MEWA SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) 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the letter No. 22148 dated 17.8.2005 (Annexure-P.17) issued by the office of Deputy Director (Land Development) is withdrawn.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.

(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 (Rs.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 (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 (Rs.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 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 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.

(3.) 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 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.