• Gair Mumkin land clarification

Dear Lawyers
I am having a land in Punjab on which I am operating a Stone Crusher since 2004. As per the Jamabandi of 1990-91,1995-96,2000-01 the classification of my land khasra numbers are "Barani"

But in khasra girdawari same khasra number's are mentioned as "Gair Mumkin" for the said period. The registry of my land shows the type as "Barani"

1) Please let me know the detailed legal meaning of "Gair Mumkin" land. It will be good if some lines can be quoted from a Judgement explaining this definition. 

I have learned from sources that it's basic meaning is Non-cultivable land or land on which some building is constructed thereby making it unusable for cultivation.

2) Can the khasra girdawari be rectified? If so what will the right type of my land? Barani or Gair Mumkin as I am operating a Stone Crusher since 2004 on this land?

Can someone please quote any case laws on this point?

Your valuable inputs will be highly appreciated. Thanks for your time.

Regards,
Saurabh Garg
Asked 1 year ago in Property Law from Punjab, Punjab
Religion: Hindu
1)gair mumkin pahar",	in other words, it is an uncultivable waste land

2)  the lands cannot be held or occupied or used in connection with agriculture, horticulture, animal husbandry including pisciculture and poultry farming etc

Supreme Court of India
Union Of India & Anr vs Sher Singh & Ors on 7 February, 1997
Bench: K. Ramaswamy, S. Saghir Ahmad
           PETITIONER:
UNION OF INDIA & ANR.

	Vs.

RESPONDENT:
SHER SINGH & ORS.

DATE OF JUDGMENT:	07/02/1997

BENCH:
K. RAMASWAMY, S. SAGHIR AHMAD




ACT:



HEADNOTE:



JUDGMENT:
O R D E R This appeal, by special leave, arises from the judgment of the	division Bench	of the High court of Delhi, made on May 30, 1991 in R.F.A. NO.167/86.

The admitted facts are that notification under Section 4(1) of the land Acquisition Act,	1864 was published acquiring certain lands for public purpose. Therein rival claims came to be made by Gaon Sabha, Tekhand and	the respondents claiming title to	the compensation. Since the Land Acquisition officer/collector was unable to decide the title to receive the compensation on reference under section 30 of the Act, the District court by award and decree dated February 22, 1986 held	that the land	in question stood vested in the Gaon Sabha under Section 7 read with Section 154 of	the Delhi Land Reforms	Act (for short, the `Act'). Therefore, it is entitled to the compensation of the land acquired by the Union of India. Dissatisfied therewith, the respondents filed the above appeal. The High Court in the impugned judgment has held that "Gair	Mumkin Pahar"	is a cultivable land	and, therefore, by operation of explanation to Section 7, it stands excluded from the vesting in the Gaon Sabha. Resultantly, the respondents being the owners of the property are entitled to the compensation. Thus, this appeal by special leave.

Initially, Shri M.C. Dhingra, learned counsel for some of the respondents, as brought to our notice that since this Court had dismissed similar special leave petitions, this appeal does not merit consideration. We find no force in the contention. This Court, by then, had already granted leave in this	appeal, but unfortunately, that was not brought to the notice of the respective Benches	including the	one presided over by one of us (K. Ramaswamy, J.), when	the matters had come up. As a consequence, without any speaking order some special leave petitions came to be dismissed. In view of	the settled legal position by a catena of decisions of this	Court that the dismissal of special leave petition without speaking order does not constitute res judicata, the question of law is at large to be gone into. Accordingly, We reject the objection and we have heard the counsel on both sides on merits.

Shri Wasim A. Qadri, learned counsel for Union of India and Gaon Sabha, in a pains taking investigation and neat presentation, has brought to our notice the relevant provisions of the Act and the	decision of this Court in Hatti vs. Sunder Singh [(1971) 2 SCR 163] and contended that the object of the Act and the Delhi Land Reforms, 1954 was to extinguish the pre-existing	right, title and interest held by bhumidar, sirdar, tenant, proprietor etc.	and conferment of new rights in them. It is also envisaged that all other lands shall	stand vested in the Gaon Sabha by operation of Section 154 of the Act read with Section 7 of the Act. The respondents are not bhumidars. The land in question has been recorded in the revenue records as "gair mumkin pahar",	in other words, it is an uncultivable waste land. It is not excluded from the definition of waste land as explained in explanation to Section 7 of	the Act. A reading of the relevant provision of Sections 5, 7, 11 and 154 of	the Act	read with the definitions of `land' defined in Section 3(13), `holding defined	in Section 3(11A), `khudkhast' defined in Section 3(12A) and `proprietor' under Section 3(17) of the Act, would clearly indicate that the respondents are	not bhumidars	in respect of	gair mumkin pahar. As a consequence, the land stands vested in the Gaon Sabha under Section 7	read with Section 154 of the Act. On the other hand, Shri Dhingra and Shri L.C. Chechi, learned counsel for the respondents contended that by operation of the comprehensive definition of `waste land' in explanation to Section 7 of the Act read with the object of conferment of right under Section	11 read with Section 5 of the Act, the respondents are bhumidars. As a consequence, the land is a cultivable land which confers them title to the land under the Act. It	is also further contended	that in a representative suit for a declaration that this gair mumkin pahar is cultivable land was declared to be so by the civil Court. The Deputy Commissioner's finding under the Act that it is a waste land is not correct. On an appeal against the decree, the High Court remitted the matter with an option to the Deputy Commissioner had not decided that it is gair mumkin pahar. As a consequence, the vesting order passed by the Deputy Commissioner is non est. The	High Court, therefore, had	rightly gone into the	question. In support thereof, the learned counsel placed reliance on a judgment of the	learned single	judge in a second appeal. It is also contended that	the view taken by the Division Bench of the High Court in that behalf is correct in law. It does not warrant interference.

Having regard to the respective contentions,	the question that arise for consideration is : whether gair mumkin pahar land is cultivable land	coming	within	the meaning of explanation to Section 7 so as to exclude it from the operation of the main part of Section 7 of the Act? Section 3(13) defines `land; thus:

"(15) "land" except in Sections 22, 23	and 24, means land	held or occupied for purposes connected with agriculture,	horticulture or animal	husbandry including pisciculture and	poultry	farming and includes..."
Admittedly, the lands in question have been recorded in the revenue recorded as gair mumkin pahar. Therefore, the lands cannot be held or occupied or used in connection with agriculture, horticulture, animal husbandry including pisciculture and poultry farming etc. `Holding' has been defined under Section 3(11) of the Act means:

"(a)...
(b) in respect of	proprietors, a parcel or	parcels of land held as sir or khud-khast."
`khudkhast' has been defined under Section 3(12A) means land (other than Sir) cultivated by a proprietary either by himself or by servants or by hired labour,...

"(a) at the commencement	of this Act, or (b) at any time during the period of	five years immediately before the commencement	of this Act, whether or	not it	was so cultivated at such commencement, provided that it has not, at any time after having been so cultivated	been	let out to a tenant".
Therefore, it is clear from the above provisions that the gair mumkin pahar	is not	a land cultivated by	the proprietor and so it is not a khud-khast land.

Section 5 of the Act defines Bhumidar thus : "5. Bhumidhar--	Every	person belonging to any of the following classes shall be a Bhumidhar and shall have all	rights	and be subject to all	the liabilities conferred	or imposed	upon a Bhumidhar by or under this Act, namely:

(a) a proprietor	holding	Sir or Khudkhast	land	a proprietor's grover holder, an occupancy tenant under Section 5	of the Punjab Tenancy Act, 1887, paying	rent at revenue rates or a person holding land under Patta Dawami or Istamrari with rights of	transfer by	sale,	who	are	declared Bhumidhars on the commencement of this Act:

(b) every	class of tenants other than those	referred to in clause

(a) and subtenants who are declared to in clause (a) and subtenants who are declared Bhumidhars	on the commencement of this Act ; or

(c) every	person	who, after the commencement of	this Act, is admitted to land as Bhumidhar or who acquires Bhumidhar rights under any provisions of the Act."

Resultantly, the respondents are not bhumidhars, since they did not hold the land as proprietor and, therefore, shall not have proprietary right in gair mumkin pahar.

part B of the Act postulates acquisition of certain rights of proprietors. Section 7 under this part postulates the rights of proprietary in waste lands. pasture lands of common utility	etc. to	vest in Gaon Sabha and compensation to be paid for the...

"(1) All rights of an individual proprietor	or	proprietors pertaining to waste lands. grazing or	collection of	forest	produce from forest or fish from fisheries lands of common utility,	such as customary	common	pasture lands, cremation or burial grounds, abide sites pathways, public wells, tanks and water	channels, or khalihans, whether covered	by an	existing contract between such proprietor or proprietors and any other person or not, shall	with effect from the commencement of	this	Act be terminated in accordance with the provision of sub-section	(2) and the said contracts, if any, shall become void with effect from such commencement.
provided that where such land was a result of consolidation of holdings made available for use	for any purposes other than those referred to in this subsection, land kept aside in	exchange thereof, land kept aside	in exchange thereof, as a	result	of such consolidation, shall for	the purposes of this Act be deemed	to be	land originally meant for	purposes referred to in this sub-section.
Explanation -- for the purpose of this sub-section--
(i) "waste land' shall	include cultivable and uncultivable waste area or the village including any land in	the bed of a river, occupied or held by f river, occupied or held by an Asami referred to in Section 6(a)(iii) of the Act except the uncultivated area---
(a) included in	the holding of such proprietor proprietors, or
(b) used for purposes other than those mentioned in clause (143) of Section 3 at any time before the 26th day of October, 1956 or
(c) acquired by bona fide purchaser for value at any time before the	28th day of October, 1958 for purpose other than those mentioned in clause (13) of Section
3."
Conjoint reading	of Section 7 read	with	the explanation, it	emerges that unless the waste land stands excluded from Section 7, the rights of the proprietors in waste lands, posture lands or community utility lands etc. shall vest in Gaon Sabha. The	waste land included in the holding of the proprietor stands excepted from the waste land contemplated by Section 7.

Section 11 of the Act provides declaration of Bhumidhari Rights in favour of proprietors and superior class of tenants, compensation and revenue. Subsection (1) provides that;

"(1) Subject to the provisions of Section 10, the Deputy Commissioner shall declare as Bhumidhar persons holding the following	lands, namely:-
(a) Khudkhast land	or a proprietor's grover in the tracts to which the Punjab Tenancy Act, 1887 was applicable or Sir land or khudkhast land or	a proprietor's grove in the tracts to which the Agra Tenancy Act, 1901, was applicable:
(b) land held by occupancy tenants under Section 5	of the Punjab Tenancy Act, 1887, with right of transfer by sale; and
(c) land held under patta Dawami or Istamrari by tenants with right of transfer by sale."
By operation of Section 11, all the lands including the holding	of the Bhumidhar etc. shall be declared to be a Bhumidhar right. It is, thus, clear that by	operation of Section 5 read with the definition of khudkhast land and the explanation to	waste land under Section 7 of the Act, the lands not having been	held by	Bhumidhars, it cannot be treated to be a waste land for the purpose of exclusion under the explanation from the purview of Section 7 of the Act.

what would	be the consequence has been stated in Section 154 of the Act is to be seen. Section 154 reads thus:

"154. Vesting of certain lands etc. in	Gaon	Sabha -- (1)	On the commencement of this Act-- (1) all lands whether cultivable or otherwise, except land for the time being comprised in any holding or grove, xxxxxxxxxxxxxxxxxxxxxxxxxxxx situate in a Gaon Sabha Area, shall vest in Gaon Sabha."
Thus, it could be	seen that except the	land for the time being comprised in any holding or a grove, rest of all lands whether cultivable or otherwise vest in the Gaon from the date of the commencement of the Act.

This question also no longer res integra. In Hatti's case (supra),	this Court has gone	into the relevant provisions of the Act and held thus:

"Sections 6, 11, 13 and 154 of the Act read together, thus, show that, after the	Act came into force, proprietors of agricultural land as such ceased to exist. if any land was part of a	holding of a proprietor, he became a Bhumidar of it. if it was part of a holding of some other person, such as a tenant or a sub-tenant etc., he became either a Bhumidar or an Asami, whereupon	the rights	of the proprietor	in that land	ceased, Land, which were	not holding of either the	proprietor or any other person, vested in the Gaon Sabha. In the case of proprietors, their rights in	the land continued to exist only	in respect of holdings which, under the definition, must have been	either their	sir or khudkasht at the	commencement of the Act. If it was not	sir or khudkasht of a proprietor, it would not be	his	holding and, consequently, such	land would vest in the Gaon Sabha under	Section 154, the result of which would be that the rights of the proprietor would be extinguished".
As stated	earlier, indisputably in the revenue records the land in question had been recorded as gair mumkin pahar. Under those circumstances, this gair mumkin pahar land which was not held by the respondents as khudkhastdars as proprietors thereof. As a consequence, the land shall stand vested in the Gaon Sabha. It	is true	that in the earlier civil suit filed in	a representative capacity for a declaration, the High Court has gone into the question, but the entire matter was left at	large stating that "it does not mean that the Deputy Commissioner	Cannot redecide the matter. in fact, he should reconsider	the matter and hear the parties to determine whether the order is in accordance with law... However, I would also like to clarify that this does not by any means end the matter". Thus, there is no concluded finding recorded by	the High Court in the second appeal with regard to	the nature of the land. On the other hand, the matter was kept at large. At that	stage,	the acquisition proceedings were initiated. As a consequence, no further action has been taken by the Deputy commissioner. Consequently, the entire issue was	at large. Obvious therefore, that when there was conflict of decisions between tow learned single Judges, the Division Bench has gone into the question. But, it had not properly considered the effect of the provisions of the Act and came to the conclusion that the explanation	of `waste land' under Section 7 includes cultivable, waste and gair mumkin pahar is cultivable waste land and the respondents became owners of the land	and entitled to the compensation. In	view of the above discussion, the view taken by the division. Bench is clearly in error. Accordingly, we set aside the judgment of the High Court and confirmed that of the District Court.

The appeal is accordingly allowed,	but in	the circumstances, without costs.
Ajay Sethi
Advocate, Mumbai
23079 Answers
1212 Consultations
5.0 on 5.0
Name of service
Correction of Khasra Girdawari
Name of the Deptt/.
Revenue Deptt.
Scope of service
Khasra Girdawari can be corrected only for the period relating to the current  Jamabandi which would be incorporated in the next Jamabandi.
Terms of service
Any person claiming his cultivating possession can apply.
Procedure
The applicant personally or through his counsel submits an application to the CRO-cum- AC II grade for the correction of  Khasra Girdawari . Respondents are summoned who submit reply. After this both the counsels argue. First of all applicant submit documentary evidence in support of his possession over the land. Therefore, respondent submit documentary evidence. Spot of  the disputed Land is inspected in presence of both the parties, Namberdar, respectables etc. On the basis of above facts ,the possession is decided. Patwari is informed of the decision, which is incorporated in the record.
Forms
Copy of current Khasra girdawari and Jamabandi
List of documents
(i) Application in prescribed form with proper court fees.
(ii) Copy of current khasra Girdawari and Jamabandi
(iii) Talbana
(iv) Vakalatnama
Method of inspection
Concerned CRO inspects the spot in presence of both the parties, Nambardar, Chaukidar, patwari and other respectables of the village.
Time frame
Within 3 months
Related official
Tehsildar/Naib Tehsildar-cum-AC IInd Grade
Fees for services
---
Approving Authority
Concerned Tehsildar /Naib Tehsildar-Cum-AC IInd Grade
Complaint removal official
Sub Divisional Magistrate-Cum-AC Ist Grade
 
 
 
Ajay Sethi
Advocate, Mumbai
23079 Answers
1212 Consultations
5.0 on 5.0
1. Gair Mumkin Abadi" means a type of land or settlement on which existing arrangement are difficult to move or a bit of land which cannot be allotted. The record of this land remains with the revenue authorities. In Haryana, Rajasthan, Punjab, Delhi & Himachal Pradesh, the same language is used in revenue record.  

2. The land cannot be barani and gair-mumkin at the same time. To rectify the khasra number you have to apply to the tehsildar. The right will be in terms of what the tehsildar adjudicates in his order, which you can challenge in the court. 
Ashish Davessar
Advocate, Jaipur
18049 Answers
444 Consultations
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1.Categorising a piece of land as  'Gair Mumkim' is meant as non cultivatable which includes waste land also,

2. You can file an application for rectification of 'Khasra girdawari'.
Krishna Kishore Ganguly
Advocate, Kolkata
12027 Answers
226 Consultations
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