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2017 Supreme(P&H) 2910
IN THE HIGH COURT OF PUNJAB AND HARYANA
[DIVISION BENCH]
Before
Hon’ble Mr.Justice Surya Kant
Hon’ble Mr.Justice Sudhir Mittal
CWP No.1461 of 2006 (O&M)
Ved Singh & Ors.
v.
Gram Panchayat, Nainetalpur & Ors.
{Decided on 14/11/2017}
Mr. SP Chahar, Advocate for Gram Panchayat
Mr. D.Khanna, Addl. AG Haryana
Village Common Lands – Shamlat Deh – Not every land which is recorded as owned by thola can be shamlat deh.
Village Common Lands – Shamlat Deh – Land recorded as Tholas – Collector was obligated to examine the nature of land khasra number-wise and then determine as to how much land of thola, as per the revenue record, is being used for ‘common purposes’ and how much land is in individual cultivating possession of proprietors of thola land.
Headnote:(A) Punjab Village Common Lands (Regulation) Act, 1961, S.2 – Shamlat Deh – Land recorded as Tholas – Held; that not every land which is recorded as owned by thola can be shamlat deh – It must qualify the twin test of, namely, (i) that such land is used for the benefit of village community or for common purposes of village; and (ii) the land is being used for the benefit of village community or for common purposes and is duly recorded in the revenue record. Unless both the conditions are satisfied, thola land cannot be included in shamlat deh. (Para 10)
(B) Punjab Village Common Lands (Regulation) Act, 1961, S.2 – Shamlat Deh – Land recorded as Tholas – In present case, while some of the khasra numbers are mentioned in the revenue record being used for benefit of village community such as johar (pond), gora (public passage), charand (grazing ground) etc. but there are some other khasra numbers which are recorded as nehri, namely, irrigatable land and are in the individual cultivating possession of co-sharers in thola land.
(i) Collector was obligated to examine the nature of land khasra number-wise and then determine as to how much land of thola, as per the revenue record, is being used for ‘common purposes’ or for the benefit of ‘village community’ and how much land is in individual cultivating possession of proprietors of thola land.
(ii) In the light of the varied nature of land from one khasra number to another, the authorities below ought not to have made sweeping observations merely on the basis of definition of shamlat deh or the fact that the expression “thola”.
(iii) The controversy thus can be put to the rest only when the prescribed authority deals with the land of each khasra number and determines its nature at the relevant time.
(iv) The subsequent change in the entries of revenue record in favour of Gram Panchayat may not be the solitary factor to tilt the matter in favour of Gram Panchayat – The consistent revenue record before and after conceptualization of “shamlat deh lands” (in 1953) will be the litmus test to resolve the controversy.
(v) Matter remanded back to rename authorities to be decided afresh.
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. 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
