Duli Chand and Another vs State of Haryana and Others

Rakesh Kumar Jain, J.—The petitioners have prayed for the issuance of a writ in the nature of certiorari for quashing order dated 28.1.1982 (Annexure P-4) passed by the Assistant Collector, 1st Grade, Nun, order dated 29.10.1984 (Annexure P-5) passed by the Collector, Gurgaon and order dated 31.1.1986 (Annexure P-6) passed by the Commissioner, Ambala Division, Ambala, by which suit filed by the petitioners u/s 13A of the Punjab Village Common Lands (Regulation) Act, 1961, as applicable to Haryana, (for short ''the Act'' has been dismissed. In short, petitioners filed suit u/s 13A of the Act, alleging that petitioner No. 1 is in possession of a house, open courtyard, gitwar marked by letters ''ABCD'', ''EFGH'' & ''MNOP'' in red colour and petitioner No. 2 is in possession of a house and Nohra marked by letters ''HJKL'' & ''POR'' shown in red colour, situated in Khewat No. 81, Khata No. 112, comprising in Killa No. 60, Village Manuwas of Tehsil Nuh, District Gurgaon, to which the Gram Panchayat has no concern and it does not come in the definition of Shamilat deh provided u/s 2(g) of the Act. After completion of the pleadings, issues were framed and both the parties led their respective evidence but the suit was dismissed in respect of the other land except for two pucca houses. The order dated 28.1.1982 (Annexure P-4) of the Assistant Collector, 1st Grade, Nuh, was further upheld by the Collector vide its order dated 29.10.1984 (Annexure P-5) and the Commissioner vide its order dated 31.1.1986 (Annexure P-6).

Learned counsel for the petitioners has submitted that the property in dispute falls in Khasra No. 60, measuring 18 kanals 13 marlas, as per jamabandi for the year 1961-62 (Annexure P-2), and is recorded as Gair Mumkin Abadi but in the column of ownership, it is recorded in the name of Panchayat deh, which is patently illegal as Section 2(g)(vi) of the Act provides that if the land lies outside the abadi deh and is being used as gitwar, bara, manure pit, house or for cottage industry, immediately before the commencement of the Act, it would not be included within the definition of Shamilat deh. It is further submitted that Section 2(g)(vi) of the Act, substituted by Haryana Act No. 2 of 1981 was in operation when the Assistant Collector, 1st Grade, Nuh, passed the impugned order (Annexure P-4) on 4.5.1982. It is also argued that the petitioners had filed suit u/s 13A of the Act for seeking declaration of his right and title in the land in dispute on the ground that it does not vest in the Gram Panchayat being Shamilat deh but the Assistant Collector, 1st Grade, Nuh, has committed a patent error by ordering eviction, which could only be done on an application filed u/s 7 of the Act.

No-one has put in appearance on behalf of the respondents.

We have heard learned counsel for the petitioners and have perused the record with his able assistance.

There is no dispute that as per jamabandi for the year 1961-62 (Annexure P-2), the land in dispute, falling in Khasra No. 60, measuring 18 kanals 13 marlas, is recorded as Gair Mumkin Abadi. Had it been Abadi deh, it would have been excluded from Shamilat deh, in view of Section 2(g)(1) of the Act but since it is Abadi which lies outside Abadi deh, it comes within the definition of Shamilat deh, hence, entry in the jamabandi for the year 1961-62 (Annexure P-2), showing it to be in the ownership of Panchayat deh, is not wrong but the question that arises for consideration in this case is as to whether it falls in any of the exclusion Clauses of Section 2(g) of the Act? At the time, when the petitioners had filed application u/s 13A of the Act, Section 2(g)(vi) was not there in the parent Act, and was inserted as one of the exclusion clause by virtue of Act No. 2 of 1981, after the petitioners had filed their application u/s 11 of the Act, and reads as under:

Section 2(g)(vi):- lies outside the abadi deh and was being used as gitwar, bara manure pit, house or for cottage industry, immediately before the commencement of this Act.

The Assistant Collector, 1st Grade, Nuh, has already exempted the land of the petitioners underneath two pucca houses but has dismissed the suit in respect of the Bara, open courtyard or gitwar, which is part and parcel of their houses and falls within the Gair Mumkin Abadi. As per Section 2(g)(vi) of the Act, the ''gitwar'' and ''bara'' were also exempted from the definition of Shamilat deh. In this manner, the land in dispute, which are ''gitwar'' and ''bara'', belonging to the petitioners are not part of Shamilat deh and does not vest in the Gram Panchayat. Moreover, the Assistant Collector, 1st Grade, Nuh, had no jurisdiction to pass an order of eviction of the petitioners from the land in dispute, in the proceedings filed by the petitioners u/s 13A of the Act, as the jurisdiction vest with the Gram Panchayat to file an application u/s 7 of the Act, in case where a person is found to be in unauthorized possession of Shamilat deh. In view of the aforesaid discussion, the present writ petition is hereby allowed and the impugned order dated 28.1.1982 (Annexure P-4) passed by the Assistant Collector, 1st Grade, Nuh, order dated 29.10.1984 (Annexure P-5) passed by the Collector, Gurgaon and order dated 31.1.1986 (Annexure P-6) passed by the Commissioner, Ambala Division, Ambala, are hereby quashed.

No costs.