Civil Writ Petition No.5414 of 1991 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.5414 of 1991 Date of Order: 09.08.2011 Shri Mahadev Gupta and others ...Petitioners Versus The State of Haryana and others ..Respondents CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA Present:Mr.Raj Kumar Gupta, Advocate for the petitioners. Mr. D.Khanna, Addl.AG, Haryana for respondents no.1 to 3. RAJIVE BHALLA, J (Oral) The petitioner prays for issuance of a writ in the nature of certiorari for quashing the order dated 11.04.1990 (Annexure P-4), passed by the Joint Secretary, Rehabilitation Department, Haryana, whereby the revision filed by the petitioner was dismissed. The dispute in brief is whether the land in dispute is "Shamilat Deh" or evacuee property. The petitioners claim that as the land in dispute is a "Gair Mumkin Pond", it falls within the definition of "Shamilat Deh". It is further asserted that as the land was common land left behind by muslim migrants, at the time of partition, it is not Civil Writ Petition No.5414 of 1991 -2- evacuee property. Counsel for the petitioners further submits that while deciding a similar controversy, the Hon'ble Supreme Court has held in Gram Panchayat, Jamalpur vs. State of Haryana and others, A.I.R. 1985 S.C.,1394, that as the share of muslim migrants, in “Shamilat Deh” vests in a Gram Panchayat, it cannot be treated as evacuee property. The land, therefore, cannot be sold by the government as evacuee property. It is also argued that even if the judgment in Gram Panchayat, Jamalpur (supra) is ignored, the land being part of a "Gair Mumkin Pond", vests in the Gram Panchayat under Section 2(g) (i) of the Punjab Village Common Lands (Regulation) Act, 1961 as applicable to the State of Haryana. It is also pointed out that as the State of Haryana has averred, in its reply, that the land could not be sold by restricted auction being suburban land, the impugned order is even otherwise illegal and should be set aside. Counsel for the State of Haryana, submits that the land is not "Shamilat Deh", as it vests in the Rehabilitation Department. It is , however, conceded that the matter whether the land could or could not be auctioned in a restricted auction is pending consideration. I have heard counsel for the parties, perused the impugned order as also the order dismissing the revision, filed by the petitioners. The jamabandi for the year 1966-1967 Civil Writ Petition No.5414 of 1991 -3- records the land as “Gair Mumkin Johar” i.e. a village pond. The land in dispute was apparently left behind by muslims, who migrated to Pakistan, upon partition of the country. A dispute whether “Shamilat Deh” left behind by muslim migrants vests in a Gram Panchayat or is evacuee property, came up for consideration before the Hon'ble Supreme Court in Gram Panchayat, Jalampur (supra). After considering the matter in its entirety, the Hon'ble Supreme Court held that “Shamilat Deh” left behind by muslim migrants vests in Gram Panchayats. The land is, therefore, “Shamilat Deh” and not evacuee property and cannot be sold in an auction much less in a restricted auction. However, as the matter is stated to be pending consideration, on a related issue and as no one has put in appearance on behalf of the legal representatives of respondent no.4, it would be appropriate while setting aside the order dated 11.04.1990 and remitting the matter to the Joint Secretary, Rehabilitation Department, Haryana, to direct him to decide whether the Rehabilitation Department has any jurisdiction to auction “Shamilat Deh”, after taking into consideration the provisions of the PEPSU Village Common Lands (Regulation) Act, 1954 and the Punjab Village Common Lands (Regulation) Act, 1961 Act, the relevant jamabandis recording the land as “Gair Mumkin Johar”, the judgment of the Hon'ble Supreme Court in Gram Panchayat, Jamalpur(supra) and all other relevant rules, regulations and policies that may have been framed by the Civil Writ Petition No.5414 of 1991 -4- State of Punjab or State of Haryana with respect to disposal of evacuee property. Parties are directed to appear before Joint Secretary, Rehabilitation Department, Haryana, on 28.09.2011. August 09, 2011 (RAJIVE BHALLA) nt JUDGE