Jai Karan & ORS. v. State Of Haryana & ORS.( Main Dismissed On 12.8.13)
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7 twenty-five per centum of the total area of the village does not exist in the village;
(6) Lands reserved for the common purposes of a village under Section 18 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act,
1948 (East Punjab Act, 50 of 1948), the management and control whereof vests in the Gram Panchayat under Section 23-A of the aforesaid Act.
A1>'*:- Lands entered in the column of ownership of record of rights as 'Jumla Malkan Wa Digar Haqdaran Arazi Hasab Rasad', shall be Shamlat Dehh within the meaning of this section."
but does not include land which:- (i) becomes or has become Shamlat deh due to river action or has been reversed as Shamlat in villages subject to river action except Shamlat deh entered as pasture, pond or playground in the revenue records;
(ii) has been allotted on quasi permanent basis to a displaced person;
(ii-a) was Shamlat Deh, but has been allotted to any person by the Rehabilitation Department of the State Government, after the commencement of this Act, but on or before the 9th day of July, 1985;
(iii) has been partitioned and brought under cultivation by individual landholders before the 26th January, 1950; (iv) having been acquired before 26th January, 1950, by a person by purchase or in exchange for Proprietory land from a co-sharer in the Shamlat Deh and is so recorded in the Jamabandi or is supported by a valid deed; (v) is described in the revenue records as Shamlat Taraf, Patti, Panna or 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.
(vi) Lies outside the abadi Deh and was being used gitwarbara, manure pit, a house or for cottage industry immediately before the commencement of this Act. (vii) is Shamlat Deh, of villages included in the fourteen revenue estates called 'Bhojas' of Naraingarh Tehsil of Ambala district.
(viii) was Shamlat deh, was assessed to land revenue and has been in the individual possession of co-sharers not being in excess of their respective shares in such Shamlat Deh on or before the 26th January, 1950; or (ix) is used as a place of worship or for purposes subservient thereto."
Until and unless, the land in question falls under any of the exclusion clauses, the same has to be treated as Shamilat Deh. It is useful to refer to Section 3 and 4 (1) (a) of the 1961 Act which are reproduced as under:- "
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4 ID At this stage, it is relevant to refer to a judgment of a Division Bench of this High Court in CWP No. 9368 of 2007, titled Sita Ram etc., Vs. Gram Panchayat Ismaila etc., decided on 12.06.2007, wherein it was observed as under:- "A reading of section 2(g)(1) of the 1961 Act shows that the land which is described in the revenue record as 'Shamlat Deh' excluding Abadi Deh is 'Shamlat Deh'.
In terms of Section 4(1)(a) of the 1961 Act, it is provided that notwithstanding anything to the contrary contained in any other law for the time being in force or in any agreement, instrument, custom or usage or any decree or order of any Court or other authority, all rights, title and interest whatsoever in the land which is included in 'Shamlat Deh' of any village and which is not vested in a Panchayat under the 'Shamlat Law' shall at the commencement of the 1961 Act vest in a Panchayat constituted for the said village and where no such panchayat has been constituted for such village vest in the panchayat on such date as panchayat having jurisdiction over that village is constituted. Section 2(g) of the 1961 Act is in two parts.
relates to the land which is included in the 'Shamlat Deh' and the second part relates to the lands which are excluded. In terms of clause (iii) which is in the second part of section 2(g) and relates to the lands which are not included as 'Shamlat Deh' it has to be shown for the land to be the ownership of the individual land owners that it has been partitioned and brought under cultivation by the individual land holders before 26.1.1950. It is only then that such land would be excluded from 'Shamlat Deh'. In terms of the exclusion clause (iii) of the second part of Section 2(g) it was open to the proprietors and share holders before the appointed date i.e. 26.1.1950 to partition or bring into cultivation the land of the 'Shamlat Deh'.
The land in question admittedly has not been partitioned or brought under cultivation by an individual land holder before 26.1.1950. Therefore, it does not come in the second part of Section 2(g) of the 1961 Act so as to be excluded from 'Shamlat Deh'. In the circumstances, the fact that the land is recorded as 'Shamlat Deh' and it is further mentioned as 'Hasab Rasad Arazi Khewat' is inconsequential as the land has not been shown to be partitioned amongst the proprietors of the village before 26.1.1950 which is the date fixed so as to exclude the land form 'Shamlat Deh'. Therefore, the land which is recorded as 'Shamlat Deh' in the revenue record, is 'Shamlat Deh' within the meaning of Section 2(g) of the 1961 Act and is to vest in the Gram Panchayat in terms of section 4(i)(a) as referred to above."
The mention of land as Hasab Rasad Khewat, is thus clearly not relevant in the given facts and circumstances. Furthermore, reliance by learned counsel for the petitioners on the judgment of Hon'ble Supreme Court in Jai Singh's case (supra), to contend that the Gram Panchayat land cannot be transferred to a Municipality or Municipal Corporation, is devoid of any merit. To the contrary, it has been categorically held in the said decision !
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43. A reading of the aforementioned judgments and the history of the shamilat deh (common land) in the State of Punjab, including State of Haryana, shows that the common land for the purposes of the present appeals falling in Section 2(g)(1) and (6) of the 1961 Act as amended by the Amending Act can be broadly classified into three categories:
(i) shamilet deh recorded in the ownership of the Gram Panchayat prior to consolidation which vests unequivocally with the commencement of the Punjab and PEPSU Act.
(ii) land for common purposes reserved during the process of consolidation by applying pro-rata cut from the holdings of the proprietors, not necessarily falling within the permissible ceiling limits under the land ceiling laws.
(iii) common purposes land reserved by pro-rata cut within the permissible limits as per the land ceiling laws, the management and control of which vests with the panchayat."
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