Patti Kusla, Village Sikohpur vs State Of Haryana & Ors.

“PETITION under Articles 226/227 of the Constitution of India praying for issuance of a Writ in the nature of Certiorari, quashing the impugned orders dated 27.9.2011, 5.12.2013 and 13.12.2017, Annexure P-18, P-19 and P-21, passed by the respondent no. 4, 3 and 2, respectively, being besides contrary to the evidence on record but also against the settled proposition of law and thus illegal, arbitrary, discriminatory and unconstitutional and are liable to be quashed by this Hon'ble court as legally not sustainable in the eyes of law;

By issuing a Writ in the nature of Mandamus, the petitioners be held entitled for the same equitable relief as has been granted by the respondent no. 4 vide the orders dated 27.7.1995, Annexure P-22 on the same issue of the same village and the evidence as the same attained finality and the petitioners cannot be discriminated in violation of their fundamental rights enshrined under Articles 14 and 16 of the Constitution of India;

OR to pass any other appropriate order or direction which may be deem fit and proper under the peculiar facts and circumstances of the present case.

AND By passing an ad-interim order or direction, operation and further proceedings in pursuance to the impugned orders dated 27.9.2011, 5.12.2013 and 13.12.2017, Annexure P-18, P-19 and P-21, passed by the respondent no. 4, 3 and 2, respectively, may kindly be ordered to be stayed, during the pendency of the present writ petition and in the interest of justice;”

“1.

This is a Civil Writ Petition filed under Article 226/227 of the Constitution of India for the issuance of a writ in the nature of certiorari for quashing the orders dated 27.09.2011 (Annexure P-18), 05.12.2013 (Annexure P-19) and 13.12.2017 (Annexure P-21) passed by respondent Nos.4, 3 and 2 respectively.

2.

The undisputed facts of the present case are that the petitioners had filed a suit under Section 13-A of the Punjab Village Common Lands (Regulation) Act, 1961, presently known as the Haryana Village Common Lands (Regulation) Act, 1961 (hereinafter to be referred as “the 1961 Act”) with respect to land measuring 17 bighas 18 biswas comprised in khewat No.147, Khata No.213, Khasra No.96(5-13), 566(1-9), 2429(9-14) and Khewat No.415, Khata No.580 Khasra No.2350(1-2) situated in Village Shikohpur for declaration that the said land was comprised in Patti Kusla, Patti Deva and Patti Mehru and it was the petitioners who were the owners in possession of the same and the land never vested in the Gram Panchayat and was not shamilat deh. The Gram Panchayat opposed the said suit. The District Collector, Gurgaon vide order dated 27.09.2011, dismissed the said petition and observed that a perusal of the jamabandis, more so jamabandi from the year 1939-1940 to 1985-86 would show that the land in dispute was stated to be “Gair Mumkin Johad” and “Gair Mumkin Hills” and as per “Sharat Vajib-Ul-Araz”, the land in dispute had been used for the common purpose of the villages such as drinking water, for grazing cattles and soil was also being used for plastering the house of the residents and thus, the land falls within the definition of shamilat deh and vested in the Gram Panchayat. It was further observed that the plaintiffs-present petitioners had failed to prove their possession and cultivation on the land in dispute. The District Collector had framed issues in the said suit and had also permitted the parties to lead evidence and the jamabandis as well as the Sharat Vajib-Ul-Araz which were considered, were duly exhibited on record.

3.

The petitioners had filed an appeal which was dismissed by the Commissioner, Gurgaon Division, Gurgaon vide order dated 05.12.2023. The Commissioner, Gurgaon also heard all the parties concerned and perused the record and reiterated the fact that the jamabandis showed that the land in dispute was “Gair Mumkin Johad” and “Gair Mumkin Hills” and as per “Sharat Vajib-Ul-Araz”, was used for common purpose of the village community and thus, vested in the Gram Panchayat. It was further observed that the petitioners had failed to prove their claim.

4.

The petitioners filed revision petition before the Financial Commissioner, Haryana, challenging the abovesaid orders, which was also dismissed vide order dated 13.12.2017, after considering the entire record. The relevant portion of the said order is reproduced hereinbelow:-

“I have heard the learned counsels of the parties and have gone through the record available on file. The impugned orders reveal that as per jamabandi for the year 1939-40, 1985-86 as well copy of the Khasra girdwaris and copy of mutation produced by the petitioner, the land in dispute is recorded as ownership of Shamilat Har Teen Patti Kusla Teen Hissa vaa Shamlat Patti Devi Do Hissa vaa Shamlat Patti Mehru Ekk Hissa. The nature of land recorded as gair mumkin johar and gair mumkin pahar. As per Sharat Wazib-ul-arz the land in dispute i.e. gair mumkin johar and gair mumkin pahar is being used by the village community for common needs i.e. for drinking water and for grazing cattle. As per section 2 (g)(3) of the Punjab Village Common Land (Regulation) Act, 1961 "shamilat deh" includes lands described in the revenue records as shamilat, tarafs, patties, pannas and tholas and used according to revenue records for the benefits of the village community or a part thereof or for common purposes of the village. The petitioners have failed to rebut the revenue record referred above by producing evidence in support of their contentions that the land in dispute is not reserved for gair mumkin johar and gair mumkin pahar. Therefore, the order passed by the Collector Gurugram and Commissioner, Gurugram are well reasoned, justified and legally correct. Therefore, I find no merit in the present petition as such the same is dismissed.

Announced.”

5.

A perusal of the above order would show that after considering the jamabandis, it was found that the land in question was recorded as “Gair Mumkin Johar” and “Gair Mumkin Pahar” and as per “Sharat Vajib-Ul-Araz”, the said land was being used by the village community for common purposes. It was further observed that as per the provisions of law, the land which is being used for common purpose of the village community would vests with the Gram Panchayat. The petitioners have challenged the said orders by filing a writ petition in the year 2024 after a delay of seven years from the date of dismissal of the revision petition, which order was passed on 13.12.2017.

6.

Learned counsel for the petitioners has not disputed the concurrent observations made by the three authorities and has not shown that there is any misreading of any document. It is not disputed before us that in the relevant jamabandis as well as in “Sharat Vajib-Ul-Araz”, the land in dispute was shown as “Gair Mumkin Johar” and “Gair Mumkin Pahar” and is being used by the village community for common purposes i.e., for drinking water and for grazing cattles as per the revenue record. Section 2(g)(3) of the 1961 Act, is reproduced hereinbelow:-

“2(g) “shamilat deh” includes----xxx xxx

(3)

lands described in the revenue records as shamilat, tarafs, patties, pannas and tholas and used according to revenue records for the benefit of the village community or a part thereof or for common purposes of the village;”

7.

A perusal of the above provision would show that it has specifically been stated that shamilat deh would include land described in the revenue records as shamilat, tarafs, patties, pannas and tholas and used according to revenue records for the benefit of the village community or a part thereof or for common purposes of the village. The concurrent findings of fact with respect to the use for common purposes has not been shown to be perverse. No law has been cited before us to show that in such a situation, land would not be shamilat deh or would not vest with the Gram Panchayat and the petitioners would be the owners of the property in question.

8.

Keeping in view the abovesaid facts and circumstances, the present writ petition being meritless, is dismissed and the impugned orders having been passed in accordance with law, deserves to be upheld and are accordingly, upheld.”