- (1.) Through the instant writ petition, the petitioner has impugned the order passed by the Commissioner, Hisar Division, Hisar dated 28,8,2007 wherein it has been concluded that the land under reference is in unauthorised occupation of the petitioner,although the same is shamlat land. It is,therefore that the claim of the petitioner has been dismissed by the Commissioner, Hisar Division, Hisar while upholding the order passed by the Collector, Bhiwani dated 23.8.2001.
(2.) The first contention of the learned counsel for the petitioner is that the determination rendered by the afore-stated Collector and Commissioner, respectively, are in clear violation of the definition of the term "shamlat deh" in Section 2(g) of the Punjab Village Common Lands (Regulation) Act,1961 (hereinafter referred to as the "Act"). Since reliance has been placed on Section 2(g) of the Act, the same is being extracted herein: "2(g) "shamilat deh " includes- (1)lands described in the revenue records as ( Shamilat Deh or Charand) 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 gorah deh; and 5. lands in any village described as banjar qadim and used for common purposes of the village according to revenue records; (i)- but does not include land which- (ii) has been allotted on quasi-permanent basis to a displaced person; (ii-a) was shamlat deh, but, has been allotted on quasi permanent basis to a displaced person, or, has been otherwise transferred to any person by sale or by any other manner whatsoever after the commencement of this Act, but on or before the 9th day of July,1985. (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 and is not in excess of the share of the co-sharer in the shamlat deh; (v) is described in the revenue records as shamlat taraf, pattis, pannas and thole and not used according to revenue records for the benefit of the villager community or a part thereof or for common purposes of the village; (vi) lies outside the abadi deh and was being used as gitwar, bara, manure pit, a house or for cottage industry immediately before the commencement of this Act; (vii) **************** (viii) was shamlat 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 shamlat deh on or before the 26th January,1950; or (ix) was being used as a place of worship or for purposes subservient thereto immediately before the commencement of this Act; (h) " shamlat law" means- (i) in relation to land situated in the territory which immediately before the Ist November,1956, was comprised in the State of Punjab, the Punjab Village Common Lands (Regulation)Act,1953; or (ii) in relation to land situated in the territory which immediately before the Ist November, 1956, was comprised in the State of Patiala and East Punjab States Union, the Pepsu Village Common Lands (Regulation) Act,1954; (i) "State Government" means the Government of the State of Punjab." The pointed contention of learned counsel for the petitioner is that in view of clause (v) of the proviso under section 2(g) of the Act, since the land under reference is in occupation and cultivation of the petitioner, the same cannot be treated as shamlat deh and, therefore, it cannot be deemed to be in unauthorised occupation of the petitioner.
(3.) While examining the first contention raised by the counsel for the petitioner, as has been noticed in the foregoing 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, "shamlat taraf", "pattis", "pannas" and "thola" as falling within 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 because "shamlat patti" is not excluded under the clause relied upon by the learned counsel. It is,therefor, 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.;