Back
HIGH COURT OF PUNJAB AND HARYANA
M. M. Kumar, ACJ, Alok Singh, J
Hinduwan Shamshan Bhumi – Appellant
Versus
State Of Haryana – Respondent
CWP No. 11916 of 2010
For the Appellants/Petitioners: Amandeep Sibia
For the Respondents: Narender Singh, Anil Ghangas
A Gram Panchayat cannot unilaterally exchange or change the user of Shamilat Deh land from public purposes like a cremation ground to commercial use without obtaining the mandatory prior approval of the State Government as required by Rule 5 of the Punjab Village Common Lands (Regulation) Rules, 1964.
Headnote:(A) Punjab Village Common Lands (Regulation) Act, 1961 - Section 2(g), 5 and 15 - Punjab Village Common Lands (Regulation) Rules, 1964 - Rule 5 - Exchange of land - Requirement of prior approval of Government - Gram Panchayat resolution seeking to exchange cremation ground land for commercial usage without government sanction is illegal. (Paras 11, 12, 13)
(B) Writ Jurisdiction - Scope of judicial intervention - When the nature of shamilat land is changed from public use (cremation ground) to commercial use, it requires government sanction, failing which resolutions are set aside. (Paras 12, 13, 17)
Facts of the case:
The petitioner society sought directions for construction of a boundary wall around a cremation ground, for which they had collected and deposited funds. The Gram Panchayat, however, passed resolutions seeking to exchange this land for other plot to utilize the original site for commercial purposes, citing its location on a state highway, while alleging that the petitioner had ulterior motives.
Findings of Court:
The court held that any transfer or exchange of shamilat deh land requires the prior approval of the State Government under Rule 5 of the 1964 Rules. The resolutions passed by the Gram Panchayat for commercial conversion of the cremation ground were passed without such mandatory approval and were consequently invalid.
Issues: Whether a Gram Panchayat can unilaterally exchange shamilat land reserved for public use (cremation ground) for commercial purposes without State Government approval.
Ratio Decidendi: Under Rule 5, a Panchayat can only exchange shamilat land for the benefit of villagers if it obtains prior approval from the Government. Changing the nature of land from a cremation ground to commercial property transcends the competence of the Panchayat alone.
Result: Petition allowed; the resolutions of the Gram Panchayat dated 10.3.2008 and 31.10.2011 were set aside, and the authorities were directed to proceed with the boundary wall construction.
| Table of Content |
|---|
| 1. summary of dispute regarding the construction of a cremation ground boundary wall. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10) |
| 2. requirement of government approval for exchanging common land. (Para 11 , 12 , 13 , 14 , 15 , 16) |
| 3. final order setting aside the resolutions and directing the construction. (Para 17) |
M.M. KUMAR, Acg. CJ.
1. The short issue raised in this petition filed under Article 226 of the Constitution is whether a resolution passed by the Gram Panchayat for exchange of land could be implemented without the approval of the State Government. The petitioner has filed the instant petition with a prayer to direct the respondents to construct a boundary wall on the land bearing Khasra No. 475, measuring 5 Kanals 15 marlas, situated in the revenue estate of Tosham, Tehsil Tosham, District Bhiwani, which has been described as ‘Gair Mumkin Shamshan Bhumi’ as per the jamabandi for the year 2001-02 (P-6). In the column of owner the aforementioned land is shown in the name of ‘Shamilat Hindwan’ and in the column of cultivator it is shown to be possessed by ‘Ahel-E-Hanud’.
2. Brief facts of the case may first be noticed. At the outset it is pertinent to mention that ‘Hinduwan Shamshan Bhumi’, situated in Khasra No. 475, is situated on Tosham-Bhiwani State Highway and surrounded by the residential locality, adjoining to the Government Senior Secondary School and a Harbal Park. The petitioner is a society registered under the Society Registration Act, 1980. It has collected a sum of `50,000/- from the inhabitants of the village for the purpose of construction of a boundary wall around Hinduwan Shamshan Bhumi so that illegal possession and encroachment could be avoided.
3. On 18.6.2007, the President of the petitioner Society made a complaint to the Grievance Redressal Forum, District Bhiwani with regard to non-construction of boundary wall around the Hinduwan Shamshan Bhumi because of the attitude of the Sarpanch, Tosham (P-5). The petitioner even offered to deposit the collected sum of `50,000/- with the Gram Panchayat for carrying out the construction work of the boundary wall. On 10.7.2007 the petitioner deposited the said amount in the account of the Gram Panchayat i.e. in the Bhiwani Central Co-operative Bank Ltd., Tosham (P-8 & P-9). On 10.7.2007 itself, the Block Development and Panchayat Officer-respondent No. 2 directed the Sarpanch, Gram Panchayat, Tosham, to start construction of the boundary wall of the cremation ground (P-10). On 14.10.2007, the petitioner again brought to the notice of Sub Divisional Officer (Civil), Bhiwani, the fact that despite deposit of a sum of `50,000/- and the orders passed by the BDPO-respondent No. 2, the Sarpanch of the Gram Panchayat is not paying any heed for the construction of the boundary wall (P-12). On 18.10.2007, the BDPO, Tosham respondent No. 2 again wrote a letter to the Sarpanch asking him to clear his position for not raising construction of the boundary wall in the land bearing Khasra No. 475 (P-13). On 5.10.2009, a representation was also sent by the petitioner to the Deputy Commissioner, Bhiwani, seeking his intervention (P-11). When nothing was done, the petitioner filed the instant petition.
4. In the written statement filed on behalf of respondent No. 1 to 4, a preliminary objection has been raised that the petitioner has not approached this Court with clean hands and concealed material facts. It has been pointed out that some villagers of village Tosham belonging to Hinduwan Community, filed a suit for permanent injunction bearing Civil Suit No. 316-S of 2000 in the Court of Civil Judge (Junior Division), Bhiwani. The prayer made in the said suit was for restraining the defendants from encroaching and changing the nature of any part of Gair Mumkin Shamshan Bhumi comprised in Khewat No. 1983/1883, Khatoni No. 2826, Khasra No. 475 (5-15), situated in the revenue estate of Tosham, Tehsil Tosham, district Bhiwani. Shri Bal Kishan, father of Shri Raj
