Punjab-Haryana High Court
Gram Panchayat Ladhuwas Ahir vs State Of Haryana And Others on 14 February, 2012
Author: Rajive Bhalla
Bench: Rajive Bhalla, Jora Singh
Civil Writ Petition No.3330 of 2011 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
(1) Civil Writ Petition No.3330 of 2011
Date of Order:14th February, 2012
Gram Panchayat Ladhuwas Ahir.
...Petitioner
Versus
State of Haryana and others ..Respondents
(2) Civil Writ Petition No.3359 of 2011
Gram Panchayat Ladhuwas Ahir.
...Petitioner
Versus
State of Haryana and others ..Respondents
CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA
HON'BLE MR. JUSTICE JORA SINGH
Present: Mr. J.P.Sharma, Advocate
for the petitioner (in both writ petitions)
Ms. Shruti Jain, AAG, Haryana
for the State.
Mr. Jyoti Parshad Shama, Advocate
for respondents no.5 and 6 (in CWP No.3330 of 2011)
Mr. Sharad Kumar Yadav, Advocate
for respondent no.5 (in CWP No.3359 of 2011)
RAJIVE BHALLA, J.
By way of this order, we shall dispose of Civil Writ Petition Nos.3330 of 2011 and 3359 of 2011, as they involve adjudication of identical questions of law.
Civil Writ Petition No.3330 of 2011 -2-
The common questions posed in these petitions are whether vacant land within "Abadi Deh" vests in a Gram Panchayat and if so whether use of vacant land for storing fire wood, cow dung and tethering of cattle would raise an inference that the land is not vacant?
The facts as admitted are that the petitioner, namely, Gram Panchayat of Village Ladhuwas Ahir, filed a petition under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter refereed to as 'the Act') (as applicable to the State of Haryana), alleging that the private respondents are in illegal occupation of land measuring 1 Kanals and 17 Marlas bearing Khasra No.87, situated within the "Abadi Deh" of the village. The Gram Panchayat asserted that, though, the land falls within "Abadi Deh", it vests in the Gram Panchayat as "Shamilat Deh", being vacant land, by virtue of Section 2(g)(4)
(a) of the Act. The private respondents raised a plea that the land is "Abadi Deh" and was in possession of their forefathers and as they are in possession, the land does not vest in the Gram Panchayat under Section 2(g)(4)(a) of the Act. The private respondents also asserted that they are storing fire wood etc. on the land in dispute. The Assistant Collector Ist Grade, Rewari, accepted the petition and directed the ejectment of private respondents by holding that the land in dispute is vacant land within 'Abadi Deh" and private respondents have failed to Civil Writ Petition No.3330 of 2011 -3- produce any evidence of their old possession.
Aggrieved by this order, the private respondents filed an appeal. Vide order dated 28.08.2007, the Collector, Rewari, dismissed the appeal. The private respondents, thereafter, filed a revision before the Commissioner, Gurgaon Division, Gurgaon, who vide order dated 13.05.2010, allowed the appeal, set aside the orders passed by the Assistant Collector and the Collector and held that there is no evidence on record to establish that the land in dispute is owned by the Gram Panchayat, as the land is 'Abadi Deh" and does not fall within the definition of common land. It was also held that as private respondents are using the disputed land since long as a "Gatwar", it is not vacant land as defined under Section 2(g)(4)(a) of the Act.
Counsel for the Gram Panchayat submits that apart from the fact that there is a factual error in the impugned order with respect to the absence of any report by a Local Commissioner, mere user of vacant land does not divest the Gram Panchayat of ownership. The user of land for storing fire wood, tethering of cattle, storing straw etc. does not translate into possession that deprives the Gram Panchayat of ownership. As private respondents have admittedly not raised any construction and are merely using the land for storing fire wood etc., the learned Commissioner committed an error in setting aside the orders passed by the Assistant Collector and Civil Writ Petition No.3330 of 2011 -4- the Collector and holding that the land is not vacant and, therefore, does not vest in the Gram Panchayat.
Counsel for private respondents submits that private respondents have been using the land in dispute since time immemorial as a "Gatwar" for storing fire wood, cow dung and for tethering of cattle etc. As the land in dispute is not vacant land, the learned Commissioner, rightly held that it does not belong to the Gram Panchayat. It is further submitted that as the Gram Panchayat admits that private respondents are in possession and the land is situated within "Abadi Deh", the land is excluded from "Shamilat Deh" by virtue of Section 2(g)(1) of the Act.
We have heard counsel for the parties and perused the impugned orders.
Section 2(g)(1) of the Act provides that lands described in the revenue record as "Shamilat Deh" or "Charand" excluding "Abadi Deh" shall be "Shamilat Deh". However, Section 2(g)(4)
(a) enacts an exception to Section 2(g)(1), by providing that vacant land, not owned by any person and situated within "Abadi Deh" or "Gorah Deh" shall be "Shamilat Deh". A combined reading of Section 2(g)(1) and Section 2(g)(4)(a) of the Act reveals that as a general rule, "Abadi Deh" is excluded from "Shamilat Deh" but vacant land in "Abadi Deh" or "Gorah Deh"
not owned by any person shall be "Shamilat Deh". The first Civil Writ Petition No.3330 of 2011 -5- question is, therefore, answered by holding that vacant land situated in "Abadi Deh" and not owned by any person, shall be "Shamilat Deh" and would vest in a Gram Panchayat.
The second question that arises for adjudication whether storage of fire wood, cow dung, straw and tethering of cattle etc. translates into possession of such a nature as would exclude such land from "Shamilat Deh"?
The storing of fire wood, cow dung, straw and tethering of cattle, on vacant land, within "Abadi Deh", in our considered opinion does not translate into such possession as would exclude it from "Shamilat Deh". The storing of firewood, cow dung etc. is a mere "user" as opposed to "possession". The mere user of vacant land in "Abadi Deh" or "Gorah Deh" would not translate into such a possession as would exclude vacant land from "Shamilat Deh". If we were to hold that storing of fire wood etc. on vacant land within "Abadi Deh" would be evidence of possession, sufficient to exclude it from "Shamilat Deh", we would in essence open the flood gates of unauthorised occupation of panchayat lands. We are, therefore, satisfied that mere storing of cow dung, fire wood etc. by the private respondents does not entitle them to claim that the land does not belong to the Gram Panchayat. The learned Commissioner reversed findings recorded by the Assistant Collector and the Collector by holding that the private respondents have been Civil Writ Petition No.3330 of 2011 -6- using this land as 'Gatwar" since the time of their ancestors. We have, in our attempt, to ascertain whether there is any material to record to support such a finding, perused the paper book and the revenue entries appended as Annexure P-1, but are unable to find any such material on record. The Commissioner, therefore, erred in holding that mere user of the land, would oust the rights of the Gram Panchayat.
Consequently, we allow the writ petition, set aside order dated 13.05.2012 and restore orders dated 13.02.2007 and 28.08.2007, passed by the Assistant Collector Ist Grade, Rewari and the Collector, Rewari, respectively. No order as to costs.
(RAJIVE BHALLA)
JUDGE
February , 2012 (JORA SINGH)
nt JUDGE