Nek Ram & Anr. vs State Of Punjab & Ors.

JASGURPREET SINGH PURI, J. (Oral)

The present writ petition has been filed under Articles 226 and 227 of the Constitution of India seeking issuance of a writ in the nature of certiorari for quashing the impugned order dated 11.04.2023 (Annexure P-10), whereby the State Government has granted approval for the exchange of land between respondent No.2–Gram Panchayat and respondent No.3 in respect of the passage comprised in Khasra No.111, allegedly in contravention of the provisions of the Punjab Village Common Lands (Regulation) Act, 1961 and the Rules framed thereunder.

Learned Senior Counsel appearing on behalf of the petitioners, while giving the brief facts of the case, submitted that the petitioners own land situated in Village Nimbuan, Tehsil Derabassi District S.A.S. Nagar (Mohali), adjacent to which respondent No.3, a company, has purchased a property where a chemical manufacturing unit has been established. He submitted that the subject matter of the controversy in the present case relates to exchange of land, which has been effected on the basis of a resolution passed by the Gram Panchayat, which was subsequently approved by the State Government, by invoking the provisions of Rule 5 of the Punjab Village Common Lands (Regulation) Rules, 1964 (hereinafter referred to as ‘1964 Rules’).

Learned Senior Counsel for the petitioners referred to Annexure P-1, which is the site plan, and by adverting to the same, submitted that there already exists a land belonging to private respondent No.3, and in between the land of respondent No.3 there was a gair-mumkin pahi belonging to the Panchayat, which constituted a common passage connecting the land of the present petitioners, as also shown in the lower portion of the site plan. However, by way of exchange of land, an area measuring 1-16-18 (B.B.B.) belonging to the Gram Panchayat has been exchanged with land measuring 1-17-1 (B.B.B.) belonging to the Company. Consequently, the aforesaid rasta/pahi, which was also being used by the petitioners, has been exchanged with another parcel of land constituting a new rasta/pahi, shown in red colour in the site plan. He submitted that although, by virtue of the aforesaid exchange of land, the rasta of the petitioners leading to the main road remains intact, the issue involved in the present case is whether the Gram Panchayat as well as the State of Punjab exercised the powers vested in them under Rule 5 of the 1964 Rules in accordance with law or not.

While referring to the resolutions passed by the Gram Panchayat vide Annexures P-11 and P-12, learned Senior Counsel for the petitioners submitted that, prior to the passing of the resolutions by the Gram Panchayat, respondent No.3-Company had submitted a request letter to the concerned Deputy Commissioner, and it was at his insistence that the Gram Panchayat passed the resolution. Therefore, according to him, the resolution cannot be regarded as a voluntary resolution passed by the Gram Panchayat, as it was passed at the instance of the concerned Deputy Commissioner and the State. Consequently, the Gram Panchayat ought not to have passed the said resolution. He further submitted that even after the resolution was passed by the Gram Panchayat, it was required to be approved by the Government. However, the Government granted its approval without application of mind and without considering the aforesaid facts and circumstances, particularly that the exchange was not for the benefit of the villagers. In this regard, he again referred to the resolution passed by the Gram Panchayat and submitted that a perusal thereof would show that it records that the exchange was necessitated by the requirements of the Company for running its factory, and therefore, the same is in violation of the provisions of Rule 5 of the 1964 Rules. He submitted that, in view of the aforesaid facts and circumstances, the resolution as well as the approval granted by the Government are contrary to Rule 5 of the 1964 Rules, as the exchange was not for the benefit of the villagers. Consequently, the said resolution, the approval granted thereunder, the consequent exchange of land, and the mutation entered in the revenue record are liable to be set aside.

On the other hand, learned Assistant Advocate General, Punjab, submitted that the approval has been granted on the basis of the resolution passed by the Gram Panchayat, wherein it has been specifically recorded that the exchange of the aforesaid land has been undertaken for the benefit of the villagers, which has been duly incorporated in the resolution itself.

Mr. Kanwaljit Singh, learned Senior Advocate appearing on behalf of respondent No.3 and Mr. R.S. Rangpuri, learned counsel appearing on behalf of respondent No.2–Gram Panchayat, also advanced their arguments on the similar lines as those raised by the learned State counsel. They also referred to the resolution and submitted that it is a detailed resolution wherein the benefits accruing to the villagers have been specifically recorded, on the basis of which the approval has been granted. Therefore, the same cannot be vitiated on the ground that it was not for the benefit of the villagers.

Learned Senior Counsel appearing for respondent No.3 further submitted that the mere fact that respondent No.3 had submitted a request to the concerned Deputy Commissioner at the initial stage would not mean or infer any mala fides on the part of the Gram Panchayat, the Company, or the State Government. He further submitted that both the passing of the resolution and the approval granted by the State Government were in accordance with Rule 5 of the 1964 Rules.

We have heard learned counsels for the parties and have also perused the record.

The provision under which the exchange has been effected, namely Rule 5 of the Punjab Village Common Lands (Regulation) Rules, 1964, is reproduced as under:-

A bare perusal of the aforesaid provision would show that there is a specific provision enabling the exchange of Panchayat land, subject to the condition that the Panchayat forms an opinion that such exchange is necessary for the benefit of the inhabitants of the village. The Rule further mandates that prior approval of the Government is required before any land vested in the shamlat deh/Gram Panchayat can be transferred by way of exchange. In this way, there are twin conditions contained in Rule 5, which are not only co-existent but are also sine qua non for invoking Rule 5 of the 1964 Rules.

Whether Rule 5 of the 1964 Rules has been rightly invoked in the facts and circumstances of the present case can be examined in the light of the resolution passed by the Gram Panchayat and the nature thereof. The said resolution, contained in Annexure P-12 dated 01.11.2022, is reproduced as under:-

A perusal of the aforesaid resolution would show that land measuring 1-16-18 (B.B.B.), which was vested in the Gram Panchayat in the form of pahi/rasta, was proposed to be exchanged with land measuring 1-17-1 (B.B.B.) belonging to the Company.

The aforesaid resolution further records that the said exchange would be beneficial to the zamindars/inhabitants of the village, as under the exchange, the owner of the factory would provide land outside the factory premises as a passage in lieu of the pahi/passage owned by the Gram Panchayat. It has further been recorded in the resolution that respondent No.3-Company has undertaken various developmental works for the welfare of the village, including construction of a park, installation of solar lights, paving of roads, plaster work, and installation of lights on the main road. On account of these activities, the Company has set an example by working in the interest of the village.

The resolution further records that, in order to maintain a healthy environment in the village, the Company has also planted trees from time to time. A further perusal of the aforesaid resolution would show that respondent No.3-Company has not only undertaken such developmental activities but has also provided employment to about 40 persons of the village, both as skilled and unskilled workers. The villagers are also running two dhabas/eateries near the Company, where the employees of the Company frequently take their meals. On the basis of the aforesaid beneficial activities undertaken by the Company, it has been specifically recorded in the resolution that the Panchayat considers it appropriate that, on the one hand, the villagers are directly getting employment opportunities in the Company and, on the other hand, due to the presence of the Company, they are deriving additional benefits from the occupations started by them. The Company had also approached the Gram Panchayat on several occasions seeking approval for the exchange of land. Therefore, the Panchayat considered that such exchange would be in the interest and for the benefit of the village. The satisfaction as to whether this exchange would be for the benefit of the villagers or not is so recorded in the last portion of the aforesaid resolution (although wrongly translated by the petitioner to be as ‘in favor of the villagers’, whereas the vernacular version conveys the expression ‘for the benefit of the villagers’.)

The approval granted by the Government dated 11.04.2023 (Annexure P-10) is also reproduced as under:-

During the course of arguments, this Court put a specific query to learned Senior Counsel appearing for the petitioners as to what prejudice would be caused to the petitioners in case the aforesaid exchange is given effect to, especially when the petitioners’ rasta is not blocked and rather, their access to the main road from their own land would be reduced in distance. In response, learned Senior Counsel submitted that there is no dispute with regard to the same, however, he emphasized only on the issue that the exchange was not proper and the exercise of power by the Government was not in accordance with law.

During the course of arguments, learned Senior Counsel appearing on behalf of respondent No.3 submitted that prior to giving effect to the exchange of land, both the parcels of land were evaluated on the basis of the evaluation report and the exchange was effected on the basis of such evaluation report. He further referred to the judgment passed by this Court in the case of Bhagwan Sarup and Others Vs. State of Punjab and Others, 2008(3) RCR (Civil) 492, to support his contention that in such circumstances, subject to the satisfaction of the Gram Panchayat and the prior approval of the Government, exchange of land can be permitted.

After considering the arguments raised by learned counsel for the parties, this Court is of the considered view that the essential conditions prescribed under Rule 5 of the 1964 Rules for the purpose of exchange of land, namely (i) that the Panchayat should be of the opinion that such exchange is necessary for the benefit of the inhabitants of the village and (ii) that prior approval of the Government is obtained, stand duly fulfilled in the present case. The opinion of the Panchayat is reflected from the aforesaid resolution, wherein it has been specifically recorded that the exchange is for the benefit of the villagers. Not only this, the resolution also records the reasons and various factors which weighed with the Panchayat while arriving at such satisfaction regarding the benefit and welfare of the village.

The second requirement regarding prior approval of the Government also stands fulfilled, as the approval of the Government was obtained before effecting the transfer of land. Thereafter, the exchange was acted upon and mutation was also sanctioned in the revenue records. The wisdom of the Gram Panchayat and that of the Government, in the facts and circumstances of the present case, cannot be substituted by this Court unless some glaring illegality or patent defect is found.

This Court is of the considered view that there is no manifest defect, error or illegality in the approval granted by the Government on the basis of the resolution passed by the Gram Panchayat. Consequently, finding no merit in the present petition, the same is hereby dismissed.