“
“Land is considered the ‘new gold’. More so, when such land is proximate to expanding urban agglomerations. Land in Gurugram in the State of Haryana, lying right next to the NCT of Delhi, qualifies in this regard with flying colours.”
Confirming the mutation effected on Sep 13, 1955 in favour of the Gram Panchayat, Wazirabad, which shall enure to the benefit of its successor-in-interest, the Municipal Corporation, Gurgaon, the Supreme Court has held that land described in the revenue records as “shamilat deh” vests in the gram panchayat under Section 2(g)(1) of the Haryana Common Lands (Regulation) Act, 1961, without any requirement to prove common use.
The Apex Court clarified that the expression “makbuja malkan” denotes joint possession of the proprietary body and does not establish individual cultivating possession. As exclusion from shamilat deh under Section 2(g)(iii) or Section 2(g)(viii) of the Haryana Common Lands (Regulation) Act, 1961, requires proof of partition and individual cultivation before Jan 26, 1950, the Court held that the Punjab Village Common Lands (Regulation) Act, 1953 and the Pepsu Village Common Lands (Regulation) Act, 1954, extinguished all proprietary rights in shamilat deh without requirement of notice.
A Two-Judge Bench comprising Justice Sanjay Kumar and Justice K. Vinod Chandran explained that shamilat deh was the village common land collectively owned by the proprietary body (malkan deh), comprising uncultivated waste, pasture, hills, ponds, paths, etc., reserved for common use of the village community. Shamilat patti, by contrast, was land set apart for members of a particular patti to the exclusion of all others. The two were mutually exclusive. Further, the Court noted that the expression makbuja malkan in the cultivation column of the Jamabandis denoted joint possession of the proprietary body in common, with no particular proprietor being in possession of any identified portion, much less in cultivating possession. The expression hasab rasad khewat or hasab rasad biswat merely denoted the shareholding of the proprietors for purposes of determining their shares in the event of partition, and did not confer individual title or separate possession.
The Court observed that upon enactment of the Punjab Village Common Lands (Regulation) Act, 1953 and the Pepsu Village Common Lands (Regulation) Act, 1954, all lands classified as shamilat deh vested in gram panchayats without exception, thereby extinguishing all existing proprietary rights. There was no question of notice or hearing being given to any proprietor, as the statutory mandate was absolute. The old expressions such as hasab rasad khewat lost their significance after vesting.
The Court found that the Sharat-wajib-ul-arz of 1939-40 for Haiderpur clearly recorded the total area of shamilat deh as 444 bighas 4 biswas, of which 436 bighas 18 biswas was ghair mumkin (pahar, johad, nala) in the possession of makbuja malkan. The shamilat patti lands were separately recorded and were distinct from the shamilat deh. The Court examined the Jamabandis from 1863 onwards and found that the earliest records described the land as “shamilat deh” with no mention of pattis. A correction entry was made in 1906-07 introducing the names of pattis, but even then the entry read “shamilat deh hasab rasad biswat” followed by the names of pattis and their shares, not “shamilat patti.” The crucial columns pertaining to taraf/patti and lambardar were left blank in the Jamabandis for 1939-40 and 1941-42. The cultivation column consistently showed “makbuja malkan” across all Jamabandis, negating any claim of individual cultivating possession.
The Court noted that the proviso to Section 2(g)(5) of the Punjab Common Lands (Regulation) Act, 1961, which limited shamilat deh to 25% of the total village area, was omitted by Haryana Act 9 of 1992 with effect from 11.02.1992, and there was no savings clause, meaning the proviso never existed in the statute for all practical purposes. The Court found that the right of the four plaintiffs to maintain the suit in a representative capacity on behalf of the named pattis or 524 claimants was never verified or tested at any stage, neither by the statutory authorities nor by the High Court. No Shajra nasb or genealogical document was produced to establish the link between the named pattis and those claiming under them. No explanation was forthcoming even at the Supreme Court stage as to how Chattar, one of the original plaintiffs, laid a claim to the land and through which patti.
The Court noted that 272 sale deeds were executed and registered between March 23, 1998 and April 06, 1998, during the subsistence of a stay order passed by the Commissioner on April 02, 1998, with mutations carried out between April 06, 1998 and April 10, 1998. These included 39 sale deeds in favour of Ashvarya Estate Pvt Ltd., 52 in favour of Lonicera Estate, 35 in favour of Malm Estate, 58 in favour of Millet Estate, 46 in favour of Mohiniya Estate, and 41 in favour of Ranbir Singh. There was no indication as to how any of the vendors traced their title to the named pattis.
The Court found that Haiderpur was always under the control of a notified gram panchayat. Under the Punjab Village Panchayat Act, 1939, a ‘panchayat area’ was declared for an entire Tehsil, and since Haiderpur and Wazirabad were contiguous villages in the same Tehsil, they would have been part of the same panchayat area. Notifications issued under the Punjab Gram Panchayat Act, 1952 and the Haryana Panchayati Raj (Election) Rules, 1994, expressly clubbed Wazirabad and Haiderpur together under Gram Panchayat, Wazirabad. Thus, the Court held that the Municipal Corporation, Gurgaon, had locus to step into the shoes of the Gram Panchayat, Wazirabad, as Section 161 of the Haryana Municipal Corporation Act, 1994, expressly provided that shamilat deh situated within the municipal area vests in the corporation, and a notification dated June 02, 2008 declared the area (including Haiderpur) as falling within the Municipal Corporation, Gurgaon.
Briefly, the dispute centred on 436 bighas 18 biswas of land in Haiderpur, an uninhabited village in Gurgaon Tehsil and District, Haryana, contiguous to the inhabited village of Wazirabad. The core question was whether this land was shamilat deh (village common land) vesting in the gram panchayat, or whether it was under the private ownership and possession of certain pattis (sub-divisions of the village proprietary body). After the enactment of the Punjab Village Common Lands (Regulation) Act, 1953, the land in Haiderpur was mutated in the name of the Gram Panchayat, Wazirabad, pursuant to a letter dated March 10, 1954 from the then Punjab Government, with the mutation being sanctioned on June 15, 1955 and effected on Sep 13, 1955.
In 1985, four persons namely, Ganpat, Maher Chand, Ram Phal (Ram Pat), and Chattar, filed a suit before the Assistant Collector, First Grade, Gurgaon, under Section 13A of the Haryana Common Lands (Regulation) Act, 1961 read with Order I Rule 8 CPC, claiming to represent 524 shareholders tracing their rights to three sets of pattis: Chitru, Ramratan and Medha (10 shares); Sadasukh (5 shares); and Ahmed Ali Khan (5 shares). They contended that the land was not shamilat deh but was owned by the pattis, was in their cultivating possession, and that the mutation in favour of the panchayat was effected without notice to the owners.
The Assistant Collector partly decreed the suit on the sole ground that the shamilat deh exceeded 25% of the total village land, declaring ownership over 179 bighas 6 biswas (the excess over the 25% limit) in favour of the plaintiffs. On appeal, the Collector remanded the matter. Upon fresh consideration, the Assistant Collector, by order dated May 13, 1996, declared title and possession of the owners over 434 bighas 6 biswas, relying on the Jamabandis for 1939-40 and 1944-45 which showed the land in the ownership of the pattis and in their possession (makbuja malkan), and noting that the land was not shown as being used for common purposes in the Jamabandi for 1954-55.
The Collector, Gurgaon, by order dated March 02, 1998, dismissed the panchayat’s appeal and affirmed the Assistant Collector’s order, holding that the Wajib-ul-arz made clear that rights in the land vested with the owners, that Haiderpur was barren and uninhabited, and that unless the land was used for common purposes by all three categories of persons in Wazirabad, it would not vest in the Gram Panchayat. The Commissioner, Gurgaon Division, by order dated August 05, 2005, allowed revisions filed by the Gram Panchayat and by Suraj Bhan and others, set aside both lower orders, and restored Mutation dated Sep 13, 1955 in favour of the Gram Panchayat, Wazirabad. The Commissioner found that the revenue records showed the land as shamilat deh, that the nature of the land was ghair mumkin pahar, nala, johad and rasta, and that the mutation was effected in the presence of the lambardar who was a shareholder.
Several petitions were filed before the Punjab and Haryana High Court by Ashvarya Estate Pvt. Ltd., Millet Pvt. Ltd., and Chattar. The Division Bench, by common judgment dated Aug 24, 2007, set aside the Commissioner’s order as a non-speaking order, and restored the orders of the Assistant Collector and the Collector. The Bench held that the revenue records showed the three pattis in possession in proportion to their shares, that there was no evidence of common use by the village community except for 2 bighas 2 biswas (johad) and 10 biswas (rasta), and that mere sanction of mutation without notice to proprietors was liable to be set aside.
