Punjab-Haryana High Court
Ashok Kumar & Anr vs State Of Haryana & Ors on 29 September, 2023
Neutral Citation No:=2023:PHHC:128782-DB
CWP-6337-2018 -1- 2023:PHHC:128782-DB
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
CWP-6337-2018
Reserved on: 13.09.2023
Date of decision : 29.09.2023
ASHOK KUMAR AND ANR. -PETITIONERS
VERSUS
STATE OF HARYANA AND ORS. -RESPONDENTS
CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
HON'BLE MR. JUSTICE KULDEEP TIWARI
Present : Mr. R.S. Kundu, Advocate
for the petitioners.
Mr. Ankur Mittal, Addl. A.G., Haryana with
Mr. Saurabh Mago, DAG, Haryana.
Mr. Yashwant Attri, Advocate and
Mr. Rahul Verma, Advocate
for the respondent No.3.
Mr. Inderjit Sharma, Advocate
for the respondent No.4.
***
KULDEEP TIWARI, J.
1. The instant writ petition accentuates the ill employment of
exercise of jurisdiction, as assumed by the respondent No.2-Director
(Consolidation) concerned, while surpassing the original jurisdiction bestowed
in him. The respondent No.2- Director (Consolidation) concerned, through an
order made on 26.03.2008 (Annexure P-9), upon Case No.208/2007, as
instituted under Section 42 of The East Punjab Holdings (Consolidation and
Prevention of Fragmentation) Act, 1948 (hereinafter referred to as the 'Act of
1948'), allowed the exchange of land, which is undisputedly a 'Gair Mumkin
Rasta' and vests in the Gram Panchayat concerned, with the land of private
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respondent No.3 herein.
3. The rendition of order dated 26.03.2008 (Annexure P-9) triggered
the petitioners to march towards this Court through instituting the instant writ
petition, thereby, assailing the validity of the order (supra), inter alia on the
ground, that Section 42 of the Act of 1948 does not confer any jurisdiction
upon the respondent No.2- Director (Consolidation) concerned, to allow the
exchange of land of Gram Panchayat with any private individual.
4. The petitioners have filed this writ petition respectively in the
capacity of a lessee to the extent of 1/3 share, and, owner to the extent of 1/3
share, of the land comprised in Khewat/Khatoni No.986min/1192, Rect.
No.38, Killa No.21(3-2), 22(8-0), 23(8-0), Rect. No. 39, Killa No.1(2-9), 2(8-
0), 3(8-0), total measuring 37 Kanals 11 Marlas, situated in the revenue estate
of Village Janoli, Tehsil and District Palwal.
5. The facts, as averred in the writ petition, are that a passage
bearing No.169min and 220, which leads to the fields of the petitioners, was
provided to the estate-holders of the village concerned, at the time when
consolidation operations were held in the village concerned. On 07.12.2017,
the respondent No.3, a private company, while claiming to have purchased
about 75 acres of land in the village concerned from the respective owners,
filed an application under Section 42 of the Act of 1948 before the respondent
No.2- Director (Consolidation) concerned, seeking transfer of the passage
(supra) in its favour and in lieu thereof, it offered to transfer the land under its
ownership in favour of the Gram Panchayat concerned for carving out a new
passage. The transfer of passage (supra) was asked for, on the premise, that it
has become redundant and defunct. The passage (supra) was offered to be
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indemnified by the respondent No.3 through providing its own land from Killa
No.38//3/2, which adjoins the area of the Gram Panchayat concerned.
6. It is interesting to note that the then Sarpanch of the village
concerned had, unhesitatingly and delightedly, conceded to the proposal of the
respondent No.3 by extending her "No Objection". Based upon the
uncontested factum of the passage (supra) being redundant and defunct, as
also the "No Objection" coming from the Gram Panchayat concerned, the
respondent No.2- Director (Consolidation) concerned allowed the application
(supra), through drawing the impugned order dated 26.03.2008 (Annexure
P9).
7. The order dated 26.03.2008 (Annexure P9) caused grievance to
the petitioners, inasmuch as, upon transfer of the passage (supra) in favour of
the respondent No.3 herein, the alleged solitary means of access to their land
has been snatched, thereby depriving them of their easementary rights.
8. Upon notice of the present motion, the respondent No.3 filed its
reply, thereby primarily challenging the locus standi of the petitioners. It is
averred in the reply that the respondent No.2- Director (Consolidation)
concerned did not exceed his jurisdiction while passing the order (Annexure
P-9), as he did not indeed made any order for exchange of lands. Rather
through the said order, which is founded upon "No Objection" of the Gram
Panchayat concerned, the respondent No.2 had merely allowed the merger of a
redundant and a defunct passage in the estate of the respondent No.3, as it fell
amidst the estate of respondent No.3, and that too, after making
indemnification of the said transferred passage, from the holdings of the
respondents No.3, in favour of the Gram Panchayat concerned. Moreover, the
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B.D.P.O. concerned also filed a reply, on behalf of the respondent No.4, in the
same terms.
9. We have analyzed the submissions made by the learned counsels
appearing for the parties and have also perused the record.
10. At the outset, the first and foremost conclusion, as emanates
while traversing through the record available on file, is that the present case is
not merely a case of closure of a redundant and defunct passage, or, assigning
such a passage to a person who was not assigned any passage at the time of
consolidation operations, rather it is a sheer case of transfer of Gram
Panchayat lands, existing in the nature of a 'Gair Mumkin Rasta', in favour of
a private individual, by way of exchange.
11. Moreover, we do not have any hesitation to hold that the
respondent No.2- Director (Consolidation) concerned, does not have the
competent jurisdiction to pass an order alike the one, as impugned in the
instant writ petition. Since the transferred land herein, vests in the Gram
Panchayat concerned, by virtue of its being undisputedly a 'Gair Mumkin
Rasta', therefore, the power to effect the exchange of Gram Panchayat
property lies with the Gram Panchayat concerned, as per the provisions of
Rule 5 of the Punjab Village Common Lands (Regulation) Rules, 1964 (as
applicable to Haryana) (hereinafter referred to as the 'Rules of 1964').
12. Now, before we plunge into the legal issues involved in the case
in hand, we deem it exigent to make a brief survey of the hereinafter extracted
relevant provisions of law, inasmuch as, Section 42 of the Act of 1948,
Section 5 of the Haryana Village Common Lands (Regulation) Act, 1961
(hereinafter referred to as the 'Act of 1961'), and, Rule 5 of the Rules of 1964.
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Section 42 of the Act of 1948
42. Power of State Government to call for proceedings:- The State
Government may at any time for the purpose of satisfying itself as to
the legality or propriety of any order passed, scheme prepared or
confirmed or repartition made by any officer under Act, call for and
examine the record of any case pending before or disposed of by such
officer and may pass order in reference thereto thinks fit:
Provided that no order or scheme or repartition shall be varied
or reversed without giving the parties interested notice to appear and
opportunity to be heard except in cases where the State Government is
satisfied that the proceedings have been vitiated by unlawful
consideration."
Section 5 of the Act of 1961
5. Regulation of use and occupation, etc., of lands vested or deemed
to have been vested in Panchayats.- (1) All lands vested or deemed to
have been vested in a Panchayat under this Act, shall be utilised or,
disposed of by the Panchayat for the benefit of the inhabitants of the
village concerned in the manner prescribed:
Provided that where two or more villages have a common
Panchayat, Shamilat Deh of each village shall be utilised and disposed
of, by the Panchayat for the benefit of the inhabitants of that village:
Provided further that where there are two or more shamilat
tikkas in a village, the Shamilat tikka shall be utilised and disposed of,
by the Panchayat for the benefit of the inhabitants of that tikka:
Provided further that where the area of land in shamilat deh of
any village so vested or deemed to have been vested in Panchayat is in
excess of twenty-five per cent of the total area of that village
(excluding abadi deh) then twenty-five per cent of such total area shall
be left to the Panchayat and out of the remaining area of shamilat deh
an area up to the extent of twenty-five per cent of such total area shall
be utilised for the settlement of landless tenants and other tenants
ejected or to be ejected of that village and the remaining area of
shamilat deh, if any, shall be utilised for distribution to small land
owners of that village subject to the provisions relating to [permissible
area under the Haryana Ceiling on Land Holdings Act, 1972, by the
Assistant Collector of the first grade] in consultation with the
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Panchayat [in such manner and on payment of such amount as may be
prescribed]
(2) The area of shamilat deh to be utilized for the purposes of the third
proviso to sub-section (1) shall be demarcated by such officer in
consultation with the Panchayat and in such manner as may be
prescribed.
(3) The State Government or any officer authorised by it in this behalf
may, from time to time, with a view to ensuring compliance with the
provision of the second proviso to sub-section (1) or sub-section (2),
issue to any Panchayat such directions as may be deemed necessary.
[(4) Nothing contained in the third proviso to sub-section (1) and in
sub-section (2) and sub-section (3) shall apply to the "hilly area"]
[(5) Notwithstanding anything contained in this section, if in the
opinion of the State Government, it is necessary to take over, to secure
proper management for better utilization for the benefit of the
inhabitants of the village concerned any shamilat deh, the Government
may by notification take over the management of such shamilat deh for
a period not exceeding twenty years:
(6) The income from the shamilat deh, the management of which is
taken over under sub-section (5), after meeting all charges relating or
incidental to the management and utilization, shall be credited to the
Gram Fund and utilised for the benefit of the inhabitants of the village
concerned.]
[(5A. Disposal of lands vested or deemed to have been vested in
Panchayat - (1) A panchayat may, gift, sell, exchange or lease the
land in shamilat deh vested in it under this Act to such persons
including, members of Schedules Castes and Backward Classes on
such terms and conditions, as may be prescribed.
Provided that the lease of land by way of allotment for
cultivation purposes may be given for a period upto 99 years only to a
person who does not own any land for agriculture on the date of the
commencement of this Act and has been the original lessee either
under the provisions of the East Punjab Utilisation of Lands Act, 1949
(Punjab Act 38 of 1949) or under the provisions of the Punjab Village
Common Lands (Regulation) Act, 1953, for a period not less than
seven years and has remained in continuous cultivating possession of
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the leased land upto the 24th September, 1986, with corresponding
entries in the revenue record:
Provided further that the lessee shall make one time payment,
as may be prescribed, for the period he remained in cultivating
possession without making payment of lease money.
5B. Certain transfers not to affect Panchayat's rights.- (1) Any
transfer of land, gifted, sold, exchanged or leased before or after the
commencement of this Act, made in contravention of the prescribed
terms and conditions, shall be void and the gifted, sold exchanged or
leased land so transferred shall revert to, and revest in the Panchayat
free from all encumbrances.
(2) The Government or any officer authorized by it may, either suo
motu or on application made to him by a Panchayat or an inhabitant
of the village or the Block Development and Panchayat Officer,
examine the record for the purpose of satisfying himself as to the
legality or propriety of any sale, lease, gift, exchange, contract or
agreement executed before or after commencement of this Act, if such
sale, lease, gift, exchange, contract or agreement is found detrimental
to the interest of the villagers and is no longer required in the interest
of the Panchayat, the Government may, after making such enquiry as
it may deem fit, cancel the same and no separate proceedings under
any law shall be required to cancel the sale, lease, gift or exchange.
The Panchayat shall be competent to take over the possession of such
premises including the constructions thereon, if any, for which no
compensation shall be payable.]"
Rule 5 of the Rules of 1964
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 State Government,
transfer any land in shamilat deh by exchange with the land of an
equivalent value to be determined by the Deputy Commissioner in
whose jurisdiction the land is situate:
Provided that State Government shall not accord any approval
in cases which are not received through the Deputy Commissioner
concerned:
Provided further that for the purpose of allotment of residential
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plots to the eligible families identified under the scheme approved by
the State Government, to allot house-sites to the Scheduled Castes
[Backward Classes] families and the families living below poverty
line, the concerned Deputy Commissioner or Sub-Divisional Officer
(Civil), as may be authorized by the State Government, shall be
competent to accord approval for transfer any land in shamilat deh, by
way of exchange, with the land of equivalent [market] value.]"
13. A reading of the above extracted provisions elucidates that
Section 42 of the Act of 1948 confers powers on the State Government to
examine the legality of any order passed, scheme prepared or confirmed or
repartition made by any officer under the Act of 1948. However, Section 42
can never be assumed to empower the Director (Consolidation) to, in exercise
of powers vested in the State Government, grant any permission for exchange
of lands of Gram Panchayat with any private individual.
As a matter of fact, the requisite procedure for disposal of lands
vested in Gram Panchayat is prescribed in Section 5 of the Act of 1961, which
unambiguously stipulates the utilization and disposal of such lands by the
Gram Panchayat concerned indeed for the benefit of the inhabitants of the
village concerned in the manner, as prescribed thereunder.
Moreover, the verbatim conditions for exchange of land by Gram
Panchayat are expounded in Rule 5 of the Rules of 1964, according to which,
if a Gram Panchayat deems the exchange of land necessary for the benefit of
the inhabitants of the village concerned, it may proceed to, with the prior
approval of the State Government, transfer shamlat deh land by exchange with
the land of a co-equivalent value, to be determined by the Deputy
Commissioner concerned.
14. Here is a case, where the Director (Consolidation) concerned,
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merely on the basis of an application moved by a private company, as also
upon the "No Objection" given by the then Sarpanch of the Gram Panchayat
concerned, has accorded approval for exchange of Gram Panchayat's land,
through the impugned order (Annexure P-9). However, he did so in utter
transcendence of his statutory jurisdiction and also without ascertaining the
benefit of the inhabitants of the village concerned.
15. Gainful reference, to corroborate the above conclusion qua ill
assumption of jurisdiction by the Director (Consolidation) concerned, can be
borrowed from CWP-16183-2011, titled "Pale Ram V/s State of Haryana
and ors.", Decided on: 01.03.2013. The relevant paragraph of the judgment
(supra) is reproduced as under:-
"10. A perusal of order passed by the Director Consolidation reveals
that he has not assigned any reasons for condoning the delay of 40
years while accepting the plea of the contesting respondents. The
order passed by the Director Consolidation, in our considered
opinion, is illegal and nonest as it suffers from an assumption of
jurisdiction that did not vest with him, ignored the delay of four
decades in filing the petition under Section 42 of "the 1948 Act", and
reduced the area of a public road to legalise the encroachments made
by the respondents."
15. It is only a statute, which confers jurisdiction upon the Court of
law and same has to be decided within the limits of authority and not beyond
it. Lack of necessary subject jurisdiction bars a court from deciding such a
suit. If a court having lack of subject jurisdiction, tries and decides a lis, such a
decision would become a nullity and would be hit by the doctrine of "coram
non judice".
16. Reiteratedly, the Director (Consolidation) concerned does not
have the jurisdiction to allow the exchange of land, rather the statutory
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jurisdiction vests in the authority, as contemplated under the hereinabove
extracted provisions. Therefore, since the impugned order (Annexure P-9) is
indisputably made by an authority, which lacked the jurisdictional competence
to make it, therefore, such a decision is tainted with the vice of jurisdictional
competence and is a nullity in the eyes of law.
17. Moreover, the then Sarpanch of the Gram Panchayat concerned,
who conveyed a "No Objection" to the asked for transfer of passage, also did
not have the competence to give such "No Objection" without passing any
valid Resolution and without recording a satisfaction qua such transfer of
Gram Panchayat's land to be the sole purpose beneficial for the inhabitants of
the village concerned.
18. This Court, in CWP-24994-2018, titled "Ishwar Singh V/s State
of Haryana and ors.", Decided on: 15.02.2023, has recorded an observation
that the expression "benefit of inhabitants of the village" does not imply the
benefit of a handful villagers amongst the entire population of the village
concerned, rather it connotes the benefit of the entire village proprietary body.
The relevant extract from the judgment (supra) is reproduced as under:-
".....On perusal of the resolution dated 2.11.2012, Annexure P/2,
passed by the Gram Panchayat, respondent no. 7, we do not find any
plausible reasons assigned in resolution which reveals that the
exchange was proposed for the benefit of inhabitants of the village.
The word "benefit of inhabitants of the village" does not mean for the
benefit of one or two persons amongst the inhabitants, but is for the
benefit of entire village proprietary body......"
14. As a conspectus to the hereinabove made discussions, the writ
petition is allowed and the order dated 26.03.2008 (Annexure P-9) is set aside,
being unsustainable in the eyes of law. However, in case the respondent No.3
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requires a passage, it may approach the appropriate court/forum, through filing
a suit for necessity by way of prescription, as the hereinabove discussed
remedy resorted by the respondent No.3 was totally a misconstituted remedy.
(SURESHWAR THAKUR) (KULDEEP TIWARI)
JUDGE JUDGE
29.09.2023
devinder
Whether speaking/reasoned ? Yes/No
Whether reportable ? Yes/No
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