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2017 DIGILAW 2723 (PNJ)

Ved Singh v. Gram Panchayat, Nainetalpur

2017-11-14

SUDHIR MITTAL, SURYA KANT

body2017
JUDGMENT Mr. Surya Kant, J.: (Oral) - This order shall dispose of CWP No.1461 of 2006; and CWPNo.15566 of 2015 as the point in issue involved in both the writ petitions iscommon in nature. Though the facts are mainly extracted from CWP No.1461of 2006 but a brief reference to the relevant facts from CWP No.15566 of 2015is also made. 2. The petitioners are residents of village Nainetalpur, Tehsil andDistrict Sonepat. They claim themselves to be co-sharers and in cultivatingpossession of the land belonging to thola Bhagirath measuring 227 kanal 8marla situated within the revenue estate of their village. It is averred that theaforesaid land is in their cultivating possession from the time of theirforefathers and it is so reflected in the entries made in the jamabandi for theyears 1935-36, 1939-40, 1943-44 and onwards. 3. Since the Gram Panchayat was asserting its claim qua the land indispute having vested in it, the petitioners filed a suit for declaration underSection 13A of the Punjab Village Common Lands (Regulation) Act, 1961 asapplicable to the State of Haryana, seeking ownership and possessory rightsover the land in dispute. Their suit having been dismissed by Collector, Sonepatvide order dated 13.02.2001, they went in appeal which was also dismissed byCommissioner, Rohtak Division vide order dated 02.09.2005. Both theseorders are under challenge in the instant writ petition in which the parties weredirected to maintain status quo re: possession on 31.01.2006. 4. It is broadly an admitted fact that as per the revenue record startingfrom the jamabandis for the year 1909-10 onwards, the land in dispute is shownto be under the ownership of “shamlat thola bhagirath hasab rasad rakbakhewat makbuja malkan”, namely, co-sharers/joint owners are shown to be inits physical possession. At the same time, the extracts of the jamabandis like1909-1910 (P1), 1935-36 (P2), 1939-40 (P3) and 1943-44 (P4) reveal thatnature of some of the khasra nos., i.e. part of the land is recorded as gairmumkin johar (village pond), gora (public passage), gair mumkin charand(grazing ground) etc. etc. Similarly, some of the khasra Nos. are recorded asnehri (i.e. cultivable land which is duly irrigated). 5. The revenue record further reveals that the co-sharers are shown inindividual possession of specific khasra Nos. For example, Chandan s/o HansRam is duly recorded in possession of old khasra No.862 measuring1 kanal 5 marla and the nature of land is nehri. etc. Similarly, some of the khasra Nos. are recorded asnehri (i.e. cultivable land which is duly irrigated). 5. The revenue record further reveals that the co-sharers are shown inindividual possession of specific khasra Nos. For example, Chandan s/o HansRam is duly recorded in possession of old khasra No.862 measuring1 kanal 5 marla and the nature of land is nehri. He is also recorded inpossession of khasra No.865 (2 kanal 11 marla) and so is Ram Saroop s/oMunshi shown in possession of khasra No.866 measuring 2 kanal 17 marla.These have been referred to by us on illustrative basis. 6. The authorities below have turned down the ownership claim ofthe petitioners primarily on the ground that the land in dispute is recorded to bemeant for common purposes like charand, johar and passage etc. and beingowned by ‘thola’ hence it vests in Gram Panchayat under Section 2(g)(1) of the1961 Act. 7. We have heard learned counsel for the parties at a considerablelength and gone through the revenue entries with their able assistance. 8. In our considered view, the approach of Collector as well as of theAppellate Authority in the manner they have proceeded to decide thecontroversy is totally erroneous in law. Section 2(g) of the 1961 Act asapplicable to the State of Haryana defines shamlat deh and the lands which fallin its sub-clauses (1)(2)(3)(4)&(5) all are included within the definition ofshamlat deh. Section 2(g)(3) reads as follows:- “2(g) “shamilat deh” includes —— (1) xxxx xxxx (2) xxxx xxxx (3) lands described in the revenue records as shamilat,tarafs, pattis, pannas and tholas and used according torevenue records for the benefit of the village community ora part thereof or for common purposes of the village” 9. It may thus be seen that the lands which are described in revenuerecords as shamilat, tarafs, pattis, pannas and THOLAS and which are used,according to the revenue record, for the benefit of village community or forcommon purposes of a village, such land stands included in shamlat deh.Suffice it to mention that the lands which are recorded as shamlat deh vests inthe Gram Panchayat under Section 4 of the 1961 Act. 10. It is evident that not every land which is recorded as owned bythola can be shamlat deh. 10. It is evident that not every land which is recorded as owned bythola can be shamlat deh. It must qualify the twin test of, namely, (i) that suchland is used for the benefit of village community or for common purposes ofvillage; and (ii) the land is being used for the benefit of village community orfor common purposes and is duly recorded in the revenue record. Unless boththe conditions are satisfied, thola land cannot be included in shamlat deh. 11. If the entries in the revenue record especially jamabandis (P1 toP4) are critically analysed in the light of the definition reproduced above, itemerges out that while some of the khasra Nos. are mentioned in the revenuerecord being used for benefit of village community such as johar (pond), gora(public passage), charand (grazing ground) etc. but there are some other khasraNos. which are recorded as nehri, namely, irrigatable land and are in theindividual cultivating possession of co-sharers in thola land. It may be difficultto include such khasra Nos. within the definition of shamlat deh as in terms ofthe revenue record, these Khasra Nos. are not being used for ‘commonpurposes’ or for the ‘benefit of village community’. 12. In the light of the varied nature of land from one khasra No. toanother, the authorities below ought not to have made sweeping observationsmerely on the basis of definition of shamlat deh or the fact that the expression”thola” has been used in sub-clause (3) of Section 2(g) of 1961 Act. In otherwords, the Collector was obligated to examine the nature of land khasra No.-wise and then determine as to how much land of thola, as per the revenuerecord, is being used for ‘common purposes’ or for the benefit of ‘villagecommunity’ and how much land is in individual cultivating possession ofproprietors of thola land. There is no gainsaying that the land which falls in thelater category cannot be termed as shamlat deh whereas the first category ofland will fall within the ambit of shamlat deh and it vests in Gram Panchayat. 13. The revenue record of the entire land of thola Bhagirath measuring227 kanal 8 marla is not before us. Similarly, the land in the connected casewas under the ownership of thola Nandwa of the same village and the total areaof that land is 266 kanal 4 marla. The revenue record of the entire land of tholaNandwa is also not available for our consideration. Similarly, the land in the connected casewas under the ownership of thola Nandwa of the same village and the total areaof that land is 266 kanal 4 marla. The revenue record of the entire land of tholaNandwa is also not available for our consideration. Nevertheless, we layemphasis on the fact that the entire land of two tholas which are subject matterof these writ petitions is neither in cultivating possession of the co-sharers nor isrecorded in the revenue record as meant for the benefit of ‘village community’or for ‘common purposes’ of village. The controversy thus can be put to restonly when the prescribed authority deals with the land of each khasra No. anddetermines its nature at the relevant time. 14. The subsequent change in the entries of revenue record in favourof Gram Panchayat may not be the solitary factor to tilt the matter in favour ofGram Panchayat. The consistent revenue record before and afterconceptualization of “shamlat deh lands” (in 1953) will be the litmus test toresolve the controversy. 15. In the light of the above discussion, we are of the view that theimpugned orders cannot sustain as the matter requires afresh adjudication at thehands of Collector, Sonepat, strictly in the light of the observations madehereinabove. 16. For the reasons afore-stated, the writ petitions are allowed; theimpugned orders dated 13.02.2001 & 02.09.2005 (in CWP No.1461 of 2006)and impugned orders dated 12.12.2012 & 20.03.2015 (in CWP No.15566 of2015) are set aside and the matters are remitted to the Collector, Sonepat todecide the same afresh in accordance with law and in the light of theobservations made hereinabove. For the purpose of determining the nature ofeach khasra No. of thola lands, the Collector may either suo motu summon theentire revenue record or permit the parties to lead supplementary evidenceconsisting of entries in the revenue record without any supporting oralevidence. Let the matters be decided within six months from the date of receiptof certified copy of this order. Till then, the parties are directed to maintainstatus quo qua the land in dispute. 17. Parties are directed to appear before the Collector on 04.12.2017.