C.W.P. No.753 of 1994 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.753 of 1994 DATE OF DECISION: JULY 12, 2011 Jeeta and others .....PETITIONERS Versus Gram Panchayat Kherlijita and others ....RESPONDENTS CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL --- Present: Mr. Chandra Singh, Advocate, for the petitioners. Mr. Yogesh Saini, Advocate, for respondent No.1. .. SATISH KUMAR MITTAL, J. In this writ petition, the petitioners are challenging the order dated 29.6.1993 passed by the Financial Commissioner, Haryana, whereby the revision filed by the petitioners against the order dated 3.11.1987 passed by the Commissioner (Appeals), Ambala Division, was dismissed upholding the order dated 28.8.1985 passed by the District Collector, Faridabad. Vide order dated 28.8.1985 the Collector, on an appeal filed by the Gram Panchayat, set aside the order dated 25.6.1984 passed by the Assistant Collector Ist Grade, Palwal, allowing the suit filed by the petitioners for declaring their occupancy rights and ownership in the land in dispute. In the present case, the petitioners claimed themselves as Bhondedars on the land in dispute measuring 6 kanals 5 marlas situated in C.W.P. No.753 of 1994 -2- village Kanauli. They alleged to have been in continuing cultivating possession of the land in dispute as Bhondedars for a very long period since 1907. They filed a suit for declaration under Section 3 of the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952 (hereinafter referred to as “the 1952 Act”) before Assistant Collector Ist Grade, Palwal against the Gram Panchayat for declaring them having occupancy rights and ownership in the disputed land. Initially, the Assistant Collector Ist Grade decreed the suit of the petitioners while holding that the petitioners had acquired the occupancy rights in the land in dispute, which was given to them as Bhondedars, in view of the service rendered by them as Jarib Kashi in the village and keeping in view their continuing cultivating possession since 1907 without there being any rent or batai. It was also held that since the petitioners had acquired the occupancy rights in the land in dispute before the enforcement of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as `the 1961 Act'), therefore, vesting of the land in dispute in the Gram Panchayat under the aforesaid Act does not affect the rights of the petitioners, who were the Bhondedars. On appeal filed by the Gram Panchayat, the said order of Assistant Collector Ist Grade was set aside by the Collector while coming to the conclusion that the Bhondedars are not the tenants and they cannot acquire the occupancy rights in the land in dispute merely because they were in continuing cultivating possession on the land in dispute as Bhondedars for a long time. It was further held that for acquiring the occupancy rights, one has to fulfill necessary conditions, i.e., he should fall within the definition of `tenant'; (ii) he must be paying marginal rent which C.W.P. No.753 of 1994 -3- may not be more than the land revenue; and (iii) there must be implied or express agreement of never to eject between him and the landlord. It has been held that in the revenue record the petitioners were never recorded as occupancy tenants nor they had acquired the status of occupancy tenants. Therefore, merely on the basis of their long continuing cultivating possession as Bhondedars, they cannot be declared as having occupancy rights of ownership in the land in dispute. The order of the Collector was upheld by the Commissioner (Appeals) as well as the Financial Commissioner. While upholding the orders of the Collector and the Commissioner (Appeals), the Financial Commissioner has observed as under:- “I have given careful thought to the arguments advanced by both the sides. The passage quoted from the District Gazetteer Volume IV A of Gurgaon District in the ruling reported in 1983 PLJ 231 reads “ the bhonda is, like a dohli, a grant of a few Bighas of land rent-free. The principal difference is that, while the service for which the dohli is granted is something directly connected with religion, the bhonda is given for some secular service, such as the duties of the village watchman (chaukidar) or messenger (bulahar). The bhondedar may be ejected on failure to fulfil the conditions of his tenure and perhaps in some cases at the will of the proprietors. It is simply on old-fashioned mode of paying for service.” In terms of section 4(6) of the Punjab Tenancy Act, 1887 a tenant is or would be liable to pay rent but for a “special contract” and rent is payable to only the landlord under whom the tenant holds. As against this, Bhondedari is invariably a grant of rent-free land in lieu of certain services to be rendered by the Bhondedar. There is nothing which would suggest that in the event the services of a C.W.P. No.753 of 1994 -4- bhondedar are not rendered the landlord would become entitled to claim rent. Further, in Bhondedari the services to be rendered need not necessarily be confined to the landlord alone; it may extent to other residents of the village. This is quite unlike the position in a tenancy whereunder the rent is payable to the landlord alone. In this reasoning I draw support from the ruling reported in 1981 PLJ 447 wherein it has been held that “the service rendered by a dohlidar to institutions or persons other than the creator of the dohli strictly speaking, does not fall either within the concept of rent or within that of a tenant. The liability to pay rent to the creator of the dohli, or the latter's right to claim rent in the event of the terms of dohli not being faithfully observed, is altogether missing in the nature of the creation of the tenure.” Keeping in view the foregoing discussion I am of the view that a Bhondedar is not a tenant and therefore the question of his acquiring occupancy rights simply does not arise.” Now in this writ petition, the aforesaid order has been challenged. I have heard the learned counsel for the parties and gone through the record of the case. The issue arises for consideration in this writ petition is whether a Bhondedar having cultivating possession in the land in dispute for a very long period (since 1907) can be declared to have acquired the occupancy rights and ownership on the disputed land. Undisputedly, in the present case the land in dispute was given to the petitioners as Bhondedars for rendering service as Jarib Kashi by the proprietors. It is also undisputed as is clear from the revenue record that the petitioners remained in cultivating possession of the said land as Bhondedars for a long period. But C.W.P. No.753 of 1994 -5- it has also come in evidence that when the suit for declaration was filed by the petitioners, they had left the village and were not rendering service of Bhondedars. It is also uncontroverted fact that the petitioners had leased out the land in dispute on 99 years lease contrary to the terms of Bhondedars to one Gian Singh, who is now in actual physical possession of the land in dispute. Section 3 of the 1952 Act provides for vesting of proprietary rights in occupancy tenants and extinguishment of corresponding rights of landlords. This Section provides that notwithstanding anything to the contrary contained in any law, custom or usage for the time being in force, all rights, title and interest of the landlord in the land held under him by an occupancy tenant, shall be extinguished, and such rights, title and interest shall be deemed to vest in the occupancy tenant free from all encumbrances, if any, created by the landlord. Once the proprietary rights of an occupancy tenant are declared, the landlord shall cease to have any right to collect or receive any rent or any share of the land revenue in respect of such land and his liability to pay land revenue in respect of the land shall also cease. Sub- section (d) of Section 3 further provides that the occupancy tenant shall be liable to pay, and the landlord concerned shall be entitled to receive and be paid, such compensation as may be determined under the Act by the authority. Section 2(f) further defines “occupancy tenant”. It says “occupancy tenant” means a tenant who, immediately before the commencement of this Act, is recorded as an occupancy tenant in the revenue records and includes a tenant who, after such commencement, obtains a right of occupancy in respect of the land held by him whether by C.W.P. No.753 of 1994 -6- agreement with the landlord or through a court of competent jurisdiction or otherwise, and includes also the predecessors and successors in interest of an occupancy tenant. The aforesaid Act was enacted by the State Legislature in order to ameliorate the economic condition of the tenants and for conferment of proprietary rights in the land on the actual tiller of the soil. Now the question arises for consideration is whether the Bhondedar is an occupancy tenant because under Section 3 of the 1952 Act the proprietary rights will vest only in the occupancy tenant on payment of certain compensation to be determined by the authority. Section 5 of the Punjab Tenancy Act, 1887 provides when a tenant is considered to have acquired the occupancy right. This Section reads as under:- “Tenant having right of occupancy.- (1) A tenant- (a) who at the commencement of this Act has, for more than two generations in the male line of descent through a grand- father or grant-uncle and for a period of not less than twenty years, been occupying land paying no rent therefor beyond the amount of the land revenue thereof and the rates and cesses for the time being chargeable thereon, or (b) who having owned land, and having ceased to be landowner thereof otherwise than by forfeiture to the Government or than by any voluntary act, has, since he ceased to be landowner continuously occupied the land, or (c) who, in a village or estate in which he is settled along with or was settled by, the founder thereof as a cultivator therein, occupied land on the twenty-first day of October, 1868, and has continuously occupied the land since that date, or (d) who being jagirdar of the estate or any part of the estate in which the land occupied by him is situate, has continuously C.W.P. No.753 of 1994 -7- occupied the land for not less than twenty years, or having been such jagirdar, occupied the land while he was jagirdar and has continuously occupied it for not less than twenty years; has a right of occupancy in the land so occupied, unless, in the case of a tenant belonging to the class specified in clause (c), the landlord proves that the tenant was settled on land previously cleared and brought under cultivation by, or at the expense of, the founder. (2) If a tenant proves that he has continuously occupied land for thirty years and paid no rent thereof beyond the amount of the land revenue thereof and the rates and cesses for time being chargeable thereon it may be presumed that he has fulfilled the conditions of clause (a) of sub-section (1). (3) The words in that clause denoting natural relationship denotes also relationship by adoption, including therein the customary appointment of an heir and relationship, by the usuage of a religious community.” According to clause (a) of sub-section (1), a tenant, who has been occupying the land for a period of not less than twenty years and paying no rent thereof beyond the amount of the land revenue, has a right of occupancy in the land so occupied. Sub-section(2) further provides if a tenant proves that he has continuously occupied the land for thirty years and paid no rent thereof beyond the amount of the land revenue thereof, it may be presumed that he has fulfilled the conditions of clause(a) of sub-section (1). Thus, from the reading of the aforesaid provisions, it is clear that only a tenant, who is in occupation of the land for a certain period and is paying no rent thereof beyond the amount of the land revenue, has a right of occupancy in the said land. But in my considered opinion, the petitioners, who were Bhondedars and were continuously in cultivating possession as C.W.P. No.753 of 1994 -8- Bhondedars, cannot be said to be tenants in the land in dispute. Their occupation was as Bhondedars for rendering service to the villagers. The status of Bhondedars is equal to Dohlidars and not of a tenant. In Mamala and others Versus Isa and others, 1983 PLJ 231 the nature of Bhondedars rights has been explained. It was observed that “the bhonda is like the dohli a grant of a few bighas of land rent-free. The principal difference is that, while the service for which the dohli is granted is something directly connected with religion, the bhonda is given for some secular service, such as the duties of the village watchman (chaukidar) or messenger (bulahar). The bhondedar may be ejected on failure to fulfil the conditions of his tenure and perhaps in some cases at the will of the proprietors. It is simply an old-fashioned mode of paying for services.” It has also been held that Bhondadari tenure is not necessarily heritable. A Division Bench of this Court in Baba Badri Dass Versus Sh. Dharma and others, 1981 PLJ 447 has held that Dohlidars are not tenants and has observed as under:- “12. It is significant to notice that the words `landowner' and `tenant' are contradistinct but the words `landlord' and `tenant' are correlated. For the purposes of the Act one has to be a tenant of the landlord-landowner, and a landowner, unless he becomes a landlord to a tenant, can remain a landowner in isolation. It is also significant that `tenant' means a person who holds land under another person, and is, or but for a special contract would be, liable to pay rent for that land to that other person (emphasis supplied). So `that other person' is the landlord who is presently entitled to rent and to whom the tenant is liable to pay, but for a special contract suspending or not enforcing the liability. And `rent' means whatever is C.W.P. No.753 of 1994 -9- payable to a landlord (emphasis supplied) in money, kind or service by a tenant on account of land held by him. Thus, in order to understand the attributes of landlord, landowner and tenant, the essential characteristic - as it appears to us - is that the existing liability to pay rent, if it is, or could be there, is only to the landlord-landowner and to none other, and it is for this reason that the tenant holds land under that person. If he is not liable to pay rent, or cannot otherwise he made so liable to pay it to the landowner, he does not hold the land under him and thus would not be his tenant. To put it differently, holding land under another person carries with it an existing obligation to pay not only rent, but to him and him alone, on account of the use or occupation of the land, held under him. But if the obligation to pay rent, whether in money, kind or service, is directed towards some others and not towards the landowner, then the occupier's possession would not be that of a tenant, but would be of another kind which may evade strict defining. Thus it appears to us that if the occupier of land is in strict terms not a tenant, then he being otherwise possessed of the land, would be a `landowner' for the purposes of the Act, and it is immaterial if his rights otherwise do not amount to be that of an `owner of land'. Distinction between these two terms has admirably been drawn in a Full Bench decision in Buta v. Mst. Jiwani, reported in 82 Punjab Record 1898 and till day the distinction has remained in vogue and unchallenged. An extract from the judgment would be worthwhile to reproduce :- xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx 13. In Baba Nand Ram's case (supra), the special contract conceived of by A. D. Koshal, J. in which the dholidar undertakes not to pay any rent to the landowner but binds himself to perform certain other obligations to others, as it appears to us, is not `a special contract' but for which he would C.W.P. No.753 of 1994 -10- be liable to pay rent for that land to `that other person'. It appears to us that the service rendered by a dohlidar to institutions or persons other than the creator of the dohli, strictly speaking does not fall either within the concept of rent or within that of a tenant. The liability to pay rent to the creator of the dohli, or the latter's right to claim rent in the event of the terms of dohli not being faithfully observed, is altogether missing in the nature of the creation of the tenure. It is equally inconceivable how a validly created trust in the event of the trustee or his successors-in-interest failing or refusing to perform their dues could warrant the abolition of the trust causing extinguishment of dohli rights or that the property reverts to the original proprietors. The observations of the Bench in Dharma's case (supra) are in the nature of obiter dicta and do not seem to have arisen on the facts of that case. We, therefore, hold that though a dohlidar is not an owner of the land as the term is well understood yet is otherwise a landowner for the purposes of the Act. The other questions whether he is a trustee or that his alienations are void ab initio do not arise in the present case, though we have our doubts about the correctness of the view in that regard taken by the Lahore High Court in Sewa Ram's case (supra). 14. xx xx xx xx xx xx xx xx xx 15. The concept of perpetual tenancy as conceived of in section 8 of the Punjab Tenancy Act in the light of sections 5,6 and 7 has also become non-existent on account of the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952. Occupancy or perpetual tenants have been made owners of the land. This Act came about to carry out agrarian reforms and to remove the intermediaries. And if the dohlidar is a perpetual tenant as conceived of in Sewa Ram's and Khema Nand's cases (supra) of the Lahore High Court followed in the cases of Bharat Dass and Baba Nand Ram by this Court, then there is C.W.P. No.753 of 1994 -11- no reason why such like tenure should be allowed to exist in the face of the afore-mentioned statute. The reason is obvious. The succession to occupancy tenancy was governed by section 59 of the Punjab Tenancy Act whereas succession to the dohli tenure is either natural or traditional. The occupancy tenure is capable of sale carrying with it a pre-emptory obligation to offer it in the first instance to the landowner. There is no such obligation in the dohli tenure treating it for the moment, though not holding, that it is transferable. The occupancy rights are capable of being sold in execution of a decree against the occupancy tenant, but the rights of a dohlidar are not subject to such permissible process of Court under the law as understood. Alienations made by occupancy tenants are voidable at the instance of the landowner. For these reasons, which are only some of them, we differ from the view that the dohli tenure is of a perpetual tenancy or is ever covered by the concept of tenancy at all. the view to the contrary taken by above referred to two decisions of the Lahore High Court does not appear to us to be correct. We do not expressly follow the decisions of the Lahore High Court in Sewa Ram's case and Khema Nand's case and overrule the Single Bench decisions afore-quoted taking the view based thereon on this aspect.” In an identical case, the question came up for consideration whether the Bhondedars can be declared to have acquired occupancy rights and ownership in the land. This Court in Lajja Ram and others Versus Rati Chand and others (2009) 4 RCR (Civil) 598 has held that Bhondedar could continue in possession of the land in dispute, till such time, he carried out the duties of his office. Once he fails to discharge the duties attached to his office, he ceased to be Bhondedar and the property revert back to the proprietors. In that suit, the judgment of the first Appellate Court setting C.W.P. No.753 of 1994 -12- aside the order passed by the Assistant Collector Ist Grade declaring the Bhondedar as occupancy tenant and acquiring the occupancy rights in the land, was set aside. In view of the above, in my considered opinion, for acquiring the occupancy rights in the land, one has to fulfill necessary conditions as mentioned in Section 5 of the Punjab Tenancy act, 1887. He must fall within the definition of tenant; must be in occupation of the land and paying marginal rent not beyond the land revenue; and there must be implied or express agreement of never to eject between him and the landlord. The petitioners, who were Bhondedars and not the tenants cannot deem to have acquired the occupancy rights in the land in dispute. During the course of arguments, learned counsel for the petitioners put much emphasis on Section 4 of the 1961 Act, which reads as under:- “4. Vesting of rights in Panchayat and non-proprietors.-- (1) Notwithstanding anything to the contrary contained in any other law for the time being in force or in any agreement, instrument, custom or usage or any decree or order of any court or other authority, all rights, title and interests whatever in the land;-- (a) which is included in the shamilat deh of any village and which has not vested in a panchayat under the shamilat law shall, at the commencement of this Act, vest in a Panchayat constituted for such village, and where no such Panchayat has been constituted for such village, vest in the Panchayat on such date as a Panchayat having jurisdiction over that village is constituted ; C.W.P. No.753 of 1994 -13- (b) which is situated within or outside the abadi deh of a village and which is under the house owned by a non-proprietor, shall, on the commencement of shamilat law, be deemed to have been vested in such non-proprietor. (2) Any land which is vested in a Panchayat under the shamilat law shall be deemed to have been vested in the Panchayat under this Act. (3) Nothing contained in clause (a) of sub-section (1) and in sub-section (2) shall affect or shall be deemed ever to have affected the:- (i) existing rights, title or interests of persons, who though not entered as occupancy tenants in the revenue records are accorded a similar status by custom or otherwise, such as Dholidars, Bhondedars, Butimars, Basikhuopahus, Saunjidars, Muqarrirdars; (ii) rights of persons in cultivating possession of shamilat deh, for more than twelve years [immediately preceding the commencement of this Act] without payment of rent or by payment of charges not exceeding the land revenue and cesses payable thereon; (iii) rights of a mortgagee to whom such land is mortgaged with possession before the 26th January, 1950.” Learned counsel further put reliance upon the decision of the Hon'ble Supreme Court in Puran & Ors. Versus Gram Panchayat, Faridabad, 2006(1) HRR 521 and argued that the rights of the Dholidars, Bhondedars etc. have been kept in parlance with occupancy tenants. Therefore, the petitioners be also treated as occupancy tenants.