Back
2019 Supreme(P&H) 1952
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH
Jaswant Singh, Arun Kumar Tyagi, JJ.
Belivers Church,dhumaspur,gurgaon - Appellant
Versus
Divisional Commissioner, Gurugram Division And Others - Respondent
CWP 2032 of 2018 (O&M)
Decided On : 03-04-2019
Mr. Ashok Aggarwal,Senior Advocate assisted by Mr.Alok Jain,Advocate and Mr.Gurminder Singh,Senior Advocate assisted by Ms.Harpriya Khaneka,Advocate for the Appellant; Mr. Lokesh Sinhal,Addl.AG Haryana for the Respondent 1 and 3; Ms. Neha Sonawane,Advocate for Ms. Amrita Garg,Advocate for the Respondent no.2/Zila Parishad, Gurgaon
The main legal point established in the judgment is the court's emphasis on a holistic resolution of factual contentions and the protection of the petitioner's interest in the disputed land, particularly the interest of school children.
Headnote:
Order 39 Rules 1 and 2 CPC - Writ petition under Articles 226/227 of the Constitution - Section 42 of East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act,1948 - Section 340 of the Code of Criminal Procedure, 1973 - IPC 182,191,193,196,209 - Ancient Monuments Preservation Act, 1904 - Ancient Monuments and Archaeological Sites and Remains Act, 1958 - Punjab Ancient and Historic Monuments and Archaeological Remains and Sites Act, 1964 - Haryana Panchayati Raj Act,1994 - Haryana Panchayati Raj Rules,1995 - CM 5172/2019 - CM 9801/2018 - CM 8492/2018 - CM 5529/2018 - CM No.2066/2018
Fact of the Case:
The Believers Church, Dhumaspur, Gurgaon filed a writ petition seeking quashing of an order permitting exchange of land, alleging that the order was reviewed without notice and without possessing the power of review under the 1948 Act. The petitioner also sought to restrain the authorities from dispossessing its peaceful possession or altering its nature during the pendency of the petition.
Finding of the Court:
The court directed a fresh decision by the Commissioner after granting a hearing to all concerned parties. The court upheld the petitioner's claim for protecting the interest of school children and directed the area comprising the passage leading to Baoli not to become a thoroughfare. The court dismissed the writ petition as withdrawn with liberty to parties to take appropriate steps before the Appropriate Authority to materialize the mutually agreed stand between the parties.
Issues: The issues involved the legality of the review of the order permitting land exchange, the authority's power to review under the 1948 Act, and the protection of the petitioner's interest in the disputed land.
Ratio Decidendi: The court emphasized the need for a holistic resolution of the rival factual contentions and directed a fresh decision by the Commissioner after granting a hearing to all concerned parties. The court upheld the petitioner's claim for protecting the interest of school children and directed the area comprising the passage leading to Baoli not to become a thoroughfare.
Final Decision: The writ petition was dismissed as withdrawn with liberty to parties to take appropriate steps before the Appropriate Authority to materialize the mutually agreed stand between the parties. The Appropriate Authority was directed to permit such exchange within six months from the date of the judgment, and conceded possession of the petitioner over the land in question would not be retrieved, if need be, except in due course of law.
JUDGMENT
Jaswant Singh, J. - CM No.2066/2018 has been moved on 8.2.2019 under Order 39 Rules 1 and 2 CPC by the applicant/petitioner for restraining the respondent authorities from dispossessing the peaceful possession of the applicant/petitioner or altering its nature in any manner during the pendency of the petition.
2. CM No.5529/2018 has been moved by the State Archeology and Museum Department, Haryana under Order 31 Rule 4 CPC for vacation of interim injunction order dated 12.1.2018.
3. CM 8492/2018 has been moved by the petitioner for placing on record replication to the written statement of respondent no.2-Zila Parishad, Gurugaon. The said CM is allowed. Replication taken on record.
4. CM 9801/2018 has been moved by the petitioner for initiating appropriate proceedings under Section 340 of the Code of Criminal Procedure, 1973 against Dr. Parveen Kumar, Director General, Archeology and Museum Department,Haryana, Chandigarh for committing the offences punishable under Section 182,191,193,196,209 IPC
5. Petitioner-Believers Church, Dhumaspur, Gurgaon by way of present writ petition under Articles 226/227 of the Constitution is seeking quashing of the impugned order dated 31.10.2017 (P-5) passed by Divisional Commissioner, Gurugram-respondent no.l whereby earlier order dated 29.3.2016 (P-3) passed under Section 42 of East Punjab Holdings (Consolidation and Prevention of Fragmentation)Act,1948 (for short the 1948 Act) permitting exchange of land was reviewed by him at the behest of respondent no.2-Zila Parishad, Gurugram without issuing any notice to the petitioner and allegedly without possessing any power of Review under the 1948 Act. Further prayer was to stay the operation of impugned order P-5.
6. Briefly noticed the facts of the instant petition are that petitioner is running an Eastern Tradition Church and Kindergarten School (upto 4 th Class) under the name and style of "St. Johannes School" having purchased land measuring 15.5. acres in Village Dhumshpur and 14.5 acres in Village Bhondsi from M/s Proagro Seed Company Ltd., after obtaining CLU from Government of Haryana. It is averred that a defunct Baoli (source of water) in dilapidated/defunct condition existed in khasra no.246 in the middle of the land owned by the petitioner which was not being used by General Public. The said defunct Baoli, surrounded by weeds etc. became a breeding ground for reptiles and animals thereby causing hindrance and obstruction in the smooth running of the School and posing a danger to children.
7. Accordingly, petitioner with a view to exchange equivalent land owned by it in lieu of said defunct Baoli, comprised in khasra no.246, moved an application dated 25.1.2016 under Section 42 of the 1948 Act before respondent no.l wherein State was impleaded as a party respondent. After summoning records, Respondent no.l-Commissioner,Gurugam passed order dated 29.3.2016 (P-3) in purported exercise of Section 42 of 1948 Act,whereby the applicant/petitioner was permitted to exchange 2 kanals of land owned by District Board/Haryana State comprised in Khewat No. 1653 killa no.246 situated in Dhumaspur/Badshahpur and 1 kanal 6 marlas of land forming a sare-aam-rasta owned by Municipal Corporation,Gurgaon comprised in khewat No. 1653 Killa No.5 i.e. total land measuring 3K6M with 3K6M of land owned by the petitioner in Khewat No.440,Killa No. 165/11/2. The said order was implemented in revenue records with the sanction of mutation no.9782 dated 21.4.2016 by Assistant Collector,Second Grade, Gurugram vide Annexure P-4.
8. Thereafter, one Ashok Kumar, claiming to be a resident of Village Badshahpur challenged the said order dated 29.3.2016 (P-3) and mutation 9782 (P-4) by filing CWP 22652/2016 before this Court. During the pendency of the said petition, respondent no.2-Zila Parishad preferred application dated 25.1.2017 seeking review of the order dated 29.3.2016 (P-3) and the same was allowed by respondent no.l vide impugned order dated 31.10.2017 (P-
