Allowed

Gurdev Singh v. Financial Commissioner, Hry. & Ors.

Punjab & Haryana HC17 Mar 2011CWP/10049/2009

Case brief

AI extract

What is this about?

The court held that land described as Jumla Mushtarka Malkan, created via pro-rata cut for common village purposes during consolidation, vests in the Gram Panchayat for management and control regardless of non-utilization. The impugned revenue orders preventing restoration of this entry were set aside, directing the authorities to restore the entry while leaving the petitioner to prove the land wa

What did the court decide?

Impugned orders were set aside and the Assistant Collector was directed to restore the entry of Jumla Mushtarka Malkan in the record of rights.

Gurdev Singh Vs Financial Commissioner, Hry… — Landlord and Tenant | Punjab & Haryana HC (2011)

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Civil Writ Petition No10049 of 2009

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INTHE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Civil Writ Petition No10049 of 2009

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Date of Orderl Il March2011

Gurdev Singh

Petitioner

Versus

The Financial Commissioner Haryana and others

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2espondents

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Present MSarjitSingh^{Senior Advocate with} Mr JagdevSingh Advocate for the petitioner Ms^{Shruti Jain} AAG Haryana for no 1 to 3 Mr Vinod BhardwajAdvocate for respondentnol

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RAJIVE BHALLA J

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The petitionerprays for issuance of^a writ in the nature of certiorari for quashingorders dated 281 1 2006 0052007 and 0411 2008 passed by^theCoilector Kaithal the Commissioner Ambala Division AmbaIa and the Financial Commissioner Haryana

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During^{consolidationin} viilage^Pabala iand measuring 318 kanais and 18 marlas bearingKhewat Nos211 32 to 137 was carved out after imposinga pro rata cut on the holdingsof the proprietorsFhe^{Iandsocreatedwas} described asJumla Malkan

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JOYTI RANI Singh Gagan Preetwa DigarHaqdaranArazi Hasab Rasad Raqba for short Juinla 2016.03.28 10:50I attest to the accuracy and 2014.03.27 15:54TRUE SCANNED COPY OF ORIGINAL integrity of this document PHHC CHANDIGARH Mushtarka Malkanl The petitionerallegesthat out of this Iard 117

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Civil Writ Petition N10049 of 2009

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kanals and 15 marlas was used for common purposes of the village

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but the remaining201 kanals and 3 marlas of Iand remained^lll possessioll of of^the villagerhe State of Haryana enacted Act No of 1992 amendingthe PunjabVillageCommon Lands RegulationlAct 1961 lereinafter referred to as the 1961 Actl declaring^{thatIandreserved} during^{consolidationshallbe} Shamilat^Deh

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On the basis of Act No of 1992 the Assistant Collector Ilnd Grade Kaithal sanctioned mutation N1 7 altering the nomenclatureof this iand from Jumla Mushtarka Malkan to Gram PanchayatDeh The petitioneralong^withoneAtma Singh^filedCivil VVrit PetitionNo161 of 1999 the mutationand the vires of Act No of 1992 The^writ petition^{wasdecidedintermsofthe} Full Bench judgmentin Jai Sinqh^e State of Harvana 2003l2J P1R658 wherein while upholdingthe Vires of Act No of 1992 it was also held that mutationssanctioned on the basis of Act N9 of 1991 are set asic The thereafter the Assistant Collector to rectifymutationno7 and restore the entry of Jumla Mushtarka Malkan

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The Assistant Collector Ist Grade vide order dated

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2402005 sanctioned mutation noA25 in the name of Jumla Mushtarka Malkan and grantedIibertyto the Gram Panchayatto file a petitionunder Section 1341of the Act to establish its title The Gram Panchayatfiled an appeal The Collector allowed the appeai

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set aside the order passedbythe Assistant Collector Ist Grade and

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JOYTI RANI Singh Gagan Preetremitted the matter for a fresh decision An appealfiled by the 2016.03.28 10:50I attest to the accuracy and 2014.03.27 15:54TRUE SCANNED COPY OF ORIGINAL integrity of this document PHHC CHANDIGARHPetitioner^before the^{CommissionerAmbalaDivisionAmbala} was

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Civil Writ Petition No10049 of 2009

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dismissed^aswas a revisionfiled before the Financial Commissioner

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Counsel for the petitionersubmits that as in view of the Full Bench judgmentin Jai Singhs^case supral mutationssanctioned to Act No of 1992 were set aside the Collector had^no

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to set aside the order passedbythe Assistant Collector It is fuIther arguedthat as the Iand in disputehas neither reserved nor used for common purposes and remained in possessionof it does not vest in the Gram Panchayat It is further argued^that the remand is as the Assistant Collector IlndGrade has^no to decide whether the Iand belongsto the or to the Gram Panchayat Even otherwise if the Gram Panchayat^asserts ownershipit has to resort to under Section 13eAof the Act As such the impugnedorders should be set aside and revenue authoritiesshould be directed to restore the mutation to its originalnomenclature of Jumla Mushtarka MalkanIl

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Counsel for the Gram Panchayathowever submitsthat as the Vires of Section 2g61 of the Act have been upheld the Iandvests in the Gram PanchayatThe petitione r semedy1 as he allegesthat the Iand^was not reserved for common purposes is to file^a petition under Section 13A of the 1961 Ac The possession^ofthe does not establish that this Iand was not reserved as Il Jumla Mushtarka MaIkan for common purposes

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have heard counsel for the parties Before the presentdispute^itwouldbe to reproduceSections 18

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JOYTI RANI Singh Gagan Preetand 23 Al of The East Punjab and 2016.03.28 10:50I attest to the accuracy and 2014.03.27 15:54TRUE SCANNED COPY OF ORIGINAL integrity of this document PHHC CHANDIGARHPrevention of Act 1948 lereinaner referred to^as

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Civil Writ Petition N10049 of 2009

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the ConsolidationActl Rule 16il of the East PunjabHoldings Consolidation and Prevention of Rules 1949 hereinafter referred to as the Consolidation Rulesl Section 2gx61 of the PunjabVillageCommon Lands Act 1⁹⁶¹ as applicable^totheStateof Haryanal^{andrelevantparaofthe} judgmentin Jai Sinqhs cassupr

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Section 18 and 23A of the Consolidation Act and Rule 16

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iil^{of the Consolidation Rulesread asfollows}

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Section 18ands reserved for common purposesl anythingcontained in any Iaw for the time beingin force it shali be Iawfulfor the Consolidation Officer to direct

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al that any Iandspecificallyassigned^foranycommon purpose^shallcease to be so assignedand to assign^{any other Iand inits} place

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bl ofastreamortorrent Oowingthrough^or from the Shiwalik mountain range^{within the} Statel^shallbe assigned^forany common purpose

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cl that if any area under consolidation^no Iand is reserved for any common purpose including extension of the villageabadi or if the Iand^so reserved is to assignother Iand for such purpose

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and control of Iands for common

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JOYTI RANI purposes^to vest in Panchayats^or State 2016.03.28 10:50I attest to the accuracy and integrity of this document

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Government

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Singh Gagan Preet 2014.03.27 15:54 TRUE SCANNED COPY OF ORIGINAL PHHC CHANDIGARH

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eSe

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Civil Writ Petition Nol 0049of 2009

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Section 23A As soon as a scheme comes into force

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the managementand control of all Iands assigned or reserved for^common purposes of the village undersection 18

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al tn the case of common purposes specified^insubnclause vl^ofclause obl of section 2 in respect^of which the and controi are to be exercised by^{theStateGovernmentshall} vest in the StateGovernment and

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1b1 In the case of any other common purpose^{shallvestinthe} panchayat^of that village

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and the StateGovernment or the Panchayatas the

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case may be shall be entitled to the income accruing therefrom for the benefit of the village and the rightsand interestsof the owners of such Iands shall stand modifiedand

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therefrom for the benefit of the village

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Provided that in case of Iand assignedor reserved

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for the extension of villageabadi or

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manure pits^forthe and non

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of the villagesuch Iand shall

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vest in the and non proprietors

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JOYTI RANI to whom it is givenunder the scheme of 2016.03.28 10:50I attest to the accuracy and integrity of this document

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Singh Gagan Preet 2014.03.27 15:54 TRUE SCANNED COPY OF ORIGINAL PHHC CHANDIGARH

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Civil Writ Petition No10049 of 2009

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Ruie 161

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16I XX XX XX 16il In an estate^or estates where during Consolidation there Is no Shamlat deh Iand or such Iand is considered Iand shall be m Q reservedfor the villagePanchayatand for 0 other common purposes under section 0 18 cl^ofthe Act 32 out of the common pool C5 of thevillageIatthe scale givenin the I 4 schedule to these rules Z rightsⁱⁿ respect^of Iand so reserved except^the area reserved for the I extension of abadi of the and 08 r shall vest in the body f esta10^{151 SllltStes} Z concernedand^it shall be entered in the columnof ownershipof records rights^as Jumla Malkan wa DigarHaqdaranArazi Hasab Rasad RaqbalThe of such Iand shall be done by the Panchayat^of the estate or estates concerned^on behalf of the village body^andthe Panchayat^shall have the right to utilize the income JOYTI RANI derived from the Iand so reserved for 2016.03.28 10:50 the I attest to the accuracy and integrity of this document

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Singh Gagan Preet 2014.03.27 15:54 TRUE SCANNED COPY OF ORIGINAL PHHC CHANDIGARH

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Civil Writ Petition No10049 of 2009

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common needs and benefit of the estate

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or estates concerned l

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Section Iands reserved for the common

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purposes^ofa village^{under section18oftheEast} PunjabHoldings^{Consolidation andPrevention of} Act 1948 East PunjabAct 50 of 19481the managementand control whereof vests Ill the Gram Panchayatunder section 23A of the aforesaid Act

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Explanatione^{Landsenteredinthe column of} ownership of record of rights^as tlJumla Malkan Wa Digar Haqdaran^{AraziHassabRasad} Jumla Malkan or Mushtarka Malkan shali be shamilat deh within the meaningof this sectior

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Section 18 of the Consolidation Act requires^a consolidationofficer to^reserve Iand for^common purposes Section 23A of the Consolidation Act providesthat as soon as a scheme of consolidation is sanctioned management^and control of Iand reserved for^common purposes of the villageshall^vestinthe Gram Panchayator the State

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Rule 16iil providesthat where Shamilat Deh Iand^IS inadequate^{Iand shallbereserved} for the villagePanchayatand for other^common purposes byappiyinga pro rata cut on the holdings^ofthe It further providesthat the Iand^SO created shall be called Jumla Malkan wa DigarHaqdaranArazi JOYTI RANI 2016.03.28 10:50

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Singh Gagan Preet I attest to the accuracy and 2014.03.27 15:54TRUE SCANNED COPY OF ORIGINALHasab Rasad Raqba l short Jumla Mushtarka Malkan I The integrity of this document PHHC CHANDIGARH

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ownership^of such Iand shall vest In the proprietors^but its

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and control shail vest in the Gram Panchayat

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The Consolidation Act provides^for two varities of common purposes Iand namelyIand that vests in the Gram or the State Government and Iand that vests in the Gram Panchayatonly^{forthepurpose of} managementand control known as Jumla Mushtarka MaIkan

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Section 2g61 of the 1961 Act and the appended^{theretointroduced} by^ActNo of 1992 providesthat Iand reserved for common purposes of^a villageunder Section 18 and the managementand control whereof vests in the Gram Panchayat^{underSection23A} of the Consolidation Act shall be Shamilat^Deh The appendedto Section 261 of the 1961 Act providesthat Iand entered in the column of ownershipas UJumla Mushtarka Malkan Jumia Mushtarka^or Mushtarka Malkan shall be Shamilat Deh

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The^{viresofSection} 261 came up for consideration

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before

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a Full Bench of this Court in Jai Sinqh s case supral The vires were upheldbyholding^{thatsubmsection} 61^ofSection 2g1^of the Act and the appendedtheretoare a mere elucidation of the existingprovisionsof the 1961 Act read with provisions contained in the East PunjabHoldingsConsolidation and Prevention of Act 1948 The Fuil Bench upheldthe declarationthat Iand reserved for the villagePanchayator for the other common purposes under Rule 16il shall be Shamilat Deh

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A relevantextract from the judgmentreads^as follows

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JOYTI RANI 62 In view of the discussion made above 2016.03.28 10:50 we hold I attest to the accuracy and integrity of this document that

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Singh Gagan Preet 2014.03.27 15:54 TRUE SCANNED COPY OF ORIGINAL PHHC CHANDIGARH

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il submsection61of Section 2gl of the PunjabViilage Common Lands Regulationl^Act 1961 and the appended^thereto IS only an elucidation of the existingprovisionsof the said Act read with provisionscontained in the East Punjab Holdings^{Consolidation} and Prevention of Act 1948 iil the uneamendedprovisionsof the Act of 1961 and

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Itl particularSection 211 1read with Sections 18 and 2344 of the Act of 1948 and Rule 16il of the Rules of 1949 cover ail such Iandswhich have been specifically^earmarkedin a consolidation scheme prepared^{under Section14 read withRules} 5^and 7 and confirmed under Section 20 which has been under the provisionsof Section24 and no other Iands the Iands which have been contributedby the proprietors^on the basis of proaratacut on their holdings imposed during^the consolidation proceedings^{andwhichhavenotbeenearmarked} for any common purpose in the consolidation scheme preparedunder Section 14 read with Rules 5 and 7 and entered in the column of ownershipas Jumla Mushtarka Malkan Wa Digar Haqdaran Hasab Rasad Arazi Khewat and in the colurnn of

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JOYTI RANI possession^withthe shall not vest with 2016.03.28 10:50 I attest to the accuracy and integrity of this document the Gram Panchayator the State Government as

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Singh Gagan Preet 2014.03.27 15:54 TRUE SCANNED COPY OF ORIGINAL PHHC CHANDIGARH

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Clvll Wrlt Petition No10049 of 2009

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the case maybe^on the dint of of the Section 2gl and the appendedthereto or any other provisionsof the Act of 1961 or the Act 0f1948

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ivl all such Iands which have been as per the consolidation scheme reserved for common purposes^{whether utilised ornotshallvestwith the} State Government or the Gram Panchayatas the case may^be even though^inthe column of ownership^{theentriesmay} be^{JumlaMushtarka} Malkan Wa DigarHaqdaranHasab Rasad Arazi Khewat etc Il

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l The ratio in Jai Sincihs case IPraJ^IS in 4 its conclusion that Iand reservedlearmarkedfor common purposes 08 under ao a Scheme of Consolidationwhether under Section 18 of the r ConsolidationAct or Rule 160i1of the Consolidation Rules vestsⁱⁿ 7 Z the Gram Panchayator the State Government whether utilised or Il not for the common purpose^So assigned The possessionof

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or the failure to use the Iandfor the common purpose^SO assigned^{shallnottakesuchIandout ofthedefinitlon ofShamilat} Deh or Jumla Mushtarka Malkan However Iand that has not been earmarkedlreservedfor^common purposes duringconsolidation and has been wronglyrecorded as Jumla Mushtarka Malkan shail not vest in the Gram Panchayator the State Government on the dint of subsection 161of Section 21g1of the 1961 Act

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JOYTI RANI The Fuli Bench Ill essence reiterates the obvious 2016.03.28 10:50 I attest to the accuracy and integrity of this document

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Singh Gagan Preet 2014.03.27 15:54 TRUE SCANNED COPY OF ORIGINAL PHHC CHANDIGARHnamely^{thatIandreservedlearmarkedforcommon} purposes under^a

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1O vesting^of 0 Consolidation 0 Z to Ca9 any^common J2 proprietor Z

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Civil Writ Petitlon No10049 of 2009 41e

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scheme of Consolidation includingIand reservedlearmarked^as tl Jumla Mushtarka Malkan under Rule 16il of the Consolidation Rules shall vest in the Gram Panchayatwith the Iatter Jumla MushtarkaMalkanlvestingonlyfor the purpose of managementand control of whether this Iand has been utllised or not for the common purpose SO assignedThe fact that this Iand may be Occupiedby or otherswould make no difference to the vesting^of this Iand in accordance with the provisionsof the Consolidation ActlRules and the 1961 Act It would however be to clarifythat Iandthat is not earmarked^or reserved for any^common purpose duringconsolidation and is in possessionof a proprietor^{itshalinotvestintheGram} Panchayat^{foranypurpose} subject^howeverto proof^{of the} following in under Section 13A ofthe 1961 Act namely

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al the Iand was not reserved for common purposes during^{consolidationand} bl tn the possessionof the proprietors cl was createdduringconsolidation byapplying^a pro ratacut^on the holdingsof the proprietors

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Section 2g161introduced by Act No of 1992 has

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created a new of Shamilat Deh where and control of the Iand vests in the Gram Panchayatbut its ownership continues^to vest^inthe propnetors

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The Full Bench also held that

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if the mutationsmight^havecome Intobeing^Oll Ihe JOYTI RANI 2016.03.28 10:50 dintofAct^No of¹⁹⁹² challenged^{herein infavour} I attest to the accuracy andintegrity of this document

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of^{theState orGram} Panchayat^{the saidmutations}

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Singh Gagan Preet 2014.03.27 15:54 TRUE SCANNED COPY OF ORIGINAL PHHC CHANDIGARH

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Civil Writ Petition Noe10049of 2009

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shall stand cancelled or set aside Ieavingopen for the Gram Panchayatto file an application^for eviction under Section 70r title suit under Sectlon 13 as the case may be if the Iands are such which have since been earmarked for common purposes^{under the schemeandthe} are in unauthorised occupationand the to file^a titlesuit in case the Iands^are such whIchfom7 partofof^BachatIand having^{not beenearmarkedfor} any common purpose in the scheme of consolidaUon and yet the Gram Panchayat^IS assertingits titIeits titIe^or is in possessionthereof possessionthereofthereof

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1Z file^a titlesuit in case the Iands^are such whIchfom7 0 partofof^BachatIand having^{not beenearmarkedfor} 0 any common purpose in the scheme of C5 consolidaUon and yet the Gram Panchayat^IS I 141 assertingits titIeits titIe^or is in possessionthereof possessionthereofthereof Z A perusal^oftheabove paragraph^{reveals thatmutations} 2 C sanctioned pursuantto Act No of 1992 shall stand cancelied and it c was Ieftto partiesto establish their title to the Iand namelywhether t z it common purposesduring^{consolidation} c C1O^{It wouldonce} again^{benecessaryto} emphasisethat where the Iand m2 IS reservedfor the Gram Panchayator for a common purpose it shall Z vest in the Gram Panchayat of the fact whether it^IS Qm used for the purpose so assigned

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The Iand in the presentcase was recorded^as Il Jumla Mushtarka Malkan e iand reservedlearmarked Ill accordance with Rule 16il of the Consolidation Rules for the common purposes of the Gram Panchayatand the villageaner

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applying^a proata cut on the hoidingsof proprietors^The JOYTI RANI 2016.03.28 10:50 and control of this Iand vests vests in the Gram Panchayat I attest to the accuracy andintegrity of this document

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Singh Gagan Preet 2014.03.27 15:54 and control of this Iand vests vests in the Gram Panchayat TRUE SCANNED COPY OF ORIGINAL PHHC CHANDIGARH The possessionof the petitionerwhether as a proprietor^or

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Civil Writ Petition No10049 of 2009

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otherwise makes^no difference to the reservation of the Iand for common purposesand its vestingin the Gram PanchayatThe entry was changedto Gram PanchayatDeh after enactment of Act No of 1992 The petitionerapproachedthe Assistant CollectorIst Grade for restoration of the entryto Jumla Mushtarka Malkan after the judgment^inJaiSinqhs case1supral^{TheAssistantCollectorIst} Grade allowed the but the Collector remanded the case to the Assistant Collector Ist Grade for decidingthe matter afresh after consideringthe^case in its entiretybyholdingthat Iandhas been reserved for^common purposes The^{Commissionerinhisorder} dated 0052007 has held that the Iand was reserved for various common purposes ie IikeGair Mumkin Paths PanchayatGhar Gair Mumkin Toiled Gora Deh Gair Mumkin water^course Gair Mumkin crernation groundHadda Rori and tanningof skin The^Financial Commissioner has affirmed these orders and directed the Assistant

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Collector Ist Grade to examinethe matter afresh

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As discussed^inthe precedingparagraphsthe Iand was Jumla Mushtarka Malkan The revenue officers^were required^Ill Vlew of Full Bench judgmentin Jai Sinqhs case supraJ^torestore the entryof Jumla Mushtarka Malkan but under an erroneous impression^thatif they^restoredthe entry^to tlJumla Mushtarka Malkan the Gram Panchayatwould be deprived of its rightsdeclined to restore the entry It would be necessary to reiterate that as the vires of sutsection to Section 2gl introduced byAct^no of 1992 have been affirmed Iand described

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JOYTI RANI as IlJumla Mushtarka Malkan continues to vest in the village 2016.03.28 10:50 Singh Gagan Preet I attest to the accuracy and 2014.03.27 15:54TRUE SCANNED COPY OF ORIGINAL integrity of this document PHHC CHANDIGARHpanchayat^forthe purpose of managementand control The

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r 00 1 11 March 742011 47 nt Z 0

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Civil Writ Petition No10049 of 2009

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of or the fact that Iandearmarkedfor common has not been put to^common use is irrelevant and shall not affect the vestingof such Iand in the Gram Panchayatfor and control The nomenciatureof the Iandwhether as Jumla Mushtarka Malkan or Shamilat Deh or Gram Panchayat Deh^{isirrelevantas} the Iand vests in the Gram Panchayatfor and control

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1^{nviewofwhathasbeenstatedhereinabovethewrit} Petition^IS ailowed the impugnedorders are set aside and the AssistantCollector Ist Grade is directedto restore the entryof Jumla MushtarkaMalkan Ieaving^it to the petitionerto establish his plea that the Iandwas not reserved for^common purposes

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Parties^are directed to appear before the Assistant Collector Ist Grade Kaithal on 2904 2 011

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1RAJIVEBHALLAI JUDGE

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PHHC CHANDIGARH

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JOYTI RANI 2016.03.28 10:50 I attest to the accuracy and integrity of this document

Gurdev Singh v. Financial Commissioner, Hry. & Ors.

Case brief

What is this about?

What did the court decide?

Gurdev Singh v. Financial Commissioner, Hry. & Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

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