Bachna vs State of Haryana and others

I.S. Tiwana,J. (Oral)

The seven petitioners (in Civil Writ Petitions Nos. 1267 to 1273 of 1979) impugn the orders of their ejectment from the suit land purported to have been passed under section 7 of the Punjab Village Common Lands (Regulation) Act, 1961, as applicable in Haryana, by the Collector, Kurukshetra and Assistant Collector, Kaithal, respondents Nos. 2 and 3 respectively. In view of the identity of facts and the contentions raised, these petitions are being disposed of through this common order.

The precise case pleaded by the respondent Panchayat before the Assistant Collector, Kaithal, was that different parcels of Shamilat land were leased out to the petitioners for a period of five years in the year 1963 at the rate of Rs.10/ per acre (killa). The period of that lease having expired somewhere in the year 1968, the petitioners had no claim or right to remain in occupation of the land.

On the other hand the case of the petitioners was that even subsequent to the expiry of the above noted period of lease in their favour, they continued to be in possession of the land on the basis of yearly tenancy as tenantsat will under the Panchayat. In support of their contention, they heavily relied on the finding recorded by the civil Court in a suit filed by them for permanent injunction restraining the Gram Panchayat from dispossession them unlawfully. One of material issues determined by the Civil Court in this litigation between the parties was as to "whether the plaintiffs are in possession of the suit land as lessees at the rate of Rs.10/ per acre under the defendant?" The Court concluded this issue after referring to the evidence on record in the following manner :

"Now I come to the capacity of the plaintiff over the suit land. It is the contention of the plaintiffs that they are in possession of the suit property as lessees under the Gram Panchayat at will. Their status as entered in the Jamabandi Ex. P.1. is Gair Mauroosies. The rate of rent given in the Jamabandi varies from Rs. 8/ per acre per year to Rs.10/ per acre per year. Similar entry exists in respect of the rate of rent with regard to each plaintiff in the Khasra Gridawari EX.P.2. It therefore follows that the plaintiffs are in possession of the land as tenantatwill on payment of fixed cash rent. But it is not proved that the plaintiffs are lessees of the land in dispute. The Panchayat land can be given on lease by open auction and lease deeds or Qabuilat Namas are got executed by the Panchayat. Had the plaintiffs been lessees, they would not have failed to prove lease deeds in their favour from the Panchayat record. The plaintiffs have not led the best evidence to prove their capacity as lessees. The inference which can be drawn is that if produced these documents would not have supported the case of the plaintiffs. I, therefore, find that the plaintiffs are in possession of the land in dispute as tenants at will on fixed rent and they are not lessees. The issue is accordingly decided partly in favour of the plaintiffs and partly against them as the defendant has not cared even to produce any evidence to rebut the documentary evidence produced by the plaintiffs.

What is the subtle distinction which has been noticed by the Court between a lease and a tenancyatwill, is not clear to me nor have the learned counsel for the parties been able to assist me in this regard. To my mind, a tenancy of agricultural land is as much a lease as any other lease of immovable property other than the agricultural land is. The relationship of lessor and lessee is as much one of contract as that of a landlord and the tenant. This position is amply clear from the provisions of section 105 of the Transfer of Property Act, 1882, which define a lease, lessor, lessee, premium and rent and subsections (3),(5) and (6) of section 4 of the Punjab Tenancy Act, 1887 which respectively define `rent'', `tenant'' and `landlord''. The abovenoted finding recorded by the civil court, which admittedly is binding on the parties in the litigation, has simply been discarded by respondents Nos. 2 and 3 while passing the impugned orders. As is well indicated from the above noted quotation from the judgement of the civil Court, the finding is based on the entries in the revenue records which were produced before the said Court.

4.Faced with this situation the learned counsel for the respondentPanchayat seeks to argue that firstly, the Panchayat could not lease out or create a tenancy in favour of the petitioners except in the manner provided for in Rule 6 of the Punjab Village Common Lands (Regulation) . Rules, 1964 and secondly, the petitioners can certainly be held guilty of infraction of the terms of lease or the tenancy in their favour on account of their not paying the rent to the landlord, that is, the Gram Panchayat.These submissions of the learned counsel do not deserve any deeper consideration for the short reason that this is not the case pleaded by the respondentPanchayat at any stage. As already indicated in the opening part of this judgment, the case pleaded was that with the expiry of the initial lease in favour of the petitioners, created in the year 1963, by the end of 1968 they came to stay as unauthorised occupants of the suit land. The finding recorded by the civil Court in 1975 holding the petitioners to be tenantsatwill under the Gram Panchayat was neither adverted to nor assailed in any manner. Once the relationship of landlord and tenant had been established between the parties as per the judgment of the civil Court, then unless the respondentPanchayat succeeds in establishing the infraction of any of the terms of the tenancy or lease, the petitioners cannot be styled as unauthorised occupants of the land. For this conclusion of mine, I seek support from two earlier judgments of this court in Tale and others V. Gram Panchayat of village Katwal, District Rohtak and others, 1974 P.L.R.21 and Dhara Singh V. The Collector,Kurukshetra and others (Civil Writ Petition No. 1479 of 1979) decided on September 6,1979.

In the light of the discussion above, I find that the impugned orders of respondents Nos. 2 and 3 are wholly unsustainable and are thus quashed. I pass no order as to costs.