Supreme Court holds 436 bighas in Gurugram village vests as shamilat deh in panchayat

Justices Sanjay Kumar and K. Vinod Chandran held that land recorded as shamilat deh in Haiderpur vested in the panchayat, absent proof of partition before 26 January 1950.

The Supreme Court has set aside a 2007 judgment of the Punjab and Haryana High Court and held that 436 bighas 18 biswas of land in Haiderpur, an uninhabited village contiguous to Wazirabad in Gurugram, was shamilat deh (common land) that vested in the Gram Panchayat, Wazirabad. The Bench of Justice Sanjay Kumar and Justice K. Vinod Chandran, in a judgment authored by Justice Sanjay Kumar, decided five connected civil appeals arising from the same High Court decision. The Court found that land recorded as shamilat deh in the revenue records vested in the panchayat under Section 2(g)(1) of the Haryana Common Lands (Regulation) Act, 1961, and that the claimants had failed to prove any partition of the land among proprietors before 26 January 1950. The mutation of 13 September 1955 in favour of the panchayat was confirmed.

How the dispute over Haiderpur reached the Court

After the Punjab Village Common Lands (Regulation) Act, 1953, the land in Haiderpur was mutated in the name of the Gram Panchayat, Wazirabad, in view of a Punjab Government letter dated 10 March 1954.

On 11 September 1985, four residents of Wazirabad—Ganpat, Maher Chand, Ram Phal and Chattar—filed a suit (Case No. 18/DRO) before the District Revenue Officer-cum-Assistant Collector, First Grade, Gurgaon, under Section 13A of the Act of 1961 read with Order I Rule 8 of the Code of Civil Procedure. They claimed to represent those holding under the pattis of Haiderpur and asserted that the land, being more than 25% of the village land, did not vest in the panchayat and was not shamilat deh.

The litigation moved through several rounds. The Assistant Collector partly decreed the suit on 28 July 1990, then, after remand, again ruled in favour of the plaintiffs on 13 May 1996. The Collector affirmed this on 2 March 1998. The Commissioner, Gurgaon Division, reversed both authorities on 5 August 2005 and restored the mutation in favour of the panchayat.

The High Court decision that was challenged

Writ petitions filed by Ashvarya Estate Private Limited, Millet Private Limited and Chattar were allowed by a Division Bench of the High Court by common judgment dated 24 August 2007. The Bench held that the revenue records for 1939-40, 1941-42 and 1945-46 showed the land in possession of the pattis, with makbuja malkan in the cultivation column, and that there was no proof of common user except for a small extent shown as pond and path.

Civil Appeal No. 244 of 2011 was filed by Suraj Bhan and others; Civil Appeal Nos. 536, 539, 540 and 541 of 2011 were filed by the Gram Panchayat, Wazirabad. The Supreme Court stayed the High Court judgment on 25 January 2008. In several appeals the cause titles were later amended to substitute the Municipal Corporation, Gurgaon, for the panchayat.

What the Court held on the shamilat deh question

The Court held that once land is recorded as shamilat deh in the revenue records, Section 2(g)(1) of the Act of 1961 applies and the land vests in the panchayat, unless a claimant brings it within one of the statutory exceptions. The Sharat-wajib-ul-arz of 1939-40 recorded the total shamilat deh in Haiderpur as 444 bighas 4 biswas, of which 436 bighas 18 biswas was ghair mumkin pahar, johar and nala in the possession of makbuja malkan.

The Court explained that makbuja malkan denotes joint possession of the proprietary body, with no particular proprietor in cultivating possession of an identified extent. Relying on the settled view of the Punjab and Haryana High Court and scholarly commentary, the Court held that shamilat deh is “non-exclusive property till partitioned” and no proprietor can claim any portion until partition takes place.

Because the land was recorded as shamilat deh and not as shamilat patti, the Court found that Sections 2(g)(3) and 2(g)(v)—which require proof of common user—did not apply. The relevant exceptions were Sections 2(g)(iii) and 2(g)(viii), which require proof that the land was partitioned and brought under individual cultivating possession before 26 January 1950.

Why the claimants' case failed

The Court found no evidence that the pattis—Chitru, Ramrattan and Medha; Sadasukh; and Ahmed Ali Khan—had partitioned the shamilat deh among themselves before 26 January 1950. Even a correction in the Jamabandi of 1906-07, which recorded the land as shamilat deh hasab rasad biswat followed by the names of the pattis, did not assist the claimants, because the cultivation column continued to read makbuja malkan, evidencing continuing joint possession, with no separate khewat numbers assigned to each patti.

The Court held that the very reliance on a jamabandi showing the land as shamilat deh negated the claim that it was shamilat patti. The 25% argument no longer survived, since the proviso to Section 2(g)(5) was omitted by Haryana Act 9 of 1992 without a savings clause.

The Court also faulted the High Court for setting aside the 1955 mutation on the ground of want of notice, holding that the 1953 and 1954 Acts extinguished proprietors' rights without exception, leaving no question of notice or hearing before vesting.

Findings on the panchayat and the Municipal Corporation

Rejecting the contention that Haiderpur had no panchayat as it was uninhabited, the Court held that the documentary record showed the contrary. Notification No. DPH-EI-83/134 of 1983 and a 1994 notification under the Haryana Panchayati Raj (Election) Rules clubbed Wazirabad and Haiderpur together under the Gram Panchayat, Wazirabad.

The Court also held that the Municipal Corporation, Gurgaon, had locus to step into the shoes of the panchayat. Section 161 of the Haryana Municipal Corporation Act, 1994, vests shamilat deh within the municipal area in the corporation, and Haiderpur fell within the boundaries notified when the corporation was constituted in 2008.

The Court recorded that the right of the four plaintiffs to sue in a representative capacity for 524 claimants was never tested, and that no Shajra nasb or genealogy was produced linking them to the named pattis. It also noted that 272 sale deeds were executed between 23 March 1998 and 6 April 1998, many during the subsistence of the Commissioner's stay order of 2 April 1998.

Outcome

The Court allowed the appeals, set aside the High Court judgment dated 24 August 2007, and confirmed the mutation effected on 13 September 1955 in favour of the Gram Panchayat, Wazirabad, to enure to the benefit of its successor-in-interest, the Municipal Corporation, Gurugram. Applications for placing additional documents on record were allowed. All other pending applications, including those for intervention and impleadment, were dismissed. Parties were directed to bear their own costs.