Baj Singh vs State of Punjab and Others

R.S. Mongia, J.—In the Panchayat elections held in 1974, petitioner Baj Singh was elected as Sarpanch of Gram Panchayat, Chottian Kalan, Tehsil Moga, District Faridkot. Prior to the election of the petitioner as the Sarpanch, there were satna other persons who were elected as the Sarpanches.

A complaint was made against the petitioner that he had illegally grabed the land of the Gram Panchayat by getting sale deeds in favour of his close relatives. Even the mutations had been sanctioned in favour of the purchasers. This was reported by the District Development & Panchayats Officer, Faridkot on 3rd September, 1987. On these allegations it was alleged that the petitioner had misused his office as Sarpanch. A regular enquiry against the petitioner was ordered u/s 102(1) of the Punjab Gram Panchayats Act, 1952 (hereinafter referred to as the Act). A regular enquiry was conducted by the Naib Tahsildar. According! to the Naib Tahsildar, the following charges stood proved against the petitioner :

"That Baj Singh, Sarpanch and some other members (Now Ex. members) in connivance with the employees of Revenue Department have distributed the land in his and other co-villagers'' names, which was mutated in favour of Shamlat Deh vide mutations No. 4521 and 4522 with the orders of A.C.-II, dated 30-4-68 measuring 5 Kanals 9 Marias and 133 Kanals 53 Marias (Total 137 Kanals 4 Marias). "No action was taken by Shri Baj Singh, Sarpanch in this regard."

On the basis of the above allegations, a show-cause notice u/s 102 (2) of the Act, was issued to the petitioner, as to why he should not be removed from the office of the Sarpanch and disqualified from contesting the election of the Panchayat for the next five years. A reply was submitted by the petitioner and he was also given a personal hearing on 21st December, 1988."

During the course of personal hearing before the joint Director, Panchayats (exercising the powers of the Director of Panchayats) the petitioner had submitted that he had not distributed the Panchayat land amongst him or his relatives. The Execution and registration of deeds had been done in the Registrar''s office by the owners of the land. It was objected to by him but after he failed, he stopped the purchasers to enter upon the land. His co-villagers took the case to the Judicial Court, where he contested, but since there was no entry in favour of the Panchayat in the revenue record, the case was decided against the Panchayat. He had filed an appeal against the said order in the Court of District Judge. As there was no ownership of Panchayat recorded in the revenue record, the appeal went against the Panchayat. It was further stated that during the consolidation some land had been reserved for common purposes, which had been got pro rata from the landowners. After the use of the land for common purposes some area was left which was shown in the revenue record as ''Mushtarka Malkan'' in the column of ownership. On account of this entry in the revenue record, the co-villagers started selling and purchasing their shares and when this was being done, he had informed the Block Development & Panchayat Officer. About the interpolation of record, he had stated that the mutations were entered in the year 1968 and neither he was Sarpanch during that period nor a Panch. This record was not in his possession. The pleas of the petitioner were rejected and he was ordered to be removed from the office of the Sarpanch vide order of the Joint Director, Panchayats, dated 2nd February, 1989 (Annexure P. 10). The appeal of the petitioner against the order of removal was also dismissed by the Joint Secretary to Government, Punjab, Rural Development and Panchayats Department, vide order dated 17th October, 1989 (Annexure P. 11). The present writ petition has been filed by the petitioner impugning the orders, Annexures P. 10 and P. 11.

Before adverting to the points raised by the learned counsel for the petitioner, it may be observed that here is no dispute over the fact that prior to the consolidation in the village, there was no Shamlat land and it was only during the consolidation that under the scheme, an area of 831 Kanals 18 Marias was reserved for common purposes by imposing pro rata cut from the land of the right-holders. According to the writ petitioner, the entire land so reserved for common purposes during the consolidation, had not been so utilised and some area remained after utilization for common purposes.

The point raised by Mr. Jagan Nath Kaushal, Senior Advocate, learned counsel for the petitioner, was that if any land is left unutilised from the land reserved for common purposes, then that land is a Bachat land and must revert to the right-holders and it cannot vest in the Gram Panchayat. The precise argument was that the land which is alleged to have been sold or exchanged by the petitioner, did not belong to the Gram Panchayat, and, in fact, it was a Bachat land and, therefore, according to the learned counsel, the charge that the petitioner had misused his office as Sarpanch by grabbing the land or allowing the selling or exchange of the land which belonged to the Gram Panchayat, would fall to the ground. In other words, if the finding is that the land which was left un-utilised, belonged to the Gram Panchayat, then the petitioner has no case and if it is held that the land was Bachat land and could not vest in the Gram Panchayat, then the charge would fall to the ground. The petitioner had raised this point before the Authorities below and the appellate Authority has noticed it as under :-

"It was also argued that the land in dispute is ''Mushtarka Malkan'' and the Gram Panchayat had no authority to give it oh1 lease. The Gram Panchayat was giving this land on lease wrongly, in the past."

The respondents'' counsel, on the other hand,- urged that the entire land, which was reserved for common purposes had been mutated in favour of the Gram Fanchayat and earlier on, the land which had been left un-utilised was being leased out by the Gram Panchayat and even the present petitioner had also leased out the land earlier on behalf of the Gram Panchayat, and, therefore, the petitioner could not say now that the land did not belong to the Gram Panchayat. Once the land was mutated in favour of the Gram Panchayat, it was the duty of the Sarpanch to utilise the land for the benefit of the inhabitants of the village. It was further argued by the learned counsel for the respondents that it had been specifically provided in the Consolidation Scheme that the land reserved for common purposes shall be the property of the Shamlat Deh and if any area remains out of it, the same shall be left near the village, which shall be the property of the Shamlat Deh. It has further been provided in the Scheme that the Shamlat Deh constituted under the Scheme shall not be divided.

In the interest of justice and to satisfy myself, I had sent for a report from the Naib Tahsildar, Moga, as to how much land remained un-utilised out of the land reserved for common purposes and whether the alleged tinkering of the land by the petitioner was out of the land which had remained un-utilised from the common purposes land. The Naib Tahsildar submitted his report, which has been kept on the record, in which it has been mentioned that 831 Kanals 18 Marias of land was reserved for common purposes, the detail of which has also been attached. Further; it has been mentioned that there was no Shamlat land in the village before the consolidation of holding. Out of the above-mentioned land reserved for common purposes, only area of 645 Kanals 15 Marias was utilised for common purposes, of which detail has been given. The area of 186 Kanals 3 Marias remained un-utilised as Bachat land. The details of the same have also been attached. After implementing exchange of land vide Mutation. Nos. 4521 and 4522, the un-utilised land comes to 198 Kanals 18 Marias, the detail of which has also been annexed with the report. Out of this 198 Kanals 18 Marias, 191 Kanals 12, Marias''-had been sold by various persons, the details of which have also been attached. Baj Singh Sarpanch had sold 4 Kanals 8 marlas of land out of the Bachat land.

The learned counsel for the petitioner strongly relied on the judgment of this Court in Gram Panchayat Vs. Director, Consolidation of Holdings and Others, .

The precise point considered by the learned Judge was as follows : -

"In that context, the narrow point for consideration which falls for adjudication in the present cases is, as to whether once a certain area of land is ear-marked by imposing a pro rata cut on the holdings of the proprietors and all the common purposes for which the land was taken stand fully satisfied by the utilization of the land required for each such purpose the remaining that is Bachat (Land) should be re-distributed back to the proprietors from whom it was taken or it should be allowed to remain with the Panchayat for income of the Panchayat by leasing it out to the lesser Harijans or non-Harijans, village proprietors, etc."

The learned Judge answered the question by relying upon the earlier authorities of this Court in the following terms :-

"After the controversy was settled by the Full Bench judgment of this Court in Gram Panchayat Sadhraur (Formerly Dhumma) etc. v. Baldev Singh, 1977 PLJ 276, the consistent view is that the land (Bachat) deducted from the holdings of the proprietors should be re-distributed amongst the proprietors pro rata (Hasab Rasad Khewat). For authority, reference be made to the judgment of D. S. Tawatia, J., in Gurdial Singh v. The State of Haryana, 1979 PLJ 350 and Des Raj v. The Gram Sabha of Village Ladhot, 1981 PLJ 300 by J. V. Gupta, J. (as his Lordship then was)."

On the basis of the above-said authority, the learned counsel submitted that the land, which was Bachat land, could not remain a common purpose land and would vest in the ''Mushtarka Malkan'' from whom the land was initially taken for common purposes. It had to be re-distributed amongst the landowners. The learned counsel also submitted that it was not the charge whether the land had been re-distributed properly or not ? The charge against the Sarpanch was that he had mis-utilised the land belonging to Gram Panchayat. Since, according to the learned counsel, land did not belong to the Gram Panchayat and in fact belonged to the ''Mushtarka Malkan'', the charge could not be said to have been proved. It was further submitted that even if previously the land Was being leased by the Gram Panchayat and even by the petitioner, that would not vest the land in the Gram Panchayat, as any land which is utilised for the income of the Gram Panchayat cannot be said to be the land reserved for common purposes and would not vest in the Gram Panchayat. For this proposition, the learned counsel relied upon a Supreme Court judgment in Bhagat Ram and Others Vs. State of Punjab and Others, .

I find force in the arguments of the learned counsel for the petitioner. The land in dispute admittedly was Bachat land and would not vest in the Gram Panchayat. This is the legal position. The fact that previously the land was being leased out by the Gram Panchayat or the petitioner himself was leasing the land, would not debar the petitioner from taking the legal position that in fact what was being done was wrong, as the land did not belong to the Gram Panchayat. The mutations, which were earlier entered in the name of the Gram Panchayat, would also not change the legal position. Moreover, these mutations stood tampered; with and there is no evidence on the record that it was the petitioner who had done the tampering. In this view of the matter, the change that the petitioner had misused his position as a Sarpanch qua the land belonging to the Gram Panchayat cannot be said to be proved, inasmuch as the land in dispute itself never belonged to the Gram Panchayat.

For the foregoing reasons, the writ petition is allowed and the orders, dated 2nd February, 1989 and 17th October, 1989 {Annexures p. 10 and p. 11) are hereby set aside. However, there will be no order as to costs.