Bhonria v. Deputy Director Rehabilitation, Jaipur — 1946 DIGILAW 1 (RAJ)

Bapna, J.—This is a petition under Art. 226 of the Constitution of India. 2. The petitioners are 15 in number, all Balais, residents of a small village, called Nagla, Band Sikari, Tehsil Nagar, District Bharatpur. The case put forward on their behalf is that when the band was constructed, they were called upon to occupy the land nearby and to make house and to reside there so that the staff who had to be stationed near the band in the jungle may have the advantage of their being close at hand. It was alleged that this occurred 40 years ago, and since then they were cultivators of 199Bighas and 16Biswas of land, as tenants under Meo Biswedars. It was alleged that the Meo landlords did not permit any entry in the revenue records recognising them as cultivators, but the petitioners nevertheless continued to cultivate the land. The Meo landlords abandoned their holdings, and migrated to Pakistan or other parts of India in the year 1947. After certain enquiry the petitioners were granted Pattas of the land in 1948, and in the revenue records they were entered as tenants. It was alleged that subsequently some of the Meo landlords returned to Bharatpur, and the Deputy Director of Rehabilitation passed an order allotting the land, which had previously been granted to the petitioners in 1948 to the Meos, respondents Nos. 3 to 17, on 19th July, 1952. The names of three respondents, viz., Taj Khan, Chhota, and Malkhan, were subsequently struck off, and the petition is now directed against 12 respondents. 3. It was urged that no notice of the cancellation of the grant to the petitioners was ever given to them, that no enquiry whatsoever was made regarding the rights of the petitioners, and the petitioners were illegally asked by the order of the Deputy Director of Rehabilitation to vacate the land. It was prayed that the order of the Deputy Director of Rehabilitation, dated 19th July, 1952, be set aside, and direction be issued to the opposite parties, viz., Deputy Director of Rehabilitation, the Tehsildar, Nagar, and the 12 respondents, not to interfere with the possession of the petitioners, and such other direction be issued as may be necessary and appropriate. 4. On behalf of the Rajasthan State it was admitted that the petitioners were residents of Nagla Band, but it was denied that they were pre-partition tenants. 4. On behalf of the Rajasthan State it was admitted that the petitioners were residents of Nagla Band, but it was denied that they were pre-partition tenants. It was pleaded that the Meo landlords were shown as cultivators of the land upto the year Svt. 2003, and there after they left the village for certain unknown places. The land having been thus abandoned was taken possession of by the State and managed as Kham land, and given on lease for purposes of cultivation to the petitioners after Svt. 2003. The lease of the petitioners expired from year! to year, but was given afresh untill it was decided to allot the land to the Meos in July, 1952, and in the same month the petitioners were dispossessed, and the land was made over to the allottees. It was alleged that the petitioners of their own accord relinquished possession of the land on the expiry of the lease at the end of the agricultural year prior to the allotment. It was urged that the petitioner were only licences from the State and if they had any grievance, they should seek their remedy in a regular court of law. 5. The petitioners produced a detailed order of the Tehsildar of Nagar, dated 18th April, 1950. It was found by the Tehsildar that Bhonria and others, Balais, were cultivators of about 504 Bighas and 14 Biswas of land from the time of the Meos, and that land was still in their possession, but they were holding it from Svt. 2003 on yearly Pattas granted by the Government. He referred to the instructions off the Government that the land be kept in the possession of the cultivators who were in possession in Svt. 2003, and as the period of the last Patta was about to expire, he sought for instructions from the Special S.D.O. whether 204 Bighas and 14 Biswas of land should be continued to remain in possession of the Balais. He also mentioned that the land was being required for rehabilitating displaced persons, and, therefore, explicit orders may be sent to him. The S.D.O. and Assistant Collector, Bharatpur, by order dated 8th May, 1950, confirmed the view of the Tehsildar that it was not the intention of the Government to eject the cultivators who were in possession in Svt. He also mentioned that the land was being required for rehabilitating displaced persons, and, therefore, explicit orders may be sent to him. The S.D.O. and Assistant Collector, Bharatpur, by order dated 8th May, 1950, confirmed the view of the Tehsildar that it was not the intention of the Government to eject the cultivators who were in possession in Svt. 2003, and, therefore, further action be taken according to the latest instructions of the Government in this matter. In pursuance of the aforesaid order, the Balai cultivators were confirmed as tenants in respect of 204 Bighas 13 Biswas, and the practice of the grant of lease for a year was put an end to. This document is Ex. 7 produced by the applicants The Deputy Director of Rehabilitation passed an order on 28th June, 1952 (Ex. 3), which is the subject of grievance in this petition, and when translated in English, runs as follows:— "From—The Deputy Director of Rehabilitation, Jaipur. To—Tehsildar Sahib, Tehsil Nagar. In the matter of restoration of land to Meos. By this letter it is written to you that the Balais who were in possession of 2004 Bighas and 12 Biswas of land in Sikari have been found on enquiry not to have been cultivators of this land in Svt. 2003, but were in possession of only 5 Bighas 17 Biswas of land, and that as they were in possession of the excess land without any right, the allotment of 198 Bighas 15 Biswas of land made to them is hereby cancelled. You are,therefore, requested that the possession of Bhonria and others be continued on only 5 Bighas 17 Biswas of land, and they should be evicted from the rest of the land, and that even if any Patta had been issued, it should be deemed to have been cancelled. Sd/. Govind Singh, Deputy Director (Re.) Jaipur. On the 19th July, 1952, the Deputy Director of Rehabilitation passed a further order allotting this land and certain other lands to the Meos who had returned to Bharatpur. 6. On behalf of the State certain documents have been produced which show that; the possession was delivered to Meo allottees in November, 1952, in pursuance of the order j of the Collector, dated 4th November, 1955. 6. On behalf of the State certain documents have been produced which show that; the possession was delivered to Meo allottees in November, 1952, in pursuance of the order j of the Collector, dated 4th November, 1955. A report of thePatwari, dated 6th November,1952 however, showed that on about 36 Bighas of land there was a gram crop standing which had also been made over to the Meos under the instructions of the Collector (Rehabilitation), who thought that the possession of the Balais had been wrongful Learned counsel for the petitioner, however, urged that this oral order of the Collector was modified by the Collector, and the petitioners were allowed to reap the gram crop as well 7. The points for consideration in this case are— (1) Whether the land became State property on abandonment by the Meos? (2) Whether the petitioners were recognised as pre-partition tenants, that is, tenants from Svt. 2003 (1946 A.D.), and their tenancy rights were recognised? (3) Whether the Deputy Director of Rehabilitation had any authority to cancel the recognition of tenancy rights of the petitioners by order,dated28th June, 1952? (4) Whether the Deputy Director of Rehabilitation could allot the land to the Meo-respondents? (5) Whether the petitioners were dispossessed in November, 1952 (The plea of dispossession in July, 1952, having been given up by the State)? (6) In case of dispossession, whether the petitioners are entitled to any remedy by this Court? 8. Under the Matsya Evacuees (Administration of Property) Ordinance, 1948 (No. 11 of 1948) the property left by Meos became evacuee property. The plea that on abandonment of the land it became State property falls to the ground. 9. The findings of the Tehsildar, dated 18th April, 1950, and the order of the Assistant Collector. Mr. Shanker Lal, dated 8th May, 1950, and the subsequent record made by the Patwari in pursuance of the S.D.O. dated 8th May, 1950, leave no room for doubt that the petitioners were recognised as pre-partition tenants, and their tenancy rights were confirmed. This procedure seems to be in accordance with sec. 12 of theAdministration of Evacuee Property Act then in force, for the pre-partition tenants were not liable to ejectment by the Custodian prior to the Amendment Act, No. 11 of 1953. 10. This procedure seems to be in accordance with sec. 12 of theAdministration of Evacuee Property Act then in force, for the pre-partition tenants were not liable to ejectment by the Custodian prior to the Amendment Act, No. 11 of 1953. 10. The position of the Deputy Director of Rehabilitation, the authority vested in him, and the power conferred upon him have not been made clear on behalf of the State; but assuming that he had the same powers as the Custodian, he had, as aforesaid, no power to eject pre-partition tenants before the Amendment Act, No. 11 of 1953. The order passed by him is dated 28th June, 1952. The order of the Deputy Director, however, purports to say that the Balais were not found to be pre-partition tenants on enquiry. An enquiry pre-supposes a certain order reopening a case, certain notice to the person in possession and certain grounds and reasons for the findings. None of these important steps were taken in the present case, and order of the Deputy Director of Rehabilitation cannot be said to be bona fide. There is even no suggestion on behalf of the respondents that any enquiry whatsoever was made by the sad officer. The petitioner case that they did not receive any notice of any enquiry has not been rebutted. Under what authority the Deputy Director could cancel the Patta or order of recognition of the petitioners as pre-partition tenants has not been disclosed by the learned Deputy Government Advocate appearing for the State. The subsequent order for re-allotment of land to the Meos, dated 19th July, 1952, is, therefore, clearly an infringement of the fundamental right of the petitioners to remain in possession of their property, over which their tenancy rights had been duly recognised after enquiry. The subsequent dispossession in November, 1952, was another act of high- handedness. It seems that the Collector wrote to the Tehsildar Nagar, on the 4th of November, 1952, asking for an explanation why the Balai tenants had not been dispossessed, and that actual possession should be got transferred within three days of the receipt of the order. The Patwari in obedience of the order handed over even the standing crops to the Meos which they had neither shown nor taken the trouble to grow. The view that the Balais had taken wrongful possession of the land was entirely misconceived. 11. The Patwari in obedience of the order handed over even the standing crops to the Meos which they had neither shown nor taken the trouble to grow. The view that the Balais had taken wrongful possession of the land was entirely misconceived. 11. The cancellation of the recognition of the tenancy rights of the petitioners and the allotment to the Meo-respondent was illegal, and being against all principles of natural justice can be termed mala fide in the eye of law. 12. The report of the Patwari, dated 6th November, shows that the petitioners were dispossessed in November, 1952, and while it is possible that the Collector may have modified his views and may have permitted the petitioners to reap the gram harvest,they were as a matter of fact dispossessed from a major portion of the land, to wit, 163 bighas 13-bis-was, according to the Patwaris report. 13. Learned Deputy Government Advocate vehemently contended that even if the land had not become State property, when abandoned by the Meo was evacuee property, and if the Deputy Director of Rehabilitation purported to cancel the lease, he acted as an Officer under the Administration of Evacuee Property Act, having powers of a Custodian, and the remedy of the petitioners was either to file an appeal or a revision to the Custodian General, and that in several cases this Court declined to interfere when the petitioner failed to avail of the remedy provided under the Administration of Evacuee Property Act by approaching the Custodian or Custodian General against the order of the subordinate officers. 14. None of the cases cited are on facts similar to the present case. The plea taken by the Government in the present case was that the land was State property, and the State had the right to take away the land from any tenant and give the same to another. It is, therefore, belated on the part of the Deputy Government Advocate now to turn round and say that if it was evacuee property, the petitioners should have approached the Custodian General. The petitioners are poor peo-ple, and had been in enjoyment of their land as tenants before the partition of India, and recognised as such by a proper enquiry. It is, therefore, belated on the part of the Deputy Government Advocate now to turn round and say that if it was evacuee property, the petitioners should have approached the Custodian General. The petitioners are poor peo-ple, and had been in enjoyment of their land as tenants before the partition of India, and recognised as such by a proper enquiry. The order of the Deputy Director of Rehabilitation, as stated above, was Mala Fide in the eye of law without any enquiry whatsoever, but nevertheless mentioning that an enquiry had been made. He had no jurisdiction whatsoever to pass an order that their tenancy rights should be cancelled. Even under the Amendment Act No. 11 of 1953, leases granted before 14th August, 1947, can only be terminated under certain conditions. Stress was laid on the fact that the revenue records did not show them as tenants, and the cultivatory possession was described to be of the Meo-landlords. This state of affairs was, however, not accepted by the Tehsildar when he made the enquiry, and his findings clearly showed that they were in possession from before 14th August, 1947, as tenants and were actual cultivators of the land, although may not have been so recorded Learned counsel for the petitioners explained that the Meos did not allow the petitioners to get their names recorded as cultivators, because they were more powerful, but nevertheless they did occupy the land 40 years ago, and continuously cultivated the same. That was the finding of the Tehsildar in his report of 18th April, 1950 15. The cases relied upon by the learned Deputy Government Advocate were the following : (1) Mirza Mohammed Sultan vs. The Deputy Custodian of evacuee Property (S.B. Writ Petition No 59 of 1952, decided on 22nd January, 1954). This was a judgment which was delivered by this Very Bench. The fact as to whether the petitioner was the tenant of any evacuee or was the tenant of a person who was not an evacuee was in dispute. The case of Mirza Mohammed Sultan was that the property was not evacuee property. The Assistant Custodian had jurisdiction to decide that question, and in the circumstances the Court declined to interfere because the petitioner had a remedy by way of appeal or revision. (2) Bhanu Pratap vs. The State of Rajasthan (S.B. C. Writ Petition No. 149 of 1953. The case of Mirza Mohammed Sultan was that the property was not evacuee property. The Assistant Custodian had jurisdiction to decide that question, and in the circumstances the Court declined to interfere because the petitioner had a remedy by way of appeal or revision. (2) Bhanu Pratap vs. The State of Rajasthan (S.B. C. Writ Petition No. 149 of 1953. decided on 1st April, 1954). In that case the facts were not undisputed. While the petitioner contended having reclaimed certain land in accordance with the law in force in Kotah, the lower court was of opinion that the petitioner had not acted bonafide in occupying the land, as he was aware that an application had been filed by others for permission to cultivate the same. The facts were not undisputed and the reasoning of the decision was, "in cases where facts, which form the basis of legal rights of a petitioner are disputed so as to make it necessary to hold a long inquiry, and where the petitioner can get them adjudicated in a suit, it is not proper to grant relief in proceedings under Art. 226 of the Constitution". In the present case the facts are not disputed. The petitioners have proved their facts by certified copies of the Government record and therefore, Bhanu Prataps case has no application. (3) The next case relied upon is Mangu Singh vs. The State of Rajasthan (S.B. C. Writ Case No. 108 of 1951, reasoning of the decision was "From these allegations and counter-allegations it is clear that the dispute between the parties is of a civil nature, which can be adjudicated upon in a civil court." Under these circumstances the Court was not prepared to pass any order on the petition before it,as the applicants had another remedy open to them. The dispute in the present case is not of a civil nature at all. It is not a case of trespass pure and simple, but of dispossession under colour of authority to pass the order. (4) The last case relied upon is Zormal vs. State of Rajasthan (S.B. Writ Application No. 81 of 1951, decided on 24th October, 1951). In that case while the order passed by the Government could not be upheld, the Court declined to interfere because the petitioners were unable to show that they had any right whatsover to remain in possession, after they had been dispossesed. In that case while the order passed by the Government could not be upheld, the Court declined to interfere because the petitioners were unable to show that they had any right whatsover to remain in possession, after they had been dispossesed. That case again is distinguishable, for as held above, the petitioners were clearly entitled to remain in possession as tenants of the land, which tenancy rights had not been extinguished. Tenancy rights are valuable rights and not merely temporary rights which may come to an end on the expiry of a particular period, but on the other hand sometimes become more and more firm as time passes, for the various legislation undertaken and in contemplation are directed towards amelioration of the conditions of the tenants and to safeguard the security of the tenure. In our opinion, this Court has ample jurisdiction to redress a wrong which had been perpetrated illegally and mala fide by an officer of the Government under colour of law. The second remedy; of approaching the Custodial General was, as aforesaid, not pleaded by the respondents and after the lapse of 3 years would, at any rate, neither be speedy nor convenient,besides being probably beyond the means of the petitioners. 16. The petition is, therefore, allowed, the order of the Deputy Director of Rehabilitation, dated 28th June, 1952, cancelling the tenancy rights of the petitioners, and the subsequent order, dated 19th July, 1952, allotting the same land to the Meo-respon-dents is set aside. 17. The petitioners will get their costs from the State.