IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 274 of 2006 Date of Decision: May 15, 2009 Lawyers for Human Rights International ....Petitioner Versus State of Punjab and others .....Respondents CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE HEMANT GUPTA 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Shri Navkiran Singh, Advocate, for the petitioner. Shri H.S. Mattewal, Advocate General, Punjab, with Shri Amol Rattan Singh, Additional Advocate General, Punjab. Shri D.V. Sharma, Senior Advocate, with Shri Harit Sharma, Advocate, for PUDA. Shri O.S. Batalvi, Advocate, for Union of India. Shri Sudhir Mittal, Advocate. Shri S.C. Nagpal, Advocate. Hemant Gupta, J. The petitioner, a body of lawyers, mostly from the States of Punjab and Haryana, has invoked the writ jurisdiction of this Court, in public interest after conducting a fact finding inquiry. It is averred that one Sampuran Singh, whose land has been grabbed by certain property dealers, who were working in front for influential people, contacted the petitioner along with other co-villagers. It came to the knowledge of the petitioner that 377 kanals of land Jumla Mushtarka Malkan of village Kansal, has been unauthorisedly occupied by CWP No. 274 of 2006 (2) the influential people and some of them have even constructed their palatial houses on the said plot. It was decided by the petitioner to constitute a team. The team came across very important instances of unauthorized occupation and illegal construction on the land which is Jumla Mushtarka Malkan and it came to light that one Shri Parminder Singh Pinki, general secretary of Punjab Pardesh Congress Committee has purchased 32 kanals 15 marlas of land in the name of his brother-in-law and his wife. The team further found that C.S.R. Reddy, IPS, DIG, in Punjab, has 28 kanals 2 marlas of land in the name of his father Dr. Radha Krishna Reddy. In addition 36 kanals 10 marlas of land is in possession of Shri Sumedh Singh Saini, IPS, Inspector General of Police; Shri Savinder Singh Brar, IAS and one Dinesh Singh, another IAS Officer and brother of Shri Sumedh Singh Saini. A total extent of 55 kanals and 3 marlas is alleged to be in possession of the said persons. It has been also alleged that Shri I.S. Bindra, IAS, has built his 2 kanals house on the land falling within the share of Jumla Mushtarka Malkan. It has been highlighted in the petition that with the help of security personnel provided to the influential persons, firstly the land of the poor farmers is encroached upon and then with the threats and pressure of such security personnel, the land holders are forced to stay away from the land and then these people start erecting barbed wires around the place of their choice and with the cooperation of IAS, IPS and politicians nexus, the poor farmers are forced to sell their shares and in case any farmer refuses to sell his share, people like Sampuran Singh, who reported the matter to the petitioner, are implicated in false cases. It is alleged that three criminal cases have been registered against Sampuran Singh. CWP No. 274 of 2006 (3) It has also been averred that the Punjab Urban Development Authority (for short `PUDA'), acting under the influence of the colonizers and other influential persons, have come out with a scheme regularizing the existing construction in the periphery of Chandigarh. The newspaper report in the Tribune dated 2.12.2005, shows that the PUDA authorities are planning to help the encroachers and unauthorized construction to be regularized. The said action is alleged to be illegal and such action is sought to be dealt with by this Court. The petitioner is alleged to have submitted representations to the Central Vigilance Commissioner, New Delhi; Central Bureau of Investigation, New Delhi and the Chief Minister, Punjab, but since no action has been taken on the same, the petitioner is forced to invoke the writ jurisdiction of this Court. In response to the petition, initially an affidavit dated 10.2.2006, was filed on behalf of the Deputy Commissioner, Rupnagar. It has been pointed out that mutation No. 2378 was entered on 20.11.1999 and sanctioned by the Assistant Collector on 25.11.1999. Vide the aforesaid mutation, the land described as Mustarka Malkan Hasab Rasad Raqba Khewat, was changed to the names of individual proprietors, in different shares. In the said affidavit, the Deputy Commissioner has disclosed the sale deeds by which, the persons named by the petitioner have purchased the property and are in possession of the same and the shares of the vendors of the same named persons. The petitioner moved a miscellaneous application (CM No. 3583 of 2006) to implead Puran Singh @ Sampuran Singh son of Santa Singh as petitioner. Learned counsel for the applicant did not press the application for impleading the applicant as a petitioner to the present CWP No. 274 of 2006 (4) petition on 6.3.2006, but the documents filed along with the application, were taken on record without prejudice to the rights and contentions of the respondents qua the said documents. In the additional documents, the applicant has alleged that the inhabitants of the village were forced to give forged power of attorneys under the threat of the Punjab Police gunmen, provided to Shri Parminder Singh Pinki and on the basis of certain such involuntary power of attorneys, the sale deeds were executed. It is further alleged that without partition of the shares, the prime land was forcibly occupied by these powerful persons, who raised colony and huge gate at the entry. The petitioner was not allowed to enter and was threatened by the land mafia and, therefore, even though an FIR bearing No. 168 dated 13.10.1999 registered under Sections 419, 420, 465, 467, 468, 474, 120-B IPC. But no action was taken on the said FIR. It is alleged that the petitioner and his brother were implicated in an FIR No. 99 dated 3.4.2005, registered under Sections 447, 379, 506, 148 and 149 IPC, Police Station Mohali. The wife of the petitioner had made a complaint to SSP, Mohali. The petitioner was again implicated in FIR No. 108 dated 11.4.2005 under Sections 452, 506, 511, 148, 149 IPC, Police Station, Mohali. Even though the signatures on the Power of Attorneys did not match with the signatures of the petitioner, but still the police sent the case arising out of FIR No. 168 dated 30.1.1999, for cancellation. Another FIR No. 245 dated 10.9.2005, was lodged against the petitioner on the statement of one Swarn Singh, under Sections 452, 447, 506, 323, 148 and 149 IPC, Police Station, Mohali. The petitioner further alleges that the land belonging to the petitioner’s family has been entered in the name of Shri Sumedh Singh Saini, an IPS Officer and that the petitioner and his daughter-in-law moved an application CWP No. 274 of 2006 (5) regarding correction of the Jamabandi. The petitioner leveled allegation against Shri Saini, pointing out that his application for correction has been substituted with another application. An additional affidavit dated 30.3.2006, has been filed by the Deputy Commissioner, wherein it has been stated that the consolidation in village Kansal was completed in the year 1970-71. Out of the land measuring 23911 kanals 14 marlas, around 570 kanals 18 marlas of land, was kept in the name of Jumla Mustarka Malkan Hasab Rasad Raqba Khewat, i.e., for the common purpose of the village under Section 18 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (for short `the Act’). The said area included 137 kanals 17 marlas for common path under Section 23-A of the Act. The management and control of this land vest in Gram Panchayat. On 16.1.1986, the Consolidation Officer, passed an order reflecting the shares of the individual proprietors. On the basis of such order, mutation No. 2378 has been finally entered on 20.11.1999 and sanctioned on 25.11.1999 by the Assistant Collector, 2nd Grade. Reference has been made to the inspection report by the Assistant Collector, 2nd Grade on 9.4.1999. It has been further pointed out that some sale deeds were registered prior to 25.11.1999, when mutation in favour of individual proprietors, were sanctioned and some sale deeds were registered after 25.11.1999. Detail of purchase of land by different persons, is also mentioned therein. A written statement has been filed on behalf of the State of Punjab dated 27.4.2006, wherein while denying the allegations, it was pointed out that the cancellation report in the case arising out of FIR No. 168 dated 13.10.1999, has been prepared and submitted to Court for CWP No. 274 of 2006 (6) approval, whereas in FIR No 99 dated 3.4.2005 and FIR No. 108 dated 11.4.2005, the investigation is complete and report submitted before the Court, whereas FIR No. 245 dated 10.9.2005, is under investigation. Detailed reference has been made to the steps of regularization of construction; the writ petition filed and the orders passed. However, it has been stated that preparation and approval of the periphery policy, has been done with the sole purpose of ensuring planned growth in the periphery of the city of Chandigarh. An affidavit dated 7.9.2007 has been filed by the Deputy Commissioner, pointing out that out of 377 kanals 10 marlas, land measuring 370 kanals 18 marlas, was sold by the original land owners through 64 sale deeds. Out of the said 64 sale deeds, 17 sale deeds pertain to the persons, whose names have been mentioned in the present petition. In the year 1998, the original land owners, gave general power of attorneys, for a total area of 132 kanals 7 marlas to Sonam Kumar son of Lt. General (Retd.) B.K.N. Chhibbar, along with Harjinder Singh; Rajinder Singh and Darshan Kumar son of Mehar Chand. In the year 1998-99, a total area of 96 kanals 15 marlas was purchased by Harjinder Singh (17 kanals 10 marlas); Sumedh Singh (32 kanals 9 marlas); S.S. Brar (31 kanals 16 marlas) and J.S. Brar (15 kanals). Details of possession of land purchased by different persons, have been given in extenso in the said affidavit. Another affidavit dated 23.10.2007, has been filed by the Deputy Commissioner, Mohali, pointing out that no appeal has been filed against the order dated 16.1.1986 passed by the Consolidation Officer and that the same has not been challenged by any person before any Court. It has been further pointed out that one Jiva Singh, has filed a petition before the CWP No. 274 of 2006 (7) Director, Consolidation under Section 42 of the Act, pointing out that he has suffered a shortage of 11 standard marlas. The Director, Consolidation, allowed that application on 6.12.1985. The said order was challenged by Dialgir and Rallagir by way of CWP No.829 of 1986. Jiva Singh had filed an appeal against the sanction of the mutation No. 1323 dated 3.3.1987, pointing out that the land allotted vide order dated 6.12.1985, has not been noticed. The said appeal was allowed on 16.12.1988, permitting entry of the fresh mutation after the orders are passed by this Court in CWP No. 829 of 1986. On 12.4.1994, the said writ petition was disposed of with liberty to the petitioner therein to make an application before the Director, Consolidation and Holdings, to consider whether the petitioner has been heard before the order was passed on 6.12.1985. In terms of the aforesaid orders, the Director, Consolidation, again passed an order dated 10.2.1997 upholding the earlier order dated 06.12.1985 granting 11 Marlas of land to Jiva Singh and Ram Singh. The said order was challenged by Dialgir and Rallagir by way of CWP No. 5115 of 1997, which was dismissed by this Court on 8.9.1999. Thereafter, the mutation in terms of order dated 16.1.1986 (Annexure R.14), was sanctioned as mentioned in previous paragraph. The said order was passed by the Consolidation Officer, after a petition filed by Bhajan Singh son of Dhhanu etc., under Section 42 of the Act, was allowed by the Additional Director, Consolidation of Holdings on 27.6.1984 (Annexure R.13). It was alleged that 42 kanals of land was left for Nadi (River). But now, the Administration has built a Bund, with the result that the Nadi (River) area is no more required for the said purpose. The petitioner has prayed that the said area be divided amongst the share holders. The Additional Director found that the Bachat area, which stands in CWP No. 274 of 2006 (8) the name of Jumla Mustarka Malkan Hasab Rasad Raqba Khewat, as per the cut imposed upon them, belongs to the right holders and it is the necessity of law that when such area is left out, it should be entered in the revenue record and share of each owner should be mentioned in the column of ownership. Since no such share was mentioned in the revenue record, therefore, the case was sent to the Consolidation Officer, to work out the share of each co-sharers and mention the same in the revenue record. Neither the order dated 27.6.1984 nor the order dated 16.01.1986 passed in pursuance of the order dated 27.6.1984, has been challenged by any person in any Court. Learned counsel for the petitioner vehemently argued that the nexus between influential bureaucrats and police officers, has led to encroachment upon the land in the periphery of Chandigarh. The land has been encroached upon by forcing the people to sell their valuable land. There are cases, when the signatures on the power of attorneys had been fraudulently obtained and the power of attorneys executed, on the basis of which, sale deeds are purported to have been executed. Some of the sale deeds are purported to have been executed by forging signatures on such transactions. It is, thus, alleged that since the vendees are powerful and influential persons, therefore, the individual land holders are afraid of invoking the jurisdiction of this Court on account of constant fear and pressure. It is, thus, alleged that such transactions of sale need to be examined by this Court alone. It is also pointed out that the State authorities are bent upon regularising the illegalities committed by such influential persons as it has come out with a policy for regularization of the constructions raised in the periphery of Chandigarh. Such policy has been CWP No. 274 of 2006 (9) designed to help the influential persons and is against public interest. Counsel for the petitioner has vehemently argued that the sale deeds were executed even before the mutation in the name of individual right holders could be sanctioned in the year 1999. Thus, it shows that the transactions of sale, lack bona-fide and were effected without verifying the title of the vendors. It has been stated by Shri Amol Rattan Singh, learned Additional AG, Punjab, that vide notification dated 18.10.2006, Nagar Panchayat was constituted for Naya Gaon, after the Ministry of Environment and Forests, Government of India, vide letter dated 14.9.2006 deleted 707.70 hectare of cultivated and habitation area, subject to the conditions enumerated therein, in Nada and Karoran villages from the list of “Forest Lands”. Vide the aforesaid notification, the local area mentioned in the said notification comprising village Karoran; Nada and Kansal, was declared to be a transitional area for the purpose of constituting the Nagar Panchayat. In exercise of powers under Section 56 of the Punjab Regional and Town Planning and Development Act, 1995 and in exercise of delegation of powers under Section 10 of the Punjab New Capital (Periphery) Controlled Area Act, 1952, the boundaries of the Municipal area of Naya Gaon, was declared as Local Planning Area Area of Naya Gaon vide notification dated 24.07.2008. Still later vide notification dated 2.1.2009, the master plan 2021 for the “Local Planning Area of Naya Gaon”, was approved and notified under Section 70(3) of the Punjab Regional and Town Planning and Development Act, 1995. Learned counsel for the State, argued that the order of Additional Director, Consolidation, dated 27.5.1984 and that of CWP No. 274 of 2006 (10) Consolidation Officer dated 16.1.1986, have not been challenged by any person before any authority. Such orders were passed much before any of the so named person purchased land in the year 1998-99. Still further, it is argued that only the names of 17 vendees are disclosed in the present petition, whereas 64 sale deeds were executed and none of the vendees, have been impleaded as parties in the present writ petition. The questions whether the sale deeds are legal and valid or are executed on the basis of fraudulent power of attorneys or the sale deeds are forged, are the questions of fact, required to be adjudicated upon evidence to be led by the affected parties and after hearing the vendees concerned. Such disputed questions of fact cannot be examined in the writ petition. Another aspect which needs to be examined is whether the issue raised in the present writ petition can be permitted to be raised in public interest. The grievance raised is not in respect of a class of persons, who by reasons of poverty; helplessness or disability or socially or economically disadvantaged position, are unable to approach the Court for relief. The grievance is in respect of encroachment on the land owned by the proprietors of the village. Such persons do not fall in any of the categories for which the public interest litigation can be initiated as held in S.P. Gupta and others v. Union of India and others etc., AIR 1982 SC 149, wherein it was held to the following effect:- “It may therefore now be taken as well established that where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is CWP No. 274 of 2006 (11) threatened and such person or determinate class of persons is by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the Court for relief, any member of the public can maintain an application for an appropriate direction, order or writ in the High Court under Article 226. xx xx xx The Court has to innovate new methods and devise new strategies for the purpose of providing access to justice to large masses of people who are denied their basic human rights and to whom freedom and liberty have no meaning. The only way in which this can be done is by entertaining writ petitions and even letters from public spirited individuals seeking judicial redress for the benefit of persons who have suffered a legal wrong or a legal injury or whose constitutional or legal right has been violated but who by reason of their poverty or socially or economically disadvantaged position are unable to approach the Court for relief. xx xx xx We may also point out that as a matter of prudence and not as a rule of law, the Court may confine this strategic exercise of jurisdiction to cases where legal wrong or legal injury is caused to a determinate class or group of persons or the constitutional or legal right of such determinate class or group of persons is violated and as far as possible, not entertain cases of individual wrong or injury at the instance of a third party, where there is an effective legal aid organisation which can take care of such cases.” The said principles were reiterated in Bandhua Mukti Morcha v. Union of India and others, AIR 1984 Supreme Court Cases 802, wherein a word of caution was sounded by the Hon'ble Supreme Court to hold that CWP No. 274 of 2006 (12) Court would not, in exercise of its direction, intervene at the instance of meddlesome inter-loper or busy body and would ordinarily insist that only a person whose fundamental right is violated should be allowed to activise the Court. It was further held that where however, the fundamental right of a person or class of persons is violated but who cannot have resort to the Court on account of their poverty or disability or socially or economically disadvantaged position, the Court can and must allow any member of the public acting bona fide to espouse the cause of such person or class of persons and move the Court for judicial enforcement of the fundamental right of such person or class of persons. In Dattaraj Nathuji Thaware v. State of Maharashtra and others, (2005) 1 Supreme Court Cases 590, Hon'ble Supreme Court held that the public interest litigation cannot be invoked by a person or a body of persons to further his or their personal causes or satisfy his or their personal grudge and enmity. A person acting bona fide and having sufficient interest in the proceeding of public interest litigation will alone have a locus standi and can approach the Court to wipe out violation of fundamental rights and genuine infraction of statutory provisions, but not for personal gain or private profit or political motive or any oblique consideration. As mentioned above, the encroachment at the hands of high rank officers is alleged to be of the property of the proprietors. Such proprietors do not satisfy the description of categories for which public interest litigation can be invoked. Neither they are poor nor economically or socially backward. Such land owners are competent to espouse their cause against any legal wrong committed by any person, howsoever high he may be, by approaching the Courts, which occupy unique position in our CWP No. 274 of 2006 (13) Constitution, independent of bureaucratic or political influence. Therefore, we do not find that the petitioner has any legitimate cause to espouse the grievance of proprietors, who have their individual rights to vindicate. There is an effective remedy available under law to the affected parties. The Additional Director, exercising the powers of Director, Consolidation, in exercise of jurisdiction under Section 42 of the Act, directed the Bachat land to be mutated in the name of right holders as the same was taken for common purposes by applying pro-rata cut. In pursuance of such direction, the Consolidation Officer, has worked out the share of individual proprietors on 16.1.1986. Such order of Consolidation Officer, was given effect to by the revenue authorities when the mutation was finally sanctioned, on 25.11.1999. It is not the case of the petitioner that such orders could not be passed. In fact, allegation is of forged power of attorney and / or sale deed meaning thereby, the ownership of properties over the land so partitioned is not disputed. A perusal of the record further shows that some of the sale deeds have been executed even prior to 25.11.1999 i.e., prior to entry of mutation in the name of individual share holders. However, the sale by such right holders before the entry of mutation in the revenue record, does not affect the title of the vendor, as the title of the vendor is not dependent upon the entry of title in the revenue record. The mutation is only an evidence of title, recorded for the purpose of collection of land revenue. Mutation does not create any title or extinguish the same. Therefore, sale by a vendor before sanction of the mutation, is not a sale by a person without any title. The fact whether the vendors were forced to execute power of attorneys and/or the sale deeds and the power of attorneys are forged and fabricated CWP No. 274 of 2006 (14) documents, cannot be examined in the present proceedings as such disputed questions of fact can only be examined, before a proper forum and after associating the vendees. None of the vendors, is a party to the present proceedings. One Puran