, for the benefit of the inhabitants of the village concerned in the manner prescribed. Sub section (5) of this Section further envisages that the State Government is competent to take over Shamilat Deh land in a village, to secure proper management and its better utilisation for CIVIL WRIT PETITION NO. 9180 OF 2009 -13- benefit of the inhabitants of the village concerned for a period of 20 years. Section 5A of the Act authorises the Gram Panchayat, on such terms and conditions, as may be prescribed, gift, sell, exchange and lease the Shamilat Deh land to the members of the Scheduled caste and the backward class, in a village concerned. As to, for what purposes, land can be gifted etc., it is provided in Rule 27 of the Rules, which enumerates various common purposes for which Shamilat Deh land can be used. The purposes contained therein also include residential purposes, for which land can be gifted/ leased out subject to approval by the Government. Rule 13-A of the Rules lays down the terms and conditions of a gift of Shamilat Deh land, which envisages that a donee shall not sell, least, mortgage etc. the land before a period of 20 years. The donee shall construct a house on the land within a period of five years and the land will be used for residential purpose only. Analysis of above said provisions and the statement made by the Advocate General, Haryana, show that the petitioners have no cause whatsoever to lay challenge to the Scheme for utilisation of the land, which is subject matter of Section 2 (g) of the Act. The petitioners / proprietors have no ownership rights thereon. The main dispute is with regard to the land, which was reserved during consolidation proceedings for common purposes by imposing a pro-rata cut on the right holders. In that land, petitioners are claiming right of ownership, whereas to the contrary, it is case of the respondents that the land vests in the Gram Panchayat. To sort out that controversy, the State of Haryana has added sub clause (6) in Section 2(g) of the Act by effecting an amendment in the year 1992. That amendment came up for consideration before a Full Bench of this Court in Jai Singh's case (supra). Its validity was upheld by the Full Bench by CIVIL WRIT PETITION NO. 9180 OF 2009 -14- holding as under: “62. In view of the discussion made above, we hold that:- i) sub-section (6) of Section 2(g) of the Punjab Village Common Lands (Regulation) Act, 1961 and the explanation appended thereto, is only an elucidation of the existing provisions of the said Act read with provisions contained in the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948; ii)the un-amended provisions of the Act of 1961 and, in particular, Section 2(g)(1) read with Sections 18 and 23-A of the Act of 1948 and Rule 16(ii) of the Rules of 1949 cover all such lands which have been specifically earmarked in a consolidation scheme prepared under Section 14 read with Rules 5 and 7 and confirmed under Section 20, which has been implemented under the provisions of Section 24 and no other lands; iii)the lands which have been contributed by the proprietors on the basis of pro-rata cut on their holdings imposed during the consolidation proceedings and which have not been earmarked for any common purpose in the consolidation scheme prepared under Section 14 read with Rules 5 and 7 and entered in the column of ownership as Jumla Mustarka Malkan Wa Digar Haqdaran Hasab Rasad Arazi Khewat and in the column of possession with the proprietors, shall not vest the Gram Panchayat or the State Government, as the case may be, on