Gram Panchayat Village Jawhri and another vs Harnarain and others

M.S. Liberhan, J.—This revision petition arises out of an order of the learned Additional District Judge, Sonepat dated 24.4.1984 restraining the Gram Panchayat not to prevent the Plaintiffs from using the manure pits for storing the cow dung etc. of the Plaintiff-Respondents.

The undisputed facts are that during consolidation proceedings Khasra No. 166/2 in the suit land was reserved for the common purpose of the village for using as pits for storage of manure of the villagers in view of Section 18 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948. The management of the land so reserved for common purpose vests in the Gram Panchayat.

The villagers complained to the Gram Panchayat, that the pits are near the extended Abadi, a cause for spreading of diseases, polluting the village pond near it and are the cause of sickness of the people as well as the animals of the village. The Gram Panchayat passed the resolution for the closing of manure pits and giving an alternative site at a distance of 200 yards from the site in dispute in Khasra No. 70/2/2 vide resolution dated 16.9.1988 which was affirmed by the Deputy Commissioner.

The Plaintiff-Respondents brought a suit for injunction restraining the Gram Panchayat from interfering with the pits and prayed for an ad interim injunction. The trial Court declined the injunction. However, the lower Appellate Court granted the injunction, inter alia, observing that the Gram Panchayat had no jurisdiction to change the user of the land in dispute as the some was reserved by the Consolidation authorities for manure pits and it cannot be used for any other purpose.

The learned Counsel for the Petitioner challenged the finding of the lower Appellate Court by contending that it had acted with material irregularity in exercise of its jurisdiction by observing that the Full Bench judgment reported in Bishamber Dayal v. State of Haryana and Ors. (1986-1) 89 P.L.R. 341, is not applicable to the facts and circumstances of the present case. It is further contended that the Gram Panchayat has been able to construct brick lining almost upto 100 yards of the bond except the pits falling on the way. Thus the entire village community is suffering and has been thrown open to vegaries of diseases and the weather apart from the foul smell etc. emitting from the pits in dispute.

The learned Counsel for the Respondents refutes the submissions made by the learned Counsel for the Petitioners and contends that there is no error of exercise of jurisdiction nor any material irregularity has been committed in exercise of the same. Consequently, this Court should not interfere in exercise of its reivisonal jurisdiction. In support of his contention, he has cited Shri M.L. Sethi Vs. Shri R.P. Kapur, , Secretary to Government, Ministry of Home Affairs, Punjab, Chandigarh and Ors. v. Krishan Kumar and Ors. (1985-2) 88 P.L.R. 535 and Deep Ram v. Nanak Chand (1979) 81 P.L.R. 695. It is further contended that the Gram Panchayat has got no jurisdiction or authority to change the user of the land in dispute for which it was reserved by the consolidation authorities. It is further submitted that change of user will not fall within the purview of the term management. The learned Counsel for the Respondents contends that the judgment in Bishamber Dayal''s (supra) case relates to an authority of the Gram Panchayat for change of user of the property which was vested in it under the Punjab Village Common Lands (Regulation) Act, 1961, and it does not relate to the land vested under the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948.

Lastely, learned Counsel for the Respondents prayed that let the suit be decided expeditiously and status quo be maintained till then.

In my considered opinion, in view of the admitted facts, the lower appellate court has acted with material irregularity while it failed to take into consideration that when the property is admittedly vested in the Gram Panchayat for its management, it was prima facie within the purview of the Gram Panchayat to change the user keeping in view of the exigency of the matter particularly when an alternative site has been offered to the users of the property in dispute. It was prima facie for consideration of the Gram Panchayat to see to the health of the villagers and their cattle. The judgment cited in Bishamber Dayal''s case (supra) clearly covers the facts in hand. Prima facie, it is of no consequence whether the property vested in the Gram Panchayat for its management only or absolutely. If the Gram Panchayat is Dot permitted to use the site in question and give an alternative site to the Plaintiffs, then the management of the property will become irrelevant. Not only this even under the provisions of Section 18 of the said Act of 1948 which authorises the consolidation authorities to reserve the land for any purpose the authorities cannot fix a purpose for all times to come. In case the impugned order is allowed to stay, the villagers would suffer irreparable injury and it may result in failure of justice. Nothing has been pointed out in the course of arguments how the declining of the injunction order can occasion in failure of justice to the Plaintiff Respondents in view of the admitted fact particularly stated by the counsel for the Petitioners at the Bar that an alternative site for manure pits has already been offered to the Plaintiff Respondents at a distance of hardly 200 yards.

An observation was made by the learned lower Appellate Court that the land had been reserved for a common purposes and in view of the provisions of Haryana Common purposes, Land Eviction and Rent Recovery Act, 1985, and land reserved for the common purposes of a village, the management and control whereof vests in the State Government or the Gram Panchayat, shall have to be deemed as public premises for the purposes under the Act of 1972, and the previsions thereof are to be applied to such land Nothing has been pointed out nor I could make out after reading the provisions of that Act how these provisions are relevant and what are the reasons to make the judgment cited in Bishamber Dayal''s case (supra) in applicable. The lower appellate Court is again silent with respect to the balance of convenience and irreparable injury except the statutory words having been reproduced in the judgment.

10 There is no dispute with the law laid down by the judgments cited by the learned Counsel for the Respondents. But in view of the peculiar facts and circumstances of this case and the material irregularity pointed out in my observations made above, the said judgments are not applicable to the present case. The observations made by me above shall not be taken into consideration while deciding the suit on merits.

As a result of the above observations of mine, the revision petition is accepted and the impugned order dated 24 4 1989 of the learned Additional District Judge, is set aside subject to the condition that the Petitioners shall continue the offer of manure pits in Khasra No. 70/2/2 to the Plaintiff-Respondents. There will be no order as to costs.