Monday, December 2, 2013

KULDIP SINGH Vs. STATE OF PUNJAB, CRM No. 23125 of 2011 [Punjab & Haryana High Court] on May 29, 2012

CRM No. 23125 of 2011 in/and CRM No. M-49595 of 2007; and CWP Nos. 1973, 3536, 3537, 3538 and 3539 of 2010

Present:

Amicus Curiae:                                                 Mr. Arun Jain, Sr. Advocate with
Mr. Amit Jain, Advocate,
Mr. M.L. Sarin, Sr. Advocate with
Mr. Hemant Sarin, Advocate,

For the petitioner(s):                                         Mr. P.S. Bhangu, Advocate,

For the respondents(s):                                     Mr. Ashok Aggarwal, A.G. Punjab with
Ms. Reeta Kohli, Addl. A.G. Punjab
Mr. Puneet Bali, Sr. Advocate with
Mr. Shaurya Sharma, Advocate
Mr. Maharaj Kumar, Advocate,
Mr. S.N. Saini, Advocate.

M.M. KUMAR, Acq. C.J.

1. This bunch of petitions have brought to the fore the issue of sale/purchase of various types of public land which is described in the revenue record as 'Jumla Mlishtarka Malkan·. 'shamlat deh', forest land and 'Nazulland' etc. In the order dated 27-03-2012, passed by this Court a detailed reference was made to the transaction in respect of one village Mubarikpur and it has been indicated that the public property described in the revenue record as 'Jumla Mushtarka Malkan Wa Digar Haqdararn, could not be subjected to sale because its management and control vested in the Gram Panchayal. However, the sale deeds were executed by the so called proprietor on the basis of determination of holding of vendors. It has been pointed out that the Registrar of Documents and the Deputy Commissioner didn’t bother to protect public property and permitted the execution of sale deed in respect thereof.

2. It would be profitable to read various orders passed at different stages of hearing of these cases. When notice of motion was issued on 5-2-20 I0, the Division Bench has passed the following order:

"Counsel for the petitioners submits that the land in dispute is recorded as Jumla Mushtarka Malkan. As per Rule 16 (ii) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949, (hereinafter referred to as 'the Rules'), land which is earmarked and reserved for common purposes, after imposing a cut from the holding of proprietors is described as Jumla Mushtarka Malkan. Rules 16 (ii) further states that such land shall belong to the proprietors but vests in the Gram Panchayat for the purpose of management and control. As a consequence, a proprietor cannot sell any portion of Jumla Mushtarka Malkan land and the authorities have no jurisdiction to register a sale deed or record a mutation in favour of a vendee. It is submitted that despite this legal impediment, respondent NO.5 to 3I have executed and registered a sale deed of their alleged share in Jumla Mushtarka Malkan land of village Mubarikpur in favour of respondent No.32. Despite the petitioners having brought this illegal sale deed to the notice of the concerned authorities, the Collector, the Commissioner and the Financial Commissioner have ignored this fraud with mala fide intent."

I have heard counsel for the petitioners and perused the paper book.

It appears that Jumla Mushtarka Malkan land situated within the revenue estate of village Mubarikpur is being sold with impunity and with the active connivance of revenue authorities. At the oral request of counsel for the petitioners, the Deputy Commissioner, S.A.S. Nagar Mohali is impleaded as respondent No. 33 and the Gram Panchayat, Mubarikpur is impleaded as respondent No. 34. Office is directed to carry out necessary corrections in the Memorandum of Parties. Notice to show cause to the respondents for 15-2-2010 why the sale deed and the mutation be not cancelled being null, void and contrary to the provisions of law. The Deputy Commissioner, S.A.S. Nagar, Mohali, is directed to appear in person on the next date of hearing along with the relevant record of the Jumla Mushtarka Malkan land, situated in village Mubarikpur and file his personal affidavit. It is made clear that the respondents shall not alienate the land in dispute of create any third party interest therein. At the asking of the Court, Mr. S.S. Sahu, AAG, Punjab accepts notice on behalf of the respondent No. I to 4 and the Deputy Commissioner, S.A.S. Nagar, Mohali and prays for time to seek instructions. A copy of this order be handed over to Mr. S.S.Sahu, AAG, Punjab under signatures of the Special Secretary of this Court."

3. In pursuance to the aforesaid order, the Deputy Commissioner, S.A.S. Nagar, Mohali filed reply on 15- 2-2010 and the following order was passed:

"Mr. Prabhjot Singh Mand, IAS, Deputy Commissioner, SAS Nagar, Mohali, is present in Court and has filed a short reply by way of affidavit dated 15-2-2010, which is taken on record. The Deputy Commissioner, S.A.S. Nagar, Mohali is directed to examine the transfer of land and sale deeds etc. and furnish the entire report to this Court.
Respondents No.5 to 32 and 34 are not served for want of process fee.
Let fresh notice be issued for effecting service upon respondents No.5 to 32 and 34, returnable on 10-03-2010.
Process dasti only. "

4. On 23-02-2012, after hearing the parties, the Division Bench proceeded to pass the following order:

"The case in hand, relates to sale of public property, viz., land, admittedly, described, in the revenue record, as Jumla Mushtarka Malkan Wa Digar Haqdaran. Rule 16 (ii) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949, prescribes that though ownership of such land vests in proprietors, its management and control lies with the Gram Panchayat. The sale deeds in the present case were executed, by the so called proprietors, on the basis of dubious determinations of shareholdings of venders. The Registrar of documents and the then Deputy Commissioner have not bothered to protect public property and permitted sale of panchayat property. Pursuant to an earlier order, we had sought a response from the Deputy Commissioner. The reply filed by the then Deputy Commissioner reveals a stand that proprietors have only sold possessory rights. 

The reply has been filed by ignoring Rule 16 (ii) of the Rules, as possessory rights of such a land as well as its management and control vest with the Gram Panchayat. The Deputy Commissioner, S.A.S.Nagar, Mohali, who is present in person, is directed to take a decision in the matter, preferably, before the next date of hearing. The Deputy Commissioner shall also file an affidavit setting out the number of sale deeds relating to, Samilat Deh and Jumla Mllshtarka Malkan in Zirakpur, Derabassi, Mubarikpur, Bhankarpur snd Majri.

It is made clear that this order shall not be construed to be our final opinion in the matter.

To come up on 07-3-2012.

A photocopy of this order be placed on the files of other connected cases."

5. A significant stage came when the Deputy Commissioner filed affidavit in pursuance of order dated 07-03-2012 disclosing colossal violation of law and the same reads as under:

"On 07-03-2012, another order was passed directing the Deputy Commissioner, S.A.S. Nagar, Mohali, to file an affidavit with respect to sale ofShamilat deh and Jumla Mushtarim Malkan land in District S.A.S. Nagar, Mohali. The Deputy Commissioner has filed an affidavit, in Court today, setting our details of sale deeds of Shamilat deh and Jumla Mushtarka Malkan land in the district. The Deputy Commissioner has directed a total of 858 sale deeds pertaining to Shamilat deh and Jumla Mushtarka Malkan land, registered upto 2012 in District S.A.S. Nagar, Mohali. A perusal of the affidavit reveals a shocking state of affairs as approximately 1953 acres of Shamilat Deh/Jumla Mushtarka land, prima facie, belonging to Gram Panchayat, have been sold in and around the periphery of Chandigarh and in the District of S.A.S. Nagar, Mohali.

We are of the firm opinion that a monumental fraud has been played on the rights of the Gram Panchayat and public property, held by Gram Panchayats, has been misappropriated by unscrupulous proprietors, in league with vendors, a large number of whom appear to be property dealers, builders and property developers. We, however, do not express any final opinion as to the right of the parties, but would require the Deputy Commissioner, S.A.S. Nagar, Mohali, to file a detailed affidavit by 30-03-2012, giving the steps he proposes to take against the vendors, the vendees, the person who allowed registration of the sale deeds and the Gram Panchayats who did not raise any plea with respect to their title.

Adjourned to 30-03-2012.

At this stage, Shri Som Nath Saini, Advocate, states that the petitioners are in unauthorized occupation of 4 acres of panchayat land. The petitioners are directed to file an affidavit whether this fact is true?
We request Shri M. L. Sarin, Senior Advocate, who is present in the Court to assist the Court as an Amicus Curiae, in this case. A copy"of the paper book along with the affidavits and the interim orders passed by this Court be handed over to Shri M.L. Sarin, Senior Advocate.

A copy of this order be handed over to Mr. Amit Chaudhary, DAG, Punjab, under signatures of the Court Secretary of this Court."

6. The aforesaid proceedings were in progress before the Division Bench headed by Rajiv Bhalla, J. And on the request made by Shri M.L.Sarin, Sr. Advocate who was amicus curiae before that Bench and keeping in view the similarity of issue pending before this Court, we directed listing of those cases before us.

7. In the proceedings which have been in progress before this Court including CRM No. 23125 of 2011, a number of orders have been passed by this court. It is also appropriate to refer to Rule 12 of the Punjab Village Common Lands (Regulation) Rules, 1964 (as applicable to Punjab) [for brevity, 'the Rules'), which regulates the sale of land -described in the revenue record as 'shamlat deh '. There are limited purposes for which the land could be sold with the previous approval of the State Government as specified in Rule 12 of the Rules. Likewise, Rule 12-A also permits 'transfer of land' to the instrumentality of the State for a public purpose. There is no provision either in the Rules or in the Punjab Village Common Lands (Regulation) Act, 1961 (for brevity, 'the Act') permitting sale of land described as 'shamlat deh' or the land known as 'Nazul land' or 'Jumla Mushtarka Malkan' by the private individuals to other private bodies or individuals. We would not like to make any observations on this issue at this stage. However, we would make a reference to the principles enunciated by their Lordships of Hon'ble the Supreme Court highlighting the discharge of higher burden by all public men holding high public office and position. In that regard we place reliance on the judgment of Hon'ble the Supreme Court rendered in the cases of Hinch Lal Tewari v. Kamla Devi (2001) 6 SCC 496 and Jagpal Singh and others v. State of Punjab (2011) 11 SCC 396. In Jagpal Singh's case (supra), their Lordships of Hon 'ble the Supreme Coun has noted the concern for village common land by placing reliance on the observations made in the earlier judgment in the case of Chiqurupati Venkata Subbayya v Paladuge Anjayya. [1972 (1) SCC 521]. We feel that observations made in para 3, 4 and 5 would put the whole issue in its perspective which reads thus:

"3. Since time immemorial there have been common lands inhering in the village communities in India, variously called gram sabha land, gram panchayatland, (in many Nonh Indian States), shamlat deh (in Punjab etc.), mandaveli and poramboke land (in South India), Kalam, Maidan, etc. Depending on the nature of user. These public utility lands in the villages were for centuries used for the common benefit of the villagers of the village such as ponds for various purposes e.g. fortheir cattle to drink and bathe, for storing their harvested grain, as grazing ground for the cattle, threshing floor, maidan for playing by children, carnivals, circuses, ramlila cart stands, water bodies, passages, cremation ground or graveyards, etc. These lands stood vested through local laws in the State, which handed over their management to Gram SabhasiGram Panchayats. They were generally treated as inalienable in order that their status as community land be preserved. There were no doubt some exceptions to this rule which permitted the Gram Sabha/Gram Panchayat to lease out some of this land to landless labourers and members of the Scheduled CastslTribes, but this was only to be done in exceptional cases.

4. The protection of commons rights of the villagers were so zealously protected that some legislation expressly mentioned that even the vesting of the property with the Stale did not mean thaI the common rights of villagers were lost by such vesting. Thus, Chiqurupati Venkata Subbayya v Paladuge Anjayya, 1972 (1) SCC 521 (529) this Court observed:

"It is true that the suit lands in view of Section 3 of the Estates Abolition Act did vest in the Government. That by itself does not mean that the rights of the community over it were taken away. Our attention has not been invited to any provision of law under which the rights of the community over those lands can be said to have been taken away. The rights of the community over the suit lands were not created by the landholder. Hence those rights cannot be said to have been abrogated by Section 3 of the Estates Abolition Act."

5. What we have witnessed since independence, however, is that in large parts of the country this common village land has been grabbed by unscrupulous persons using muscle power, money power or political clout, and in many States now there is not an inch of such land left for the common use of the people of the village, though it may exist on paper. People with power and pelf operating in villages all over India systematically encroached upon commonal lands and put them to uses totally inconsistent with its original character, for personal aggrandizement at the cost of the village community. This was done with active connivance of the State authorities and local powerful vested interests and goondas. This appeal is glaring example of this lamentable state of affairs."

8. The State Government is under obligation and is bound to comply with the directions issued by their Lordships of Hon'ble the Supreme Court in para 22 of this judgment.

9. In Crl. Misc.No. 23125 of 2011 in CRM No. M-49595 of2007, various orders have been passed, which culminated in the disclosure that the land is in possession of such 60 influential persons and the names of those persons have been mentioned in the annexure referred in para 4 of the affidavit dated 20-04-2012 filed by the Chief Secretary. A glance on the list of influential persons would indicate that the land has been transferred in the names of Chief Minister, numerous Ministers, DGP and various other police officers. To avoid burdening of this order a copy of the list is added to this order which may read its part. Some of the important names are: S/ Sh. V.K. Khanna, IAS (Retd) (21 Acres), Ajit Singh Chatha, lAS (Retd.) (9 Acres) Parkash Singh Badal, Chief Minister (5 Acres); Surinder Singh Kairon and family members (58/60 Acres),Abhay Singh Jagat, DGP(Retd.) (2.5 Acres); Guizar Singh, Ex-Minister(1 2 Acres); Dr. Col. Kanwaljit Singh and family (65 Acres) and Jagmohan Singh Kang (5/6 Acres).

10. Another affidavit dated 16-5-2012, was filed by the Chief Secretary to Government of Punjab, disclosing that in compliance with the order dated 1-5-2012 passed by this Court in Crl. Misc. No. 23125 of 2011, a committee was constituted comprising Financial Commissioner Revenue; Financial Commissioner Rural Development and Panchayats; Director Local Government; Principal Chief Conservator of Forests; and Deputy Commissioner, Mohali, to report whether the land in possession of 60 influential persons had at any stage been Government/Public land. The aforementioned Committee held various meetings on 4-5-2012, 7-5-2012 and 9-5-2012 and submitted its report on 15-5-2012, which is annexed as Annexure' A' with the affidavit dated 16-5-2012. The conclusion arrived at by the Committee has been summed up in para 4 of the affidavit dated 16-5-2012, which reads as under:

"4. That the committee has concluded as under :-

(a) that except in the 7 cases as mentioned below, the land in the possession of all other individuals was never government/public land:-

Sr.No.              Sr. No. As Per Report                Name of Owner/Occupant
1                      9                                              Smt. Surjit Kaur w/o S. Navtej Singh
2                      18                                            S. Baldev Singh, S.P. (Retd.) U.T. Chandigarh
3                      21                                            S. Gurcharan Singh S/o S. Lal Singh
4                      30                                            S. Gurmeet Singh & S. Mukhtiar Singh
5                      31                                            S. Jagbir Singh
6                      32                                            S. Daljit Singh Dhillon S/o S. Lal Singh
7                      39                                            S. Surjit Singh

a (i) However, as regard Entry No. 50, the entries in Column No.7 and 8 are as under :-

"In Khasra No. 90119 (6-16), 12/1/1 (0-13), 1012 (7-19), 11/1 (1-17), Y, (2-10),2 (5-13), 91116/2/17 (3-4), 15/1/2.(0-15) Total 29 Bighas 7 Biaswa, Dinesh Singh and Sumedh Singh sons of Ramesh Chander Singh are equal Co-sharers as per Jamabandi 2005-06 Kh/Kh. 452/480, 453/489, 454/490. The whole of this area, vide Mutation No. 15525 is entered in the name ofPUDA. However, the decision regarding this mutation is pending till date."

"As per the Revenue record, this land has never vested in the ownership of Forest/ Nazool/ Shamlat/ Municipal/ Government Land."

b) That in the case of three persons i.e. Sh. Sumedh Singh Saini, Sh. Shivinder Singh Brar and S. Harjinder Singh (mentioned at Sr. No. 49 and 51 of the list) the land in question was Jumala Mushtarka Malkan Hasab Rasad Rakba Khewat created at the time of consolidation in 1971 by imposing a pro rata cut on the land owners. Thereafter, vide order dated 16-1-1986 of the Consolidation Onicer, Ropar the Khewat was dismantled and shares were apportioned to the individual proprietors. The three persons mentioned above have purchases the land from the original land owners. Further, as reported in the detailed report at Sr. No. 49 and 51, these properties as per revenue record were never vested in the ownership of Forest! Nazool/Shamlat/Municipal/ Government land. The report of the committee so constituted submitted vide diary No. 93 I, dated 15-05-2012 is enclosed herewith as Anneuxre-A."

II. After perusing the list of60 influential persons along with the affidavit of Chief Secretary dated 20-04-2012 and 16-05-2012, we were fortified in our belief that the matter requires to be probed by an independent Tribunal which should be presided over by an eminent judge of either Supreme Court or from this Court. A perusal of some orders would show that thinking process. We were convinced with the idea of setting up an independent tribunal for the simple reason that those who are at the helm of affairs would not be able to judge their own cause which is common to the cause of thousands of other people as has been pointed out by the affidavit filed by the Deputy Commissioner, S.A.S. Nagar, Mohali. If a committee of Officers' is appointed by the Government they may not be able to act fairly for the reason that creature cannot be greater than the creator.

12. It is in the backdrop of aforesaid situation that we are compelled to proceed with the idea of setting up a Tribunal and for that purpose we requested Mr.M.L. Sarin and Mr. Arun Jain, learned Senior counsel and amicus curiae, to finalize the terms of reference. A draft of terms of reference was handed over to Mr. Ashok Aggarwal, learned Advocate General, Punjab who has vehemently opposed the idea of setting up of any Tribunal by stating that the report of Shri Chander Sekhar, IPS, is available and the Tribunal would not be able to do function any better as the record is already before this Court. Mr. Aggarwal further submits that in some cases the matters are already pending before the statutory authorities, including the High Court as well as Hon'ble the Supreme Court. The argument seems to be that the 'Special Tribunal', which is proposed to be constituted, would not serve any public purpose.

13. On the other hand, learned Amicus Curiae have highlighted the usefulness of the constitution of a 'Special Tribunal' particularly, in the light of the fact that once the top bureaucrats, police officials and the top most political personalities of the State are the beneficiaries, then to opine adversely against persons similarly situated would also not be possible as the same could be cited as a precedence for deciding their own cases. In other words, if a case of ordinary citizen is to be decided by the statutory authorities, it would not be possible for them decide against even thousands of others because it would ultimately adversely affect the cases of influential persons. It is seen from the affidavit filed by the Deputy Commissioner that thousands of sale deeds only from6 villages all over India systematically encroached upon common lands and put them to uses totally inconsistent with its original character, for personal aggrandizement at the cost of the village community. This was done with active connivance of the State authorities and local powerful vested interests and goondas. This appeal is glaring example of this lamentable state of affairs."

8. The State Government is under obligation and is bound to comply with the directions issued by their Lordships of Hon'ble the Supreme Court in para 22 of this judgment.

9. In Crl. Misc.No. 23125 of2011 in CRM No. M-49595 of2007, various orders have been passed, which culminated in the disclosure that the land is in possession of such 60 influential persons and the names of those persons have been mentioned in the annexure referred in para 4 of the affidavit dated 20-04-2012 filed by the Chief Secretary. A glance on the list of influential persons would indicate that ihe land has been transferred in the names of Chief Minister, numerous Ministers, DGP and various other police officers. To avoid burdening of this order a copy of the list is added to this order which may read its part. Some of the important names are: S/Sh. V.K. Khanna, lAS (Retd) (21 Acres), Ajit Singh Chatha, lAS (Retd.) (9 Acres) Parkash Singh Badal, Chief Minister (5 Acres); Surinder Singh Kairon and family members (58/60 Acres), Abhay Singh Jagat, DGP (Retd.) (2.5 Acres); Guizar Singh, Ex-Minister( 12Acres); Dr. Col. Kanwaljit Singh and family (65 Acres) and Jagmohan Singh Kang (5/6 Acres).

10. Another affidavit dated 16-5-2012, was filed by the Chief Secretary to Government of Punjab, disclosing that in compliance with the order dated 1-5-2012 passed by this Court in Crl. Misc. No. 23125 of 2011, a committee was constituted comprising Financial Commissioner Revenue; Financial Commissioner Rural Development and Panchayats; Director Local Government; Principal Chief Conservator of Forests; and Deputy Commissioner, Mohali, to report whether the land in possession of 60 influential persons had at any stage been Government/Public land. The aforementioned Committee held various meetings on 4-5-2012, 7-5-2012 and 9-5-2012 and submitted its report on 15-5-2012, which is annexed as Annexure 'A' with the affidavit dated 16-5-2012. The conclusion arrived at by the Committee has been summed up in para 4 of the affidavit dated 16-5-2012, which reads as under:

"4. That the committee has concluded as under :-

(a) that except in the 7 cases as mentioned below, the land in the possession of all other individuals was never government/public land:-
Sr.No.              Sr. No. As Per Report                Name of Owner/Occupant
1                      9                                              Smt. Surjit Kaur w/o S. Navtej Singh
2                      18                                            S. Baldev Singh, S.P. (Retd.) U.T. Chandigarh
3                      21                                            S. Gurcharan Singh S/o S. Lal Singh
4                      30                                            S. Gurmeet Singh & S. Mukhtiar Singh
5                      31                                            S. Jagbir Singh
6                      32                                            S. Daljit Singh Dhillon S/o S. Lal Singh
7                      39                                            S. Surjit Singh

a (i) However, as regard Entry No. 50, the entries in Column No.7 and 8 are as under :-
"In Khasra No. 90//9 (6-16), 12/1/1 (0-13), 10/2 (7-19), 11/1 (1-17), It, (2-10),2 (5-13), 91//612/17 (3-4), 15/1/2 (0-15) Total 29 Bighas 7 Biaswa, Dinesh Singh and Sumedh Singh sons of Ramesh Chander Singh are equal Co-sharers as per Jamabandi 2005-06 KhlKh. 452/480, 453/489, 454/490. The whole of this area, vide Mutation No. 15525 is entered in the name of PUDA. However, the decision regarding this mutation is pending till date."

"As per the Revenue record, this land has never vested in the ownership of Forest/ Nazool/Shamlat/ Municipal/ Govemment Land."

b) That in the case of three persons i.e. Sh. Sumed Singh Saini, Sh. Shivinder Singh Brar and S. Harjinder Singh (mentioned at Sr. No. 49 and 51 ofthe list) the land in question was Jumala Mushtarka Malkan Hasab Rasad Rakba Khewat created at the time of consolidation in 1971 by imposing a pro rata cut on the land owners. Thereafter, vide order dated 16-1-1986 of the Consolidation Officer, Ropar the Khewat was dismantled and shares were apportioned to the individual proprietors. The three persons mentioned above have purchases the land from the original land owners. Further, as reported in the detailed report at Sr. No. 49 and 51, these properties as per revenue record were never vested in the ownership of Forest/ Nazool/Shamlat/Municipal/ Govemment land. The report of the committee so constituted submitted vide diary No. 93 I, dated 15-05-2012 is enclosed herewith as Annexure-A."

II. After perusing the list of 60 influential persons along with the affidavit of Chief Secretary dated 20-04-2012 and 16-05-2012, we were fortified in our belief that the matter requires to be probed by an independent Tribunal which should be presided over by an eminent judge of either Supreme Court or from this Court. A perusal of some orders would show that thinking process. We were convinced with the idea of setting up an independent tribunal for the simple reason that those who are at the helm of afTairs would not be able to judge their own cause which is common to the cause of thousands of other people as has been pointed out by the affidavit filed by the Deputy Commissioner, S.A.S. Nagar, Mohali. If a committee of Officers' is appointed by the Government they may not be able to act fairly for the reason that creature cannot be greater than the creator.

12. It is in the backdrop of aforesaid situation that we are compelled to proceed with the idea of setting up a Tribunal and for that purpose we requested Mr.M.L. Sarin and Mr. Arun Jain, leamed Senior counsel and amicus curiae, to finalize the terms of reference. A draft of terms of reference was handed over to Mr. Ashok Aggarwal, learned Advocate General, Punjab who has vehemently opposed the idea of setting up of any Tribunal by stating that the report of Shri Chander Sekhar, IPS, is available and the Tribunal would not be able to do function any better as the record is already before this Court. Mr. Aggarwal further submits that in some cases the matters are already pending before the statutory authorities, including the High Court as well as Hon'ble the Supreme Court. The argument seems to be that the 'Special Tribunal', which is proposed to be constituted, would not serve any public purpose.

13. On the other hand, learned Amicus Curiae have highlighted the usefulness of the constitution of a 'Special Tribunal' particularly, in the light of the fact that once the top bureaucrats, police officials and the top most political personalities of the State are the beneficiaries, then to opine adversely against persons similarly situated would also not be possible as the same could be cited as a precedence for deciding their own cases. In other words, if a case of ordinary citizen is to be decided by the statutory authorities, it would not be possible for them decide against even thousands of others because it would ultimately adversely affect the cases of influential persons. It is seen from the affidavit filed by the Deputy Commissioner that thousands of sale deeds only from one district have been executed. Therefore, there is ample justification for a probe by an independent body like the Special Tribunal, which is proposed by this Court in various orders. It has also been highlighted that Crl. Misc. No. 49595-M of 2007 is pending before this Court since the year 2007 wherein the report of Shri Chander Sekhar, IAS, has been attached and no effective steps have been taken by the State either to adopt the report as an official document or to initiate proceedings against anyone named in the report. Therefore, it has become necessary in the larger public interest to set up a Special Tribunal. We approve the aforesaid line of argument and accept that there is dire necessity of setting up an independent Tribunal.

14. During the course of the proceedings before this Court the name of a Former judge of the Hon'ble Supreme Court. Hon'ble Mr. Justice Kuldip Singh was suggested and we have been informed that his Lordship has readily agreed to function as the Chairman of the Tribunal. Two names of the Members of the Bar, namely, Shri P.N. Aggarwal and Shri Babu Ram Gupta have also been suggested. They have also readily agreed to function as Members of the Tribunal. Accordingly, we direct that there shall be two members Tribunal. Hon'ble Mr Justice Kuldip Singh, Former Judge of Hon'ble the Supreme Court shall function as the Chairman of the Tribunal along with Sh. P.N. Aggarwal, Advocate who would function as Member. We make it clear that opinion of the Chairman shall be final. Shri Babu Ram Gupta, Advocate, would assist the Tribunal by presenting the revenue record divulging the nature of the land. The Tribunal shall suggest ways and means for retrieving 'shamlat deh' land, 'lunda mllshlarka malkan' land and various other types of land such as 'Nazul land', 'Forest land' etc. in and around the periphery ofChandigarh and other parts of the State of Punjab as directed by 'Hon'ble the Supreme Court in Jagpal Singh's case (supra). The Tribunal shall send suggestions to initiate criminal action against the violators.

15. Keeping in view the aforesaid, we proceed to set out the following terms of reference:

(A) A Tribunal is hereby constituted comprising Hon'ble Mr. Justice Kuldip Singh, a former Judge of the Supreme Court and Sh. P. N. Aggarwal, Advocate, which is hereby appointed with the power of Special Tribunal. The Tribunal shall have the powers to summon and enforce the attendance of witnesses, including the parties interested or any of them and to compel the production of documents by the same means and so far as may be in the same manner as is provided in the case of Civil Court under the Code of Civil Procedure, 1908.

(B) The Tribunal may take assistance of Departments of Revenue Punjab, Rural Development and Panchayats, Punjab, Forest Department, Punjab and D.OP. Punjab to scrutinize the old records and submit village wise fact finding report in respect of above land in and around the periphery of Chandigarh and other parts of the State 9fPunjab. Sh. B.R. Gupta, a Former District & sessions Judge shall assist and aid the Tribunal. It should also suggest effective steps which need to be taken to get free the land from encroachers in and around the periphery of Chandigarh falling in the area of Punjab and other parts of the Punjab.

(C) The Tribunal shall utilize the services of Special Qaunungos/ Patwari Moharrirs to prepare excerpts village wise showing kind of government land/ shamlat land/ forest land/ Nazul land in and around periphery of Chandigarh and other parts of Punjab and the basis on which ownership of such land came to be vested in favour of individuals (s).The Tribunal shall suggest measures for retrieving such government land /shamlat land/forest land/Nazul land in and around the periphery of Chandigarh and other parts of Punjab as per the judgment of Jagpal Singh's case (supra).

(D) It has also been noticed that some matters are pending before the authorities under the Punjab9 Village Common Lands (Regulation)Act 1961, East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, the Public Premises and Land (Eviction and Rent Recovery) Act, 1973 and the Punjab Gram Panchayat (Common Purposes Land) Eviction and Rent Recovery Act, 1976 as well as civil suits, the Special Tribunal would suggest the mechanism for early disposal of these proceedings so that the matter is no unduly delayed.

(E) The Special Tribunal shall also suggest what civil/criminal proceedings may be taken against the officials and parties who facilitated such transfers from government/public land to private ownership. The Special Tribunal would also suggest the steps which may prevent such transfers of government/ public land in future.

(F) The Tribunal shall keep this Court informed of all major developments by filling quarterly status reports and may, if so desired, take special orders from this Court.

(G) All organs, agencies, departments and agents of the State shall extend all cooperation necessary for the effective functioning of the Tribunal.

(H) The State Government is directed to provide all facilities to conduct inquiry in its fullest measure by the Tribunal so constituted by extending all necessary official and legal assistance.

(I) Besides the State of Punjab shall provide necessary office infrastructure and requisite staff for the Tribunal within 30 days.

(J) The Presiding Officer of the Tribunal so constituted shall be assisted by serving or retired District and Session Judge who will be well conversant with Punjabi language. Accordingly, we appoint Sh. Babu Ram Gupta who shall assist and aid the Tribunal.

(K) The Tribunal so constituted shall be entitled to remuneration, allowances, perks and facilities as admissible to a judge of the Supreme Court. Whereas S/Sh. P.N. Aggarwal, and Babu Ram Gupta, shall be entitled to a lump sum amount ofRs. 1,25,000/- plus a Corrola or Honda City Car or equivalent amount along with a driver.

16. We further issue the following directions:

(a) The Registrar of documents in the State of Punjab shall not entertain any document from now onwards for registration nor registered any document which proposes the sale, lease, transfer of any Shamlat land, Jumla Mushtarka Malkan, Nazool land etc. and any other government land with whatever name it might be called. Necessary instructions in that regard be issued by the concerned department within one week.

(b) No dispute in respect of such lands as mentioned in para (a) shall be entertained by the statutory authorities under the Punjab Village Common Land (Regulation) Act, 1961 and East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948. No Civil court shall entertain any civil suit nor grant any interim order even in pending cases till further orders of this Court.

(c) No mutation shall be entered by the revenue officers from now onwards on the basis of sale deeds involving any such land as referred to in para (a) above.

17. The respondent State is directed to comply with the direction within a period of two weeks.The office for functioning of the Tribunal shall be given along with Secretarial staff as is indicated in the term of reference within a period of two weeks preferably at the Punjab Civil Secretariat, Punjab. The other directions which have been reproduced in the preceding para shall also be compiled with and the Tribunal may exercise all such powers which have been mentioned in the preceding para. Open area for functioning the Tribunal be provided preferably at the Punjab Civil Secretariat, Chandigarh. The initial tenure of the Tribunal shall be four months from the date it starts functioning. If some more time is required then appropriate request be sent to the Court.

18. We place on record our thanks to the Amicus Curiae Shri M.L. Sarin, Senior Advocate and Shr. Jain, Senior Advocate as well as Mr. Ashok Aggarwal, learned Advocate General, Punjab for rendering able assistance to the Bench.

19. Mr. Ashok Aggarwal, learned Advocate General, Punjab, states that similar Writ Petition Nos. 3389 of 2012 and 23456 of 2011 are pending before this Court, which are listed for hearing on 17-08-2012 and 23-07-2012 respectively, and the same may also be tagged with this bunch of petitions. We direct the Registry to list these two writ petitions on 31-05-2012 after informing the date of pre ponement of hearing of these cases to the learned counsel for both the parties.

20. The Registry is directed that photocopies of each of the petition and all the interlocutory orders of every paper book be sent to the Tribunal including the order which has been passed today

21. A copy of this order be given dasti to the learned counsel for the parties on payment of usual charges.

Sd/-
ALOK SINGH
JUDGE

Sd/-
M.M. KUMAR
ACTING CHIEF JUSTICE


0153/02-2013/Pb. Govt. Press. S.A.S. Nagar















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