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
