SURAT SINGH Vs. STATE OF HARYANA

JUDGEMENT

(1.) THIS petition under Articles 226/227 of the Constitution of India has been filed seeking quashing of the order dated 8.6.2009 (Annexure P10) passed by the learned Financial Commissioner, Haryana (respondent No. 1), the order dated 16.12.2008 (Annexure P9) passed by the Commissioner, Rohtak Division, Rohtak (respondent No. 2) and the order dated 4.10.2006 (Annexure P7) passed by the Collector, Panipat (respondent No. 3).

(2.) THE Gram Panchayat Kurana, Tehsil Israna, District Panipat (respondent No. 4) filed an application (Annexure P2) under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (as applicable in Haryana) ("Act" - for short) seeking possession of land measuring 5 Kanals comprised in Rectangle No. 298 situated in village Kurana, Sub Tehsil Israna, District Panipat as per Jamabandi for the year 1997-98. Surat Singh (petitioner) filed written statement (Annexure P3) to the said application. The Gram Panchayat (respondent No. 4) filed replication (Annexure P4) to the written statement. The Assistant Collector Ist Grade, Panipat after considering the evidence and material on record dismissed the application (Annexure P2) of the Gram Panchayat (respondent No. 4) vide order dated 2.3.2006 (Annexure P5). Aggrieved against the same, the Gram Panchayat, Kurana (respondent No. 4) filed an appeal (Annexure P6). The Collector, Panipat vide order dated 4.10.2006 (Annexure P7) allowed the appeal and the order dated 2.3.2006 (Annexure P5) passed by the Assistant Collector Ist Grade was set aside and the matter was remanded with the direction that the case should be decided again on the basis of merit. The petitioner aggrieved against the said order filed a revision petition (Annexure P8) before the Commissioner, Rohtak Division, Rohtak who vide order dated 16.12.2008 (Annexure P9) upheld the order of the Collector dated 4.10.2006 (Annexure P7). It was observed that the Collector had just remanded the case to the Assistant Collector for deciding the same afresh on merit and no party would be adversely affected on account of the order of remand. The petitioner aggrieved with the said order of the Commissioner, Rohtak Division, Rohtak filed a revision petition before the learned Financial Commissioner, who vide order dated 8.6.2009 (Annexure P10) dismissed the same holding it to be not maintainable. Aggrieved against the same, the petitioner has filed the present petition.

(3.) I have given my thoughtful consideration to the matter. The contention of the petitioner is that the land in dispute is a 'Bara' and, therefore, it would be excluded from the definition of 'Shamilat deh'. In support of this, learned counsel for the petitioner has referred to the order dated 2.3.2006 (Annexure P-5) passed by the Assistant Collector Ist Grade, Panipat wherein reference has been made to the statement of Om Parkash, Member Panchayat who appeared for the Gram Panchayat Kurana (respondent No.4). A perusal of the same rather shows that it is stated by Om Parkash, as recorded in the said order, that the disputed land is of 'Shamilat Deh' for 'Johar' (pond). It is 5 kanals land. 'Johar' (pond) is situated at the rear side of the plot. 'Johar' (pond) is comprising of 3-4 acres. It is further mentioned in the said order dated 2.3.2006 (Annexure P5) that the second party i.e. the petitioner had stated that the disputed land was in his possession for the period from prior to consolidation and his possession could not be shown to be due to a mistake at the time of consolidation. The respondents had produced judgment dated 31.7.1976 (Annexure P-1) and judgment dated 6.2.2002 of the Civil Court. The said contention of the learned counsel for the petitioner would in fact show that Om Parkash had submitted that the disputed land was a 'Johar' (pond). During the course of hearing, learned counsel for the petitioner also submitted copies of Jamabandis for the years 1997-98 and 2002-03 which are taken on record as Mark A and Mark A.1 respectively. A perusal of the Jamabandi for the year 1997-98 (Mark A) shows that the Gram Panchayat Deh is recorded as owner of the land. In the column of cultivation it is recorded as 'Rafaya Aam' in respect of land comprised in Khasra No. 298//26 Min measuring 104 kanals 5 marlas. Besides, land measuring 4 kanals comprised in Khasra No. 298//26 Min is recorded under the column of cultivation it is recorded in possession of Dharam Pal son of Nanak son of Nathu. The said lands measuring 104 kanals 5 marlas and measuring 4 kanals are recorded as 'Gair Mumkin Johar'. In the Jamabandi for the year 2002-03 (Mark A.1), the Gram Panchayat Deh is recorded as owner of land measuring 104 kanals 5 marlas comprised in Khasra No. 298//26 Min and 'Rafaya Aam' is recorded in cultivating possession. The kind of land is recorded as 'Gair Mumkin Johar'. Therefore, there is nothing in the revenue records to show that the land as shown in the Jamabandis for years 1997-98 and 2002-03 Mark A and Mark A-1 respectively submitted by the learned counsel that the land in question is 'Gair Mumkin Bara'. The land shown in the revenue record as 'Rafaya Aam' is evidently for common purposes of the village. In case the land in question is recorded in the revenue records as 'Gair Mumkin Bara', the same may be excluded from 'Shamilat deh' in view of Clause (vi) of Section 2(g) of the Act, which is amongst the exclusionary clauses of land which is not Shamilat Deh. Section 2 (g)(vi) of the Act is as follows :-