RAWAT Vs. STATE OF HARYANA

JUDGEMENT

(1.) 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 Code of Civil Procedure 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 Under Section 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 under section 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.

(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 under section 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 under section 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.

(3.) 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.