Allowed

Sucha Singh and Ors. v. State of Punjab and Ors.

Punjab & Haryana HC6 Feb 2009CWP/5585/2008

Case brief

AI extract

What is this about?

The Court held that a writ petition challenging the exchange of village common land was allowed. The exchange resolution failed due to insufficient majority, and government orders were quashed as the valuation process was arbitrary and the exchange violated mandatory statutory rules regarding land value and procedure.

What did the court decide?

Impugned resolution and government orders permitting exchange quashed; writ of certiorari issued to quash valuation report.

Sucha Singh and Ors. Vs State of Punjab and Ors. — Land Acquisition | Punjab & Haryana HC (2009)

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Civil Writ Petition No.5585 of 2008 (O&M) : 1 :

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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DATE OF DECISION: FEBRUARY 06, 2009

Sucha Singh & others

.....Petitioners

VERSUS

State of Punjab & others

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....Respondents

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CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH

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Whether Reporters of local papers may be allowed to see the judgement?

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To be referred to the Reporters or not?

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Whether the judgment should be reported in the Digest?

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Present: Mr.Vikas Bahl, Advocate, for the petitioners.

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Mr.Praveen Chander Goyal, Addl.A.G.Punjab, for respondent Nos.1 to 6.

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Mr.S.S.Goraya, Advocate, for respondent Nos.7 to 11.

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Mr.Ashok Aggarwal, Senior Advocate with Mr.Vipul Aggarwal and Mr.Anandeshwar Gautam, Advocates for respondent Nos.12.

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RANJIT SINGH, J.

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Twenty five residents of village Sukhgarh, Tehsil and District Sahibzada Ajit Singh Nagar (Mohali) have come forward to challenge the action of Panchayat of the concerned village to

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exchange the shamlat land of village Sukhgarh with the land in village Raipur Khurd, owned by a Colonizer (respondent No.12). They have termed the action of Panchayat to be illegal and exchange for extraneous consideration, which is also stated to be in violation of the rule governing the exchange of shamlat land.

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The Panchayat and the Colonizer of-course would attempt to justify this exchange by terming it to be beneficial for the Panchayat. They, however, were unable to satisfy the queries, which would naturally come to mind and were put to them. First and foremost query was as to how did private Colonizer became interested in exchange. What was the interest of Panchayat?. How did the meeting of mind regarding exchange came about?. How a private builder became interested in exchange if it for the benefit of Panchayat or is it for his and his benefit alone?. A question would also arise as to why would a private Colonizer show benevolence to the Panchayat and take a shamlat land in exchange of a land owned by him in a different village. Not only this, the private builder simultaneously has exchanged his land with Sham Lal in another village. Is he so benevolent that he has become interested in benefiting different Panchayats?. Real purpose appears to be his own benefit and Panchayat appears to be conniving with respondent No.12.

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Laborious efforts on the part of either the Panchayat and the counsel representing the Colonizer could not remove the lurking doubts concerning this exchange, which, of-course is termed by the petitioners being on account of extraneous consideration to benefit the Colonizer. The petitioners have accordingly prayed for the quashing of the resolution dated 5.8.2006 (Annexure P-5) passed by

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the Gram Panchayat village Sukhgarh and have also prayed for issuance of writ of certiorari for quashing orders dated 24.9.2007/17.10.2007, (Annexure P-15), and 26.9.2006 (Annexure P- 12) and 5.9.2006 (Annexure P-17) vide which this exchange has been approved.

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The petitioners claim that the Gram Panchayat has sacrificed the interests of the inhabitants of the village by exchanging the shamlat land of the village with the land of the Colonizer. The land in exchange measures 111 kanals 10 marlas, which is vesting in the Gram Panchayat. This land belonging to village Sukhgarh is statedly situated at a prime location as per the Master Plan of S.A.S.Nagar (Mohali). It is claimed that in view of the Mega projects having been sanctioned, the value of the land in question has increased in its value manifolds. As claimed by the petitioners, the value of the land per acre is Rs.1.60 crores. In this regard, reliance has been placed on some sale deeds, copies of which have been annexed with the petition as Annexures P-1 and P- 2. According to these sale deeds, the value of the land in the year 2006 would work out to be Rs.1.60 crores per acre. Another sale deed, Annexure P-3, has also been referred to in this regard. This land, as per the Master Plan lay out, falls in the residential and commercial zone of Sector 85 of S.A.S.Nagar, Mohali.

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The petitioners would urge that some members of the Gram Panchayat of the village in collusion with Colonizer (respondent No.12), have passed a resolution for exchange of the said land with a land belonging to respondent No.12 in village Raipur Khurd. Undisputed facts are that the land belonging to respondent

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No.12 falling in village Raipur Khurd falls in Institutional Zone as per the master lay out plan. It is averred that the land, which falls in Institutional Zone, can only be acquired by the Government and allotted to the Institutions and as such does not have much potential and is stated to be only 1/10th in value of the land falling in residential or commercial zone. It is pleaded that the value of the land in Institutional Zone is about Rs.12.00 lacs per acre and the sale deed dated 5.11.2007 of an area measuring 4 kanals was registered for a sum of Rs.20.00 lacs. This is stated to be best piece of land available in Sector 84, which is an Institutional Zone and the value of land now being exchanged rather carries no potential. It is in this background pleaded that the Gram Panchayat of village has passed a resolution dated 5.8.2008 just to help respondent No.12 and this is on account of a collusion between the Panchayat and the said respondent and is only due to some extraneous consideration. Grievance further is that the Panchayat had decided to exchange the whole shamlat land of village with that of land in village Raipur Khurd. This resolution for exchange is stated to be in violation of the statutory provisions inasmuch as that only three members , i.e., Jaspal Kaur, Amarjit kaur and Bant Singh have passed this resolution, whereas this was required to be passed by 3/4^th of the requisite majority of the Gram Panchayat. The Gram Panchayat has five Panches and one Sarpanch and 3/4^th majority of this number would be more than four members. In this regard, reliance is placed on Rule 12 (2) of the Punjab Village Common Lands (Regulation) Rules, 1964 (for short “1964 Rules”), which is reproduced below:-

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“Rule 12 Purpose for which land may be sold Section 5

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and 15(2) 6 of the Act:

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--* (1)xxx xxx xxx xxx xxx

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(2) Where it is proposed to sell land in Shamilat Deh under sub-rule (1), the Panchayat shall forward to government a copy of its Resolution passed by a majority of the three-fourth, of its members proposing to sell the land through the panchayat Shamilat and Divisional Deputy Director Panchayati Raj stating.........”

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Though this Rule regulates the sale of shamlat land, but as per the counsel for the petitioners, this provision would regulate the exchange of land as well. In fact, Rule 5 of the said Rules would also be relevant in regard to exchange of land and it reads as under:-

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“5. Exchange of land [Sections 5 and 15(2)(f)]-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 in Shamilat Deh by exchange with the land of an equivalent value:

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[Provided that where the land is required, in connection with the Integrated Rural Development Programme sponsored by the Government the Panchayat may, with the approval of the Collector, transfer any land in shamilat Deh by exchange with the land of an equivalent value.]”

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It is accordingly pleaded that the sale and exchange

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being almost identical in nature are to be regulated by the provisions of Rule 12 and, thus, Panchayat would have passed a resolution proposing exchange with only 3/4^th majority and not otherwise.

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Respondent No.12 appears to have purchased land in village Raipur Khurd. It must have been with the purpose of a colonization, he being a Colonizer. The fact that respondent No.12 is a Colonizer is not in much dispute. This land happens to fall in Institutional Zone and, thus, respondent No.12 cannot build a residential colony in the land which he has purchased. The efforts made by respondent No.12 in this background to exchange his land with that of shamlat land in village Sukhgarh, which falls in a residential/commercial zone, would need appreciation. One need not stretch much to find that land which is in a Institutional Zone would certainly not be equal in value to the land which is in residential/ commercial zone. What interest of the Panchayat would be served to exchange this valuable land with the land belonging to respondent No.12 could not be explained during the course of arguments despite much efforts by the counsel for the Panchayat as well as for respondent No.12.

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It was made out that the land belonging to Gram Panchayat is surrounded by built up area and there is no provision for water and the land has not been given on lease due to this reason. How the private builder has become interested in looking after the interest of the Panchayat would be rather intriguing. How would he contact the Panchayat and how would Panchayat readily agree for exchange unless something else was at play?. In this background, the allegation by the petitioners that Gram Panchayat

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had not acted to watch the interest of the inhabitants of the village while agreeing to exchange this land would not be much off the mark. How would the Panchayat benefit from the land getting in exchange which is located at different village and which, as per the petitioners, could be reached after covering a distance of 5 kilometers. It is also stated that the land in village Sukhgarh is in one block, whereas the land offered in exchange is divided into six parts. What would be for the benefit of Panchayat in getting a land in exchange which is not situated in the same village cannot easily be explained?.

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Rather the petitioners would refer to a resolution passed

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by the Panchayat for exchange of this land to say that role of respondent No.12 can clearly be seen from the manner in which the resolution is passed and exchange of the land allowed. The petitioners would say that it cannot be a coincidence that two neighbouring villages simultaneously would decide to exchange their land with the land owned by respondent No.12 at the same time. The land offered in exchange is statedly not having any Rasta. Giving all these facts, the petitioners would plead that the land offered in exchange is not in equal value which is first and the mandatory requirement in this regard before this exchange could be permitted.

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In addition, the petitioners have placed strong reliance on the recommendation made by Secretary, Rural Development and Panchayats on 11.7.2007 (Annexure P-6). Having noticed that B.D.O. Kharar, D.D.P.O. Mohali and Deputy Director, Patiala recommended that the price/value of the land situated in village Sukhgarh, village Sambhalki and Raipur is approximately equal and exchange is in the interest of Gram Panchayat, the Secretary has

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observed that he has examined the case and came to the conclusion that exchange is not in the interest of Panchayat on account of the reasons noticed in the order, which are as follows:-

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“(1) There is a huge difference in the rate of the land which the Panchayat is getting and the land which is being given by the Panchayat. As per the sale deeds produced by the complainant, the sale deed in respect of land measuring 7 Kanals 13 Marlas situated in Village Sukhgarh has been executed for a sum of Rs.1 Crore 48 Lacs on 5.5.2006 and one sale deed has been executed on 24.7.2006 in respect of land measuring 4 Kanals 6 Marlas for a sum of Rs.83 Lacs. As such, the average rate of one Kanal of land in Village Sukhgarh comes to Rs.19 to 20 Lacs. On the contrary, the sale deed in respect of land measuring 5 Bighas 10 Biswas situated in Village Raipur Khurd, the Village in which the land is to be given to the Panchayat in exchange, has been executed for Rs.68 Lacs and similarly,another sale deed has been executed in respect of land measuring 15 Bighas 18Biswas for a sum of Rs.1.98 Crore and the average rate comes to Rs.7-8 Lacs per Kanal. As such the land of the Panchayat, which is being given in exchange, is costlier by about 2-1/2 times.

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(2)The complainants have mentioned in the writ petitions in the High Court that the land situated in Village Sukhgarh and Sambhalki has been reserved for residential and commercial area in the Master Plan of

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Mohali whereas the land of Village Raipur Khurd, which the Panchayats are getting in exchange, has been reserved for institutions. It is clear that the land which comes under the area of City, it makes no difference in its value/rate as to whether it is cultivable/irrigated. Rather, it is decided on the basis of the purpose for which it is reserved in the Master Plan of the City. The land which is reserved for commercial or residential purpose, has much higher rate/value than the land reserved for institutions. As such there is difference in the `Land use' of land under exchange, which is not in the interest of the Panchayat.

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(3) The value of the land in Village Raipur Khurd is approximately Rs.60-Rs.70 Lacs per acre and the said land is reserved for institutions. As per the sale deed, the rate of land in Village Sukhgarh is appx. Rs.1.60 Crore per acre. In case we assess the income to the Colonizer from one acre of land, the same will be as under:-

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Total Area : 1 Acre Total Plots to be carved : 50% 4 Kanals

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Rate fixed by the Colonizer: 15000/- per sq.yard

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Rs.3.60 Crores

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Converse charges Rs.1.00 Crore per acre Net income Rs.2.60 Crores per acre

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In case the land is commercial, then the income per acre would have been even more. As such, with this

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exchange, the Colonizer shall have profit at the rate of Rs.2.00 Crore per acre and the Panchayats shall suffer loss. Thus, it is clear that the rates of the land under exchange is not equal and the exchange is never in the interest of the Panchayats.

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(4) As mentioned by the Office, the land which is being given is in 1 or 2 plots but the land which the Panchayats are getting are in 6-7 plots, which is clear from the site plan also. This also affects the rate/value of the land.

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Secretary, Rural Development accordingly recommended that the exchange should be rejected. Still, the power of Colonizer was so overwhelming that Rural Development and Panchayat Minister on 30.7.2007 directed that the land in Raipur Khurd be reassessed from the Committee. The Minister appointed Deputy Commissioner as the Chairman of the Committee and sought the report within a period of 1/1-2 months. It is the case of the petitioners that this exchange would only benefit the Colonizer, who would make a profit of Rs.2.00 crores per acre and resultant loss to the Gram panchayat. According to the petitioners, the whole village up in arms and as many as 308 persons had signed the requisition for convening an emergent extraordinary general meeting of Gram Sabha in terms of the provisions of the Punjab Panchayati Raj Act, 1994 (for short “1994 Act”) to say that the proposed exchange is against the interest of Gram Panchayat Sukhgarh. The copy of the requisition signed by 308 persons is annexed as Annexure P-7. Two of the Members Panchayat are petitioners No.1 and 17, who have

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filed the present petition. In fact, their grievance is that while passing the resolution, permitting exchange, no notice in regard to the meeting of the Gram Panchayat was given to the members of the Panchayat. This is in violation of Section 23 of the 1994 Act. A reference is also made to earlier writ petition filed on behalf of the residents of the village, wherein notice of motion was issued and status-quo in regard to property directed to be maintained. Reference is also made to a letter dated 26.9.2006 where the pricing/value of the land in village Raipur Khurd was assessed at Rs.60.00 lacs per acre and in village Sukhgarh to be Rs.58,69,760/- per acre. This, as per the petitioners, was without working out any details. No reference was made to the sale deeds etc. Even the fact that village Sukhgarh now falls in residential zone, whereas the land in village Raipur Khurd falls in Institutional Zone, as per the Master Plan, has also not been taken into consideration. Reference is also made to the instructions issued by Government of Panchayat and Department of Revenue containing guidelines while assessing the value of the land, which are as under:-

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“..........Very often the recommendations of the District Land Price Fixation Committees are sketchy and nonspeaking giving an impression of arbitrariness in price fixation......

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..........Chhant at the initial stage also result in temptation to acquire more land than necessary, resulting in unwarranted dislocation of local population.

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Since compensation has to be determined on the basis of market price the only guiding factor can be as to

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what is the price on which an owner would be willing to sell his land and what is the price a buyer would be willing to pay if acquisition proceedings were not to take place.........

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..........8. As brought out in Para 4 above the guiding factor for determining the basis of market price would be what is price at which an owner would be willing to sell his land and what is the price a buyer would be willing to pay if acquisition proceedings were not to take place. With increase in urbanization and the land becoming a scarce commodity, locational factors like proximity to a road, a town, an urban agglomeration or even the direction in which a City is expanding have assumed far greater importance than whether a land is Chahi or Barani or even Banjar.....

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.............13. Constitution of District Land Price Fixation

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Committee (DLPFC):

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--*

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For the determination of market price there shall be a Standing Committee at the District Level by the name of District Land Price Fixation

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Committee. The Committee

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Deputy Commissioner-Chairman

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M.P. of the Area; 3. M.L.A. of the Area;

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(For Rural Area)

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(a) Chairman, Block Samiti and where there is no

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Chairman the Block Development & Panchayat Officer;

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(b) Sarpanch of the Village concerned

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(For Urban Area)

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Mayor/President of Municipal Corporation/ Municipal Committee/Nagar Panchayat where there is no Mayor/President, the Commissioner of the Municipal Corporation or the Executive Officer, as the case may be.

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District Revenue Officer:

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Sub Divisional Magistrate-Convener Where the land to be acquired falls in more than one district the Commissioner of the Division shall chair the meeting of the District Land Price Fixation Committee and in case the land falls in two or more Divisions then the meeting shall be chaired by the Commissioner, who is senior amongst them. Even in that case the main responsibility guidance and coordination shall rest with the Deputy Commissioner in whose District the major portion of the area to be acquired is situated.

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District Land Price Fixation Committee shall also associate the District Level Representative of the Acquiring Department/ Public Senior Undertaking concerned with

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every meeting of the Committee as also with the Site visit, if conducted.......”.

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Accordingly, this valuation is put to a serious challenge by the petitioners. The said writ petition, however, was disposed of as the final decision in regard to exchange was yet to be given. The direction was given to the Government to take a decision within four weeks from the date of the receipt of copy of the order.

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When the matter was under consideration, the law officer gave his note saying that the following facts were necessarily required to be kept in view:-

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“1. The proposal is forwarded by the Divisional Deputy Director, Rural Development and Panchayat.

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It is necessary that the D.D.P.O. and B.D.P.O. should inspect the lands under exchange and as to whether the said exchange is liable to be made or not?

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There is no personal benefit to any Sarpanch/Panch or his close relative with the said exchange.

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It is mandatory to get assessed the value of the lands under exchange from the D.C.

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After the exchange, the Gram Panchayat has 50% of the cultivable area.

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The Resolution regarding exchange should have been passed by 3/4^th Members of the Gram Panchayat and the same should be attested by the B.D.P.O.

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The Jamabandi of the Gram Panchayat should not be of the years prior to 1999-2000 and in the Resolution,

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all the khasra numbers under exchange should be mentioned and the same khasra numbers should have been mentioned in the Jamabandi.

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Photocopy of the Latha showing the lands in different colours should be attached.

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The exchange is in public interest.

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The land to be taken by Gram Panchayat in exchange

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is free from any encumbrance, meaning no dispute or court case should be pending.

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The Private Party, whose land is to be given to the Panchayat in exchange, has given the No Objection Certificate in respect of the said land.”

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The law officer further noticed and sought information whether the resolution for exchange was passed by majority of the members or not. In this regard, he observed as under:-

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“Besides, it will also be pertinent to mention that out of the objections raised by the department vide letter dated 17.10.06, regarding Point No.4, vide which it was inquired as to whether the Resolution passed by the Gram Panchayats Sambhalki and Sukhgarh regarding exchanging the land with private party, had the majority of the Members or not. In this regard,.....S.A.S.Nagar, Mohali has not intimated as to how many Members were there in said Gram Panchayats and how many gave their consent, meaning thereby whether the Resolutions were passed in majority or not. Besides this, regarding exchange of the land of both these Gram Panchayats, it

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has been mentioned regarding objection No.6 that Civil Writ Petition No.16096/2006 regarding the Shamlat land of Gram Panchayat Sambhalki is pending in the Hon'ble Court. Regarding the case of Gram Panchayat, Sukhgarh, Civil Writ Petition No.15587 of 2006 is pending in the Hon'ble Court”.

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Ignoring all these aspects, which were under consideration, while taking the decision, another Committee was constituted to carry out the re-assessment of the market value of the land. This is stated to be an illegal action with malafide intention done with a purpose to favour respondent No.12.

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The Secretary, Rural Development, who had earlier rejected the proposal for exchange, this time endorsed the report which was then approved by the Minister without much fuss. How and why the Secretary came to change his view would not be very difficult to find. Apparent display of influence of respondent No.12 seems to be at play. This time, proposal was agreed without any analysis. The same value was assessed by the Committee, though it was done after expiry of period of one year. How could have the value assessed been identical to the one made earlier on 26.9.2006. It cannot be taken that the value of the land within one year had not increased, especially so in the background that land offered in exchange was in a residential/commercial zone, whereas that belonging to the Colonizer was in Institutional Zone. The Government, thus, apparently has permitted the exchange without taking into account the relevant considerations. The petitioners have accordingly filed this present writ petition impugning the orders as

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noted above and have sought quashing of the same, the exchange being actuated with malafide and extraneous considerations.

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While issuing notice of motion, the status-quo in respect of possession of the property was directed to be maintained. Short written statement on behalf of respondent No.12 as well as Panchayat has been filed. Deputy Commissioner, Mohali has also come forward with the written statement. The respondents seem to be acting in unison as can be noticed from the replies where they have taken similar pleas. Heavy reliance is placed on an order passed in Civil Writ Petition No. 19415 of 2007, titled Bhagwan Sarup and others Versus State of Punjab and others, which was dismissed on 1.5.2008, thus, permitting the exchange of land of village Sambhalki. The copy of the order passed by the court has also been annexed. The exchange in respect of village Sambhalki has also got the stamp of approval by a Division Bench of this Court. In fact, this is the main ground urged by the respondents to seek dismissal of the present writ petition, the issue being identical in both the writ petitions. It is also pleaded that the petitioners have an alternative remedy of filing an appeal, which has not been exhausted. Plea further is that the present writ petition is actually in the private interest of the petitioners and the exchange of the land offered by respondent No.12 is stated to be valued at Rs.60 lacs per acre, whereas land in village Sukhgarh is valued at Rs.586,69,760/- per acre. It is also stated that the land in village Sukhgarh has been given on lease for three months at Rs.38,000/-. Plea further is that the land in village Sukhgarh is a pond and being non-agriculture land cannot earn revenue. It is in this background that the Gram Panchayat had

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proposed the exchange of this land and accordingly the exchange of the land has been held to be justified. Almost identical is the stand taken by the remaining respondents and, thus, the exchange in favour of respondent No.12 has been justified. No one would, however, answer as to why the builder is ready to accept the land in exchange, which is of no value and is not earning any revenue. This would reveal the real purpose behind the exchange.

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I have heard the learned counsel appearing for the respective parties.

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The first contention raised by the counsel for the petitioners is that the land offered in exchange is not equal in value to the one offered by respondent No.12. Thus, this exchange, according to the counsel, would violate Rule 5 of the Rules. As per this rule, the exchange has to be for the benefit of inhabitants with the land which is of equal value. I have not been able to appreciate the change of heart by Secretary, Government Punjab, Department of Rural Development in short span of time. He, vide his order dated 30.5.2007, had rejected the exchange on the ground that there was a huge difference of the value of the land. He noted the difference on the ground that land in village Sukhgarh was reserved for residential and commercial zone in the Master Plan, whereas the land offered by respondent No.12 was reserved for institutions. He also noticed that the land offered by the Colonizer (respondent No.12) was in 6-7 plots. This apart, the reliance by the petitioners on the sale deeds also cannot be easily ignored. In fact, any evaluation done in the absence of sale deed of the land concerned or contiguous thereto would or cannot be a safe method. This fact should have invited

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consideration of the committee. The petitioners have placed reliance on some sale deeds to show that the price of the land in village Sukhgarh would not be less than Rs.1.60 crores per acre. The reasons for which Secretary, Rural Development had rejected the exchange, as contained in Annexure P-6, have been reproduced above. He found that there was a huge difference in a rate of land which the Panchayat is getting and the land which is to be given by the Panchayat. The Secretary then referred to the sale deeds to find that rate of one kanal land in village Sukhgarh would work out to be Rs.19-20 lacs, whereas average rate of the land offered in exchange by respondent No.12 would be Rs.7-8 lacs per Kanal. The Secretary also took note of the fact that the land in villages Sukhgarh and Sambhalki is reserved for residential and commercial purposes, whereas the land in village Raipur Khurd has been reserved for institutional purposes. He also observed that the value of the land in village Sukhgarh was Rs.1.60 crores per acre, whereas in village Raipur Khurd rate was Rs.60-70 lacs per acre. While assessing the income of Colonizer from one acre of land, the Secretary in his note observed as under:-

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“Total Area : 1 Acre

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Total Plots to be carved : 50% 4 Kanals

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Rate fixed by the Colonizer: 15000/- per sq.yard

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Rs.3.60 Crores

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Converse charges Rs.1.00 Crore per acre Net income Rs.2.60 Crores per acre

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In case the land is commercial, then the income per acre would have been even more. As such, with this

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How and why did he change this view without much fuss cannot be easily explained. In fact, the Committee re-constituted to re-assess and compare the value of lands apparently failed in its duty and functions. The Committee came to the same conclusion as was done earlier would not be an act which can be commended. Rather it would need disapproval. The submission by the counsel for the Gram Panchayat that Governments constituted of different parties and the Committee being constituted of Member Parliament and M.L.A. would also not impress me to ignore the action of the Committee in assessing the value of the land. Very valid considerations have been taken note of by the Secretary, which have been completely ignored. The way Secretary subsequently agreed for this proposal on 17.10.2007, I think, in itself speaks volumes about the pressures that would have been at play. His note now justifying the valuation of the land done reads as under:-

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“This case has been discussed with R.D.P.M. As per noting page 25, a Committee was constituted under the Chairmanship of the Deputy Commissioner in order to ascertain the price of the land situated in three villages and its report is at page 27 of the noting. The rate of the land in all three villages is equal. Therefore, the exchange is liable to be allowed as per the recommendations of the

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Gram Panchayat and local Officers”.

¶134

The Secretary, Rural Development was expected to stand up and not to succumb in the manner as is done. He could not have ignored valid grounds taken into considerations by him earlier. Influence of the Rural Development and Panchayat Minister seems to have weighed heavy on him. Still, he seems to have conveyed his feeling and reluctance on his part by saying that exchange is liable to be allowed as per the recommendation of the Gram Panchayat and the local officers. His discomfort while endorsing this note is clearly seen. He should have been bold enough to stick to his view which was appropriate and as he has rightly assessed that this exchange would lead to profit of nearly Rs.2.00 crores per acre to the Colonizer, which shall be a resultant loss to the Gram Panchayat. The evaluation done by the Committee which has subsequently been approved and exchange ordered, thus, cannot be accepted as it suffers from apparent influence and is not actuated with and apparently is not a bonafide exercise of power. The Committee appears to have abdicated its functions. The report of the Committee would also sans reasons and in support nothing is noted or mentioned. How value of this land was fixed would defy logic. No factor was taken into consideration while assessing the value of the land in villages Raipur Khurd, Sambhalki and Sukhgarh. This report of the Committee is without any reasons and, thus, cannot be sustained on this ground as well. It would be of benefit to notice the manner in which the Committee assessed the price/value of the land in different villages. The observation of the Committee reads as under:-

¶135

Civil Writ Petition No.5585 of 2008 (O&M) : 22 :

¶136

“The Deputy Commissioner, S.A.S. Nagar (Mohali) had convened the meeting of the Committee in his office on 19.9.07 at 1.00 A.M. All the concerned Members are stated to have been informed about the instructions issued by Hon'ble Rural Development and Panchayat Minister, Punjab through Block Development and Panchayat Officer, Kharar. In the meeting, Sh.Sukhdev Singh Labra, Member Parliament, Rup Nagar, District Development and Panchayat Officer, S.A.S. Nagar (Mohali), Sarpanch, Gram Panchayat Sukhgarh and Sarpanch Gram Panchayat Sambhalki, are stated to have come present. After discussion, all the Members are stated to have fixed the market value of the above said land as under:-

¶137

*Sr.No.*	*Name of Village*	*Market Rate*
1		2 3
1	Raipur Khurd	60,00,000/- per acre
2	Sambhalki	59,83,680/- per acre
3	Sukhgarh	58,69,760/- per acre

¶138

There is no reason in support of the value assessed.

¶139

Nothing was taken into consideration by the Committee. It would be reasonable, thus, to say that except for some influence, there was nothing taken into consideration by this Committee while assessing the value of the lands. There is no valid material available on record to show that the land offered in exchange is of equal value. Thus, this exchange, which is permitted, would be in violation of Rule 5 of the 1964 Rules.

¶140

There is another reason for which the impugned order

¶141

Civil Writ Petition No.5585 of 2008 (O&M) : 23 :

¶142

cannot be sustained. The resolution by the Panchayat permitting exchange of this land with that of respondent No.12 has been passed by three members. The Panchayat concededly consists of five Panches and one Sarpanch. As per the counsel for the petitioners, the resolution was required to be passed by 3/4^th majority in terms of Rule 12. To equate exchange with sale and the requirement of passing a resolution by 3/4^th majority, the learned counsel would refer to the provisions of Section 5 of the Punjab Village Common Lands (Regulation) Act, 1961. Section 5 regulates resolution of use and occupation of land vested or deemed to have been vested in Panchayat. Sub-section (5) says that notwithstanding anything contained in the preceding sub-sections, no land vested or deemed to have been vested in Gram Panchayat shall be disposed of by way of sale, gift or exchange so as to leave with the Panchayat, a culturable area, which is less than fifty percent of the total culturable area vested or deemed to have been vested in the Panchayat.

¶143

One thing would be clear from the above quoted subsection that sale, gift or exchange is required to be done in a manner that the Panchayat should be left with cultivable (word culturable used in sub-section apparently is cultivable) area which is not less than fifty percent. Even otherwise, it would defy logic to say that resolution for sale of a land has to be passed by 3/4^th of the majority and for purpose of gift or exchange, this majority would not be needed. If this view is accepted, then obviously, the Panchayat would easily be able to exchange land without the opinion of 3/4^th majority, which, in a way would mean sale of the same. In fact, the exchange of a land should indeed be regulated by the same consideration for

¶144

Civil Writ Petition No.5585 of 2008 (O&M) : 24 :

¶145

which the Panchayat is authorised to carry out the sale of the land. As per Rule 12 of the Rules, the sale of the shamlat deh vested in the Gram Panchayat can be done for the purpose of any industry or commercial concern. It can be executing such a scheme which may be source of recurring income for the benefit of inhabitants. It can be for residential purpose of the inhabitants and for the purpose of financing construction of building for schools and for veterinary or civil dispensaries. Obviously, if this is the purpose for which the shamlat land can be sold by the Gram Panchayat, the same or similar consideration must regulate the exchange of the land. If any other view is taken, then obviously the Gram Panchayat would be able to circumvent the purposes of sale as laid down by Rule 12 and by executing exchange of land for purpose other than those mentioned in Rule 12 would be able to achieve the sale thereof against the purposes legislated by the Act. I am, thus, of the considered view that the Panchayat can exchange the land only for purposes for which it will be entitled to sell the land and not for any other purpose. Viewed in this background, the exchange of this land as done cannot be held justified.

¶146

This exchange being not any way different from the sale is required to be authorised by 3/4^th majority members of the Panchayat and not otherwise. In fact, the law officer in its note, which has been referred to above, has clearly viewed that the resolution regarding exchange should have been passed by 3/4^th members of the Gram Panchayat. He was also of the view that after exchange, the Gram Panchayat has to have fifty percent of cultivable area. These requirements are besides the mandatory requirement of

¶147

Civil Writ Petition No.5585 of 2008 (O&M) : 25 :

¶148

assessing the value of land offered in exchange and the fact that no personal benefit to any Sarpanch or Panch or his close relative should result on account of this exchange. Concededly, the resolution has been passed by three members, which will not constitute 3/4^th of the majority members of the Gram Panchayat and thus this exchange cannot be held to have been validly authorised by the Gram Panchayat, which would be an essential requirement under the Rules. The resolution authorising exchange and subsequent order passed by the Government permitting the exchange cannot be held to be justified, being in violation of the Rules, which aspect has clearly escaped notice of the Government while passing the orders. The opinion of the law officer is clear to this effect that the Government was required to find out if this resolution authorising exchange had been passed by the majority of the members or not. Nothing has been pointed out or brought out in the reply to indicate that this resolution was passed by the requisite members of majority. This exchange, as such, is in violation of the rule as well and, thus, cannot be sustained.

¶149

The submission made on behalf of the Gram Panchayat and the private respondent No.12 that two of the members panchayat, i.e., petitioners No.1 and 17, were not qualified to participate in the meeting cannot be accepted. In this regard, reference is made to petition filed under Section 11 by the shareholders of the shamlat land to say that they are the applicants and hence have an interest in this regard. It has been clarified in the replication that petitioners No.1 and 17 are not the applicants in a petition filed under Section 11. Even doctrine of necessity would also

¶150

Civil Writ Petition No.5585 of 2008 (O&M) : 26 :

¶151

come into play and the members cannot be held disqualified to participate in the meeting merely because they are the proprietors of the village. It is not a pecuniary interest in the sense as envisaged by Section 24(4) of the 1994 Act. The resolution passed by the Panchayat cannot be held to be valid merely because some of the members were proprietors. Whatever may be situation, the 3/4^th majority was required to pass this resolution, which concededly has not been done and, thus, the order permitting exchange is clearly unsustainable.

¶152

The new Committee has ignored the policy instructions issued by the Government while evaluating the lands offered for exchange. It is provided in the instructions that recommendations very often are sketchy and non-speaking, giving impression of arbitrariness in price fixation. The recommendations of the Committee indeed are sketchy and without the support of any reason. These are, thus, arbitrary. As per the instructions, the only guiding factor can be the price on which the owner will be willing to sell his land and what is the price a buyer would be willing to pay. Location factor and even the direction in which a city is expanding have assumed for greater importance than whether a land is Chahi or Barani or even Banjar. Where are these factors taken into consideration by the Committee?. Earlier the Secretary has clearly evaluated the land keeping in view the potential of both the lands. This exercise is totally missed by the new Committee. The evaluation done is clearly in violation of the instructions issued by the Government. How these recommendations done by the Committee were accepted is beyond comprehension. The assessment is done

¶153

Civil Writ Petition No.5585 of 2008 (O&M) : 27 :

¶154

without basis, without reasons and in utter disregard of the Government instructions. This is done only to benefit respondent No.12. It can not be accepted. All norms appear to have been ignored.

¶155

I am not going further into the submissions made on behalf of the petitioners that the impugned resolution is in violation of the provisions of Sections 23 and 24 of the 1994 Act on the ground that no mandatory 7 days notice and even three days notice as required under Section 23(3) had not been issued. I also need not go into the fact that whether the auction of this land has been properly done or not, which is one of the grounds advanced by the respondents to say that exchange would result in benefit to the Panchayat. Shamlat land of the Panchayat has been found to be much more valuable compared to the land offered in exchange and merely because that it would not fetch lease money is no ground to permit exchange of this land. If this land is of lesser value, then why is the builder interested in getting this land. Truth is entirely different. These are only made up reasons advanced to justify this clandestine exchange. Mere fact that the builder has managed this exchange in a manner as is noted would indicate that this land of a village is of much more value compared to the land offered in exchange and so he has managed this exchange which is achieved with motives.

¶156

The submission by the learned counsel for the respondents to justify this exchange on the ground that similar exchange was upheld by the Division Bench of this court, would also not impress me much. No doubt, the Division Bench of this court has

¶157

Civil Writ Petition No.5585 of 2008 (O&M) : 28 :

¶158

dismissed the writ petition permitting exchange of land belonging to village Sambhalki with the land offered by respondent No.12 and, thus, has up-held the exchange, but in the said writ petition, the requirement of passing a resolution by 3/4^th members of the Gram Panchayat apparently was not at issue. Rather finding in the said case was that the resolution for exchange of this land was passed after following due procedure prescribed under the Punjab Panchayati Raj Act, which is not the case in the present writ petition. In fact, the earlier resolution passed in the said case was re-affirmed by another resolution dated 14.10.2006. Rather, the members have come forward to say that the resolution had been passed after due deliberation and free from influence which is not the case in the present writ petition. The purpose and reason behind this exchange and the valuation done by the Committee constituted apparently also did not receive attention of the Division Bench of this Court. The evaluation now done subsequent to the order passed by this court is without any basis and apparently is arbitrary, cryptic, which aspect appears to have escaped consideration by the Division Bench. Accordingly, the order passed by the Division Bench would be confined to the facts of the case decided. Factual and legal position is not identical in both the cases.

¶159

In result, the present writ petition is allowed. The impugned resolution passed by the Gram Panchayat permitting exchange of this land is set-aside, being in violation of statutory and mandatory requirement. A writ in the nature of certiorari is also issued for quashing the order passed by the Government permitting

¶160

Civil Writ Petition No.5585 of 2008 (O&M) : 29 :

¶161

this exchange which is also in violation of the statutory and mandatory provisions. The valuation done by the Committee, which has been made the basis of permitting this exchange, can also not be sustained, it being arbitrary, cryptic and whimsical. The same is

¶162

also set-aside.

¶163

February 06, 2009 ramesh

¶164

( RANJIT SINGH ) JUDGE

Sucha Singh and Ors. v. State of Punjab and Ors.

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Sucha Singh and Ors. v. State of Punjab and Ors.

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