Judgment

Mr. Sureshwar Thakur, J. :-

Factual Background.

1. Through the instant petition, a challenge is laid to an order drawn on 25.01.2021 (Annexure P-8), as made by the Assistant Collector, First Grade, Gurugram, and, to the order drawn on 02.05.2022 (Annexure P-12), as made by the learned Collector, Gurugram, besides to the order made on 12.07.2022 (Annexure P-13), by the learned Commissioner, Gurugram, wherethroughs’ the revisionists-petitioners herein, were ordered to be evicted from the petition lands.

Submissions of the learned counsel for the petitioners.

2. The learned counsel appearing for the petitioners for unresting the above drawn orders, has planked his submission on the premise, that since in respect of a controversy, but similar to the one as embodied in the above annexures, a petition bearing No. 27/SDO became filed at the instance of Gram Panchayat Budhera on 26.09.1983, thus resulting in the drawing of Annexure P-2, whereby the Gram Panchayat’s petition (supra) became dismissed. Therefore, he contends that the verdict (Annexure P-2), when has remained unassailed and unchallenged, thereby it acquires apt conclusive and binding effect. Resultantly he has argued, that the subsequently drawn similar thereto motions, at the instance of Gram Panchayat concerned, which resulted in the making of the impugned orders, thus became barred by the estopping principle of constructive res-judicata. Therefore, he contends that the impugned annexures are vitiated.

Inference of this Court.

3. The suit land property is comprised in Khasra No. 51 and in 52, and, it is admittedly located in abadi deh. Though, any abadi raised on abadi deh, is but admittedly saved from the inclusionary definition of shamlat deh. However, through insertion of clause (4a) in Section 2(g) of the Haryana Village Common Lands (Regulation) Act, 1961 (hereinafter for short call ‘the 1961 Act’), provisions whereof become extracted hereinafter, thus making any vacant land situated in an abadi deh or gorah deh, hence not owned by any person, to rather fall within the inclusionary definition of shamlat deh.

2(g) “shamlat deh” includes--

(1) xxxxx

(2) xxxxx

(3) xxxxx

(4) xxxxx

[(4a) vacant land situate in abadi deh or gorah deh not owned by any person;]

(5) xxxxx

4. If so, since at the time of institution of case No. 27/SDO before the Assistant Collector concerned, the insertion of the above provision, thus occurred, thereby making any open space in an abadi deh, to be included in the definition of shamlat deh, thereupon rather the Gram Panchayat concerned, became enjoined to prove that the disputed khasra Nos. 51 and 52 were open spaces, and thereons then an un-authorized construction had been raised by the predecessor in interest of the petitioners one Sudarshan. Consequently, then an order of eviction was to be made on the case (supra), by the Assistant Collector concerned. Moreover, in case the predecessor in interest of the petitioners one Sudarshan, who became impleaded as defendant-respondent in the said suit, was proven to be neither personally or through his alienor, rather since times immemorial or prior thereto, thus not holding any constructed abadi on the khasra number (supra), but admittedly located within the abadi deh. Resultantly thus also construction, if any, made on the khasra number (supra) in contemporaneity to the insertion in the year 1981 of clause (4 a) of Section 2 (g) in ‘the 1961 Act’, thereby also well enabled the Gram Panchayat concerned, to claim valid ownership thereof, besides also well enabled the Gram Panchayat conc