- (1.) The petitioners are proprietors in village Barohli, tahsil Kharar, district Ropar, and own about 8 acres of land as such. It is alleged in the petition that Khasra No. 492 measuring 54.12 is abadi deh. Out of this, Khasra No. 492-Min. Khatauni No. 184, according to Jamabandi for the year 1971-72, is in the joint possession of the petitioners being proprietors in the village and it has been in their possession from the times of their ancestors. The petitioners' land out of Khasra No. 492-Min. abadi deh in Khatauni No. 184 was proposed to be taken for allotment of house sites, in a village gathering, to respondents 3 to 8. An objection was taken at the spot by petitioner No. 2 and he pointed out that the land cannot be taken like this but it should be acquired by due process of law and that neither the revenue authorities nor the Panchayat had any jurisdiction over the land and they could not appropriate it without following the due process of law. Petitioner No. 1 was not present in that gathering as he is employed at Delhi. In spite of the objections raised by petitioner No. 2, land in dispute was forcibly taken possession of by the respondents. It is in this situation that the present petition has been filed.
(2.) A return has been filed by the Sub-Divisional Officer (Civil), Kharar, respondent No. 1. In Para 2 of the return it is admitted that Khasra No. 492 measuring 54 bighas 18 biswas is abadi deh. It is also admitted that the petitioners' possession has been shown in the Jamabandi for the year 1971-72 and this entry was first so made in the Jamabandi 1961-62.
(3.) The sole contention of Mr. Achhra Singh, learned counsel for the petitioners, is that the land in dispute is in possession of the petitioners as proprietors which is an abadi deh and does not vest in the Gram Panchayat and as such the Panchayat has no authority in law to allot this land to the landless workers. I find merit in this contention. Admittedly, their land has not been acquired in accordance with law. No notification under Section 4 of the Land Acquisition Act for the acquisition of the land in dispute has been issued and no proceedings to acquire the land in dispute have been taken. Admittedly, the land in dispute is abadi deh land and is in possession of the petitioners. Abadi deh land does not vest in the Gram Panchayat. Section 2(g) of the Punjab Village Common Lands (Regulation) Act, 1961 , defines 'shamilat deh' as under : "2(g) 'shamilat deh' includes - (1) lands described in the revenue records as shamilat deh excluding abadi deh; (2) shamilat tikkas; (3) lands described in the revenue records as shamilat, tarafs, pattis, 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) lands used or reserved for the benefit of village community including streets, lanes, playgrounds, schools, drinking wells, or ponds within abadi deh or garah deh; and (5) lands in any village described as banjar qadim and used for common purposes of the village according to revenue records : Provided that shamilat deh at least to the extent of twenty-five per centum of the total area of the village does not exist in the village; 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; (ii) has been allotted on quasi permanent basis to a displaced person; (iii) has been partitioned and brought under cultivation by individual landholders before the 26th January, 1950; (iv) having been acquired before the 26th January, 1950, by a person by purchase or in exchange for proprietary land from a co-sharer in the shamlat deh is so recorded in the jamabandi or is supported by a valid deed; (v) is described in the revenue records as shamilat taraf, pattis, pannas and thola and not used according to revenue records for the benefit of the village community or a part thereof or for common purposes of the village; (vi) lies outside the abadi deh and is used as gitwar, bara, manure pit or house or for cottage industry; (vii) is shamilat deh of villages included in the fourteen revenue estates called 'Bhojes' of Naraingarh Tehsil of Ambala District; (viii) was shamilat deh was assessed to land revenue and has been in the individual cultivating possession of co-sharers not being in excess of their respective shares in such shamilat deh on or before the 26th January, 1950; or (ix) is used as a place of worship or for purposes subservient thereto;".;