Khushi Khan v. Commissioner, Gurgaon Division, Gurgaon & Ors.

Present : Mr. Sandeep Punchhi, Advocate for the petitioner. Mr. Gagandeep Singh Wasu, Sr. DAG, Haryana for the respondents. .... RAJIVE BHALLA, J (Oral) The petitioner prays for issuance of a writ in the nature of Certiorari for quashing orders dated 4.6.2002, 14.1.2003 and 2.12.2004, passed by the Assistant Collector, Ist Grade, Ferozepur Jhirka, the Collector, Gurgaon and the Commissioner, Gurgaon Division Gurgaon, respectively directing the ejectment of the petitioner from the land owned by the Gram Panchayat. The Gram Panchayat filed an application, under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961, as applicable to the State of Haryana (hereinafter referred to as `the Act') for the petitioner's ejectment by alleging that he is in unauthorised occupation of panchayat land. The petitioner resisted the application by alleging that as his father CWP No.7450 of 2005 2 Niwaz Khan and thereafter the petitioner was in cultivating possession of the land, in accordance with his shareholding and the land was assessed to land revenue, it does not vest in the Gram Panchayat, in view of proviso (viii) of Section 2(g) of the Act.

The Assistant Collector, Ist Grade, Ferozepur Jhirka, rejected the petitioner's plea by holding that the petitioner has failed to prove cultivating possession prior to 26.1.1950 and also held that the petitioner is a shareholder of only 4 Biswas but is in possession of more land. The Assistant Collector, Ist Grade, therefore, ordered the petitioner's ejectment. Aggrieved by this order, the petitioner filed an appeal. The Collector, Gurgaon, dismissed the appeal. The revision filed before the Commissioner, Gurgaon Division, Gurgaon, was also dismissed. Counsel for the petitioner submits that as per the jamabandi for the year 1938-39 and all subsequent jamabandis, the petitioner's father and thereafter the petitioner is recorded in cultivating possession of the land in dispute, in accordance with his shareholding. As per the Goshwaras for the years 1946-47 (Annexure P-1) and 1950-51 (Annexure P-2), the petitioner's father is a shareholder of 13 Bighas 7 Biswas.

The Assistant Collector, Ist Grade, has committed an error, not only while calculating the shareholding but also while holding that the land is Shamilat Deh. It is submitted that in view of proviso (iii) and (viii) to Section 2(g) of the Act, the land in dispute does not vest in the Gram Panchayat and, therefore, the orders passed by the Assistant Collector, the Collector and the Commissioner are a nullity and should be set aside. Counsel for the State of Haryana, on the other hand, submits that the land in dispute is Shamilat Deh and vests in the Gram Panchayat. CWP No.7450 of 2005 3 The petitioner has failed to prove his individual cultivating possession prior to 1950, whether in terms of proviso (iii) or proviso (viii) of Section 2(g) of the Act. It is argued that as per jamabandis Annexures R-3 to R-7, the land in dispute is primarily recorded as Banjar Kadim with 4 Biswas being recorded as a Gair Mumkin Kabristan and the other land being Bhud or Dheri.. The petitioner's claim that his father was in cultivating possession of this land is nullified by these entries, as a person cannot be in cultivating possession of a Gair Mumkin Kabristan or land described as Banjar Kadim, Bhud or Dheri.

I have heard counsel for the parties and perused the impugned orders. The petitioner claims ownership of the land in dispute on the ground that as his father was in cultivating possession before 26.1.1950, the land in dispute is excluded from Shamilat Deh by virtue of provisos (iii) and (viii) of Section 2(g) of the Act. Proviso (iii) and proviso (viii) of Section 2(g) of the Act reads as follows :- Section 2(g) “Shamilat deh” includes (1) XX XX XX (2) XX XX XX (3) XX XX XX (4) XX XX XX (5) XX XX XX but does not include land which - (i) XX (ii) XX XX XX XX XX (iii) has been partitioned and brought under cultivation by individual landholders before the 26th January 1950; CWP No.7450 of 2005 4 (iv) to (vii) XX XX XX (viii) was shamilat deh, was assessed to land revenue and has been in the individual cultivating possession of co-sharers not being in excess of their respective shares in such shamilat deh on or before the 26th January 1950.” Section 2(g) of the Act defines Shamilat Deh and sub sections (1) to (5) set out the land included in Shamilat Deh, whereas provisos (i) to (viii) set out the land which is excluded from Shamilat Deh.

A petitioner who claims the benefit of these provisos would be required to strictly prove the ingredients of these provisos. A petitioner, who seeks to draw benefit under proviso (iii), would be required to prove (i) that the land has been partitioned; (ii) brought under cultivation; (iii) by individual land holders before 26.1.1950. In order to the claim benefit under proviso (viii), a petitioner is required to prove : (i)the land is Shamilat Deh (ii)that the land was assessed to land revenue (iii) was in individual cultivating possession as a co-sharer; (iv) not being in excess of his shareholding on or before

26.1.1950. A perusal of the jamabandi for the year 1938-39, appended with the petition and the other Jamabandis appended with the reply, leaves no manner of doubt that the land in dispute was neither partitioned nor in the individual cultivation of the petitioner's father, so as to exclude it from CWP No.7450 of 2005 5 Shamilat Deh under proviso (iii). Similarly, though the land is Shamilat Deh and recorded in the cultivating possession of the petitioner's father, the land is described as Gair Mumkin Kabristan, Banjar Kadim, Bhud/Dheri in the jamabandis for the years 1938-39, 1942-43 and 1946-47 thereby negating the entry of cultivating possession. The word Banjar Kadim denotes land that is an old fallow and is, therefore, uncultivated. A Gair Mumkin Kabrisatan cannot be in cultivating possession for obvious reasons and land described as Bhud/Dheri is uncultivable land. The petitioner's claim that his father was in cultivating possession prior to 26.1.1950, is therefore, negated by entries in the jamabandis recording that the land is Gair Mumkin Kabristan, Banjar Kadim etc. The fact that the petitioner may have brought this land under cultivation after the enactment of 1961 Act, is irrelevant. It would be necessary to mention that the Collector has recorded a firm finding that the petitioner's shareholding is 4 Biswas only, but the petitioner is in possession of 13 Bighas 7 Biswas. As the petitioner has failed to establish the ingredients of proviso (iii) or (viii) of Section 2(g) of the Act, his claim that the land is not Shamilat Deh was rightly rejected by the Assistant Collector, Ist Grade, Gurgaon, by the Collector, Gurgaon and the Commissioner, Gurgaon Division, Gurgaon. In view of what has been stated herein above, the writ petition is dismissed with no order as to costs.

6.7.2010 GS (RAJIVE BHALLA) JUDGE