TMI Blog1997 (2) TMI 574X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 3. Initially, Shri M.C. Dhingra, learned Counsel for some of the respondents, has 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 ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide afresh the matter. But 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. 5. Having regard to the respective contentions, the question that arises 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: (13) 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.... 6. Admittedly, the lands in question have been recorded in the revenue recorded (sic) as gair mumkin pahar. Therefore, the lands cannot be held or occupie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 sub-section, 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 of the village including any land in the bed of a river, occupied or held by an Asami referred to in Section 6(a)(iii) of the Act except the uncultivated area- (a) included i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Sabha from the date of the commencement of the Act. 17. 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 khuj kasht 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 wou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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