Sher Singh vs Gram Panchayat, Garhi Majra Mehanda

Ashok Bhan,J. (Oral)

Petitioners are landowners of village Marhi Majra Mehanda, Tehsil Hansi, District Hissar. Consolidation in the village took place in the year 196364. During consolidation a prorata cut was imposed on the holdings of the shareholders out of Khasra No. 1298. A path measuring 18 Marlas was provided to connect the land of the petitioners with the main path which was carved out in Khasra No. 1302. In the revenue record, the path which was carved out in Khasra No. 1298 was entered into the ownership of Gram Panchayat.

Bhola respondent No. 3 cultivated the path which was carved out in Khasra No. 1298 and obstructed the passage of the petitioners. In November, 1978, petitioners filed an application before Tehsildar Hansi for demarcation of the path which had been carved out in Khasra No. 1298 and for removal of the encroachment which has been made by respondent No. 3. Tehsildar Hansi vide his report (Annexure P/3) dated 8th January, 1978 demarcated the path which had been carved out in Khasra No. 1298. This path was put to use by the parties immediately thereafter.

Bhola respondent No. 3 being dissatisfied got a resolution passed from the Gram Panchayat for exchange of 18 Marlas of land in Khasra No. 1298 which had been left as a path with his land situated in Khasra No. 141, Killas No. 6/2, 15/2 and 16/1. Shamilat land belonging to Gram Panchayat can be exchanged under Rule 5 of Punjab Village Common Lands (Regulation) Rules, 1964 (hereinafter referred to as the Rules) which reads as under :

"5. Exchange of land : 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 Government transfer any land to Shamilat deh by exchange with the land of an equivalent value......"

From the reading of rule 5 of the Rules, it is clear that before an exchange of Shamlat land can be effected, two conditions are necessary to be fullfilled : (i) that the Panchayat has to form opinion that the exchange is necessary for the benefit of the inhabitants of the village, and (ii) that the prior approval of the Government is necessary. Government of Haryana granted its sanction vide its order dated 11th October, 1983 Annexure P/5 to the writ petition.

Petitioner being dissatisfied filed an application on 23rd December, 1983 (Annexure P/6) before Commissioner and Secretary to Government Haryana, Panchayat and Development Department, Civil Secretariat, Chandigarh, for recalling the sanction which had been accorded by the State for exchange of the land belonging to respondent No. 3 with that of the Gram Panchayat. This application was not decided for seven months. Since petitioner''s passage had been blocked and his application for recalling the order of sanction given by the State for exchange of land had not been decided in a period of seven months, petitioner filed C.W.P. No. 3359 of 1984 for a direction to the State to dispose of the application of the petitioner which had been filed with the State. This Court in its order dated 21st November, 1984 directed the State Government to decide the application of the petitioner within a period of two months. The application was taken up for consideration by the Government on 26th February 1985 and the same wa rejected on the same day. Copy of the said order has been placed as Annexure P/7to the writ petition. Being dissatisfied, the petitioners have filed the present writ petition challenging the order Annexures P/5 and P/7 passed by the State of Haryana whereby permission has been accorded by the State Government under rule 5 of the Rules of exchange of the land in Khasra No. 1298 belonging to the Gram Panchayat with that of respondent No. 3.

Learned counsel appearing for the petitioners argued that pro rata cut was imposed on the holding of land owners and the land was taken from the other paths, path in Khasra No. 1298 was carved out. This land was later on entered in the ownership of Gram Panchayat in revenue record. His second submission is that Panchayat did not form opinion that exchange was necessary for the benefit of inhabitants of the village which is a condition precedent under rule 5 of the Rules prior approval could be sought from the State. His third submission is that exchange has resulted in depriving the petitioners from an access to the fields through the common path away at a distance of one Kila. I find force in the submissions of he learned counsel for the petitioners. From a bare reading of rule 5 of the Rules, it is clear that before an exchange of Shamlat land is effected, two conditions are necessary to be fulfilled i.e. Panchayat has to form an opinion that exchange is necessary for the benefit of inhabitants of the village and prior approval of the government is necessary. No exchange of Shamlat land can take place without satisfying the two prerequisites. In the present case, the second requisite has been satisfied but the first requisite has not been satisfied as there is no resolution placed on the record which had been passed by the Panchayat wherein it had been stated that the exchange is necessary for the benefit of inhabitants of the village. In the absence of first requirement being not satisfied, the order granting permission for exchange being in contravention of rule 5 of the Rules cannot be sustained. It has caused inconvenience to the petitioners as the common path which had been provided to their land would be distanced by one Killa. No reason has been given in the orders Annexures P/5 or P/7 for permitting the exchange being in the public interest. There is no special equity for including the path in the land in dispute in the holding of respondent No. 3 whereas valuable right of the petitioners to have an easy access from their land to the main path has been taken away. The State while holding the enquiry got the spot inspection made by S.D.O (Civil) Hansi in whose report also, it has been confirmed that the exchange resulted in depriving the petitioners from access to the fields through the common path being away at a distance of one Killa. Learned counsel for the petitioner has cited Gram Panchayat, village Manana v. The Haryana State and others, 1970 R.L.R. 549, wherein it has been held that if an order has been passed in contravention of rule 5 of the Rules, then the same cannot be sustained. In the present case, observance of the first element of rule 5 of the rules that the exchange is necessary for the benefit of inhabitants of the village in absent and, therefore, the order giving permission to Gram Panchayat to exchange the land with that of respondent No. 3 cannot be sustained.

For the reasons recorded above, I allow this writ petition and quash the impugned orders Annexure P/5 and P/7 and the respondents are directed to restore status quo ante whcih was in existence prior to passing of order Annexures P/5 to P/7. No costs.