Kangra Valley State Co. Ltd. vs Kidar Nath and Others

S.S. Dulat, A.C.J.—This is an appeal by the Kangra Valley Slate Company of Ghanyara against the decree of the trial Court dismissing the Appellants'' suit and leaving the parties to their own costs. The suit was for a permanent injunction to restrain the Defendants 89 persons in all--from taking out slates from anywhere in the area of village Ghanyara and also for damages amounting to Rs. 10,000/-, the claim briefly being that the Plaintiff company had exclusive right of taking out slates from the land in the village and the Defendants had in violation of that right been taking out slates and disposing them of for their own purposes causing unlawful loss to the Plaintiff, It was said in the plaint that a long time ago--in February 1867 the villagers of Ghanyara had granted one Mr. Shaw a lease of the entire hand to the purpose of quarrying slates and under the agreement Mr. Shaw alone had the right to take out slates from the land in the village and the villagers and landowners were left with no such right, and that Mr. haw''s interest had subsequently devolved on the Plaintiff-Company.

The suit was resisted by some of the Defendants, who denied the validity of the lease deed of February, 1867. In this connection, the Plaintiffs had alleged that the landowners of Ghanyara had brought a suit on a previous occasion challenging the validity of the lease but that suit had failed and the validity of the lease was consequently not open to question in the present litigation. In answer to that, the Defendants said that the decree made in 1935 was invalid as if was the result of undue pressure and coercion and. in any case, the rule of resjudicata did not apply Regarding damages, the Defendants denied that they ad taken out any slates from the land in violation of the Plaintiffs right.

As I have said, the suit as framed related to the entire land in village Ghanyara but in the course of the trial it transpired that the Plaintiff''s were particularly insisting on their right to quarry slates out of the Shamlat land of the village and not so much out of the other land belonging to and in the occupation of individual landowners In the present appeal, it is admitted that the right now claimed is confined to the Shamlat area.

While the litigation was pending the Punjab Village Common Lands (Regulation) Act, 1953, came to be enacted and since under that Act village Shamlat everywhere came to be vested in the village Panchayat, a plea was raised by the Defendants that the Plaintiffs had because of that legislation lost their rights in the Shamlat Deh and their suit was liable to dismissal. The Plaintiffs, in reply, urged that the Punjab Village Common Lands (Regulation) Act was ultra vires the Constitution and could not therefore affect their rights Also, it was denied that the Act had the effect claimed by the Defendants On the pleadings the trial Court framed 21 issues, but, in view of the arguments before us, it is unnecessary to set them out. The Plaintiffs claim was in two parts one relating to the establishment of their lease rights and the other concerning the damage caused by the Defendants acts. On the first matter the finding of the trial Court was that the lease-deed of the 22nd February 1867 conferred on the Plaintiffs a right to quarry slates from out of the Shamlat area of the village alone and not the other land The Court found nothing invalid about the lease deed and held that the Defendants were bound by it. The Court also held that the litigation in 1935 had decided the question of the validity of the lease deed and it could not be reopened The Court held that the decree of 1935 was not the result of any coercion or undue influence Having arrived at these conclusions, the Court went on to consider the effect of the new legislation, that is the Punjab Village Common Lands (Regulation) Act and the Court held that all rights in the Shamlat Deh had vested to the Panchayat and the Plaintiff-Company had been divested of those rights and thus lost them. The Court did not think it necessary to loin the Village Panchayat as a party in the litigation and the Court held that the enactment in question was not ultra vires the Constitution on any ground.

On the question of damages, the Court held that the Defendants were not shown to have acted jointly or in collusion with each other or in pursuance of any conspiracy formed by them all and, therefore, they could not be jointly held liable for any damage caused to the Plaintiffs. Regarding individual acts of the Defendants, the Court found that there was no evidence to show that any particular Defendant had at any particular time taken out slates from the Shamlat area in violation of the Plaintiffs rights nor any evidence to prove the value of such slates and, therefore, held that, although the Plaintiffs had suffered damage amounting to about Rs. 10,000/-, it was not possible to award damages against any particular Defendant as no individual wrongful act of any particular Defendant was established. On these findings the Court dismissed the claim for an injunction as well us for damages.

When this appeal came up for hearing in the first instance, the main contention raised on behalf of the Appellants was that the lease rights in the Shamlat area did not under the Punjab Village Common Lands (Regulation) Act, 1953, vest in the Village Panchayat and the trial Court''s finding on the 18th issue framed in the case was challenged That issue ran-

Whether the Plaintiff has lost its lease rights in the land in suit, which is Shamlat Deh by virtue of Section 3 of Act I of 1954?

That section it was admitted, had the effect of vesting in the Village Panchayat all rights title and interests whatever in the land which was included in the Shomlat Deh of any village, but the submission made was that the lease rights in suit were not rights or interests in land. The question being important, the Division Bench hearing the appeal decided to refer it to a Full Bench. The whole matter was argued before the Full Bench, but the Appellants ''submission found no favour there and the Full Bench returned an answer against the Appellants. We are, of course, bound by the decision of the Full Bench and the Appellants'' contention, therefore, that the lease rights in dispute have not passed to the Village Panchayat cannot stand.

At the next hearing of the appeal the constitutional validity of Punjab Act of 1954 i.e., the Punjab Village Common Lands (Regulation) Act, 1953, was challenged. The argument was that the Act in question confiscates the Appellant''s property and thus offends against Articles 19 and 31 of the Constitution. In answer to this it was said on behalf of the village Panchayat, which had in the meantime been joined as a party to this litigation, that this particular Act is protected by Article 31-A of the Constitution and it was pointed out that the constitutional validity of this particular Act (The Punjab Village Common Lands (Regulation) Act. 1953) had previously been considered by this Court and upheld Mr. Kaushal admitted this but went on to urge that the decision of this Court in Hukum Singh Shibba and Others Vs. The State of Punjab and Others, needed to be reconsidered in view of the observations of the Supreme Court in Kavalappara Kottarathil Kochuni and Others Vs. The State of Madras and Others, The argument is that Article 31-A of the Constitution applies only to such legislation as is designed to affect agrarian reform, and other kind of legislation, confiscatory in its nature, is not so protected. Broadly speaking, this view has been accepted in this Court on the basis of what the Supreme Court had to say in the above case. The question, therefore merely is whether Punjab Act I of 1954 is a meusure designed to promote agrarian reform, for, if so, then it would admittedly be protected from attack under Articles 19, 31 or 14 of the Constitution. Mr. Kaushal contended that Punjab Act I of 1954 has nothing much to do with the improvement of agriculture and that in any case the taking away of lease rights of the Appellants, which lights concern merely the quarrying of slates from out of certain lands, has no relation to the improvident of agriculture and to that extent in any case the legislation in question cannot be protected The argument assumes that agrarian reform is confined to the improvement of methods of tilling land which how ever, is not so, for agrarian reform has a much broader scope and includes all steps affecting the rural economy in general What the impugned legislation does is to vest certain rights in certain areas of land in a representative body so that it could he better managed for the benefit of the rural community and viewed in that light it is hard to agree that the legislation in question is not designed to affect agrarian reform. The matter has been considered by this Court more than once and in a recent decision Jagat Singh Didar Singh and Others Vs. The State of Punjab and Others, , a Full Bench of this Court coasting of five Judges had occasion to go into it. The teamed Chief Justice said in connection with the East Punjab folding (Consolidation and Prevention of Fragmentation) Act that it was aimed at agrarian reform pointing out that the Act authorised the reservation of a portion of proprietary land for providing income to the Grain Panchayat and the functions of the Gram Panchavat were to promote the well being of farmers in all possible ways He then said:

The Village Common Lands (Regulation) Act, the Punjab Gram Panchayat Act and the Consolidation of Holdings Act, as amended recently are all parts of the same picture.

Mr. Kaushal''s contention therefore that Punjab Act I of 1954 is not a measure of agrarian reform seems untenable. Mr Kaushal then says that the impugned Act has the effect of putting a stop to his clients'' business of quarrying slates, which has nothing to do with agrarian reforms and to that extent, the impugned statute is unconstitutional The argument rests on a misapprehension as it assumes that the impugned Act prohibits the Appellants from engaging in their business. The Act however, contains no such prohibition and in no way interferes with it. All it does is to take away the lease rights in Shamlat area from the Appellants and vest those rights in the Panchayat leaving it otherwise free to the Appellants to carry on any business they like. The objection is. therefore. futile.

By the time these two mailers had been discussed, a new development in the form of new legislation occurred, and that was the enactment of file Punjab Village Common Lands (Regulation) Act 1961 (Punjab Act No. 18 of 1961) which replaced the earlier Act I of 1954. Under that new Act certain lands were exempt from the category of Shamlat Deh, rights in which were to pass to the village Panehayat. Mr. Kaushal then pointed out that under the new definition of "Shamlat Deh" land which had been partitioned and brought under cultivation by Individual landholders before the 26th of January, 1950. was excepted and similarly the Exception applied to any part of the Shamlat Deh which was in the individual cultivating possession of a co-sharer not being in excess of his share in such Shamlat Deh on or before the 26th of January, 1950 More particularly he pointed out that the new Act does not affect* existing rights, title or interest 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 Basikhuo-pahus, Saunjidars, Muqararidars He asked us therefore, to allow him an opportunity to prove that the land in suit, i.e., Shamlat Deh area or a part of it. fell in the categories abovementioned and that he could show in any case that his clients'' rights were by custom accorded a similar status as occupancy tenants like those mentioned above in view of this we found it proper to allow the Appellants an opportunity to prove their allegations and we, therefore framed three'' additional issues and remanded them for trial. The issues framed were:

(1) Had any part of the Shamlat Deh of village Ghanyara been partitioned and brought under cultivation by individual landholders before 26th January, 1950 and if so how much area?

(2) Was any part of the Shamlat Deh of village Ghanyara in the individual cultivating possession of co-sharers, not being in excess of their respective shares in such Shamlat Deh on or before the 26th January, 1950? and

(3) Were the Plaintiffs, although not entered as occupancy tenants in the revenue records accorded a similar status by custom or otherwise and if so. in respect of which area?

The evidence on the issues was heard by the learn ed Senior Subordinate Judge, Kangra at Dharam-sala, and he has returned his findings which are all against the Appellants Regarding the first two issues Mr Kaushal has nothing to urge against the findings of the learned Senior Subordinate Judge, but on the third issue he contends that the finding is not correct it is admitted of course, that the Plaintiffs are not entered as occupancy tenants in the revenue records and the only question is whether they have either under custom or otherwise been accorded a similar status. The suggestion on behalf of the Appellants is that they have been treated as Basikhuopahus, which expression applies to certain tenants in the Kangra District whose rights are very similar to occupancy tenants Ratigans Digest of Punjab Customary Law has this to say about them in paragraph 166 Basukuopahus are tenants in the Kangra District who have been induced to settle down on the land and build themselves a basi or homestead on or near it for the purpose on an Implied contract that they shall hold so long as they farm well and pay their stipulated rent They are not considered as possessing occupancy rights but even when evicted from the land they cannot be turned out of their basis or homestead.

It is obvious that the tenants called Basikhuopahus occupy land for the express purpose of tilling it, and proper cultivation of the land is a condition of their tenure. It is difficult, therefore, to see by what stretch of language a person, who is granted a lease of land for the purpose of quarrying slates from it. can be called a Basikhuopahu, and in what sense Mr. Shaw, who actually obtained the lease in this case, could be described as such, much less the Appellant Company who acquired the rights from Mr. Shaw. Mr Kaushal admits the point of the vast difference between the status of the Appellant Company and that of Basikhuopahus in the Kangra District, but seeks to maintain that the treatment that has been accorded to the Appellant Company for a number of years and before that to Company predecessor in interest was similar to the treatment accorded to Basikhuopahus and this learned Counsel infers from the single fact that the lease granted to Mr. Shaw was a permanent lease with the implication that he would never be evicted.

The mere circumstance, however, that this happened to be a perpetual lease does not alter the fact that the lease was for the express purpose of quarrying slates and had nothing whatever to do with the tilling of land and nobody, therefore, could have thought of treating the lessee, in such circumstances, as a Basikhuopahu or as a customary occupancy tenant. It is in my opinion, impossible, to agree that the Appellants occupy a status by custom or otherwise resembling the status of an occupancy tenant it follows that the Appellants'' case is not covered by the exception mentioned in Punjab Act No. 18 of 1981 and that the Appellants'' rights in the Shamlat area must be held to have vested in the Panchavat The foundation of the Appellants'' claim for a permanent injunction against the Defendants thus disappears and that claim has to be negatived.

There remains the claim for damages respect of the acts done prior to the vesting of the Shamlat rights in the Panchayat (On this question the Court held that the claim should fail for want of evidence).

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No other question arises in the appeal and on the findings this appeal must, in my opinion, fail and I would, therefore, dismiss it, but in the circumstances leave the parties to bear their own costs.

P.C. Pandit J.

I agree.