[1]. CWP No.21430 of 2013 (O&M) IN THE HIGH COURT OF PUNJAB AND HARAYANA AT CHANDIGARH CWP No.21430 of 2013 (O&M) Date of Decision: April 28, 2014 Gram Panchayat Balana, District Ambala …..Petitioner Versus State of Haryana and others …..Respondents CORAM: HON’BLE MR. JUSTICE HEMANT GUPTA HON’BLE MR. JUSTICE FATEH DEEP SINGH Present: Shri Ashok Khubbar, Advocate, for the petitioner. Shri Pradeep Singh Poonia, Additional Advocate General, Haryana, for respondent Nos. 1 and 2. Shri B.S. Dhillon, Advocate, for Shri J.S. Cooner, Advocate, for respondent Nos. 3 to 10 and 12 to 14.
1. Whether Reporters of local papers may be allowed to see the judgment?.
2. To be referred to the Reporters or not?.
3. Whether the judgment should be reported in the Digest?. Hemant Gupta, J.
The challenge in the present writ petition is to the order passed by the Principal Secretary, Government of Haryana, Rural Development, Panchayat, on 18.7.2013 (Annexure P.16), whereby the present petitioner was directed to pass a resolution reserving the land identified by the Block Development and Panchayat Officer (for short `BDPO’) and submit the proposal to the Deputy Commissioner for his approval for allotment of plots to the 335 eligible families within four weeks. The petitioner being a Gram Panchayat, is a juristic entity. The Panchayat in terms of the Punjab Village Common Land Singh Dalbir 2014.04.29 15:23 I attest to the accuracy of this document High Court Chandigarh [2]. CWP No.21430 of 2013 (O&M) (Regulations) Act, 1961 (for short `the 1961 Act’), as applicable to the State of Haryana means a Gram Panchayat constituted under the Haryana Panchayati Raj Act, 1994 (for short `the 1994 Act’). The 1994 Act empowers the State Government to establish a Gram Panchayat in a Sabha Area. The BDPO vide letter dated 10.6.2011 called a meeting of the Panchayat on 14.6.2011. In such meeting of Panchayat, it was resolved to consider the allotment of plots of 100 square yards to the Scheduled Castes and people living below poverty line and backward classes, under the scheme “Mahatma Gandhi Gramin Basti Yojna”.. 10 out of 14 members of the Panchayat objected to such proposal. Aggrieved against the resolution of the Panchayat, the BDPO called all the members of Panchayat to appear before him. In response to such notice, a meeting was held which was attended by the Additional Deputy Commissioner. It was decided that a resolution regarding allotment of 100 square yards residential plots shall be passed. In pursuance of such decision, a meeting of the Panchayat was held on 20.6.2011, wherein it was resolved for allotment of 100 square yards plots to the eligible persons out of Khasra Nos. 135/15, 16, 17, 24, 25, 136/11, 20, 21, 137//1 and 138//4, 5. The BDPO again called the meeting of Panchayat for giving plots out of Khasra Nos. 31//16, 17, 18, 23, 24, 25, 46//2, 3, 4, 5, 7, 8, 9. The members of the Panchayat did not agree for allotment of such land to 335 plot holders. After some discussion in a meeting of the General House of the Panchayat on 4.7.2011, it was decided that the Panchayat does not want to give the land for allotment of residential plots out of Khasra Nos. 31//16, 17, 18, 23, 24, 25, 46//2, 3, 4, 5, 7, 8, 9 and that plots as per the resolution dated 20.6.2011 be given. Singh Dalbir 2014.04.29 15:23 I attest to the accuracy of this document High Court Chandigarh [3]. CWP No.21430 of 2013 (O&M) Some of the villagers also moved an application under Section 47 of the 1994 Act and Rule 18 of the Panchayati Raj Rules, for cancelling the resolution dated 4.11.2011. The BDPO, made recommendations to the SDO (Civil) for cancelling of the resolution and allotment of 100 square yards plots in the Shamlat land comprising in Khasra Nos. 31//16, 17, 18, 23, 24, 25, 46//2, 3, 4, 5, 7, 8, 9. Since the Panchayat did not pass a resolution as desired by the BDPO, it was threatened that an Administrator shall be appointed. The petitioner also filed a contempt petition before this Court as the stand of the State before this Court, in another writ petition challenging the scheme of allotments of plot out of shamlat deh land, was that the plots will be allotted only in case the Gram Panchayat passes a resolution in that regard and not otherwise. Since the Panchayat has resolved not to give the land comprising in specific khasra numbers, therefore, the action of the authorities is contemptuous. During the pendency of the contempt petition, the Director, Panchayat, has passed an order on 10.5.2012 observing that the Gram Panchayat may consider specific Khasra Numbers for allotment of plots to the eligible persons. The contempt petition was disposed of on 28.5.2012. Some of the inhabitants filed CWP No.24750 of 2012 before this Court, for directing the Panchayat to allot 100 square yards plots to the eligible persons. Such writ petition was disposed of vide order dated 13.2.2013, with liberty to the petitioners therein to submit a detailed representation before the Secretary, Rural Development and Panchayat and such Officer was directed to consider the representation so submitted. It is, thereafter that the impugned order has been passed. Singh Dalbir 2014.04.29 15:23 I attest to the accuracy of this document High Court Chandigarh [4]. CWP No.21430 of 2013 (O&M) Learned counsel for the petitioner has vehemently argued that in a writ petition challenging the scheme of allotment of plots measuring 100 square yards out of Shamlat land, the stand of the State Government was specific that the plots will be allotted only in case the Gram Panchayat passes a resolution and not otherwise. Since the Panchayat in the present case has resolved not to give land comprising in specific Khasra Numbers, therefore, the State Government or any of its functionaries, is not competent to direct the Panchayat to pass a resolution to a particular effect. The relevant observation from the order passed in CWP9180of 2009 decided on 16.11.2009-Rajbir Singh vs. State of Haryana, reads as under:- “In the affidavit dated August 18, 2009, filed by Shri Alok Nigam, IAS, it is specifically stated that there are 6155 Gram Panchayats in the State of Haryana and only 3000 (approximately) Gram Panchayats have passed the resolution under the Scheme, for allotment of the plots. The Advocate General, Haryana, also made a specific statement that the plots will be allotted, only in case, the Gram Panchayat passes a resolution in that regard and not otherwise. In the Scheme, no coercive action is envisaged against a Gram Panchayat, in not passing a resolution, for allotment of the plots. It was also so stated by the Advocate General, Haryana, at the time of arguments.”
. It is also contended that in the 1961 Act, which deals with the Shamlat land, there is no authority with the State Government to direct a Panchayat to pass a resolution in a particular manner. Therefore, the State Government or any of its functionaries cannot direct a Panchayat to pass a resolution for the allotment of Shamlat land. Shri P.S. Poonia, learned State Counsel, on the other hand relied upon Part IX of the Constitution inserted by 73rd Amendment in the year 1992 constituting the Panchayats, the Singh Dalbir 2014.04.29 15:23 I attest to the accuracy of this document High Court Chandigarh [5]. CWP No.21430 of 2013 (O&M) institutions of the self governance for the rural areas. He relied upon Article 243G of the Constitution, to contend that the Gram Panchayat is conceived as an institution of self governance and exercises such powers and authorities as prescribed in Part-IX of the Constitution with specific reference to preparation of plans for economic development and social justice. The purposes of the scheme for the implementation by the Panchayat have been enumerated in 11th Schedule of the Constitution. Particular reference is made to Entry 10 relating to Rural Housing and Entry 27 relating to welfare of the weaker sections and in particular of the Schedule Castes and Scheduled Tribes, to contend that allotment of plots for the housing of weaker sections of society, is the constitutional mandate. Therefore, the action of the State Government to direct the Panchayat to allot plots out of the Shamlat land for the economic development and social justice of the certain sections of the Society is imperative. Shri Poonia also made reference to Sections 21 and 48 of the 1994 Act. Section 21 of the 1994 Act relates to functions and duties of the Gram Panchayat to achieve the Constitutional mandate contained in Part-IX read with 11th Schedule of the Constitution. On the other hand, Section 48 of 1994 Act contemplates that the Gram Panchayat shall be subject to such authority and control as the Government may direct. Relevant provisions from Part IX of the Constitution and Sections 21 and 48 of the 1994 Act, read as under:- “Part IX – The Panchayats xx xx xx 243G. Powers, authority and responsibilities of Panchayats. Subject to the provisions of this Constitution, the Legislature of a State may, by law, endow the Panchayats with such powers and authority and may be Singh Dalbir 2014.04.29 15:23 I attest to the accuracy of this document High Court Chandigarh [6]. CWP No.21430 of 2013 (O&M) necessary to enable them to function as institutions of self government and such law may contain provisions for the devolution of powers and responsibilities upon panchayats at the appropriate level, subject to such conditions as may be specified herein, with respect to- (a) the preparation of plans for economic development and social justice; (b) the implementation of scheme for economic development and social justice as may be entrusted to them including those in relation to the matters listed in the Eleventh Schedule.”
. “The Haryana Panchayati Raj Act, 1994.
21. Functions and duties of Gram Panchayat— Subject to such rules as may be made, it shall be the duty of the Gram Panchayat within the limits of the funds at its disposal to make arrangements for carrying out the requirements of sabha area in respect of the following matters including all subsidiary works and buildings connected therewith:- I. General Functions--- (1) Every resolution adopted in a meeting of the Gram Sabha shall be duly considered by the Gram Panchayat and the decision and action taken by the Gram Panchayat shall form part of the report of Panchayat of the following year. (2) Preparation of annual plans for the development of Panchayat area. (3) Preparation of annual budge and submission thereof to Gram Sabha in its Sawani meeting for consideration. (4) Power for mobilizing reliefs in natural calamities. (5) Removal of encroachments on public place. (6) Organising voluntary labour and contribution of community works. (7) Maintenance of essential statistics of village(s). xx xx xx VII. Rural Housing--- (1) Distribution of house sites within its jurisdiction. Singh Dalbir 2014.04.29 15:23 I attest to the accuracy of this document High Court Chandigarh [7]. CWP No.21430 of 2013 (O&M) (2) Maintenance of records relating to the houses, site and other private and public properties. xx xx xx 48. Control and subordination.—In all matters arising under this Act, and unless otherwise provided, the Gram Panchayat, Panchayat Samiti, Zila Parishad and the Director shall be subject to such authority and control as the Government may direct.”
. It is, thus, contended that the direction of the State Government to a Panchayat is an exercise of powers conferred under Section 48 of the 1994 Act to achieve the Constitutional mandate of social development and economic advancement of the weaker Sections of society, therefore, the order of the Principal Secretary, is legally justified and does not warrant any interference in exercise of the writ jurisdiction of this Court. In support of his contention, Shri Poonia, has also relied upon Gurjarat Pradesh Panchayat Parishad and others v. State of Gujarat and others, (2007)7 Supreme Court Cases 718. We have heard learned counsel for the parties and find that there could not be any direction to the Panchayat to allot Shamlat land in terms of the Scheme framed not only for the reason that a statement was made before this court leading to upholding of the scheme for the allotment of plots but also for the reason that the Act does not contemplate issuance of any directions under the 1961 Act nor there is any power vested with the State Government under the 1994 Act. The 1994 Act is a general statute dealing with the constitution and functions and duties of the Panchayat; conduct of business of the Panchayat etc. etc. Part IX of the Constitution contemplates the establishment of the Gram Panchayats as an institution of self governance and also the provisions of devolution of Singh Dalbir 2014.04.29 15:23 I attest to the accuracy of this document High Court Chandigarh [8]. CWP No.21430 of 2013 (O&M) powers and responsibilities upon Panchayat, including the preparation of plans for economic development and social justice. Part IX of the Constitution is a provision for empowering the Panchayati Raj in the matter of its activity and functions, but even such Part does not contain any provision to provide for interference of the State Government in the functioning of the Panchayat. The Panchayat are conceived to be independent body to discharge its functions assigned in the constitution without any control and interference of the State Government. Article 243N of the Constitution contemplates that any provision in any law relating to Panchayats in force in a State immediately before the commencement of the Constitution (Seventy-third Amendment) Act, 1992 which is inconsistent with the provisions of Part-IX, shall continue to be in force until amended or repealed by a competent Legislature or other competent authority or until the expiration of one year from such commencement, whichever is earlier. It, thus, transpires that the provisions of constitution of Panchayat, its powers and duties have to be in consonance with the provisions of Part IX of the Constitution in read with Schedule 11. The entries in 11th Schedule, empowers a Panchayat to work in the field of rural housing and also for the welfare of the weaker sections of the Society and in particular the Scheduled Castes and Scheduled Tribes, but the manner of achieving such laudable achievements is in the discretion of the Panchayat alone. These are subject of activities in respect of which the Panchayats are expected to work. The entries in the 11th Schedule do not empower the State Government to intervene and direct the Panchayat to compulsorily provide for either rural housing or work for the welfare of the weaker sections, and in particular, of the Scheduled Castes and the Scheduled Tribes in a particular manner alone. Part IX of the Constitution has not conferred any power on the State Singh Dalbir 2014.04.29 15:23 I attest to the accuracy of this document High Court Chandigarh [9]. CWP No.21430 of 2013 (O&M) Government to interfere in the working of the Panchayats by issuing any directions to act in a particular manner. The 1961 Act, deals with the Shamlat land, the land in respect of which the State Government has directed to pass a resolution of allotment of plots to the Scheduled Castes and people living below poverty line and backward classes is a State statute. But again, the said Act does not contain any provision under which the State Government can exercise powers over the Panchayats in respect of Shamlat land. Any decision of the Panchayat to sell or lease the Shamlat land, requires approval from the State Government. But the State Government has not been empowered under the 1961 Act to direct a Panchayat to dispose of the Shamlat land in any particular manner. The Shamlat deh land, the control and management of which vests with the Panchayat, is generally reserved during the process of consolidation by applying pro-rata cut on the holdings of the proprietors. It is the land of the proprietors which vests with the Panchayat without payment of any compensation. Therefore, the State Government cannot direct the use of the land for other purposes without the consent of the Panchayat. In fact, that was the statement given by and on behalf of the State Government to this Court when the scheme of allotment was subject matter of challenge. Section 48 of the 1994 Act provides that the Gram Panchayat shall be subject to such authority and control as the Government may direct to exercise control over a Gram Panchayat. The matter must arise under the 1994 Act and the control shall be as directed by the Government. The State Government cannot in exercise of such powers direct a Panchayat to part with its property. Firstly, the Shamlat land is governed by a special statute i.e. 1961 Act and is not a matter arising under the 1994 Act. Secondly, the Gram Panchayat is subject to such authority and control as the Government may direct. The Singh Dalbir 2014.04.29 15:23 I attest to the accuracy of this document High Court Chandigarh [10]. CWP No.21430 of 2013 (O&M) direction of the Government can be general in nature and not specific in respect of a specific land. Reference may be made to Rakesh Ranjan Verma v. State of Bihar, 1992 Supp (2) SCC343 wherein the Court observed as:
“10. The above provision clearly lays down that the Board shall be guided by such directions on questions of policy as may be given to it by the State Government. In the circumstances of the case before us the directions given under letters dated July 18, 1988 and May 5, 1989 cannot be considered as directions on any questions of policy. So far as the appointment of staff is concerned, Section 15 empowers the Board to appoint such officers and employees as may be required to enable the Board to carry out its functions under the Act. Section 15 of the Act reads as under: “Appointment of staff.— The Board may appoint a Secretary and such other officers and employees as may be required to enable the Board to carry out its functions under this Act: Provided that the appointment of the Secretary shall be subject to the approval of the State Government.”. 11. Thus, under the proviso to Section 15, it is only the appointment of the Secretary which is subject to the approval of the State Government. So far as other staff is concerned, it lies with the Board to make appointment of all officers and employees as may be required to enable the Board to carry out its functions under the Act. Thus, we agree with the view taken by the High Court in this regard that the direction given by the State Government to appoint the appellants as Junior Engineers by the Board does not involve any matter of policy and it would be an encroachment on the powers of the Board given under Section 15 of the Act.”
. In the judgment reported as Manohar Lal (D) by Lrs. v. Ugrasen (D) by Lrs. & Ors., (2010)11 SCC557 the Hon’ble Supreme Court has examined the issue of allotment of plots by the Government of Uttar Pradesh consequent to acquisition of the land for development Singh Dalbir 2014.04.29 15:23 I attest to the accuracy of this document High Court Chandigarh [11]. CWP No.21430 of 2013 (O&M) of a residential area. The Hon’ble Supreme Court examined the judgment in Rakesh Ranjan Verma’s case (supra) followed in U.P., State Electricity Board vs. Ram Autar and Anr., (1996)8 SCC506and held that the State Government could issue directions which were to carry out the objective of the Act and not those which are contrary to the Act. Similar view was taken up in Mangalore Medical Trust v. B.S. Muddappa & Ors., AIR1991SC1902 It was observed as under:-
“13. In Bangalore Medical Trust v. B.S. Muddappa & Ors., AIR1991SC1902 this Court considered the provisions of a similar Act, namely, Bangalore Development Authority Act, 1976 containing a similar provision and held that Government was competent only to give such directions to the authority as were in its opinion necessary or expedient and for carrying out the purposes of the Act. The Government could not have issued any other direction for the reason that Government had not been conferred upon unfettered powers in this regard. The object of the direction must be only to carry out the object of the Act and only such directions as were reasonably necessary or expedient for carrying out the object of the enactment were contemplated under the act. Any other direction not covered by such powers was illegal.”
. In view of the aforesaid judgments, the provisions of Section 48 of the 1994 Act are required to be examined. Section 48 of the 1994 Act, confers power of control on the Government in all matters arising under the aforesaid Act. The Government could exercise such powers so as to give effect to the provisions of the Act. The 1994 Act deals with the power and functions of the Gram Panchayat, but the management and control of Shamlat land vests with the Panchayat under the 1961 Act. The expression `control’ as contained in Section 48 of the Act, is to ensure that the Gram Panchayat; Panchayat Samiti and Zila Parishad or even Director remain bound by the Singh Dalbir 2014.04.29 15:23 I attest to the accuracy of this document High Court Chandigarh [12]. CWP No.21430 of 2013 (O&M) provisions of the statute and in case of transgression of the same, may force such authorities to comply with the provisions of the Statute. But the Government could not issue any direction, which impinges upon the independence of the statutory authorities created as a part of self governance in terms of Part IX of the Constitution. In somewhat similar circumstances, a Full Bench of this Court in the case reported as Anil Sabharwal v. State of Haryana and others, 1999(2) PLR7 examined Section 30 of the Haryana Urban Development Authority Act, 1977, to issue directions to the authorities (HUDA) for efficient administration of the aforesaid Act. While examining the said provisions, the Court held that the State Government can issue directions to reserve plots in favour of the professionals, outstanding sportspersons, musicians etc., as a group, provided such reservation is within the parameters, scheme and objects of the Act. But the provisions of the Act, do not confer unbridled and unguided powers upon the Chief Minister to allot the residential plots according to his discretion. Such judgment has been upheld by the Hon’ble Supreme Court in Harsh Dhingra v. State of Haryana, (2001)9 SCC550 Somewhat similar are the provisions of Section 48 of the 1994 Act. While exercising the powers under Section 48 of the 1994 Act, the State Government could not issue any direction for allotment of a particular plot or plots. Such direction is contrary to the statutory provisions. The judgment in Gurjarat Pradesh Panchayat Parishad, is not applicable to the facts of the present case. It deals with the powers and functions of the District Development and Panchayat Officer. In fact Para No.24 of the judgment deals with the concept of the institution of self governance and contemplates no interference by any other organs, including judiciary. The said judgment does not deal with the power of the State Government over the Panchayat, in Singh Dalbir 2014.04.29 15:23 I attest to the accuracy of this document High Court Chandigarh [13]. CWP No.21430 of 2013 (O&M) respect of Shamlat land vested with the Panchayat in terms of a special statute. Therefore, the said judgment does not provide any support to the argument raised by the learned counsel for the State. The 1994 Act, is an Act applicable to the Sabha area in respect of which the Gram Panchayat has been constituted. There is no provision for sale of the land of the Panchayat. The 1994 Act is a General Statute vis-à-vis 1961 Act dealing with the Shamlat land, therefore, between the General and Special Acts, the provisions of the Special Act, will prevail. In the absence of any power to issue any direction, the State Government could not direct the disposal of the Shamlat land in a particular manner. In view of the above, the present writ petition is allowed and the impugned order dated 18.7.2013 (Annexure P.16) passed by the Principal Secretary, Government of Haryana, Rural Development, Panchayat, is quashed being without any jurisdiction. [ HEMANT GUPTA ]. JUDGE [ FATEH DEEP SINGH ]. JUDGE April 28, 2014 ds Singh Dalbir 2014.04.29 15:23 I attest to the accuracy of this document High Court Chandigarh