Rawat vs State of Haryana and Others

R.L. Anand, J.—Sarveshri Rawat and Jagti, present petitioners have filed the present writ petition under Articles 226/227 of the Constitution of India against the State of Haryana; Assistant Collector 1st Grade, Charkhi Dadri, Gram Panchayat Village Maheda and 31ock Development and Panchayat Officer, Charkhi Dadri, respondents No. 1 to 4 paying for the issuance of a writ of certiorari quashing the impugned orders Annexure P-2 dated 7.4.1980 by inter-alia pleading that after having obtained the permission under Order 1 Rule 8 of the CPC to file the present writ petition in a representative capacity, that the land measuring 176 Kanals comprised in Khewat No. 36 Khatauni No. 90 situated in village Mehra is owned and possessed by the petitioners and several share-holders of Thola Ram Karan ''Hasab Rasad Khewat'' after making partition even earlier to 1950 and that the land does not fall within the definition of shamilat deh and they have prayed for cancelling the mutation No. 382 dated 28.8.1980 which was sanctioned without the knowledge of the petitioners. It is pleaded by the petitioners that the Assistant Collector Grade I, Charkhi Dadri i.e. respondent No. 2 without framing any proper issue hurriedly and summarily disposed of the matter vide order dated 7.4.1964 Annexure P.2 in the petition u/s 13-B of the Punjab Village Common Lands (Regulation) Act, 1961 as applicable to Haryana. It is alleged by the petitioners that the disputed land does not fall within the definition of shamilat deh and as such mutation in favour of the Gram Panchayat, i.e. respondent No. 3 is null and void. The copies of the jamabandis for the year 1955-56, 1959-60 and khasra girdwaris do not support the case of respondent No. 1. The orders Annexure P.2 are wholly illegal, null and void because the land in dispute was always owned and possessed by the proprietors of the Thola and it could not vest with the panchayat as per definition of section 2(g) of the said Act. The revenue record shows that the land in question was in possession of the petitioners who were some of the proprietors of Thola Ram Karan and they were the sole recipient of benefits accruing therefrom. The land in question was never used for common purposes of the village as per revenue record nor there was any other evidence led by the respondent-Gram Panchayat. the possession of the petitioners is protected by section 4(3)(ii) of the Act as applicable to the State of Haryana. It was also pleaded that the proceedings u/s 13(b) of the said Act were to be treated as a suit and it was supposed to be investigated by the Assistant Collector 1st Grade who failed to discharge his obligation by not framing the proper issues and thus the findings given by the Collector vide Annexure P.2 have materially prejudiced the case of the petitioners. The findings are wholly illegal and were based on no evidence in favour of the Gram Panchayat against the overwhelming evidence led by the petitioners to establish that the revenue documents do not support that the land in question was ever being used for common purposes. With the above allegations, the petitioners have prayed for the cancellation of the mutation No. 382 sanctioned on 28.8.1964 on the basis of the orders Annexure P.2.

Notice of the writ petition was given to the respondents. It has been contested by respondent No. 3 through if s Sarpanch who admitted that the petitioners filed application u/s 13-B of the Act in a representative capacity seeking declaration to the effect that the land measuring 176 kanals comprised in khewat No. 35 Khatoni No. 90 situated in village Mehra was owned and was in their possession along with other co-sharers on the plea that it is not a shamilat deh. It was also admitted that the petitioners prayed in the application u/s 13-B for the exclusion of the land from shamilat deh by cancelling mutation No. 382 dated 28.8.1964. However, it was submitted that the petitioners were given full opportunity to lead evidence to prove their case and it does not make any difference if the Collector did not frame the issues as no prejudice was caused to the petitioners justifying the orders Annexure P.2 and the mutation Annexure P.5 dated 28.8.1964, respondent No. 3 has prayed for the dismissal of the writ petition by stating that the land in question is a shamilat deh.

I have heard Shri M.L. Sarin, Sr. Advocate on behalf of the petitioners, Shri Azad Singh, AAG, (H) for respondents 1 and 2 and Shri C.B. Kaushik, Advocate, on behalf of respondent No. 3 and with their assistance have gone through the record of this case.

Section 2(G)(III) of the Act lays down that the shamilat deh includes land described in the revenue record as shamilats tarafs, patties, pannas and tholas and used according to revenue records for the benefits of the village community or a part thereof or for common purposes of the village. Proviso to this Sub-section lays down that such shamilat deh does not include the land which is described in the revenue record as shamilat tarafs, patties, pannas and tholas and not used according to the revenue record for the benefit of village community or a part thereof or for common purposes of the village.

Thus the interpretation of the above provision would show that if a shamilat deh though described in the revenue record as Thola but if not used according to the revenue record for the benefit of the village community or part thereof or for common purposes of the village such land will not become shamilat deh. In this regard, reference to jamabandi Annexure P.3 and Annexure P.4 relied upon by the petitioners has become very relevant. In the relevant column No. 4, the words written are ''Shamilat Thola Hasab Rasad Mashkoor''. There is no reference in Annexure P.3 i.e. jamabandi for the year 1955-56 that the land in question was even used for common purposes or for the benefit of village community or part thereoi. Similar is the main observation with regard to Annexure P.4 i.e. jamabandi for the year 1959-60. Till it is established that the land is used for common purposes or for the benefit to the village community it cannot be held to be shamilat deh. It was held in Gram Panchayat Sadhraur and Anr. v. Baldev Singh and Ors. 1977 P.L.J. 276 that Sub-clause (5) of Section 2(g) being a specific provision is restricted to land shown as Banjar Qadim in revenue record; there must be a pre-requisite before such a land can be held to be shamilat deh and vest in Gram Panchayat. It must be established that according to the entries in the revenue record the same was being used for common purposes of the village. Unless this conclusion is reached Banjar Qadim cannot be held to vest in the Gram Panchayat. It was also held that there must be entries in the revenue record to show that actually some benefit was derived from the use of such land by the village community or part thereof. In this view of the matter, it was to be established by the Gram Panchayat from the revenue record itself that the land in question was being used for the benefit of village community or that it was being used for common purposes of the village. If the revenue entries do not support this claim of the Gram Panchayat, the land cannot be held to be shamilat deh. Similar interpretation was accepted in Sundar v. Gram Panchayat Adhoya 1977 P.L.J. 305 after relying the citation of the Full Bench.

The learned counsel for the petitioners further submitted that on the basis of the mutation illegally sanctioned in favour of the Gram Panchayat this writ petition cannot be thrown away because the mutation does not confer any title as such. Rather it is mere entry in the name of the Gram Panchayat. The petitioners continued to be in possession of the property even after the sanction of the mutation in favour of respondent No. 3 and as such no cloud was cast on the title of the petitioners by mere entry of mutation in the name of the Gram Panchayat and as such no cause of action arose to them with the sanctioning of the mutation. Rather the cause of action arose to the petitioners when the possession of the petitioners was actually threatened. There is a merit in the argument raised by the learned counsel for the petitioner as the proposition is supported by the authority of a Division Bench of this Court reported as Ibrahim v. Smt. Sharifan,3 1979 P.L.J. 469. Though the mutation of 1968 is under challenge in the present petition till the petitioners are threatened in the disturbance of their possession, they were not obliged to file the writ petition. Learned counsel appearing on behalf of the respondents had tried to justify the order by submitting that the Collector had held in the impugned order that the panchayat was in self-cultivation of the land in question. Therefore, it should be presumed that the land in question was being used for common purposes. The argument is not acceptable to this Court in view of the jamabandies Annexure P.3 and P.4 for the years 1955-56 and 1959-60, respectively. In the column of cultivation, the Gram Panchayat does not figure. Rather the possession of the co-shares of Thola Ram Karan (shareholders) is proved. In view of the jamabandies of the earlier period, the jamabandi for the year 1975-76 cannot be given preferential weightage. The learned Assistant Collector 1st Grade vide impugned order dated 7.4.1980 dismissed the application u/s 13-B of the Act mainly on the ground that mutation was sanctioned in the year 1964 while the application was filed in the year 1979 after three years; hence it should be rejected and secondly it is proved from the jamabandi for the year 1975-76 that panchayat was in cultivation. Both the reasons advanced by the learned Assistant Collector are without any merit. There were no valid basis for the Collector to hold that the land in question was being used for common purposes of landless Harijans or that they graze cattle or place cow dung etc.

The impugned order Annexure P.2 also cannot be sustained in the eyes of law as the learned Collector had dealt the petition u/s 13-B in a summary manner without framing issues, By non-framing of the issues a prejudice has! definitely been caused to the petitioners irrespective of the fact that they were given chance to lead evidence.

In view of the above, the present writ petition is allowed and the impugned orders Annexure P.2 dated 7.4.1980 as well as mutation No. 392 sanctioned on 28.8.1964 is hereby quashed and it is declared that the land in dispute did not vest in a valid manner in favour of respondent No. 3 Gram Panchayat of village Mehra. There will be no order as to costs.