CWP No.12575 of 2011.doc - 1 – HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CWP No.12575 of 2011 (O&M) Date of Decision: 05.08.2011 **** Tansukh & Ors. . . . . Petitioners VS. Financial Commissioner, Haryana & Ors. . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE SURYA KANT **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? **** Present: Mr. Arun Jain, Senior Advocate with Mr. Mukesh Yadav, Advocate for the petitioners ***** SURYA KANT J. (ORAL) (1). This order shall dispose of CWP Nos.12575 to 12578 of 2011 as issues involved in these cases are common in nature. For brevity the facts are being extracted from CWP No.12575 of 2011. (2). The petitioners seek quashing of the order dated 19.04.2001 (Annexure P1) passed by the Financial Commissioner, Haryana whereby the revision petition preferred respondents No.4 to 9 against the order dated 01.04.2009 (Annexure P2) of the Collector, Mahendergarh has been accepted and while setting aside the said order, the order dated 11.06.2007 (Annexure P3) passed by the CWP No.12575 of 2011.doc - 2 – Assistant Collector 1st Grade-cum-Prescribed Authority, Narnaul granting proprietary rights in favour of the contesting respondents under the Pepsu Tenancy and Agriculture Land Act, 1955 (in short, ‘the Act’), has been restored. (3). Respondents No.4, 5 and the predecessor-in-interest of respondents No.6 to 9 (Banwari Lal) (in short, the contesting respondents) moved an application under Section 22 of the Act for conferment of proprietary rights in respect of the land measuring 13K – 11M situated in Village Kheri, Tehsil Narnaul which was under their tenancy. They averred their tenancy from the time of their forefathers and produced the revenue record comprising jamabandis from Bikrami Samvat 1997-98 to the year 1987-88 as well as Khasra Girdawaris for the year 1994-95 wherein they were duly recorded as tenants in cultivation. The applicants also mentioned that there was no other land owned by them. The petitioners did not appear despite service through ordinary mode as well as munadi hence were proceeded against ex parte. (4). The Prescribed Authority referred to the documentary evidence in extenso and found the contesting respondents to be in continuous possession as tenants since the year 1940. The Act envisages that a tenant in possession for CWP No.12575 of 2011.doc - 3 – 12 years prior to the cut-off year of 1956 i.e. from the year 1944 onwards is entitled to seek ‘proprietary rights’ subject to deposit of the compensation to be determined in accordance with the prescribed procedure. The Prescribed Authority, Narnaul accordingly granted proprietary rights to the respondents on deposit of Rs.200 per acre for the land measuring 13K – 11M. (5). The above-stated order of the Prescribed Authority was challenged by the petitioners in an appeal before the Collector Narnaul who vide his order dated 01.04.2009 (Annexure P2) allowed the same and set aside the order passed by the Prescribed Authority. The Collector assigned two reasons in support of his conclusion, namely, (i) that in the column of rent in the jamabandis it was mentioned that the land was given “bila lagan dharmarath” i.e. without paying any rent and thus the contesting respondents did not fall within the definition of ‘Tenant’; and (ii) the entries in the column of cultivation of khasra No.73 and 74 before and after the Consolidation were neither compared by the Prescribed Authority nor the forefathers of the contesting respondents were proved to be in the cultivating possession thereof. CWP No.12575 of 2011.doc - 4 – (6). The contesting respondents preferred a revision petition before the Financial Commissioner, Haryana who accepted the same vide order dated 19.04.2011 (Annexure P1) and while setting aside the order of the Collector has restored the order passed by the Prescribed Authority. The Financial Commissioner has negated both the reasons assigned by the Collector after observing that the contesting respondents fulfilled the statutory conditions prescribed for the grant of proprietary rights and that some confusion created in the entries in revenue record regarding the name of the father of the contesting respondents also stand fully explained. The Financial Commissioner in this regard observed that:- “I find that entry of Onkar s/o Sh. Ramesh in place of Onkar s/o Shri Dula Ram is mistake by some revenue official may be deliberate or unintention. In the Jamabandi of 1960-61 in the tenant column it is only Onkar and father’s name has not been given but in the Jamabandi of 1963-64 it is Onkar s/o Shri Ramesh. It is matter of record that there is no one in the village by the name of Onkar s/o Ramesh nor there has been any such tenant in possession of the land in question. Moreover there was no person by the name of Ramesh contemporary of Dula Ram. CWP No.12575 of 2011.doc - 5 – Therefore, the only inference which can be drawn is that it is a clerical mistake I find that all the three conditions required to fulfill for getting proprietary rights have been fulfilled in this case and accepting the arguments advanced by the counsel for the petitioners and on the basis of the revenue record I am inclined to accept the revision petition.” (Emphasis applied) (7). I have heard learned counsel for the petitioner(s) at some length and perused the record. (8). Two-fold contentions are raised on behalf of the petitioner (s). Firstly, it is urged that no revision petition was maintainable before the Financial Commissioner without first impugning the order of the Collector in appeal before the Commissioner. Secondly, the contesting respondents have failed to establish their ‘proprietary rights’. (9). In my considered view both the pleas are wholly misconceived and misplaced. There is no denial to the fact that the claim of the contesting respondents for the grant of proprietary rights was required to be determined under the Act only. Section 39 of the Act provides the remedy of ‘appeal’ and ‘revision’ and it reads as follows:- 39. Appeals and revision. (1) Any person aggrieved by any decision or order of the [prescribed authority or CWP No.12575 of 2011.doc - 6 – the Assistant Collector to the First Grade] may, within thirty days from the date of the decision or order excluding the tie spent in obtaining the copies of such decision or order, prefer an appeal to the Collector in such form and manner as may be prescribed: Provided that the Collector may entertain the appeal after the expiry of the said period of thirty days if he is satisfied that the appeal was prevented by sufficient cause from filing the appeal in time. (2) Any person aggrieved by any decision or order of the Collector, (whether acting as prescribed authority or not, not being a decision or order made in an appeal under sub-section (1) may, within thirty days from the date of the decision or order excluding the time spent in obtaining the copies of such decision or order, prefer an appeal to the Commissioner in such form and manner as may be prescribed. Provided that the Commissioner may entertain the appeal after the expiry of the said period of thirty days if he is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. CWP No.12575 of 2011.doc - 7 – (3) With respect to all matters dealt with under this Act the Financial Commissioner shall have the same power to call for, examine and revise the proceedings of the prescribed authority or [the Assistant Collector of the First Grade Collector] or the Commissioner as is provided in section 84 of the Punjab Tenancy Act, 1887.” (Emphasis applied) (10). It may be seen that an appeal lies to the Collector against the order of the Prescribed Authority. Person aggrieved by any decision or order of the Collector…, may within thirty days prefer an appeal before the Commissioner under sub-section (2) provided that the order under challenge was not passed by the Collector in an appeal under sub-section (1). In the instant case, the Collector had admittedly passed the order dated 01.04.2009 in an appeal preferred under sub-Section (1) against the order of the Prescribed Authority. No appeal was thus maintained before the Commissioner and the only recourse left with the contesting respondents was to invoke the jurisdiction of the Financial Commissioner under sub-section (3), which they did. The first CWP No.12575 of 2011.doc - 8 – contention raised on behalf of the petitioner(s) is contrary to the scheme of the Statute and is hereby rejected. (11). As regards the eligibility of the contesting respondents to seek ‘proprietary rights’ firstly it is to be seen as to whether they or their predecessor-in-interest were ‘tenants’ or not. Section 2(k) of the Act defines the expression ‘tenant’ as follows:- (k) ‘tenant’ has the meaning assigned to it in the Punjab Tenancy Act 1887 (Punjab Act XVI of 1887) but does not include a person – (i) who holds a right of occupancy, or (ii) who is relative of the tenant within the meaning of sub-clause (2) of clause (g): (12). Section 4(5) of the Punjab Tenancy Act, 1887 defines ‘tenant’ to mean:- “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; but it does not include – (a) an inferior landowner, or (b) a mortgagee of the rights of a landowner, or CWP No.12575 of 2011.doc - 9 – (c) a person to whom a holding has been transferred, or an estate or holding has been let in farm under the Punjab Land Revenue Act, 1887 (XVII of 1887) for the recovery of an arrear of land revenue or of a sum recoverable as such an arrear, or (d) a person who takes from the [Government] [Subs. for the work “Crown” by the adaptation of Laws Order, 1950] a lease of unoccupied land for the purpose of subletting it: (Emphasis applied) (13). It emerges from a conjoint reading of both the definitions that a person who holds land under another person and is liable to pay rent for that land to that other person except in a case of special contract exempting him from such payment, would be a ‘tenant’ under that other person subject to the exclusions mentioned in the definition clause(s) itself. (14). The Collector non-suited the contesting respondents by rejecting their status as ‘tenants’ on the ground that in the column of rent in the jamabandis their forefather/they have been exempted from payment of rent as the land was tenanted for ‘dharmarath’ i.e. for a ‘piau’ (a stall to offer drinking water free of cost during CWP No.12575 of 2011.doc - 10 – summers). The said entry leaves no room to doubt that there was a special contract between the owner(s) of the land and the forefather of the contesting respondents i.e. the tenant that the latter shall not be required to pay any rent provided that he shall offer free-of-cost drinking water to the people by running a ‘piau’. Such a special contract absolved the occupants of the land from payment of rent without disturbing their status as ‘tenants’ under Section 4(5) of the Punjab Tenancy Act, 1887. The forefathers as well as the contesting respondents are thus proved to be ‘tenants’ under the petitioners/their predecessors-in-interest. (15). Section 7-A of the Act prescribes additional grounds for termination of tenancy in certain cases mentioned in sub- section (1) thereof. Sub-section (2) of Section 7-A of the Act is, however, an exception to sub-section (1) and it reads as follows:- 7A. Additional groups for termination of tenancy in certain cases: - xxxx xxxx xxxx (2) No tenant, who immediately proceeding the commencement of the President’s Act has held any land continuously for a period of twelve years or more under the same landowner or his predecessor CWP No.12575 of 2011.doc - 11 – in title, shall be ejected on the grounds specified in sub-section (1) – (a) from any area of land, if the area under the personal cultivation of the tenant does not exceed fifteen standard acres, or (b) from an area of fifteen standard acres, if the area under the personal cultivation of the tenant exceeds fifteen standard acres: Provided that nothing in this sub-section shall apply to the tenant of a landowner who, both, at the commencement of the tenancy and the commencement of the President’s Act, was a widow, a minor an unmarried woman, a member of the Armed Forces of the Union or a person incapable of cultivating land by reason of physical or mental infirmity. Explanation – In computing the period of twelve years, the period during which any land has been under the same landowner or his predecessor in title by the father, brother or son of the tenant shall be included. (Emphasis applied) (16). The contesting respondents have successfully proved and even the Collector has not disturbed that finding (except CWP No.12575 of 2011.doc - 12 – creating a misleading impression regarding clerical error which has been well explained by the Financial Commissioner), that their predecessor-in-interest/they themselves are in continuous possession of the suit land since the year 1940. They have proved their continuous possession for a period of 12 years immediate before the Presidential Act which came into force in the year 1956. (17). Section 22 of the Act enables a ‘tenant’ to acquire ‘proprietary rights’ subject to certain conditions and it reads as follows:- 22. Acquisition of proprietary rights by tenants – (1) Subject to the other provisions contained in this Act, a tenant shall be entitled to acquire from his landowner in respect of the land comprising his tenancy the right, title and interest of the landowner in such land (hereinafter referred to as the ‘proprietary rights,) in manner and subject to conditions hereinafter provided (2) Every tenant intending to acquire proprietary rights shall make an application in writing to the prescribed authority in the prescribed manner containing the following particulars, namely:- (a) the area and location of the land in respect of which the application is made; CWP No.12575 of 2011.doc - 13 – (b) the name of the landowner from whom proprietary rights are to be acquired; (c) such other particulars as may be prescribed. (3) he right conferred upon a tenant to acquire proprietary right in respect of any land under this Section may if such tenant has sublet the land be exercised by the sub tenant to the exclusion of the tenant.” (18). The contesting respondents have been found to have fulfilled all the conditions laid down in Section 7-A(2) read with Section 22 of the Act and no meaningful argument could be advanced on behalf of the petitioners to dislodge their claim for the conferment of ‘proprietary rights’. (19). Faced with this, learned counsel for the petitioner(s) argues that the Financial Commissioner has relied upon the Government Notification dated 11.03.2010 vesting proprietary rights in Dohlidars even though the contesting respondents have no where claimed themselves to be the Dohlidars. It is true that the claim of the contesting respondents is not based upon their status as Dohlidars and is confined to their status as ‘tenants’ under the Act only. The learned Financial Commissioner has referred to the above-stated CWP No.12575 of 2011.doc - 14 – notification only to strengthen his conclusion by saying that when Dohlidars (comparatively with a weak right) have become owners of the land under their occupation how the tenants like the contesting respondents can be deprived of the benefit(s) conferred on them under the Act. (20). For the reasons afore-stated, I do not find any merit in these writ petitions which are accordingly dismissed. (21). Dasti . 05.08.2011 vishal shonkar (S u r y a K a n t) Judge