Punjab-Haryana High Court
Subhash Chander And Anr vs State Of Haryana And Ors on 10 January, 2024
Neutral Citation No:=2024:PHHC:004332
2024:PHHC:004332
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
223
CWP-5540-2018
Date of decision: 10.01.2024
SUBHASH CHANDER AND ANOTHER ......Petitioners
VERSUS
STATE OF HARYANA AND OTHERS .......Respondents
CORAM : HON'BLE MR. JUSTICE VINOD S. BHARDWAJ
*****
Present: - Mr. Daman Batalvi, Advocate and
Mr. H.S. Sandhu, Advocate
for the petitioners.
Mr. Pankaj Mulwani, DAG, Haryana
for respondents No.1 to 5.
Mr. Yashdeep Nain, Advocate
for respondent No.6.
*****
VINOD S. BHARDWAJ, J. (Oral)
1. The petitioners seek quashing of the impugned order dated
27.10.2017 (Annexure P-12) passed by respondent No. 4 i.e. District
Development and Panchayat Officer, Hisar whereby the claim of
the petitioners for raising construction of the Government Girls
Primary School in village Faridpur had been declined. A further direction is
also sought for release of the Matching Grant to the tune of
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Rs. 27,00,000/- for the construction of the building work of Ajit Singh
Memorial, Govt. Girls Primary School, Village Faridpur.
2. The petitioners before this Court claim to have submitted a
proposal with the Gram Panchayat, Village Faridpur for establishing a
Government Girls Primary School in the memory of their brother Ajit Singh
alongwith willingness to bear the expenses to be incurred on the construction
of the School, subject to the grant of land by the Gram Panchayat for setting
up of the said School. The above said proposal was accepted by the Gram
Panchayat being for the welfare of the inhabitants of the village and a
resolution in this regard was also passed on 15.09.2010. The said resolution
was duly recommended and forwarded by the Education Officer on
24.09.2010 and was eventually accepted by the State Government. The
Matching grant was also sanctioned under the Scheme by the Government
vide its letter dated 12.11.2010.
3. The respondent No.2 i.e. the Director, Panchayat, Haryana
called upon the petitioners to deposit their share under the 'Matching Grant
Scheme' for construction of the School vide communication dated
17.03.2011. Since the total cost of the School was assessed at Rs. 27 lakhs,
the petitioners were required to deposit a sum of Rs. 9 lakhs and the balance
amount of Rs. 18 lakhs was to be contributed by the State Government. The
share of Rs. 9 lakhs was deposited by the petitioners vide Treasury Challan
No. 84 dated 18.04.2011, whereupon a letter was issued by the District
Development Panchayat Officer on 23.04.2011 to the Deputy
Commissioner, Hisar for releasing the first installment for construction of
the School. However, the installment could not be released at that point in
time. It is contended that during the pendency of the said release, some
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villagers submitted a complaint to the District Development and Panchayat
Officer and started creating hinderance in the construction work of the
school. The project was thus stopped to avoid any controversy and to pursue
against the miscreants as per law.
4. The petitioner hence instituted a Civil Suit No.51-C on
18.11.2010 for grant of permanent injunction to restrain the defendants
therein from creating hindrance in the construction work of the School.
5. A question however also arose with regard to the nature of land
in question for which a report was sought from the Block Development and
Panchayat Officer to resolve the controversy and to resolve the conflict and
enable construction of the building of the school. It was reported by the
Block Development and Panchayat Officer that the site in question, where
the construction work of the school building was to commence, was in an
un-authorized possession of the villagers. A copy of the said report dated
19.04.2012 has also been appended. The District Development and
Panchayat Officer, thereafter, suspended the resolution passed by the Gram
Panchayat for construction of the School building against which the
respondent No.6-Gram Panchayat preferred an appeal before the Director,
Panchayat, Haryana. The said appeal was disposed of vide order dated
11.03.2013 by directing the Deputy Commissioner, Hisar to prepare a
utilization plan according to Haryana Panchayati Raj Act, 1994, of the
Shamlat Deh of the village and considering the Government instructions
issued from time to time. The said civil suit for permanent injunction
instituted by the petitioner was allowed by the Court of Civil Judge (Junior
Division), Hisar vide judgment and decree dated 31.08.2013. The defendants
therein were restrained from interfering in the peaceful construction work of
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the school in question. It is further contended that notwithstanding the said
judgment and decree, the residents/villagers continued to obstruct in the
construction work and the installment in question was not released by the
respondents No.4 and 5 compelling the petitioners to approach this Court in
CWP-23805 of 2016. The above said writ petition was disposed of by this
Court vide order dated 18.11.2016 directing the District Development &
Panchayat Officer, Hisar to decide the representation filed by the petitioner
within a period of three months. The said representation was decided after
some delay by the District Development & Panchayat Officer, rejecting the
claim and representation of the petitioners vide his order dated 27.10.2017,
which is subject matter of challenge in the present writ petition.
6. A reply on behalf of respondents No. 1 to 5 has been filed
wherein it has been averred as under :-
1. That the brief fact of the case are that the Gram
Panchayat Faridpur passed a resolution no. 1 dated 15-09-
2010 to reserve the land having Khasra No. 822 on the request
of the petitioner to construct a building for Girl School from
Matching Grant. The BD&PO forwarded the case to the Govt.
by depositing an amount of Rs. 9-00 lacs (Public Share money
of village Faridpur) and the Govt. accorded the financial
approval of amount Rs. 27-00 lacs (9 lacs public share money +
18-00 lacs Govt. fund) as per the matching grant scheme. Some
of the villagers raised objections to construct the building over
the disputed land and filed an application before the then
DD&PO, Hisar to cancel the resolution no. 1 dated 15-09-
2010. The BDPO, Uklana was directed to give a report after
examining the revenue record and visiting the site. After peruse
of record the DD&PO found that the land having Khasra no.
822 has been reserved for Gair Mumkin Johar during
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consolidation and the resolution for reserving the land for Girl
School has been cancelled vide order dated 19-10-2012.
Xxx xxx xxx xxxx xxxx xxxx xxx
3. That the Matching Grant amount could not be
released to the executing agency due to litigation between the
parties and due to the nature of the land as Gair Mumkin Johar,
which cannot be utilized for any other purpose as per the
judgment of the Hon'ble High Court and Apex court.
4. That now the share of the Govt. amounting Rs. 18.00 lacs
has been returned to the Govt. in receipt head 2515 vide
challan No. 47271422 on dated 03-02-18 in pursuance of Govt.
letter no. 1366 dated 08-01-2018 and an amount of Rs. 9-00
lacs has been transferred to BD&PO, Uklana for further
disbursal to the donee.
5. That in village Faridpur there already two Govt. Schools
which are sufficient to cater the educational need of the
villagers and if the petitioner wants to construct the rooms in
the existing building of the Govt. School then the Govt. has no
objection against the petitioner. So, there is no need to
construct a separate new building for the Girl School and the
nature of the disputed land cannot be changed for any other
purpose then Johar."
7. A short reply on behalf of respondent No.6-Gram Panchayat has
also been filed wherein the above said factual aspects have been reiterated
and it is stated as under:-
"4. That the Gram Panchayat, Faridpur passed a resolution
No.1 dated 15.09.2010 whereby resolved to grant the land to
construct Shri Ajit Singh Memorial Kanya Primary School,
Faridpur. This is pertinent to submit here that the aforesaid
granted land is Gair Mumkin Johar Land hence nature of the
land cannot be changed by raising any construction or in any
other manner for their use.
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5. That the villagers filed a case under Section 47 of the
Haryana Panchayati Raj Act, 1994 before the Court of District
Development and Panchayat Officer, Hisar for the suspension
of the resolution No.1 dated 15.09.2010, thereby the learned
court suspended the aforesaid resolution vide order dated
09.10.2012.
6. That aggrieved by the order dated 09.10.2012 passed by the
learned aforesaid court, the Gram Panchayat Faridapur had
filed an appeal before the court of Director Development and
Panchayat Department, Chandigarh. The Appellate Court
directed to the Gram Panchayat Faridpur vide order dated
11.03.2013 to pass fresh resolution again by giving notice to all
the members of Gram Panchayat and make a land utilization
plan of the Shamlat land of the village under the Haryana
Panchayati Raj Act, 1994.
7. That the Gram Panchayat Faridpur in compliance of the
order of the Appellate Court passed a fresh resolution No.1
dated 21.10.2017 wherein it is resolved to the consensus that
there is no land available for construction of the School except
the Johar Land. Copy of the Resolution No.1 Dated 21.10.2017
is attached as Annexure R-6/1.
8. That it is pertinent to mention here that the petitioners had
filed civil suit No. 51-C for permanent injunction in the Civil
Court of Hisar. The learned court vide its order dated
31.07.2013 granted the permanent injunction in favour of the
petitioners. Aggrieved by the order dated 31.07.2013 the
answering respondent filed an Appeal before the District Court
Hisar. The learned District Court, Hisar dismissed the appeal
vide its order dated 21.09.2019. Aggrieved by the orders passed
by the District Court Hisar the answering respondent filed a
Regular Second Appeal No. 344 of 2022 before this Hon'ble
Court, wherein notice is yet to be issued.
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9. That this is pertinent to submit here that land in question is a
Gair mumkin Johar comprised in khasra No. 822, within the
revenue estate of village Faridpur, Tehsil and District Hisar
used for the construction and catchment of water so that the
pure and cleaning drinking water could be available to the
inhabitant of the village.
10. That it respectfully submitted here that the land whereupon
the aforesaid school is to be constructed is the nature of Gair
Mumkin Johar which does not falls under the ownership of the
Gram Panchayat under the provisions of Village Common Land
Act, 1961 as applicable to Haryana State however the Gram
Panchayat is to take care of the proper utilisation of the land
and the Gram Panchayat has no right to misuse the land in any
manner by handing over the Gair Mumikin Johar Land for
some other purpose like School etc. as the uprahan land is
catchment area of water for filling up of the village pond,
therefore, nobody can change the nature of the land by raising
any construction or in any other manner for their use.
11. That as per the provisions of Section 5 of the Punjab Village
Common Lands (Regulation) Act, 1961 as applicable state of
Haryana read with rule 3(2) (xxiil) and (xxiv) of the Punjab
Village Common Lands (Regulation) Rules, 1964 as applicable
to the state of Haryana, the Panchayat may make use of the
land in shamilat deh vested in it under the Punjab Village
Common Lands (Regulation) Act, 1961 only for Ponds and
fisheries; Wells, hand pump, water works, or any water lifting
device.
12. That the Division Bench of this Hon'ble High Court in CWP
No. 3221 of 2011 titled as Rajpal and another versus State of
Haryana and others held that the gair mumkin johar or water
bodies are not to be diverted to any other use, and are, infact,
required to be protected cleaned and recharged. The relevant
para of CWP No. 3221 of 2011 titled as Rajpal and another
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versus State of Haryana and others is reproduced hereinunder
for kind perusal of this Hon'ble Court:-
"...xxx. We, therefore, direct the Director,
Development and Panchayat, Chandigarh to
reconsider the matter and direct the government to
ensure that in future gair mumkin johars or water
bodies, are not diverted to any other use, and are,
in fact, protected, cleaned and recharged.
A copy of the order be given dasti to counsel for
the Gram Panchayat and the State of Haryana,
under signatures of the Court Secretary of this
Bench."
13. That material resources of the community like forest,
tanks, ponds etc. which are nature of gift, should be
protected and saved enabling the people to enjoy a
quality life as per Article 21 of the Constitution of India.
14. That the Hon'ble Supreme Court in Hinch Lal Tiwari
versus Kamla Devi and others (2001) (6) SCC 496 held
in para No.13 as it is Important to notice that the
material resources of community like forest, tanks, ponds,
hillock, mountain etc. are nature bounty, they maintain
delicate ecological balance. They need to be protected for
proper and healthy environment which enables people to
enjoy a quality life which is essence of granted right
under Article 21 of the Constitution. The Government,
including the revenue authorities i.e. respondents 11 to
13, having notice that pond is falling in this use, should
have bestowed attention to develop the same which
would, on one hand, have prevented ecological disaster
and on the other provided better environment for the
benefit of public at large. Such vigil is the best protection
against knavish attempts to seek allotment in non abadi
sites."
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8. Counsel for the petitioner has argued that the petitioners were
granted permission to raise construction under the Matching Grant Scheme
and a valid resolution No.1 dated 15.09.2010 had been passed in their
favour. Hence, the respondents were in error in rejecting the application of
the petitioner for commencement of construction of the Girls School in
Village Faridpur.
9. Counsel for the respondents on the other hand have contended
that the resolution in question had been passed with respect to a land bearing
Khasra No. 8220 measuring 36 kanal 13 marla, which is gain mumkin johar,
and that the said land could not have been used for any other purpose, as per
the directions given by the High Court in numerous judgments. The
resolution passed by the Gram Panchayat allotting Johar Land was also in
conflict with the departmental instructions. The work of construction of
School building thus could not have been carried out at the land meant for
the pond. No other land was available with the Gram Panchayat. A
subsequent resolution, in compliance of the order of the Director
Panchayats, had thereafter been passed by the Gram Panchayat bearing
Resolution No.1 dated 21.10.2017 declining the permission to start
construction of School on Johar land in supersession of the earlier
resolution. The above resolution has neither being challenged nor the
rescinding of the earlier resolution is under challenge in any of the collateral
proceedings. The Civil Suit had been filed by the petitioner for seeking a
decree of permanent injunction. The said Civil Suit was decreed on
31.08.2023 on the basis of the resolution that may have been passed then.
Since the above resolution No.1 has been passed by Gram Panchayat later in
point of time on 21.10.2017 as per which the construction on the village
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pond could not be permitted and that there is no other land available with the
Gram Panchayat same has not been challenged in any proceedings including
in the above Civil Suit or adjudicated upon, hence, the judgment and decree
cannot be said to have any bearing on the validity/legality of the above said
resolution. Further, there was no issue as regards entitlement of the
petitioner to raise construction of School on the pond land in the above Civil
Suit. The issues that had been framed by the Civil Court are extracted as
under:-
1. Whether the plaintiff is entitled for the relief of
permanent injunction (Prohibitory and mandatory) as
prayed for? OPP
2. Whether the suit of the plaintiff is not maintainable
in the present form? OPD
3. Whether the plaintiff has no cause of action and locus
standi to file the instant suit? OPD
4. Relief.
10. It is evident that in the said Civil Suit, the issue of declaration
and entitlement of the petitioner to raise construction of the School on the
land of village pond was neither a subject matter of dispute nor examined.
The judgment and decree also does not declare that the resolution passed by
the Gram Panchayat bearing resolution No.1 of 2010 to over-ride the
subsequent resolution No.1 of 21.10.2017 or to hold that the later resolution
is bad and would have no bearing on the right of the petitioner. Hence, the
said judgment and decree has no enforceability on account of changed facts
of the case.
11. Counsel for the petitioner has failed to dispute the above said
factual aspects and no replication had been filed to the written statements
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filed by the respondents even though the reply of respondents No.1 to 5 had
been filed in August, 2018 and reply by respondent No. 6 had been filed in
June, 2022 and despite a lapse of a substantive period since then.
12. I have heard counsel for the parties and have gone through the
documents available on record. The following undisputed facts emerge on a
consideration of the above:-
a. the land in question is a 'Pond Land'
b. the Gram Panchayat superseded the earlier resolution of 2010
by a subsequent resolution in the year 2017.
c. The subsequent resolution of 2017 has never been challenged
before or set aside by a competent Court or Authority.
d. The law prohibits raising of construction on land meant for a
pond and mandates preservance thereof.
e. The Civil Court decree was neither declaratory nor set aside the
resolution of 2017. The decree of injunction was based on the
earlier resolution.
13. In view of the above undisputed facts, there can be no superior
claim of the petitioner to raise construction of School over the earlier site i.e.
the land meant for pond. The judgments of this Court as well as the Hon'ble
Supreme Court clearly rule that ponds need to be protected and
encroachments over ponds need to be removed. Any direction to the
contrary would be in violation of law.
14. In view of the facts noticed above and in the absence of any
challenge to Resolution No.1 of 27.10.2017 passed by the respondent No.6-
Gram Panchayat, pursuant to the orders passed by the Director, Panchayats
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as also the setting aside of the erstwhile of Resolution No.1 of 2010 passed
by the Gram Panchayat in favour of the petitioner, I find that the prayer
sought for by the petitioner in the present writ petition cannot be allowed.
The order passed by the District Development and Panchayat Officer cannot
be said to be contrary to or in violation of any law.
15. The writ petition is accordingly dismissed. Dismissal of the
present writ petition shall however not stand in the way of the petitioner to
take recourse to his alternative remedies in accordance with law, against the
resolutions that have already been passed by the Gram Panchayat.
(VINOD S. BHARDWAJ)
JANUARY 10, 2024 JUDGE
Vishal Sharma
Whether speaking/reasoned : Yes/No
Whether Reportable : Yes/No
Neutral Citation No:=2024:PHHC:004332
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