Gair Mazarua Khas Land in Indian Jurisprudence: Classification, Settlement Powers, and Constitutional Parameters

Gair Mazarua Khas Land in Indian Jurisprudence: Classification, Settlement Powers, and Constitutional Parameters

Introduction

The expression gair mazarua khas (sometimes spelt “gairmazrua-khas”) occupies a distinctive place in the cadastral vocabulary of North-Indian land tenure. While often cited in village revenue records, its precise legal incidence has been the subject of recurrent litigation and nuanced statutory treatment. This article undertakes a critical examination of the classification, alienability, and governance of gair mazarua khas (“GMK”) lands, drawing upon leading constitutional precedents, state land-reform statutes, and a cross-section of High Court and Supreme Court decisions. Particular attention is paid to Bihar–Jharkhand jurisprudence, where the concept originated, yet the analysis is situated within the broader framework of Indian property and agrarian law.

Conceptual Background: The “Gair Mazarua” Dichotomy

“Gair mazarua” literally means land that is “non-cultivable” (gair mumkin) or, more accurately, land not brought under settled cultivation at the time of survey. Colonial manuals further differentiated between:

  • Gair Mazarua Aam (GMA) – land reserved for common village purposes (paths, tanks, grazing grounds), notionally vested in the proprietary body but impressed with a public trust; and
  • Gair Mazarua Khas (GMK) – land kept in the landlord’s private disposal (bakasht), susceptible of future settlement with tenants for cultivation or other private use.

The statutory silence regarding these categories after Independence produced ambiguity, especially once intermediary estates vested in the State. Whether GMK is automatically Government land, whether it can still be settled, and on what terms compensation is payable, have therefore become recurring questions before the courts.

Statutory Framework

Bihar Land Reforms Act, 1950

Sections 3 and 4 effectuate the vesting of “estates or tenures” in the State upon notification, while Section 5 preserves homesteads and certain private structures to erstwhile proprietors.[1] The Act does not explicitly name GMK, but by abolishing the zamindari and transferring all “intermediary interests,” it facially includes GMK unless a contrary intention appears.[2]

U.P. Zamindari Abolition & Land Reforms Act, 1950

Although the U.P. Act deploys different nomenclature (banjar, usar, etc.), Sections 117(1)–(6) replicate the Bihar model by vesting non-tenant lands in the State and empowering subsequent transfer to Gaon Sabha for management.[3]

Later Executive Instructions

To address humanitarian claims of long-term occupants, Bihar and Jharkhand issued circulars (14 May 2009, 12 Feb 2015) permitting compensation or settlement where occupation exceeds thirty years and names find place in Register II.[4] These circulars, though of administrative provenance, now influence judicial relief.

Judicial Treatment of Gair Mazarua Khas

Constitutional Validation and Early Precedent

In State of Bihar v. Kameshwar Singh[5] the Supreme Court upheld zamindari abolition, emphasising that acquisition had to be for a public purpose with “just equivalent” compensation. The decision implicitly covered GMK by accepting the State’s competence to take over “all interests in land.” Subsequently, the Patna High Court in Brij Bhukhan v. State[6] confronted a direct claim that GMK land, settled with private individuals prior to vesting, remained outside public ownership. The Court recognised the possibility of such settlements and ordered restoration of possession, holding that a mere survey entry as “gair mazarua-am” or “khas” does not by itself defeat a proprietary grant.

Post-Reform Settlements and Mutation Disputes

  • Yadunandan Singh v. State of Bihar (2015) reiterated that GMK lands can legitimately be settled; blanket administrative presumptions to the contrary are “clearly misplaced.”[7]
  • Maya Devi v. State of Bihar (2014) condemned attempts to cancel decades-old jamabandis merely to evade compensation for public projects, characterising the enquiry into GMK status as an abuse of power.[8]
  • Arun Kumar Singh v. State of Bihar (2022) refused dealership rights when the land offered was still recorded as GMK, holding that mutation alone cannot confer title absent lawful settlement.[9]
  • The Jharkhand High Court in Mangar Mian (2019) accepted the occupant’s plea for compensation, citing the 2009/2015 circulars once 30-year possession and Register II entry were proven.[10]

Encroachment Proceedings and Writ Limitations

Where the State asserts GMK status and invokes the Public Land Encroachment Act, courts have refused to enter disputed questions of title in writ jurisdiction. Abdul Hamid v. Talat Yousuf (2008)[11] and Md. Khurshid Alam (2015)[12] upheld demolition or eviction, advising litigants to seek declaratory relief in civil court.

Administrative Prophylaxis against Fraud

Faced with forged hukumnamas and dubious transfers, Deputy Commissioners have attempted to suspend registrations of GMK land. The Jharkhand High Court in Tarkeshwar Prasad (2014) cautioned that such blanket bans lack statutory backing under the Registration Act, 1908, which provides only limited grounds for refusal under Sections 71 and 74.[13]

Analytical Issues

1. Nature of the State’s Interest

The vesting effected by zamindari-abolition statutes is plenary in respect of title but leaves room for derivative settlements. As the Supreme Court observed in Maharaj Singh v. State of U.P., “vesting is a word of slippery import” that may denote absolute ownership in the State while creating a secondary vesting of possession/management in local bodies.[14] In GMK cases, therefore, the State’s root title is undeniable, yet the door remains open for lawful regularisation, subject to policy and Article 14 constraints.

2. Public Purpose and Compensation

When GMK land is requisitioned for infrastructure, the occupant’s entitlement to compensation hinges on whether his possession has crystallised into a legally recognised interest. The Kameshwar Singh doctrine of “just equivalent” compensation—now housed in Article 300-A—continues to inform this enquiry. Courts have tended to award compensation where the State tolerated long possession and levied rent (Mangar Mian), while denying it where occupancy was unproven or fraudulent (Arun Kumar Singh).

3. Evidentiary Weight of Survey Records

Survey entries are strong but rebuttable presumptions. Brij Bhukhan held that an entry of “GMK/GMA” does not ipso facto negate prior lawful settlement. Conversely, in Abdul Hamid and Md. Khurshid Alam uncontroverted GMK entries coupled with absence of rent receipts sufficed for treating the land as State property.

4. Administrative Circulars and Rule of Law

The Uttarakhand High Court has admonished that executive circulars cannot override constitutional norms or statutory mandates.[15] Similarly, Bihar/Jharkhand circulars regularising GMK occupations must operate within the four corners of the Land Reforms Act and Article 14; any arbitrary denial of settlement or compensation is vulnerable to judicial review, as Maya Devi demonstrates.

Critical Appraisal

The jurisprudence reflects a tension between two imperatives: protecting public land from encroachment and recognising equitable claims of long-standing settlers. A binary classification of GMK as either “state land” or “private land” obscures underlying complexities such as historical grants, community usage patterns, and administrative acquiescence. Uniform codification—perhaps through rules under Section 43 of the Bihar Land Reforms Act—would mitigate ad-hoc litigation, clarify eligibility for settlement, and harmonise compensation standards.

Conclusion

Gair mazarua khas is not merely an archival label; it is a living category at the intersection of agrarian reform, constitutional property guarantees, and local governance. The courts have moved away from mechanical reliance on survey entries toward a contextual enquiry that balances State title with possessory equities. Nevertheless, the absence of a coherent legislative or policy framework perpetuates uncertainty. A principled approach—anchored in Article 300-A, guided by the “public purpose–compensation” matrix of Kameshwar Singh, and tempered by the equitable principle recognised in Maya Devi—is essential to reconcile developmental objectives with the rule of law.

Footnotes

  1. Bihar Land Reforms Act, 1950, §§ 3–5.
  2. State of Bihar v. Maharajadhiraja Sir Kameshwar Singh, AIR 1952 SC 252.
  3. Maharaj Singh v. State of U.P., (1976) 1 SCC 250, interpreting U.P. Zamindari Abolition & Land Reforms Act, 1950, § 117.
  4. Govt. of Jharkhand Circulars Nos. 1003 (14 May 2009) & 268 (12 Feb 2015).
  5. State of Bihar v. Kameshwar Singh, supra note 2.
  6. Brij Bhukhan v. State, Patna HC, 1954.
  7. Yadunandan Singh v. State of Bihar, Patna HC, 2015.
  8. Maya Devi & Ors. v. State of Bihar, 2014 SCC OnLine Pat 7936.
  9. Arun Kumar Singh v. State of Bihar, Patna HC, 2022.
  10. Mangar Mian v. State of Jharkhand, 2019 SCC OnLine Jhar 801.
  11. Abdul Hamid v. Talat Yousuf, 2008 SCC OnLine Jhar 1203.
  12. Md. Khurshid Alam v. State of Jharkhand, 2015 SCC OnLine Jhar 1734.
  13. Tarkeshwar Prasad v. State of Jharkhand, 2014 SCC OnLine Jhar 1329.
  14. Maharaj Singh, supra note 3.
  15. Nazul Policy Case: State of Uttarakhand v. Nazul Policy Petitioners, Uttarakhand HC, 2018.