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2024 DIGILAW 870 (PNJ)

George Subh v. State of Punjab

2024-05-16

VINOD S.BHARDWAJ

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JUDGMENT Vinod S. Bhardwaj, J. (Oral) CM-9529-CWP-2014 For the reasons mentioned in the application, the same is allowed and documents i.e. Enquiry report, photographs are taken on record as Annexure P-16 Colly to P-19. Main Case Prayer in the present writ petition was for directing a probe into a multi-Crore Land Scam in Prime NAC (Notified Area Committee) Land of Begowal, District Kapurthala which had been encroached upon by the private respondents and illegal construction has been raised thereupon. 2. It was also averred that the above said encroachment has been facilitated by the employees of the notified area Committee/respondent No.7 and they just chose to remain happy in shifting papers and correspondence instead of translating that into a tangible action and to secure the land belonging to the notified area Committee. 3. Cutting the controversy short, vide order dated 28.08.2023, this Court had directed Director, Bureau of Vigilance, Punjab to look into the issues raised in the petition and to conduct a preliminary enquiry as regards lapses committed by the officials who were in charge and responsible for ensuring protection of public land but failed to do so and existence of any criminal angle. 4. Pursuant to the said order, a report of preliminary enquiry by way of affidavit of Rahul S, IPS, Director, Vigilance Bureau, Punjab had been filed in Court. The matter was enquired into and a report had been called for from the Senior Superintendent of Police, Vigilance Bureau, Range, Jalandhar. The facts revealed during preliminary enquiry conducted through the Senior Superintendent of Police, Vigilance Bureau, Range Jalandhar are extracted as under:- "6. That the following facts have been revealed during the preliminary enquiry conducted through the Senior Superintendent of Police, Vigilance Bureau, Range Jalandhar: i) That in the year 1960-61, during the consolidation proceedings of 48,512 Kanal land in village Begowal, ownership as well as cultivation/ possession of 31 Kanal 19 Marla land comprising of Khasra No. 281/1 falling in Khewat No. 651/662 was recorded in favour of Sant Prem Singh Khalsa High School in the "Misal Haqiyat" (the first Jamabandi prepared after consolidation proceedings). Similarly, ownership of land measuring 172 Kanal 15 Marla falling in Khewat No. 659, Khatauni No. 789 was recorded in favour of Nagar Panchayat, Begowal and Sant Prem Singh Khalsa High School mentioned as the cultivator/ possessor. Similarly, ownership of land measuring 172 Kanal 15 Marla falling in Khewat No. 659, Khatauni No. 789 was recorded in favour of Nagar Panchayat, Begowal and Sant Prem Singh Khalsa High School mentioned as the cultivator/ possessor. ii) That as per the latest Jamabandi (2020-21), the owner and possessor of above land measuring 31 Kanal 19 Marla falling in Khewat no. 1123/1305 comprising of Khasra no. 281/1, is still reflected as Sant Prem Singh Khalsa High School while the land measuring 172 Kanal 15 Marla comprising of Kitte 24 falling in Khewat No. 1149/1355-58 is in the name of Notified Area Committee (Nagar Panchayat), Begowal as owner, with Sant Prem Singh Khalsa High School as the cultivator/ possessor. It is pertinent to mention here that after consolidation in 1960-61, the nature of land measuring 73 Kanal 8 Marla, out of the total land area measuring 172 Kanal 15 Marla, has been found changed to Gair Mumkin College as this land is being utilized by SPS Karamsar Khalsa College located therein. iii) That during site visit by the Deputy Superintendent of Police, Vigilance Bureau, Kapurthala Unit, along with officers of other departments i.e. Naib Tehsildar, Bhulath, halqa Kanungo, halqa Patwari and Executive Officer of Nagar Panchayat, Begowal, it has been found that the major part of the building of SPS Khalsa High School, grounds of SPS International School, SPS Karamsar Khalsa College including its grounds and Roads are located/ constructed within the land measuring 172 Kanal, 15 Marla, owned by Notified Area Committee (Nagar Panchayat), Begowal. The site plan prepared by the halqa patwari is enclosed along with the report of Senior Superintendent of Police, Vigilance Bureau, Jalandhar Range. iv) That the records obtained from District Education Officer, Kapurthala, reveal that Managing Committee Sant Prem Singh Khalsa High School (Khori Dunna Singh), Begowal, Distt. Kapurthala was registered on 01.10.1955 with the Registrar of Companies, PEPSU, Patiala. Further, as per the report of District Education Officer, Kapurthala, SPS Khalsa High School Begowal (Kapurthala) receives grant-in-aid from the Punjab School Education Board since 01.12.1967 and was subsequently granted permanent affiliation with effect from 01.04.1969, by the Director, Education Department, Chandigarh, on 17.10.1969. According to the report of Secretary, Punjab School Education Board (PSEB), received vide letter No. PSSB-Affi:2023/3400 dated 11.10.2023, the first batch of students from SPS Khalsa High School, Begowal had appeared in the Class 10th PSEB Matriculation examination during March, 1970. According to the report of Secretary, Punjab School Education Board (PSEB), received vide letter No. PSSB-Affi:2023/3400 dated 11.10.2023, the first batch of students from SPS Khalsa High School, Begowal had appeared in the Class 10th PSEB Matriculation examination during March, 1970. It has also been reported therein that from school year 2000-01 (from 01.04.2000) the School had got affiliated with the Board for Senior Secondary level. v) That SPS International School is located within land comprising of Khasra no. 281/1 measuring 31 Kanal 19 Marla falling in Khewat no. 1123/1305, owned by Sant Prem Singh Khalsa High School. The documents received through post from the Principal, SPS International School has revealed that out of the above land in Khasra no. 281/1, land measuring 16 Kanal has been leased out to Sant Prem Singh Education Society, Begowal (that manages SPS International School) by Managing Committee, Sant Prem Singh Khalsa High School, Begowal for period of 30 years (from 29.03.2011 to 28.03.2041) against lease amount of rupees 40,000/- per year, through lease deed executed vide document No. 2746 dated 30.03.2011. In this regard, the records obtained from District Education Officer, Kapurthala reveal that SPS International School has been affiliated with CBSE, New Delhi since 2016 vide affiliation number CBSE/AFIF/631015-SL-02058-15-16/109459, that has now been renewed for a period of five years from 01.04.2019 to 31.03.2024. However, the documents received from Principal, SPS International School reveal that the School was established in the year 2011. vi) That the Deputy Commissioner, Kapurthala had constituted a Committee headed by Sub-Divisional Magistrate, Bhulath, vide endorsement No. 3210- 14/P.A/D.R.A(R/M.T) dated 30.11.2022, after the Ld. Senior Deputy Advocate General had sought status report regarding action taken for removal of illegal possession over land mentioned in the Writ Petition. The Committee in its report submitted to the Deputy Commissioner, Kapurthala, vide Diary No. 496 dated 06- 02-2023, had inter alia concluded as follows: "1. No specific procedure has been laid down for removal of such possession. According to the letter of the Senior Deputy Advocate General addressed to the Hon'ble Chief Secretary Punjab, a scheme to remove such unlawful possessions has to been made at the State level." Regarding this, Sh. No specific procedure has been laid down for removal of such possession. According to the letter of the Senior Deputy Advocate General addressed to the Hon'ble Chief Secretary Punjab, a scheme to remove such unlawful possessions has to been made at the State level." Regarding this, Sh. Vijay Kumar Dogra, Executive Officer, Nagar Panchayat, Begowal and member of the Committee has stated that the recommendation of the Committee was made considering the order dated 04.10.2008 of the Hon'ble Punjab and Haryana High Court in CWP No. 4886 of 2003, wherein the Hon'ble Division Bench had directed the State Government to: "take a conscious policy decision, in accordance with law for removal and/or regularization of the encroachments, if any, made on the public lands by the government's Educational Institutes, Hospitals, Dispensaries, Police Stations, etc., keeping in view the fact that such institutions are not to be placed at the same pedestal as a private individual encroacher". In this regard, information received vide letter No. 05/86/2023-1SS4/778 dated 10.10.2023 from the Department of Local Government, Punjab reveal that a policy to remove/ regularize encroachments on the lands of Urban Local Bodies (ULBs) is being prepared at the Government level, as directed by the Hon'ble High Court vide afore-mentioned order dated 04.10.2008 in CWP No. 4886 of 2003. However, perusal of the draft notification shared by the Department of Local Government reveals that the policy would be applicable to regularization of unauthorized occupation of Municipal lands by Government's educational institutions and other departments. The Committee headed by SDM, Bhulath, in its report dated 06-02-2023, had also concluded as follows, regarding the possession of the land in issue: "3. EO, Begowal has not sublet the aforementioned disputed land to respondents Nos. 3 to 5." vii) That notices vide letter No. 327 dated 08-08-2009 and letter No. 387 dated 09-06-2022 (copies enclosed with the report of Senior Superintendent of Police, Vigilance Bureau, Jalandhar Range) under sections 195 and 195A of the Punjab Municipal Act, 1911 were both issued to Sant Prem Singh International Public School, Begowal, for starting construction of school/ building without getting the building plan approved and for stopping the unauthorized construction. However, during site visit it has been found that Sant Prem Singh International School is located in land under Khasra No. 281/1 measuring 31 Kanal 19 Marla, for which the ownership is vested with Sant Prem Singh Khalsa High School, as per revenue records. The notice issued vide letter No. 314 dated 28-06-2014 to Sant Prem Singh Khalsa High School (copy enclosed with the report of Senior Superintendent of Police, Vigilance Bureau, Jalandhar Range) was regarding the construction of the boundary wall without approval of Nagar Panchayat, in violation of Sections 195 and 195A of Punjab Municipal Act, 1911. The notice had further ordered to get the plan approved within three days of notice and also to demolish the already constructed part of boundary wall, failing which further action under sections 195 and 195A of Punjab Municipal Act would be initiated. During site visit, it has been found that boundary wall exists along the periphery of 172 Kanal, 15 Marla land owned by Notified Area Committee/Nagar Panchayat, Begowal. viii) That Notified Area Committee (Nagar Panchayat), Begowal has never leased out the above said land measuring 172 Kanal 15 Marla to Sant Prem Singh Khalsa High School or Sant Prem Singh Karamsar Khalsa College. It has also been revealed from the report of Executive Officer, Nagar Panchayat, Begowal that Sant Prem Singh Khalsa High School or Sant Prem Singh Karamsar Khalsa College have neither paid any usage charges/ rent for unauthorized usage of the above land nor the Notified Area Committee (Nagar Panchayat), Begowal has made any efforts to recover such user charges/ rent along with the additionally recoverable outstanding property/ house tax and water supply/ sewerage charges for the buildings located/ constructed on the land. ix) That in the report dated 25.01.2023 of the Committee, that was constituted by the Deputy Commissioner, Kapurthala, it has been reported that in the year 2000- 01, the entry regarding land in Khasra Nos. 93//6(4-12), 14 (4-0), 15(8-0), 16(8-0)), 17(4-0) 24(4-0) Kitte 6 measuring 32 Kanal 12 Marla was changed from Makbuja Khalsa High School through Harnam Singh Mujara Gairmarusi to Pradhan Committee Sant Prem Singh Khalsa High School, in cultivation/ possession column. It was also reported by the Committee that no order regarding the above said change of entry in cultivator/possessor column has been found recorded in the revenue records. It was also reported by the Committee that no order regarding the above said change of entry in cultivator/possessor column has been found recorded in the revenue records. During the enquiry by Vigilance Bureau, true facts regarding the basis for the above said changes of cultivator/possessor in revenue records could not be ascertained as Tehsildar, Bhulath vide letter no. 858/OK dated 10.10.2023 reported that Girdawari records prior to 2006 are not available in the Patwar Khana. x) That the Block Development and Panchayat Officer (BDPO), Block Nadala vide letter No. 1041 dated 06.10.2023 reported that records of erstwhile Nagar Panchayat, Begowal, that was original owner of the 172 Kanal, 15 Marla land in issue, are not available with them for the years from 1960 to 1993. Notice under sections 195 and 195A of Punjab Municipal Act, 1911 has been found issued vide letter No. 314 dated 28.06.2014 by the Executive Officer, Notified Area Committee (present Nagar Panchayat), Begowal to Sant Prem Singh Khalsa High School, Begowal for starting construction of the boundary wall, along the land in issue, without approval of Nagar Panchayat. During the site visit by officers of Vigilance Bureau and other departments including Nagar Panchayat, Begowal, the boundary wall is seen constructed in the land owned by Notified Area Committee (Nagar Panchayat), Begowal but as reported by Executive Officer, Nagar Council, Begowal vide letter No. 575 dated 11.10.2023, no approval for the construction of boundary wall has been taken by school management. In this regard, consequent to notice issued vide letter No. 314 dated 28.06.2014 a complaint should have been filed by the Executive Officer, Nagar Panchayat, Begowal, before the competent Judicial Court for initiating further action under the Punjab Municipal Act 1911, which has not been found done by Nagar Panchayat, Begowal, till date. The records obtained also reveal that no action was taken by any the Executive Officers of Nagar Panchayat, Begowal, till now, for retrieving the land or realizing the statutory rent/ user charges from Sant Prem Singh High School for utilizing the 172 Kanal, 15 Marla land owned by the Notified Arca Committee (Nagar Panchayat), Begowal. The records obtained also reveal that no action was taken by any the Executive Officers of Nagar Panchayat, Begowal, till now, for retrieving the land or realizing the statutory rent/ user charges from Sant Prem Singh High School for utilizing the 172 Kanal, 15 Marla land owned by the Notified Arca Committee (Nagar Panchayat), Begowal. xi) That qua the lapses committed by public officials who were responsible for the protection of public land, it has been revealed during the preliminary enquiry that after the year 1993 (when Notified Area Committee, Begowal came into existence) only one notice vide letter No. 314 dated 28.06.2014 was issued by the then Executive Officer, Begowal to Sant Prem Singh Khalsa High School, Begowal, that too regarding the unauthorised construction of boundary wall on the land owned by Notified Area Committee (Nagar Panchayat), Begowal, though subsequent to the notice, no further action was initiated under The Punjab Municipal Act, 1911, for demolishing the illegally constructed boundary wall. Apart from this, after the year 1993, no efforts have been made by any of the Executive Officers of Notified Area Committee, Begowal to retrieve the land measuring 172 Kanal 15 Marla or to realize statutory rent/ user charges/ taxes, as applicable from time to time. Due to non availability of records from 1960 to 1993, as reported by the Block Development and Panchayat Officer, Block Nadala vide letter No. 1041 dated 06.10.2023, it could not be ascertained during the enquiry by Vigilance Bureau whether any efforts were made by the erstwhile Nagar Panchayat, Begowal, that had existed prior to 1993, to retrieve the said land owned by it or to realize statutory rent/ user charges and taxes. xii) That qua the loss caused to public exchequer it has been revealed from the enquiry that Nagar Panchayat, Begowal has not recovered any rent/ user charges of land measuring 172 Kanal 15 Marla, owned by Notified Area Committee (Nagar Panchayat), Begowal. Additionally recoverable taxes/ charges such as outstanding property/house tax and water supply/sewerage charges have also not been recovered by the Notified Area Committee. In this regard, the Executive Officer, Nagar Panchayat, Begowal, relying on the assessment of Sub- Divisional Officer, PWD, Bholath, has reported vide letter no. Additionally recoverable taxes/ charges such as outstanding property/house tax and water supply/sewerage charges have also not been recovered by the Notified Area Committee. In this regard, the Executive Officer, Nagar Panchayat, Begowal, relying on the assessment of Sub- Divisional Officer, PWD, Bholath, has reported vide letter no. 1083 dated 11.10.2023 that if this land measuring 172 Kanal 15 Marla was given on lease/rent from 1993 (after Notified Area Committee came into existence) the rental income till now would have been Rs. 4,46,78,552/- As per report of Block Development and Panchayat Officer (BDPO), Nadala, received by Executive Officer, Nagar Panchayat, Begowal vide letter No: 1712 dated 29.9.2023, if this land originally owned by Nagar Panchayat, Begowal and in possession of Sant Prem Singh Khalsa High School since 1960, was given on lease/ rent from the year 1960 to 1993, the rental income would have been approximately Rs. 10,38,960/-. Thus, from 1960 till date, the total outstanding rental income from 172 Kanal, 15 Marla land being utilized by SPS Khalsa High School and SPS Karamsar Khalsa College, is Rs. 4,57,17,512/-. Further, the Executive Officer, Nagar Panchayat, Begowal vide letter no. 576 and letter no. 578 dated 11.10.2023 has reported that the outstanding estimated house tax/ property tax and water supply/ sewerage charges, against the buildings of SPS Khalsa High School, Begowal and SPS Karamsar Khalsa College, amounts to Rs. 33,53,872/- and Rs. 1,00,33,560/-, respectively. Accordingly, due to non recovery of rent/ user charges for the land measuring 172 Kanal, 15 Marla since 1960 and non-realizing of outstanding statutory taxes/ charges for the buildings located therein, the State Government has incurred an estimated financial loss of Rs. 5,91,04,944/- till now." 5. A perusal of the aforesaid report shows that there had been encroachment over the land and that the Executive Officer of the Notified Area Committee or the Gram Panchayat had not initiated any action or steps to remove the encroachment or for retrieving the land which has been in an unauthorized and unapproved possession of the School or even for collecting the necessary usage charges for the land measuring 172 kanal-15 marlas. The quantified loss as conveyed by the Director, Vigilance Bureau, Punjab is to the tune of Rs. 5,91,04,944/-. The quantified loss as conveyed by the Director, Vigilance Bureau, Punjab is to the tune of Rs. 5,91,04,944/-. It has further been pointed out in the above said report that only one notice vide letter No. 314 dated 28.06.2014 had been issued by the Executive Officer, Begowal to the Sant Prem Singh Khalsa High School, Begowal ever since after the year 1993 when the Notified Area Committee, Begowal came into existence and despite the said notice regarding the unauthorized construction of boundary wall of the land owned by the NAC, no action has been taken for retrieving the land by taking possession or even removing the unauthorized occupation of the land. It has also transpired that the documentation in relation to leasing out of the land and/or change of the entries are also not forthcoming. 6. A perusal of the aforesaid report, which is preliminary enquiry report, substantively reflects that the authorities preferred to turn a blind eye when the land of the Notified Area Committee was being encroached upon and occupied by persons who had no authority in law to take possession of the same. Besides, the fact that a notice under Section 195 and 195A of the Municipal Act had been issued by the authorities concerned, it shows that they were conscious and aware of the land being an NAC land and under encroachment by the respondents. Despite such consciousness, there is no explanation coming forth as to why the authorities failed to take action. The only inference that can be drawn under such circumstances is that there may be some quid pro quo between the officials as well as the management and in the profit sharing module, they preferred not to discharge their duties and take appropriate and effective steps that the law mandates to take and thus facilitated encroachment of public property. 7. Even though Counsel for respondent No. 3, 8 and 10 submits that there are various discrepancies and factual errors in the preliminary enquiry report that has been submitted by the Director, State Vigilance Bureau, however, the said aspect as regards some discrepancies does not change the material nature of the encroachment. To claim that a minor disparity would also dispel the finding recorded by the Director, Vigilance Bureau, Punjab in the preliminary enquiry would be fallacious and unsustainable. To claim that a minor disparity would also dispel the finding recorded by the Director, Vigilance Bureau, Punjab in the preliminary enquiry would be fallacious and unsustainable. There are thus sufficient grounds at this juncture for this Court to direct the Director, Vigilance Bureau, Punjab to take appropriate steps including registration of criminal cases against the officials who were found wanting in duty and in performance of statutory functions. 8. The Nagar Panchayat, Beghowal, District Kapurthala through its Executive Officer is also directed to take all effective steps under the Punjab Municipal Act, 1911 for effecting recovery of the outstanding dues/charges from the occupants of the premises and also to take appropriate steps as per law for retrieving possession of the land in accordance with law. 9. The present writ petition is accordingly disposed of. The compliance report with respect to the criminal/departmental action initiated by the Vigilance Bureau as well as the State on the criminal as well as departmental side shall be furnished by the State while the compliance report about recovery of dues and steps for retrieving possession shall also be filed by the Executive Officer of the Nagar Panchayat, Beghowal within a period of six months. 10. All the pending miscellaneous application(s), if any, are also disposed of.