V.K.JHANJI, J. - (1.) PETITIONERS are residents of village Wazirabad, Tehsil and District Gurgaon (Haryana) and are aggrieved of the action of the Gram Panchayat as well as of the State Government, sanctioning exchange of Shamilat land with that of various companies dealing in real estate. Respondents No. 2 to 7 are Companies and individuals who have purchased the land in the village. Since the land purchased by them was in pockets and not in one place, they made a joint application on 28. 6. 1991 to the Gram Panchayat, Wazirabad, seeking exchange of land with that of belonging to the Panchayat. In their application, they had stated that the land belonging to the Panchayat is cultivable whereas the land belonging to the Panchayat is Gair Mumkin and uneven. Their application was considered by the Gram Panchayat in its meeting which was convened on the very next date. Resolution dated 29. 6. 1991 was passed vide which the exchange proposed by respondents No. 2 to 7 was recommended to the Government, The State Government vide order dated 31. 12. 1991/2. 1. 1992, accorded its approval. In consequence of this order, mutations No. 3392 to 3398 were sanctioned. So far 64 Bighas 19 Biswas, out of total land measuring 139 Bighas 12 Biswas which was originally approved, has been exchanged. Some of the residents of the village who felt aggrieved of the action of the Gram Panchayat and the Government, filed suit in representative capacity. Suit was filed against Gram Panchayat and respondents No. 2 to 7. In the suit, they alleged that they are Harijans, landless persons and belong to Backward Class and do not own agricultural land, but have their cattle such as cows, buffaloes, seeps, goats etc. and are making their livelihood by grazing their cattle and they derive income from cattle by working on the land of the Panchayat and other land-owners. They further alleged that they used to collect cow-dung and fuel-wood from the suit land since the inception of the village and according to the Sharat-wazib-ular of the village, suit land could not be sold/morggaged/exchanged. Alongwith the suit, plaintiffs filed an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure, for restraining the respondents from changing the nature of the land. Gram Panchayat, despite service, did not appear. The suit as well as the application for injunction were contested by the respondents No. 2 to 7 who in their reply, denied the allegations made in the suit as well as the application/the trial Court finding prima facie case in favour of the plaintiffs and also on finding that the plaintiffs shall suffer an irreparable loss if interim injunction is not granted in their favour, till decision of the suit, restrained the respondents from alienating the land or change its nature. Aggrieved of the order of the trial Court, respondents No. 2 to 7 filed appeal before the District Judge. Appeal of respondents No. 2 to 7 was allowed and application of the plaintiffs for temporary injunction was dismissed and consequently interim injunction granted by the trial Court was vacated. Gram Panchayat has now impugned the order of the first Appellate Court herein this civil revision.
(2.) DURING the course of hearing of this civil revision, I felt it necessary to examine the record of the Government and, therefore, the State of Haryana was impleaded as parly to the revision. Mr. H. L. Sibal, learned Advocate General, Haryana, on my asking, produced the record relating to the exchange. Mr. Sibal also addressed arguments defending the action of the Government in approving the exchange. Mr. M. L. Sarin, Senior Advocate, counsel for respondents No. 2 to 7 contended that all the complaints which the Government had received against the exchange, were thoroughly scrutinised. In order to meet certain objections, conditions were attached. Thus, according to him, exchange was for the benefit of the Panchayat and in no way was mala fide or for extraneous considerations as contended by counsel for the petitioners contended that the action of the Government in approving the exchange cannot be sustained because the same is in contravention of Rule 5 of the Panjab Village Common Land (Regulation) Rules, 1964 (hereinafter referred to as the 1964 Rules ).
(3.) HAVING heard the learned counsel for the parties at length and on perusal of the record, I am of the view that the order under revision cannot be sustained. It was almost conceded by the counsel for respondents No. 2 to 7 that the respondents are front companies and individuals of main Company known as D. L. F. Universal Ltd. No doubt the land was purchased in the name of respondents No. 2 to 7 but the Company on whose behalf it was purchased is DLF. DLF has developed housing colony near the land in dispute. As some more land was required in the village, respondents No. 2 to 7 purchased some area in the village. The area so purchased by them was scattered and was of no use to the DLF. The nearest land which could be put to use to the DLF. The nearest land which could be put to use was Shamilat land belonging to the Panchayat. In order to get the land of Panchayat, respondents No. 2 to 7 approached the Panchayat for exchange of the land so that it could be used by the DLF. Though the land belonged to various Companies and individuals, yet a joint application was filed before the Panchayat seeking exchange. The application bears no date but the stamp affixed on the same shows that it was filed on 28. 6. 1991. In the application, the total land mentioned is 139 Bighas and 12 Biswas. With regard to the land of the Panchayat it is stated that the land of the Panchayat is uneven and Gair Mumkm and not fit for cultivation. The justification given in the application for exchange was that in case the land of the Panchayat is exchanged with that of the Company, it will enhance the income of the Panchayat which can be used for the purpose of setting up a dispensary or school building or a play-ground. The application must have been received in the office of the Panchayat, either on 28lh or 29th of June, 1991. On receipt of the application, resolution was passed on 29. 6. 1991. When the residents of the village came to know about this action of the Panchayat, they complained to the Government. One such complaint is dated 15. 11. 1991 made by Gram Sewa and Sudhar Samiti. The said Samiti, in its complaint to the Government, brought it to the notice of the Government that the Company interested in exchange is DLF but application was filed on behalf of respondents No. 2 to 7 who are none else but the front-companies and individuals of DLF. It was also not disclosed that the land is required for residential purposes as the land which was sought to be given to the Gram Panchayat falls in the prohibited area of Air Force Radar area and that after taking the land in exchange, Panchayat falls in the prohibited area of Air Force Radar area and that after taking the land in exchange, Panchayat land would be sold in plots/houses at exorbitant rates. Further, in the complaint, it was mentioned that the land belonging to the Panchayat falls in between the land of DLF and is very costly. The land, if sold in open auction or by inviting offers from other colonisers would yield profit in crores which can be utilised for the development of the village. The land which the Panchayat would get in exchange would be of no use. This complaint, though was on the file of the Government before the exchange was approved, yet it was not considered in all seriousness which it deserved. The Government, vide order dated 31. 12. 1991/2. 1. 1992 approved the exchange as resolved by the Gram Panchayat vide its resolution dated 29. 6. 1991, attaching the following conditions : " (i) Deputy Commissioner, Gurgaon, shall ensure that the land which is transferred to Gram Panchayat after exchange does not fall in the prohibited area of Air Force Radar (except in order to maintain contiguity as laid down in condition No. 2 ). The principle of zone to zone transfer shall not be disturbed meaning thereby that an area in a particular zone Residential, Commercial or Industrial, shall be exchanged with an equivalent area in that very particular zone only. For example say if 10 acres of Panchayat land falling in Residential Zone is being exchanged then the Panchayat should also get in exchange 10 acres of colonisers land falling in Residential Zone and so on. (ii) The D. C. should also ensure contiguity of the various portions of land coming to the Panchayat in exchange. He is authorised to change any khasra Nos. , or portion thereof, if necessary, for this purpose. Even the area within the prohibited zone may be exchanged with an equivalent area within the same zone, if necessary for this purpose. But the total area must not exceed with which is given in the resolution No. 1 dated 29. 6. 91 of the Gram Panchayat. (iii) The Companies/persons with whom the Gram Panchayat land is being exchanged shall give an undertaking that they will provide path/approach to the existing Mandir and other Panchayat/private lands to which approach lies within the land being given to them in exchange. " The aforesaid conditions attached to the exchange do not answer the points which were highlighted by the Sudhar Samiti. The manner in which the application was received and considered by the Panchayat and that too without inspecting the site which was proposed to be taken in exchange, shows that there was no application of mind and resolution was passed in utter disregard to the rules. Records show that when the application of respondents No. 2 to 7 for exchange was considered, there was no site-plan before the Panchayat indicating the situation of the land of the respondents No. 2 to 7 vis-a-vis land of the Panchayat. The conditions of Rule 5 of the 1964 Rules were not satisfied before exchange was recommended. Rule 5 of 1964 Rules is reproduced as under : "rule 5: Exchange of land - A Panchayat, if it is of opinion that it is necessary so to do for the benefit of the inhabitants of the village may with the prior approval of the Government, transfer any land in Shamilat deh by exchange with the land of an equivalent value to be determined by the Tehsildar in whose jurisdiction the land is situate. " ;