SURAJ BHAN Vs. ASHVARYA ESTATE PVT. LTD.

JUDGEMENT

(1.) Land is considered the new gold. More so, when such land is proximate to expanding urban agglomerations. Land in Gurugram in the State of Haryana, lying right next to the NCT of Delhi, qualifies in this regard with flying colours. Hitherto, a village, Gurgaon, as it was known then, was subject to the laws of erstwhile Punjab with respect to lands classified as shamilat deh (common lands). After the formation of the State of Haryana in 1966, those laws were adopted by it with some changes. We are presently concerned with a large extent of land in Gurugram, which formed part of Haiderpur, a be chiraag (literally, without light) mauza, i.e., an uninhabited village, which was contiguous to Wazirabad, an inhabited village, in Gurgaon Tehsil and District. The crucial issue for consideration is whether this land was shamilat deh, i.e., common land, or was it under the actual ownership and possession of private parties.

(2.) Before we address the issue on merits, it would be appropriate to first dwell upon the concept of shamilat deh and, in due course, we shall also examine the abundance of case law that has developed on the subject over the past several decades.

(3.) In his erudite exposition on customary law [Rattigans Customary Law, Sixteenth Edition (2007)] in the Punjab of yore, authored in the year 1880, Sir William Henry Rattigan devoted an entire chapter to the Village common land. Therein, he observed that land was the true basis of unity in village groupings, supplying the ultimate real bond of union between members who constituted the aggregate proprietary body called the village community[ 'Rattigan 's Customary Law ', Sixteenth Edition (2007) ]. He noted that, within the territorial limits of every village, some portions of the uncultivated waste land were reserved for purposes of common pasture; for assembling of people; for tethering of village cattle; and for possible extension of village dwellings. This village common land was colloquially known as shamilat deh and comprised uncultivated (banjar) and pasture (charand) lands, the abadi or inhabited village site and the gorah deh or vacant space reserved for extension of village dwellings and the area adjoining the village site. The lands so reserved, he observed, were jealously guarded as common property of the original body of settlers who founded the village or of their descendants and, occasionally, those who assisted the settlers in clearing the waste and bringing it under cultivation.