Maman Singh vs The Resident Magistrate, Gohana and Others

H.R. Khanna, J.—Maman Singh petitioner by means of this petition under Article 226 and 227 of the Constitution of India has challenged the order dated 18th May, 1964 of the Resident Magistrate, Gohana, respondent No. 1, whereby he set aside the election of the petitioner as Sarpanch of the Gram Panchyat of village Barota, Tehsil Gohana, District Rohtak.

The brief facts of the case are that election to the office of Sarparch of Gram Panchayat of village Barota took place in January 1964, Maman Singh petitioner, and Bhartu and Suraj Bhan respondents 2 and 3 contested the election, and the petitioner, who got the largest number of votes was declared elected as Sarpanch on 2nd January 1964. He, accordingly, took over oath of office on 25th January 1964 and started discharging the duties of Sarpanch. Bhartu respondent No. 2 filed an elect-on petition before the Resident Magistrate, Gohana, who is the prescribed authority for elections of Gram Panchayats, challenging the was a tenant of the Gram Panchayat, Barota, in land comprising khasra No. 2926, situated in village Barota. and as such was disqualified to seek election. The election, it was stated, was liable to be set aside because of the improper acceptance of the nomination paper of the petitioner.

The election petition was resisted by the petitioner. Respondent No. 1, as per order dated 8th May 1964, set aside the election of the petitioner and ordered re-election on the ground that the petitioner was cultivating land comprised in khasra No. 2962 belonging to the Panchayat as a tenant, and, as such his nomination paper was improperly ac-accepted. It is this order which has been assailed by the petitioner in this petition.

Mr. Sarin, on behalf of the petitioner, has, at the outset, argued that according to the entries in khasra girdawari, the land, comprised in khasra No. 2962, is showed to be in possession of Bhartu respondent No. 2 as the tenant of Gram Panchayat from kharif 1957 till Rabi 1964 vide copies of khasra girdawaris (annexures ''D'' and ''G''). In this connection I find that in the copy of jamabandi of 1960-61 (annexure ''P'') land comprised in khasra No. 2962, which is owned by the Panchayat is shown to be possession of Maman petitioner, and the entry in the column of rent is bila legan bawaja kabra sabkat i.e. without payment of rent on account of previous possession. The learned Magistrate considered this discrepancy in the entries in khasra gidawari and jamabandi and, after also taking into account the oral evidence, came to the conclusion that the entries in khasra girdawari showing Bhartu in occupation of the aforesaid land as a tenant of the Gram Panchayat was unauthorised and had been manoeuvred by the patwari. He, accordingly rejected the entries in khasra girdawari. As this conclusion was arrived at on consideration of the material on record and was essentially one of fact, this cannot be interfered with in a writ petition.

The other contention of Mr. Sarin, which he has advanced with a certain amount of vehemence, is that there was no material before respondent No. 1 on the basis of which he could give a finding that the petitioner was the tenant of the Gram Panchayat. The jamabandi, upon which reliance was placed by respondent No. 1, it is urged, merely showed that the petitioner was in possession of the aforesaid land of the Gram Panchayat, but it did not show that the petitioner was a tenant. There is considerable force in this contention and the copy of the jama-bandi of 1960-61, on which respondent No. 1 has placed reliance in arriving at the finding that the petitioner is a tenant of the Gram Panchayat, does not in my opinion support that finding. It is well-settled that in deciding whether a person is a tenant, we have not to look to the entries in the column of cultivation in the jamabandi because that column only gives the name of the person in occupation, irrespective of the capacity in which he is occupying the land. On the contrary we have to look to the column of rent because it is the entries in that column which go to show as to whether the person is occupying the land as a tenant, and if so, on how much rent, or whether he is occupying the land in any other capacity. See AIR 1930 991 (Lahore) and Sher v. Phuman Rani 1942 P.L.R. 497. So far as the entries in the present case in any column of rent of the jamabandi of 1960-61 relating to the land comprised in khasra No. 292 are concerned, they show that the petitioner is in occupation of the land in question without payment of rent because of his previous possession. The entries in the jamabandi thus militate against the conclusion that the petitioner is a tenant of the Gram Panchayat. According to section 4(5) of the Punjab Tenancy Act, tenant means a person who holds land under another person and a or but for a special contract would be liable to pay rent for that land to that other person. Certain other categories of persons are also excluded from the definition of tenant but we are not concerned with them. As started above, the petitioner is occupying the land without payment of rent and there is nothing to show that the non-payment of rent was because of any special contract. On the contrary the entry shows that the petitioner was paying no rent because of his old possession of the land which was previously part of shamlat deh as is clear from annexure ''G''.

It is no doubt true that the position of a person, who is holding the land vesting in the Panchayat without payment of rent, is much worse compared to that of a tenant, and if a tenant of a Gram Panchayat is disqualified from contesting election to the Panchayat, one would expect that the parson in occupation of the land belonging to the Gram Panchayat without payment of rent would also be disqualified. This however is not so, and we are thus faced with anomaly. Sub-section (5) of section 6 of the Punjab Gram Panchayat Act, 1952 (Punjab Act No IV of 1953) mentions the different circumstances which disqualify a candidate from seeking election or continuing as Sarpanch or Panch of a Gram Panchayat, and while a tenant or lessee holding a tenancy or lease under the Gram Panchayat is disqualified by virtue of clause (1) of that sub-section, a person, who occupies land vesting in the Gram Panchayat without the payment of rent, is not disqualified. It is for the legislature to remove this lacuna but, as long as the statute is there in the present form, the Court, in my opinion, cannot enlarge the area of disqualification against the terms of statute. As such there is no escape from the conclusion that the petitioner, who was in occupation of the land of Panchayat in his capacity other than as a lessee or tenant was not disqualified to seek election to the Gram Panchayat. It cannot therefore be said that the nomination paper of the petition was improperly accepted.

I accordingly, accept the petition, and quash the order dated 18th May 1964 of respondent No. 1. The parties, in the circumstances of the case, are left to bear their own costs.