Nasib Singh vs State of Haryana

N.& Sodhi, J. (Oral)

Whether an occupancy tenant on acquiring the proprietary rights under Section 3 of the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952 becomes the owner only of the land in his occupation or does he also acquire a share in the Shamilat land is the primary question which arises for decision in this petition under Article 226 of the Constitution of India.

Nasib Singh and other petitioners filed an application under Section 111 of the Punjab Land Revenue Act, 1887 for the partition of the joint holding measuring 1594 Kanals 16 Marlas of land situated in Mauza Bhagwala, Tehsil Naraingarh, District Ambala. The private respondents who were the occupancy tenants filed some applications for being impleaded as parties in the partition case claiming themselves to have become cosharers in the Shamilat land as well by virtue of the provisions of the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952 (referred to hereinafter as ''the Act''). The Assistant Collector Il Grade after hearing the parties dismissed the applications holding that the mutations in their favour did not give them any share in the Shamilat An appeal was taken before the Collector, Naraingarh, who also dismissed the same as per his order dated 31.10.1983. Thereafter, a revision petition was filed before the Commissioner who recommended to the Financial Commissioner the acceptance of the same as, according to the Commissioner the private respondents who are occupancy tenants not only become proprietors of the land under their occupation on the enforcement of the Act but also became cosharers in the Shamilat land by virtue of the provisions of Section 3 of the Act. The Financial Commissioner after hearing the parties accepted the revision petition and remanded the case back to the Assistant Collector II Grade, Raipur Rani to find out whether the original landowners under whom the private respondents were shown as occupancy tenants had any share in the Shamilat land and if so, to determine their share as that would be deemed to have vested in the occupancy tenants. This order of the Financial Commissioner has been impugned in the present petition.

In order to answer the question arising in this case, one has to look to the provisions of Section 3 of the Act, relevant portion whereof is reproduced hereunder for facility of reference :

"3. Vesting of proprietary rights in occupancy tenants and extinguishment of corresponding rights of landlords. Notwithstanding anything to the contrary contained in any law, custom or usage for the time being in force, on and from the appointed day

(a) all rights, title and interest (including the contingent interest, if any recognised by any law, custom or usage for the time being in force and including the share in the Shamilat with respect to the land concerned) 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 :

Provided that the occupancy tenant shall have the option not to acquire the share in the Shamilat by giving a notice in writing to the Collector within six months of the publication of this Act or from the date of his obtaining occupancy rights whichever is later;"

A reading of this section leaves no room for doubt that all rights, title and interest including the share in the Shamilat Deh of the landlord are extinguished and such rights, title and interest vest in the occupancy tenants. Proviso to the section makes it even more clear that the occupancy tenants have the option not to acquire the share in Shamilat land by giving a notice in writing to the Collector. In other words, every occupancy tenant on the enforcement of the Act ipso facto acquires a share in the Shamilat unless he exercises the option of not so acquiring by giving a notice to the Collector as envisaged in the proviso. In the present case, it is not the case of the petitioners that the private respondents who were occupancy tenants prior to the coming into force of the Act ever exercised the option of relinquishing their rights in the Shamilat land by giving any notice to the Collector. The occupancy tenants have, thus, become the owners in the same measure and with the same rights as those of the landlords under whom they were occupancy tenants with the result that whatever rights, title and interest including the contingent interest if any, recognised by any law, custom or usage for the time being in force and including the share in the Shamilat with respect to the land concerned which vested in the landlords now vests in the occupancy tenants. They ceased to be tenants on the coming into force of the Act and became fullfledged proprietors with all the rights of the proprietors under whom they were occupancy tenants. The matter is not res integra. A Division Bench of this Court in Beant Singh and another v. Malla Singh and others, 1965 PLJ 34, held as under :

"The plain reading of this section denotes that with regard to the land of which the plaintiffs and defendants 1 to 21 and defendant 32 were tenants and some of the proprietors were the landlords, the aforesaid plaintiffs and defendants have now become the owners in the same measure and with the same rights as the landlords. The net result is that whatever rights, title and interest including the contingent interest, if any, recognised by any law, custom or usage for the time being in force and including the share in Shamilat with respect to the land concerned vested in the landlords by operation of section 3 of the Punjab Act VIII of 1953 now vests in the occupancy tenants. They have ceased to be tenants and have become full fledged proprietors clothed with all the rights of the proprietors under whom they were occupancy tenants. In this view of the matter, the occupancy tenants became cosharers with the proprietors to the extent to which the proprietors had interest in the Shamilat or the village Abadi by reason of the land of which they were the landlords visavis the occupancy tenants......... Moreover the 1953 Act came into force on the 15th June, 1952 and the occupancy tenants became cosharers in the Shamilat in the same manner in which the proprietors were cosharers on 15th June, 1952. "

This view of the Division Bench was followed by J.V. Gupta, J., in Rang Rao Singh and others v. Gobind Ram and others, 1987 RRR 472 (P&H) : 1988 PLJ 13. The learned counsel for the petitioners has drawn my attention to the judgment of I.S. Tiwana, J. in Pirthi Singh v. State of Haryana, 1987(2) Punjab Legal Reports and Statutes 488 wherein the learned Judge has struck a discordant note holding that the occupancy tenants by virtue of acquiring proprietary rights by operation of law only became owners of the land in their occupancy and they could not acquire any other right in the remaining land of the Shamilat Patti. The earlier Division Bench judgment of this Court was not brought to the notice of the learned Judge who does not seem to have had proper assistance in the case. No reference has been made to any provision of law or any binding precedent in support of the view taken by the learned Judge. Finding myself bound by the judgment of the Division Bench, I follow the same and in all respect holding that the decision of I.S. Tiwana, J., must be treated as a judgment per incuriam which cannot be considered to be a precedent to be followed. It is, accordingly held that with the vesting of the propertietary rights on the occupancy tenants, they became owners not only of the land under their occupation but also became sosharers with the other proprietors to the extent the original landowners under whom they were shown as occupancy tenants had their share in the said land. This being the legal position, the private respondents who had become the cosharers with the other, proprietors were entitled to become parties in the partition proceedings and it was, therefore, necessary to ascertain as to what was the share in the Shamilat of original landowners under whom they were, shown as occupancy tenants. It is precisely for this purpose that the Financial Commissioner remanded the case back to the Assistant Collector. There is no legal infirmity in the order passed by the Financial Commissioner and I have no hesitation in upholding the same and rejecting the contention on behalf of the writ petitioners.

It was then argued on behalf of the writ petitioners that even if the occupancy tenants had become coowners in the Shamilat land, they denied their ownership before the Assistant Collector and a question of title having been raised, the same could be settled only in accordance with the provisions of Section 177 of the Punjab Land Revenue Act and the Revenue Court could not proceed with the application for partition until the said question of title was determined either by a competent Civil Court or by the Assistant Collector converting himself into such a Court. I find no merit in this contention as well. Admittedly, the private respondents who were occupancy tenants on some part of the land had become proprietors of the same by operation of law and mere denial of their ownership by the writ petitioners did not raise a question of title which was required to be settled in accordance with the provisions of Section 117 of the Punjab Land Revenue Act.

No other point was raised.

For the reasons recorded above, I find no merit in this petition and the same is dismissed. The Assistant Collector to whom the case has been remanded by the Financial Commissioner is directed to proceed expeditiously in terms of the directions given to him in the order dated July 10, 1986. In the circumstances of the case, the parties are left to bear their own costs.