Gugan vs State of Haryana

Jawahar Lal Gupta, J. (Oral)

The petitioners herein filed a suit for a declaration that the land measuring 117 kanals 8 marlas which has now been assigned khasra Nos. 2018, 2045, 1846 and 2128 situate in village Balbehra was not a part of shamlat deh of the village. The suit was dismissed by the Assistant Collector I Grade, Guhla. The appeal filed by the petitioners was dismissed by the Collector. Even the revision petition having been dismissed by the Commissioner, Ambala Division, the petitioners have approached this Court through the present petition. The three orders have been impugned in the writ petition on various grounds which shall be presently noticed.

A written statement has been filed only on behalf of respondent No. 5 pointing out that the petitioners are in possession of 117 kanals 8 marlas of Shamlat land whereas their share is only to the extent of 22 kanals 12 marlas. It has been further pointed out that the impugned orders are based on evidence which has been duly considered by the authorities. Accordingly, it is maintained that there is no merit in this petition.

I have heard Mr. Rajesh Chaudhry, learned counsel for the petitioners and Mr. Rakesh Gupta for the respondents.

For facility of reference, the case of the petitioners can be divided into two parts. The first part relates to Khasra No. 2018 measuring 2 Bighas 9 Biswas and 2045 measuring 4 Bighas. The second part relates to Khasra No. 2128 and 1846 each of which measures 18 Bighas. So far as the first part is concerned, learned counsel for the petitioners has raised a threefold contention. He submits that the order is contrary to the entries in the Jamabandis for the years 193637, 194041 and 194445. He further pointed out that in fact, the petitioners have not been paying any rent or batai. They have been continuously in possession much prior to the enforcement of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as the Act). He further points out that even an entry in the Jamabandi for the year 198081 on account of which the impugned findings have been recorded by the Courts below, has been corrected in a civil suit filed by the petitioners. That being the position, the learned counsel submits that the claim has been erroneously declined by the authorities.

After hearing learned counsel for the parties I find that in the Jamabandis for the years 193637, 194041 and 194445, copies of which have been produced on record as Annexures P1, P2 and P3, it is apparent that the petitioners have been in possession of the land bearing khasra Nos. 2018 and 2045 since the year 193637. Accordingly, the finding recorded by the Assistant Collector which has been affirmed subsequently by the higher authorities is contrary to the entries in the Jamabandis. As such, I am unable to sustain the finding that the petitioners are not in continuous possession of the suit land prior to January 28, 1950. In fact, they have been in possession since the year 193637.

Learned counsel for the respondents submits that in view of the provisions of section 4 of the Act, the claim of the petitioners cannot be sustained. He submits that the land forms a part of the shamlat deh of the village, and by virtue of the provisions of section 4(1)(a) of the Act, it shall be deemed to vest in the Panchayat. However, on a perusal of section 4(3)(ii), it is clear that "rights of persons who were in cultivating possession of Shamilat deh, on the date of the commencement of the 1961 Act, and were in such cultivating possession for more than twelve years on such commencement without payment of rent or by payment of charges not exceeding the land revenue and cesses payable thereof." The land cannot be included in the shamlat deh and does not vest in the Panchayat.

On a perusal of the record of this case, I am satisfied that the requirements of section 4(3)(ii) are clearly satisfied in the present case. The petitioners have been in continuous possession of the land for more than 12 years prior to the commencement of the Act and they have not been paying any rent etc. Accordingly, the action of the authorities in declining the claim of the petitioners in respect of this land cannot be sustained. It may only be added that if on account of consolidation, certain change in the areas has occurred, the petitioners shall be entitled to the proportionate increase in the holding in respect of khasra Nos. 2018 and 2045. Accordingly, the claim in respect of these two khasra Nos. is allowed.

So far as the second part of the claim relating to khasra Nos. 1846 and 2128 is concerned, learned counsel for the petitioners contends that the said land cannot be included in Shamlat Deh as a part of it has been described as Banjar Qadim in the revenue record. He further submits that such part of the land which has been described as Banjar Qadim and is not used for common purposes, cannot form a part of the shamlat deh in view of the provisions section 2(g)(5) of the Act. Learned counsel for the respondents points out that neither at the stage of the trial of the suit nor at any stage in appeal or revision the petitioners had claimed that the land was not being used for common purposes. Accordingly he submits that the petitioners have no right even to the portion of the land which has been described as Banjar Qadim in respect of Khasra Nos. 1846 and 2128.

On going through the record I find that no plea that the suit land was being used for the common purpose has been raised at any stage before the authorities. The petitioners had filed the suit. It was for them to establish that the land did not fall within the definition of Shamlat deh as contemplated under section 2(g). For this purpose, they had to establish that the land was not being used for common purpose. They had not even raised a plea to that effect. Consequently, on the present record, it is not possible for me to hold that the land does not form part of the Shamlat deh.

Accordingly, the claim of the petitioners in respect of the land comprised in Khasra Nos. 2018 and 2045 (which are wrongly described in certain orders as 2018 and 2015) is upheld. So far as the claim in respect of khasra Nos. 2128 and 1846 is concerned, I find no merit in the petition and it is dismissed.

Accordingly, the writ petition is allowed to the extent indicated above. In the circumstances of the case, there will be no order as to costs.