Patram v. Gram Panchayat Katwar & Ors.
DEEPAK GUPTA, J.
1. The short question involved in this case is whether the land in
occupation of the appellant(s) is ‘shamilat deh ’ land within the meaning
of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter
referred to as ‘the Act’) and vests in the village common body. The land
in question is situated in Haryana and, therefore, for the purpose of this
judgment we shall be referring to the Act as amended and applicable to
the State of Haryana.
2. The contention of the appellant(s) is that the land in di spute
though ‘ shamilat ’ land, is actually a patti in possession of the appellant(s)
and his ancestors for more than a century and is not being used for the
common purposes of the village and, therefore, does not fall within the
definition of ‘ shamilat deh ’ land.
3. In India, land is said to be the true basis for the unity in a village,
supplying the ultimate bond between the residents of the vill age who
collectively are known as the village community. When settlers went to
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new areas and cleared forests or turned barren lands into cult ivable
lands, certain portions of the land were left for common use s uch as
charand land used for grazing, lands used for wells, watercourses, land
used for common purposes and also for extension of the village residential
area normally known as the abadi . These lands which were reserved
for common purposes were jealously guarded and were in essence the
common property of the original settlers and those who had helped them
after clearing the waste and bringing the land under cultiva tion. The
following observations from Chapter X, which has the heading ‘T he
Village Common Land Introduction’ of Sir W.H. Rattigan’s ‘A Digest
on Civil Law for the Punjab’, which is the one of the finest treaties on
customary law of Punjab, are relevant:
“….Lands so reserved are jealously guarded as the common
property of the original body of settlers who founded the village
or of their descendants, and occasionally also those who assisted
the settlers in clearing the waste and bringing it under cultivation
are recognized as having a share in these reserved plots. Even in
villages which have adopted separate ownership as t o the
cultivated areas, some such plots are usually reserved as village
common, and in pattidari village. It is not unusual to find certain
portions of the waste reserved for the common use o f the
proprietors of each patti , and other portions for common village
purposes, the former is designated shamilat-patti and the latter
shamilat-deh .”
4. Over period of time, the cultivable areas were s eparated
amongst the different owners and in view of the caste sys tem which
was then extensively prevalent, separate areas in the village or in different
hamlets were provided for different communities based not only on caste
or religion but sometimes on professions also. To give an example, the
weavers would be put in one area, the potters in another area etc. Each
such division was called a patti .
5. This brings us to the definition of‘ shamilat deh ’ in Section 2(g)
of the Act. The relevant portion reads as under:
“2. Definitions. – in this Act, unless the context otherwise
requires,-
xxx xxx xxx
(g) “shamilatdeh” includes-
PATRAM v. GRAM PANCHAYAT KATWAR & ORS.
[DEEPAK GUPTA, J.]
(1) land described in the revenue records as Shamilat deh
or Charand excluding abadi deh;
(2) shamilat tikkas;
(3) land described in the revenue records as shamilat,
tarafs, patties, pannas and tholas and used according
to revenue records for the benefit of the village
community or a part thereof or for common purposes
of the village;
(4) xxxx
(4a) xxxx
(5) xxxx
but does not include land which-
(i) becomes or has become shamilat deh due to river
action or has been reserved as shamilat in villages
subject to river action except shamilat deh entered as
pasture, pond or playground in the revenue records;
xxx xxx xxx
(v) is described in the revenue records as shamilat taraf,
pattis, pannas and thola and not used according
torevenue records for the benefit of the village
community or a part thereof or for common purposes
of the village;
xxx xxx xxx
6. The case of the appellant(s) is that for more than a century he
and his ancestors held a patti which has never been used for the common
purpose of the village and has been cultivated by them. This land has
never been used for common village purpose and in terms of Se ction
2(g) of the Act cannot be included in the definition of ‘ shamilat deh ’.
The land continues to be shown in the possession of the appellant(s) or
his ancestors in the Jamabandis from the year 1915-1916 till date. The
earlier entries in the column of ownership which read as ‘Shamlat Patti
Dhera & Khubi’ were replaced by the entry ‘ Panchayat Deh’ .
Aggrieved, the appellant(s) approached the Collector, Bhiwani challenging
the change of entry in the column of ownership. The appellant( s) lost
before the Collector, Bhiwani as well as the Commissioner, Hisar Division.
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He then filed a writ petition in the High Court of Punjab and Haryana,
which was rejected with the following reasoning:
“While examining the first contention raised by the counsel for
the petitioner, as has been noticed in the forgoing paragraph, it is
necessary to refer to clause (3) of Section 2(g) of the Act extracted
hereinabove, which expressly treats “shamlat”, “tarafs”, “pattis”,
“pannas” and “tholas” as separate and distinct, while describing
the nature of the land. Whereas, the exception under clause (v)
of the proviso under section 2(g) of the Act notices, “shamla t
taraf”, “pattis”, “pannas” and “thola” as falling with the exception.
As per the revenue record of the year 1907-08, the land under
reference has been described as “shamlat patti”. It does not,
therefore, fall within the term “shamlat taraf”, “pattis”, “pannas”
and “thola” as has been incorporated in the exception becaus e
“shamlat patti” is not excluded under the clause relied up on by
the learned counsel. It is, therefore, not possible for us to accept
that the land under reference falls within Clause (v) of the proviso
under section 2(g) of the Act.”
7. The aforesaid judgment was delivered on the basis that whereas
in clause (3) of Section 2(g), there is a comma after the word ‘ shamilat ’,
there is no such comma in sub-clause (v) of clause (5) of Section 2(g).
We had requested the parties to provide us the original Gazette notification
and the definition as quoted by us above is in accord with the Gaze tte
notification.
8. The issue for consideration is whether the word ‘ shamilat ’ has
to be read with taraf, patti, pannas, and tholas or only with taraf in
sub-clause (v) of clause (5) of Section 2(g). We must understand what
is meant by the terms ‘ taraf ’, ‘ patti ’, ‘ panna ’ and ‘ thola ’. To understand
this distinction, one must also understand what is ‘ shamilat deh ’ land.
The word ‘ shamilat ’ basically means ‘held in joint possession and
undivided lands which are part and parcel of a village’. When these
lands are held commonly by a village proprietary body, they are described
as ‘ shamilat deh ’ land.
9. ‘ Taraf ’, ‘ patti ’, ‘ panna ’ and ‘ thola ’ are different terms but
have a common strain or similarity running through them. These
descriptions are of land of a group of villagers based on clan, caste, sect,
area, etc. In British India, the village was divided into different pattis /
sections based upon caste, religion, occupation, etc. of the persons residing
PATRAM v. GRAM PANCHAYAT KATWAR & ORS.
[DEEPAK GUPTA, J.]
in the village. Patti is described as division of land into separate portions
or strips in a village. These locations are known a s pattis . After
independence since the caste system has been constitutionally abolished,
these classifications refer to different hamlets/clusters wh ere villagers
reside in groups irrespective of their caste. This may be true in law but
not in fact, because unfortunately even today, in mostvillages, ghettoization
continues and the people of different communities, castes and religions
live in their earmarked areas or pattis . Patti is basically, therefore, a
small division of the village.The terms ‘t araf ’, ‘ panna ’ and ‘ thola ’ may
be different but are akin to patti and also deal with community of villagers
residing separately. Therefore, they have virtually the same meaning.
10. If we accept that there is virtually no difference between
‘taraf ’, ‘ patti ’, ‘ panna ’ and ‘ thola ’ then the task of interpretation
becomes much easier. It is also apparent that a patti can normally be
created out of the shamilat land only when a group of people enjoy
some portion of the land out of the bigger common shareholding that is a
patti . The definition of ‘ shamilat deh ’ in Section 2(g) of the Actincludes
all lands descried as ‘ shamilat deh ’ or charand excluding abadi land.
In clause (3) of Section 2(g) there is a comma after the word ‘ shamilat ’
whereas such comma is missing in sub-clause (v) of clause (5) of Section
2(g). We are of the view that there seems to be an error rather than a
deliberate non-use of the comma. We are of this view be cause clause
(3) provides that land described as ‘ shamilat ’, ‘ tarafs ’, ‘ patties ’
‘pannas ’ and ‘ tholas ’, are to be treated as ‘ shamilat deh ’ land only if
they are used for the common purpose of the village. This clearly implies
that if the land described as ‘ shamilat ’, ‘ taraf ’, ‘ patti ’, ‘ panna ’ and
‘thola ’ were not being used for the common purpose, it would not fall
within the meaning of ‘ shamilatdeh’ .
11. Clause (v) is the negative portion of the definition whic h
provides that certain lands will not be treated as ‘ shamilatdeh ’ and these
are those land which have described as ‘ shamilat ’, ‘ taraf ’, ‘ patti ’,
‘panna ’ and ‘ thola ’ in the revenue record and not used according to the
revenue record for the benefit of the village community or a part thereof
or for the common purpose of the village. In our view, the absence of
the comma after the word ‘ shamilat ’ is not of any great significance. In
fact, it appears that the comma has been left out by mis take. We may
also note that we find that in various publications, there is a comma
between the words ‘ shamilat ’ and ‘ taraf ’. However, there is no comma
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in the official publication in the Gazette notification. Keeping in view,
what we have held above, it appears to us that the absence of a comma
is a mistake and in fact according to us, a comma should be read after
‘shamilat ’ and before ‘ taraf ’ in the latter part of the section also.The
word ‘ shamilat ’ has to be read with all four- ‘ taraf ’, ‘ patti ’, ‘ panna ’
and ‘thola’ . A land can be ‘ shamilat deh ’ only if it is ‘ shamilat taraf’ ,
‘shamilat patti’ , ‘ shamilat panna’, or‘ shamilat thola’ . In case the
word shamilat is missing from any of these four terms, then the land
cannot be said to be belonging to a group of people and could never
become ‘ shamilat deh’ land.
12. The purpose of the section which defines ‘ shamilat deh ’ is
that the land described as ‘ shamilat ’, ‘ taraf ’, ‘ patti ’, ‘ panna ’ and ‘ thola ’
not used for the benefit of the village community will not be treated as
‘shamilat deh ’.Clause (3) of Section 2(g) is identical. The purpose is
that the land which is described in revenue records as ‘shamilat ’, ‘ taraf ’,
‘patti’ , ‘ panna ’ and ‘ thola ’ and used for the benefit of the entire village
community or a part thereof only would vest in the village proprietary
body. The words ‘part thereof’ have been used with a specific purpose
in the background of the meaning of patti which we have dealt with in
detail above. Even if the land is being utilised for the common purpose of
the inhabitants of that ‘ taraf ’, ‘ patti’ , ‘ panna ’ and ‘ thola ’, it would be
‘shamilatdeh ’ even if it is not used for the benefit of the entire village.
However, if the land is not used either for the benefit of the entire village
or for the part of the village community which comprises the patti then
the land, in our opinion, cannot be said to be ‘ shamilat deh ’ land within
the meaning of Section 2(g).
13. From the revenue records produced, we find that the land has
been shown as ‘ Shamlat Patti Dhera & Khubi ’. ‘ Dhera & Khubi ’
are the ancestors of the appellant(s). The possession is shown as that of
proprietors/self-cultivators and an entry was made in favour of the
Panchayat Deh in 1987-1988. The land was always shown to be
‘Shamlat Patti Dhera & Khubi ’ and in the cultivation of the appellant(s)
or his ancestors. Moreover, the land was never shown to be used for the
benefit of the entire village community or even for a part of the
community.
14. In view of the above, we have no hesitation in holding that the
land cannot be described as ‘ Shamilat Deh ’ and, therefore, would not
vest in the village proprietary body. Accordingly, we allow the appeal
PATRAM v. GRAM PANCHAYAT KATWAR & ORS.
[DEEPAK GUPTA, J.]
and set aside the judgment of the High Court dated 03.07.2008 and the
orders of all the authorities below. The name of the appel lant(s) be
entered in the column of ownership with the entry ‘ shamlat patti ’.
15. Pending application(s), if any, shall stand(s) disposed of. No
order as to costs.
Devika Gujral Appeal allowed