Suraj Bhan and ors. Vs. State of Haryana - Court Judgment

Ashutosh Mohunta, J.

1. Challenge in this petition under Articles 226/227 of the Constitution of India is to the order dated 15.9.1997 (Annexure P-10) passed by the Commissioner and Secretary to Government of Haryana, Development and Panchayat Department (respondent No. 1) vide which sanction has been accorded to the Gram Panchayat of village Wazirabad (respondent No. 2) to exchange 75 Bighas and 14 Biswas of land with the land of the same size belonging to respondent Nos. 3 to 8.

2. In brief the facts of the case are that the Gram Panchayat of Village Wazirabad (respondent No. 2) (hereinafter referred to as the Gram Panchayat) passed a resolution dated 29.6.1991 (Annexure P1) whereby it resolved to exchange its 139 Bighas 12 Biswas of land with the land of M/s Vikalpa Agro Industries and other sister concerns (respondent No. 3 to 8). Some residents of the village headed by Sher Singh Yadav did not relish the exchange. They represented to the Government vide representation dated 15.11.1991 (Annexure P-2) for not according the requisite sanction as the exchange of the land with the land of respondent Nos. 3 to 8 was not in the interest of the inhabitants of the village. However, necessary approval was accorded to the Gram Panchayat vide order dated 31.12.1991/2.1.1992 (Annexure R-1) under Rule 5 of the Punjab Village Common Lands. While granting permission certain conditions, which were considered essential, were imposed. Accordingly the land measuring 75 Bighas 14 Biswas was exchanged with the land belonging to respondent Nos. 3 to 8 and mutation was sanctioned on 27.3.1992. However, certain residents of the Village impugned the exchange, filed a civil suit in the Court of Additional Senior Sub Judge, Gurgaon, for seeking cancellation of the exchange ordered by the Government vide order dated 31.12.1991. Status quo was ordered vide order dated 16.2.1993. However, the status quo order was vacated by the by the Additional District Judge, Gurgaon vide order dated 22.2.1993. The revision petition filed by the petitioners against the vacation of the status quo order was converted into Civil Writ Petition No. 3511 of 1994 by Hon'ble Mr. Justice V.K. Jhanji, and the exchange of the land made by the Gram Panchayat was cancelled vide judgment dated 3.3.1994 (Annexure P4). Against the judgment of the learned Single Judge, respondent Nos. 3 to 8 filed L.P.A. No. 239 of 1994. The L.P.A., Bench vide judgment dated 16.2.1996 remitted the matter of exchange to the Government for reconsideration and accord approval, if any, after strict, compliance of the provisions of Rule 5 of the Rules. However, during the pendency of the L.P.A. before the High Court the Gram Panchayat passed a fresh resolution dated 25.10.1994 (Annexure P-5) whereby it resolved to sell the land in question in open auction and not to exchange the same with a land belonging to respondent Nos. 3 to 8. The Gram Panchayat once again passed a resolution on 30.5.1997 whereby it cancelled the resolution dated 25.10.1994 (Annexure P-5) and instead the resolution dated 29.6.1991 (Annexure P1) was revived. Consequently, the Gram Panchayat once again agreed to exchange the village land with the land belonging to respondent Nos. 3 to 8 and a copy thereof was forwarded to the Government for according necessary sanction thereto. After hearing the parties concerned, sanction of the Governor of Haryana to the exchange of the land in question with the land belonging to respondent Nos. 3 to 8 was accorded vide order dated 15.9.1997 (Annexure P-10). It is this order of the Government of Haryana which has been challenged in the present writ petition.

3. At the time of motion hearing on 4.6.1998, the Motion Bench restrained the respondents from changing the nature of the land in question. Respondent Nos. 3 to 9 filed C.M. No. 15558 of 2002 for vacation of the stay order. The petitioners also filed C.M. No. 29448 of 1999 for withdrawal of the writ petition. However, certain separate applications for being impleaded as parties to the writ petition. All the pending applications shall stand disposed of with the decision of the present writ petition.

4. It has been contended by Mr. Hemant Bassi, learned counsel for the petitioners, that respondent No. 1 has passed the order dated 15.9.1997 in hurry and sufficient opportunity of being heard has not been given to the petitioners before passing the said order. It has been contended that the petitioners had filed an application dated 26.6.1997 against the latest resolution of the Gram Panchayat dated 30.5.1997 before said respondent had directed the Additional Deputy Commissioner, Gurgaon, to inquire into the allegations made in the application. The District Development and Panchayat Officer, Gurgaon (D.D.P.O.) was also directed to examine the resolution dated 30.5,1997 passed by the Gram Panchayat with regard to the provisions of Section 47 of the Haryana Panchayati Raj Act, 1994. It has further been contended that the petitioners had submitted written submissions before respondent No. 1. Without considering the written submissions made by the petitioners, respondent No. 1 passed the impugned order dated 15.9.1997. It has also been contended by Mr. Bassi that exchange of the land with the land belonging to respondent Nos. 3 to 8 is not in the interest of the inhabitants of the village. This fact stands proved from the resolution dated 9.3.1992 (Annexure P-2)and 25.10.1994 (Annexure P-5) passed by the Gram Panchayat.

5. The contentions raised by Mr. Hemant Bassi have been vehemently, controverted by the learned counsel appearing on behalf of the respondents. It has been contended by Mr. A.K. Chopra, learned Senior Advocate, that the Governor of Haryana accorded, approval to the Gram Panchayat to exchange the land vide order dated 31.12.1991/ 2.1.1992 (Annexure R-1) and mutation of the transfer was sanctioned accordingly on 27.3.1992 and the exchange of the land took place. The licence for development of the colony was also granted on 26.3.1992. It has beet) contended that the petitioners filed the suit against the transfer seven months thereafter. It has further been contended that status quo order with regard to possession was passed by the High Court on 8.4.1993 and at no stage the respondents have been restrained from developing the land. Thus, respondent Nos. 3 to 8 have spent approximately a sum of Rs. 31 Crore on the development of the colony including the land in dispute. It has been argued on behalf of the respondents that the matter in dispute was examined in detail by three different officers, working under three different Governments and all the three arrived at the conclusion that the exchange was for the benefit of inhabitants of the village. The contention raised by Mr. Ashok Aggarwal, Senior Advocate, as well as Mr. A.K. Chopra, Senior Advocate, is that the impugned order Annexure P-10 has been passed in due compliance of the unchallenged directions given by the Division Bench vide judgment dated 16.2.1996 (Annexure P7). It has been contended by them that exchange of the land is for the benefit of all the inhabitants of the village. Lastly, it has been contended by Mr. A.K. Chopra that the resolution dated 9.3.1992 (Annexure P-3) and 25.10.1994 (Annexure P5) were never approved or sent to the Government for approval. Hence, the said resolutions have no significance at all.

6. It has been contended by Mr. Hemant Bassi, learned counsel for the petitioner, that had the Gram Panchayat felt any necessity to exchange the land or had it been for the benefits of the inhabitants of the village, then the Gram Panchayat would have approached respondent Nos. 3 to 8. However, in the present case, it is respondent Nos. 3 to 8 who have approached the Gram Panchayat for exchange of the land. Thus, his contention is that the deal of exchange is not in the interest of the inhabitants of the village and there was no necessity for the Gram Panchayat to exchange the land in dispute with that of respondent Nos. 3 to 8. Mr. Bassi has argued that due compliance of the provisions of Rule 5 of the Rules has not been made while passing the resolutions for the exchange of the land with the land belonging to respondent Nos. 3 to 8.

7. I have heard the learned counsel for the parties and gone through the documents adduced on record.

8. Rule 5 of the Rules, which deals with the exchange of the land by a Gram Panchayat, is reproduced hereunder for ready reference:-

'5. Exchange of land- A Panchayat, if it is of opinion that it is necessary to do for the benefit of the inhabitants of the village, may with the prior approval of the Government transfer any land in shamilat deh by exchange with the land of an equivalent value to be determined by the Tehsildar in whose jurisdiction the land is situate.'

The afore-quoted rule stipulates the following ingredients:-

1. Opinion of the Panchayat;

2. Necessity of the exchange of land for the benefit of inhabitants of the village;

3. Prior approval of the Government;

4. Exchange with the land of equivalent value;

5. Value of the land determined by the Tehsildar concerned.

In the present case the test of 'necessity' cannot mean 'indispensable' or 'cannot be done without' as per the literal meaning of word 'necessity' as given in the dictionary. The benefit or interest of the habitants of the village is of paramount importance in the present case. Thus, the meaning of 'necessity' is to be drawn in that context only and not otherwise. The Members of the Panchayat are representatives of the inhabitants of the village. Thus, their opinion would matter and not the opinion of any individual inhabitant. For getting the exchange in practice, prior approval of the resolution of the Panchayat by the Government is the condition precedent. It is also the requirement of the aforequoted Rule that the land which is to be taken by the Gram Panchayat in exchange of its land must be of equivalent value. The value of the land is to be determined by the Tehsildar concerned.

9. In the present case, the first resolution of the Gram Panchayat was passed on 29.6.1991 (Annexure PI). The operative portion of the said resolution is to the following effect:-

'...That the area belonging to the Panchayat as well as the companies is the same. The area of the Gram Panchayat is in the shape of Gair Mumkin Nallahs and pits and this area falls within the land effecting the exchange the area of the Gram Panchayat gets consolidated at a single place to a great extent. The Gram Panchayat can lease the said land after the same gets consolidated and can also plant trees etc. thereon, because this land is cultivable because the land is levelled and cultivable to a large extent, whereas the land belonging to the Panchayat is not fit for agricultural purpose. In this way by effecting the exchange there can be an increase in the income of the Gram Panchayat....'

10. A perusal of the afore-quoted resolution dated 29.6.1991 shows that the land belonging to the Gram Panchayat proposed to be exchanged with the land of respondent Nos. 3 to 8 consists of Nullahs and pits etc. and was in scattered pieces, which were surrounded by the land belonging to respondent Nos. 3 to 8. On the other hand, the land proposed to be taken in lieu thereof was levelled and cultivable, which could result in increasing the income of the Gram Panchayat. In this way, the exchange of the Panchayat land with the land belonging to respondent Nos. 3 to 8 is in the interest and for the benefit of the inhabitants of the village. It does not make any difference whether the offer for the exchange was made by the respondent Nos. 3 to 8 or by the Gram Panchayat. Even if the offer had come from the side of respondent Nos. 3 to 8 even then it cannot be said that the land proposed to be taken in exchange of the Gram Panchayat land is not for the benefit or in the interest of the inhabitants of the village. As per Rule 5 of the Rules, the opinion of the Gram Panchayat, which is the representative body of the village, would matter and not the opinion of individual inhabitants. The resolution of the Gram Panchayat dated 29.6.1991 proposing exchange of its land with the land of respondent Nos. 3 to 8 was sent to the Government for approval as the prior approval of the Government is essential for getting effected the proposed exchange, as per the provisions of Rule 5 of the Rules. The Government on getting done the evaluation of the land belonging to respondent Nos. 3 to 8 from the Tehsildar concerned gave its approval to the exchange vide order dated 31.12.1991/1.2.1992 by imposing the following conditions:-

'(a) Deputy Commissioner, Gurgaon, shall ensure that the land which is transferred to Gram Panchayat after exchange does not fall in the prohibited area of Air Force Radar (except in order to maintain contiguity as laid down as laid down in condition Nos. 2). The principle of zone to zone transfer shall not be disturbed meaning thereby that an area in particular zone residential, commercial or industrial, shall be exchanged with an equivalent area in that very particular zone only. For example say if 10 acres of Panchayat land falling in residential zone is being exchanged, then the Panchayat should also get in exchange 10 acres of colonizers land falling in residential zone and so on.

(b) The D.C. should also ensure contiguity of the various portions of land coming to the Panchayat in exchange. He is authorised to change any Khasra numbers or portion thereof, if necessary, for the purpose. Even the area within the prohibited zone may be exchanged with an equivalent area within the same zone, if necessary for this purpose. But the total area must not exceed with which is given in resolution No. 1 dated 29.6.1991 of the Gram Panchayat.

(c) The companies/persons with whom the Gram Panchayat land is being exchanged shall give an undertaking that they will provide path/approach to the existing Mandir and other Panchayat/private lands to which approach lies within the land being given to them in exchange.

As there were some complaints with regard to the exchange of the land on behalf of some residents of the village, the Letters Patent Bench vide judgment dated 16.2.1996 remitted the case to the Government for reconsideration of the approval granted by it to the resolution passed by the Gram Panchayat on 29.6.1991 after strictly complying with the provisions of Rule 5 of the Rules. On the directions given by the L.P.A. Bench, the Government on consideration of the entire matter again granted its approval to the exchange vide order dated 18.4.1996 (Annexure P8) with the following observation:-

'...And if, in the present situation all the separate pieces of land which fall in between the land of the companies in small segments, are sold, only those companies shall purchase the same in auction amidst whose land they are lying. Thus, in open auction also good price therefrom shall not accrue.'

This order of the Government was again challenged by the petitioner by filing C.W.P. No. 19725 of 1996. Notice of the same was issued to the Government and the writ petition was dismissed as having become infructuous as the Government decided to have a fresh look on the whole issue before filing its reply in the High Court.

31. The present petitioners as well as respondent Nos. 3 to 8 appeared before the Commissioner and Secretary to Government of Haryana, Development and Panchayat Department, through their counsel and they filed separate written statements. It was pleaded on behalf of the present petitioners that the resolution dated 29.6.1991 (Annexure P-1), vide which the Panchayat resolved to exchange the land with the land belonging to respondent Nos. 3 to 8 had since been cancelled by the Gram Panchayat by passing resolution dated 23.10.1994 (Annexure P-5). However, the Sarpanch of the Gram Panchayat produced a copy of the latest resolution dated 30.5.1997 before the Commissioner and Secretary to Government of Haryana, Department and Panchayat Department vide which resolution dated 25.10.1994 (Annexure P-5) had been cancelled and the resolution dated 29.6.1991 (Annexure P-1) whereby the Gram Panchayat resolved to exchange the land had been revived. The matter with regard to exchange of the Gram Panchayat land with the land belonging to respondent Nos. 3 to 8 was considered afresh by the authorities concerned and vide the impugned order dated 15.9.1997 (Annexure P-10) the Government again granted approval to the Gram Panchayat to go ahead with the exchange of the land with the land belonging to respondent Nos. 3 to 8. It has been observed in the said order that the Director, Panchayats, Haryana (respondent No. 9) inspected the site in the presence of all the parties concerned and it was found that with the exchange of the lands inter se the Gram Panchayat and respondent Nos. 3 to 8, the land of the Panchayat, had got consolidated and had become contiguous with the other lands of the Panchayat. It has been further observed as under:-

'...Now this land can be .managed in a better way i.e. either for cultivation or for grazing of cattle or even for disposal by way of lease, sale etc. The inhabitants will have a better approach by way of roads/rastas which the companies are going to provide, because this is a part of the condition to which the companies have agreed, There would be a better approach to the Mandir which was one of the points raised by the complainants. The land which is being given in exchange could be ploughed by landless people. In tact this purpose will be better served with, after the land is exchanged and if the panchayat decides to give plots, then also it will be better placed because the land is now contiguous (because before exchange Panchayat land is like islands surrounded by land owned by the companies and could not be used for this very purpose earlier). Even if the Panchayat wants to sell this land by way of plots, it will be better placed after exchange and can do so by way of preparing a plan and getting the permission/sanction of the competent authority as land being offered to Grain Panchayat is in residential zone as per report of the D.T.P. Gurgaon. After the development of residential colony, the Panchayat land which is now in the vicinity of the colony will be better placed price-wise due to the proximity to the residential colony. The entire area is gair mumkin and not being cultivated. This area is not as such a source of income for the Gram Panchayat. The entire area being given to the Gram Panchayat is contiguous to existing shamlat deh of Gram Panchayat....''

In order to meet out the objection raised on behalf of the complainant-petitioners to the effect that respondent Nos. 3 to 8 can be made to agree to pay very good price to the Panchayat if the land is disposed of by way of auction, it has been observed by the authorities concerned in the impugned order as under:-

'...But this is slightly hypothetical because nobody can say at this stage as to what extent the companies can be made to go. However, the Panchayat is in a better position vis-a-vis their land price which is certainly against the presumption mentioned earlier. With the exchange, the Panchayat and the companies are both benefited. These benefits and other allied facilities to the inhabitants of the village are the grounds of permitting this exchange. The Tehsildar in his report dated 14.3.1996 has mentioned that land of the companies being offered to Gram Panchayat is 'Nala'. Keeping in view the situation of both lands the value of the land being exchanged is equal.'

12. From the chronological events and from the aforequoted observations made by the authorities concerned, conclusion can only be drawn that time and again the authorities at different levels have come to the conclusion that exchange of the Gram Panchayat land with the land belonging to respondent Nos. 3 to 8 would be for the benefit and in the interest of the inhabitants of the village. It has also been found that with the development of colony by respondent Nos. 3 to 8, the scattered pieces of land of the Gram Panchayat have been surrounded by the land belonging to these respondents. In such a situation, prohibiting the Gram Panchayat from going ahead with the exchange would only put the inhabitants of the village at great loss. The requirements of Rule 5 of the Rules have amply been made good by the concerned authorities. Moreover, it has been brought to the notice of the Court that a substantial portion of the land, which was received by the Gram Panchayat in exchange, stands acquired by the Government and the award in respect thereof was pronounced on 6.9.2000. In such a situation, it would not be possible to put the clock back.

13. In the light of above discussion, I do not find any merit in this writ petition. It is, accordingly, dismissed. The interim order of stay dated 4.6.1988 passed by this Court stands vacated. There shall, however, be no order as to costs.