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2008 Supreme(P&H) 1951
2009 (3) RCR(Civ) 665
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
SATISH KUMAR MITTAL and JASWANT SINGH, JJ.
Gram Panchayat Saskaur, Tehsil Anandpur Sahib, District Roopnagar -PETITIONER
Versus
State of Punjab and others -RESPONDENTS
C.W.P. No. 361 of 2008
Decided on: 21.11.2008
Advocate Appeared:
Mr. Dharampal, Advocate, for the petitioner.
Mr. N.D.S. Mann, Addl. A.G., Punjab, for respondents No.1 to 3.
Mr. N.P.S. Mann, Advocate, for respondents No.4 to 6.
The Gram Sabha has no power to decide the shifting of a cremation ground, and the Director can cancel a resolution passed by a Panchayat if it is contrary to the provisions of the Act.
Headnote:
Panchayat - Cremation Ground - Punjab Panchayati Raj Act, 1994, Section 199 - The court discussed the powers of the Director to cancel a resolution passed by a Panchayat, the jurisdiction of Gram Sabha to take decisions, and the suitability of a new site for a cremation ground.
Fact of the Case:
The Gram Panchayat filed a petition to quash the order cancelling the resolution for shifting the cremation ground. The Gram Sabha had passed a resolution to shift the cremation ground due to foul smell and the existing ground being a low lying area.
Finding of the Court:
The court found that the resolution passed by the Gram Sabha was without jurisdiction and contrary to the provisions of the Act. It upheld the orders cancelling the resolution, stating that the Gram Sabha has no power to decide the shifting of a cremation ground.
Issues: Jurisdiction of Gram Sabha to pass resolutions, powers of the Director under Section 199 of the Act, and the suitability of the new site for the cremation ground.
Ratio Decidendi: The Gram Sabha has no power to decide the shifting of a cremation ground, and the Director can cancel a resolution passed by a Panchayat if it is contrary to the provisions of the Act.
Final Decision: The writ petition was dismissed, upholding the orders cancelling the resolution for shifting the cremation ground.
SATISH KUMAR MITTAL, J.
1. Gram Panchayat, Village Saskaur, Tehsil Anandpur Sahib, District Roopnagar, has filed this petition under Articles 226/227 of the Constitution of India for quashing the order dated 5.10.2006, passed by the Joint Director, Rural Development and Panchayat Punjab, Chandigarh, in exercise of the powers of the Director, Panchayat, Punjab, whereby the resolution dated 6.1.2006, passed by the Gram Sabha was cancelled; and the order dated 29.10.2007, whereby the revision filed by the Gram Panchayat against the said order has been dismissed by the Secretary, Rural Development and Panchayat, Punjab, Chandigarh.
2. The brief facts of the case are that during the consolidation in the village, an area of 1 Kanal 18 Marlas bearing Khasra No. 41 was reserved for cremation ground. Since then, the said land was being used as cremation ground of village without any difficulty.
3. On 6.1.2006, the `Gram Sabha', Village Saskaur, passed a resolution for shifting the said cremation ground from Khasra No.41 to an area of 2 Kanals out of the total area of 15 Kanals 19 Marlas, in Khasra No. 7//16/4, 14/2 and 15, belonging to the Gram Panchayat on the ground that the existing cremation ground adjoins Hadda Rori and skinning of dead animals and is emitting of foul smell. In pursuance to this resolution, the petitioner Gram Panchayat passed a resolution dated 29.5.2006, approving the expenses of Rs. 70,000/-for construction of the shed in the new cremation ground.
4. The above said resolution dated 6.1.2006 was challenged by some of the inhabitants of the village by filing a petition under Section 199 of the Punjab Panchayati Raj Act, 1994 (hereinafter referred to as `the Act'), which empowers the Director to cancel any resolution passed by a Panchayat if, in his opinion, such resolution (a) is not legally passed; or (b) is in excess of abuse of the powers conferred by or under this Act or any other law; or (c) is contrary to the interests of the public or, likely to cause waste or damage of Samiti Fund or Zila Parishad Fund or of property of a Panchayat Samiti or Zila Parishad; or (d) on its execution is likely to cause danger to human life, health or safety or is likely to lead to a riot or affray.
5. The Joint Director, while exercising the powers of Director, vide order dated 5.10.2006, cancelled the said resolution, while observing as under :
“The Gram Sabha Saskaur had passed resolution dated 6.1.2006 to the effect that Khasra No. 41 (1 Kanal 18 Marla) was reserved for cremation ground during consolidation and the area where the Panchayat wants to change the cremation ground having Khasra No. 6/11/1 measuring 7 Kanals 2 Marlas was kept reserved for grazing ground. The place where the present shamshanghat is situated is connected with a passage and is at a distance of approximately 1 K.M. from the village. At the spot no water was stagnant on the place. The place were the Gram Panchayat wants to shift the cremation ground is not connected with a passage and is meant for grazing ground. The Khasra No. 41 where the present cremation ground is existing is adjacent to the land owned by Jasbir Singh Sarpanch. The place where the cremation ground is desired to be shifted is away from the road and is not connected with any passage. As such, the resolution of the Gram Sabha dated 6.1.2006 passed in connection with shifting of cremation ground has not been signed by 1/5 members of Gram Sabha. This resolution has been passed by him keeping in view his personal interest.”
6. Against the said order, the petitioner Gram Panchayat filed revision petition before the Government. The Secretary, Rural Development and Panchayats, Punjab, Chandigarh, vide his order dated 29.10.2007, dismissed the said revision, while observing as under :
“The record show that on 18.8.2006, both the parties before respondent No.1 agreed that the matter be decided after the spot inspection. The respondent No.1 inspected the spot on 8.9.2006 in the presen
