Punjab-Haryana High Court
Raj Pal And Others vs The State Of Haryana And Others on 4 September, 2013
Bench: Jasbir Singh, G.S. Sandhawalia
CWP No. 6253 of 2010 (O & M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
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CWP No. 6253 of 2010 (O & M)
Date of decision : 4.9.2013
Raj Pal and others ........Petitioners
Vs.
The State of Haryana and others ....Respondents
CORAM: Hon'ble Mr. Justice Jasbir Singh
Hon'ble Mr. Justice G.S. Sandhawalia
Present:- Mr. Mahavir Sandhu, Advocate, for the petitioners
Mr. Vinod S. Bhardwaj, Addl. AG, Haryana
Mr. Gaurav Hooda, Advocate, for respondent No.4
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Jasbir Singh, J. (Oral)
This writ petition has been filed to lay challenge to an order dated 12.2.2008 (P-7), vide which application of the petitioners, to claim ownership of the land, measuring 502 kanals 10 marlas, falling in Khasra No. 104 (219 kanals 11 marlas), 105 min. (278 kanals 19 marlas) and 105 min. (4-0), total measuring 502 kanals 10 marlas, situated in Village Khatauli, Tehsil and District Panchkula, was rejected.
Further challenge has been laid to an order dated 15.10.2008 (P-8), vide which an appeal, filed by the petitioners, was rejected.
Still further challenge has been laid to an order dated 13.1.2010 (P-9), dismissing revision petition filed by the petitioner.
By taking benefit of entries made in Jamabandi for the year 1971-72, showing the land as Shamilat Patti Dewan and Ramjas and in possession of Makbuja Washindgan Deh, an application was filed by the petitioners, to claim ownership of the land in dispute. Kumar Ashwani 2013.09.24 16:54 I attest to the accuracy and integrity of this document CWP No. 6253 of 2010 (O & M) -2-
The Collector framed the following issues for consideration as per pleadings of the parties :-
"1. Whether the plaintiffs are owners and in possession of the land in question and whether the land in question falls within the definition of shamlat deh and therefore vest in the Gram Panchayat? OPP
2. Whether the present suit of the plaintiffs is maintainable or the doctrine of res judicata is applicable? OPD
3. Whether this suit is barred by the act and conduct of the plaintiffs? OPD
4. Whether there is any cause of action arose to the plaintiffs to file the present suit? OPD"
The Gram Panchayat took up a stand that the land is Banjar Kadeem and it is under a river known as Tangri Nadi. It was further stated that, if the land is declared as ownership of the right holders, it will cause havoc, as no source will be available to take away rainy water at the time of rains. There is likelihood the village will be flooded.
The Collector gave opportunity to both the parties to led evidence and qua Issue No.1, following finding was given :-
"The onus to prove this issue was upon the plaintiffs. The plaintiffs in their evidence got recorded the statements of Shri Nathu as PW-1, Sham Singh PW-2, Rakesh Kumar Patwari Halqua Bhareli as PW-3 and produced the copy of jamabandi for the year 2001-02 as Ex.P-1, copy of mutation No. 2020 Ex.P-2, copy of mutation No. 1835 Ex.P-3, copy of mutation No. 1836 Ex.P-4, copy of jamabandi1976-77 Ex.P-5, copy of jamabandi for the year 1991-92 Ex.P-6, copy of order dated 18.4.2006 of Collector, Panchkula Mark A and copy of order dated 20.4.1999 Mark B. Besides, the copies of jamabandis for the years 1945-46, 1954-55, 1962-63, 1966-67, 1971-72, Kumar Ashwani 2013.09.24 16:54 I attest to the accuracy and integrity of this document CWP No. 6253 of 2010 (O & M) -3- 1981-82, 1986-87, 1996-97, Sharat Wazib-Ul-Arj and copy of consolidation scheme including their Hindi version were also produced.
In the revenue record produced by the plaintiffs namely jamabandis for the year 1945-46, 1954-55, 1971-72, 1981-82 and 1986-87, the land in question is recorded as Shamlat Patti Diwan and Ramjas Hasab Rasad Jar Khewat and in the copy of consolidation scheme the land in question has been shown to be reserved for nadi."
It was noticed that the land was reserved for river even during consolidation proceedings. That allotment had become final and was never challenged by any right holder in the village.
It was further noticed that when mutation was changed in the name of the Gram Panchayat, many decades ago, the right holders/similarly situated persons filed appeals etc., which were dismissed. So far as other issues are concerned, those were also decided against the petitioners. They remained unsuccessful before the Collector and the Financial Commissioner when their appeal and revision were dismissed.
By making reference to clause (i) and (v) of the exceptions to Section 2(g) of the Punjab Village Common Lands (Regulation) Act, 1961 (in short 'the Act'), defining 'shamlat deh', counsel for the petitioners states that the land does not vest in the Gram Panchayat and the Courts have gone wrong to say to the contrary. It is specifically stated that the land is under ownership of the right holders in all the Pattis. It is also averred that the land, which is a subject matter of 'river action', in view of the exception clause (i), cannot be declared ownership of the Gram Panchayat.
To the contrary, by making reference to the provisions of Kumar Ashwani 2013.09.24 16:54 I attest to the accuracy and integrity of this document CWP No. 6253 of 2010 (O & M) -4- Sharat-Wazib-Ul-Arj (P-5), Consolidation Scheme (P-4) and entries in the Jamabandi, showing nature of the land as 'Nadi' (Gair Mumkin), It is stated by the Gram Panchayat that the land was being used for benefit of the entire village i.e. to take away rainy water at the time of heavy rains and as such, it has rightly been declared ownership of the Gram Panchayat.
After hearing counsel for the parties, we are not inclined to interfere in the orders under challenge, at the instance of the petitioners.
In Jamabandi for the year 1971-72, upon which reliance has been placed, ownership of the land in dispute is shown that of the Gram Panchayat, the land is described as Gair Mumkin Choe/Nadi and in possession of Makbuja Washindgan Deh i.e. in possession of residents of entire village and not of a particular Patti. A fact that the nature of the land is shown as Gair Mumkin Nadi, it would mean that a river is flowing through that land. Such like land is left for the benefit of entire village, so that free flow of water is not obstructed at the time of rain, causing damage to the adjoining area or to the village population.
To reserve land for various common purposes i.e. passages, Hadda Rori, cremation ground, Johar etc., land in dispute, at Item No. 32 in Consolidation Scheme, was reserved for the purpose of a river, falling in Khasra No. 104, 105, 106, 107 i.e. not for a Nadi. The said Scheme was never challenged by any right holder, which obviously means that land was reserved for common purposes of the village.
Counsel for the petitioners has also placed reliance upon the provisions of Sharat-Wazib-Ul-Arj (P-5), to say that land belongs to the right holders.
Kumar Ashwani2013.09.24 16:54 I attest to the accuracy and integrity of this document CWP No. 6253 of 2010 (O & M) -5-
When we read the above said document, it is coming out that land will be the ownership of right holders. It only says that if somebody's land is taken away by the 'river action' and the land is left in the process of changing of course, the said land will be treated as land of the right holders, whose land was taken away, when the course was changed.
To look into claim of the petitioners, we have refer to the provisions of Clause (i) and (v) of the exception's carved out to Section 2
(g) of the Act. The said provision reads thus :-
"2 (g) "Shamlat deh" includes - (1) to (4) xxx xxx (5) lands in any village described as banjar qadim and used for common purposes of the village according to revenue records;
but does not include land which --
(i) becomes or has become shamilat deh due to river action or has been reserved as shamilat in villages subject to river action except shamilat deh entered as pasture, pond or playground in the revenue records;
(ii) to (iv) xxx xxx xxx xxx
(v) is described in the revenue records as shamilat taraf,
pattis, pannas, and thola and not used according to revenue records for the benefit of the village community or a part thereof or for common purposes of the village;"
Reading of Clause (i) indicates that the land, which has become Shamlat Deh due to 'river action' shall not vest in the Gram Panchayat's land except pasture etc. In the present case, situation is totally reverse. The land which is claimed as ownership of the petitioners, has not come in existence due to the 'river action'. In the consolidation record, this land is also Kumar Ashwani 2013.09.24 16:54 I attest to the accuracy and integrity of this document CWP No. 6253 of 2010 (O & M) -6- shown as reserved for the purpose of Nadi/river and not for any other purpose.
So far as Clause (v) is concerned, its reading indicates that if the land is shown in the revenue record as shamlat, taraf, pattis, pannas and thola and not used for common purposes, it shall not vests in the Gram Panchayat.
The land in dispute is shown as Shamilat Patti Dewan and Ramjas, however, it is shown as Gair Mumkin Nadi. If that is so, as has been discussed earlier, it can be said to have been used for common purpose of the entire village.
As per facts on record, the land in dispute is not the result of 'river action' and further, as per finding given, it was used for common purposes i.e. for a riverbed.
The ratio of the judgment of Full Bench of this Court in Gram Panchayat Sadhraur v. Baldev Singh and others (P & H) 1977 PLJ 276 is not applicable in the present case, as it has specifically been held that the land is reserved and being used for common purposes as per revenue record.
Under the circumstances, no case is made out for interference in the orders under challenge.
Accordingly, the writ petition is dismissed.
(Jasbir Singh) Judge (G.S. Sandhawalia) Judge 4.9.2013 Ashwani Kumar Ashwani 2013.09.24 16:54 I attest to the accuracy and integrity of this document