Tansukh v. Financial Commissioner and Principal Secretary, Revenue Department, Government of Haryana
2013-02-11
RAJIVE BHALLA, REKHA MITTAL
body2013
DigiLaw.ai
Rajive Bhalla, J.(ORAL);— By way of this order, we shall dispose of LPAs No.1979, 1980, 2043 and 2045 of 2011 as they involve adjudication of common questions of facts and law. For the sake of convenience, facts are being taken from LPA No.1979 of 2011. The appellants pray that order dated 05.08.2011, dismissing their writ petition and orders passed by revenue authorities, under the PEPSU Tenancy and Agriculture Land Act, 1955 (hereinafter referred to as the “Act”), conferring proprietary rights upon the private respondents, may be set aside. Counsel for the appellants submits that though the prescribed authority held that the appellants are entitled to conferment of proprietary rights, the order was reversed by the Collector, Narnaul on 01.04.2009 by holding that as the column of rent records “Bila Lagan Dharam Arth” i.e. possession without payment of any rent, the plea of tenancy stands negated. It is further argued that entries in the column of cultivation of Khasra No.73-74 do not record the private respondents' predecessors in possession and even otherwise, pre and post consolidation numbers have not been tallied. The revenue entry records one Onkar son of Ramesh instead of Onkar son of Dula Ram, as the person in possession. Section 44 of the Punjab Land Revenue Act, 1887, raises a presumption of truth with respect to a revenue entry. The Financial Commissioner, has in an illegal and arbitrary exercise of power, accepted the revision, filed by the private respondent, set aside findings of fact recorded by the Collector by wrongly holding that there is clerical error in the jamabandi, which was to be ignored. It has also been wrongly held that as private respondents are tenants as defined in Section 2(k) of the Act and are conferred with a right, under the Act, to claim proprietary rights, the order passed by the Collector is illegal. It is further submitted that the Financial Commissioner as well as the learned Single Judge failed to discern that the private respondents are not the persons to whom the land, in dispute, was given in lieu of services for maintaining a piau (water drinking station). The Financial Commissioner and the learned Single Judge have, therefore, erred in ignoring revenue entries. The private respondents have not been able to prove their cultivating possession 12 years prior to 1956 as required by the Act.
The Financial Commissioner and the learned Single Judge have, therefore, erred in ignoring revenue entries. The private respondents have not been able to prove their cultivating possession 12 years prior to 1956 as required by the Act. Even otherwise, the private respondents have not proved the ingredients of Section 22 of the Act, and, therefore, should not be conferred proprietary rights. Counsel for the private respondents submits that the impugned judgment as well as order passed by the Financial Commissioner and the Assistant Collector Ist Grade, do not suffer from any error of jurisdiction or of law much less an error of fact that would require interference. The private respondents are fully eligible, in terms of the definition of a tenant, as contained in Section 2(k) of the Act and fulfill the conditions of Section 22 of the Act. The matter has, therefore, been rightly decided in their favour. It is further argued that the appellants have not referred to or demonstrated any error in the impugned order as well as orders passed by revenue authorities. We have heard counsel for the parties and perused the impugned order. The appellants challenge orders passed by the Assistant Collector Ist Grade and the Financial Commissioner, accepting the claim of the private respondents for conferment of proprietary rights. Section 22 of the Act, admittedly, empowers a tenant in continuous possession, 12 years before 1956 to pray for conferment of proprietary rights. The private respondents applied for conferment of proprietary rights. The application was allowed by the Assistant Collector Ist Grade, subject to deposit of Rs.200/- per acre. The order was challenged in appeal. The Collector, Narnaul, vide order dated 01.04.2009, allowed the appeal on the ground that the column of rent, in the jamabandi, records that the land is being entrusted without payment of rent, thereby negating the plea of tenancy raised by contesting respondents. The Collector also held that entries in the column of cultivation have not been tallied by comparing post and pre consolidation numbers.
The Collector also held that entries in the column of cultivation have not been tallied by comparing post and pre consolidation numbers. The private respondents filed a revision, which was allowed by the Financial Commissioner by holding as follows: - “I have gone though the entire record of the case carefully including the order dated 05.12.1995 passed by the Prescribed Authority for the first time and order dated 24.08.2000 of Collector passed in appeal for the first time, subsequent order dated 11.06.2007 of the Prescribed Authority and order 01.04.2009 passed n appeal for the second time by the Collector, Narnaul. I have also gone though the arguments advanced by both the counsels and the rulings cited by them in earlier orders. I find that entry of Onkar s/o Shri Ramesh in place of Onkar s/o Shri Dula Ram is mistake by some revenue official may be deliberate or un-intention. In the jamabandi of 1960-61 in the tenant column it is only Onkar and father's name has not been given but in the jamabandi of 1963-64 it is Onkar s/o Shri Ramesh. It is matter of record that there is no one in the village by the name of Onkar s/o Ramesh nor there has been any such tenant in possession of the land in question. Moreover there was no person by the name of Ramesh contemporary of Dula Ram. Therefore, the only inference which can be drawn is that it is a clerical mistake. I find that all the three conditions required to fulfill for getting proprietary rights have been fulfilled in this case and accepting the arguments advanced by counsel for the petitioners and on the basis of revenue record I am inclined to accept the revision petition. Moreover, since the Government vide its notification dated 11th March, 2010 has also vested proprietary rights in Dohlidars, I accept the revision petition setting aside the order dated 01.04.2009 passed by the Collector, Narnaul in appeal.” The writ petition filed by the petitioners has been dismissed after a considered appraisal of the facts and the provisions of the Act. The Act enables a tenant who fulfills the ingredients of Section 22 of the Act to acquire proprietary rights. Section 22 of the Act reads as follows: - “22.
The Act enables a tenant who fulfills the ingredients of Section 22 of the Act to acquire proprietary rights. Section 22 of the Act reads as follows: - “22. Acquisition of proprietary rights by tenants: - (1) Subject to the other provisions contained in this Act, a tenant shall be entitled to acquire from his landowner in respect of the land comprising his tenancy the right, title and interest of the landowner in such land (hereinafter referred to as the 'proprietary rights') in manner and subject to conditions hereinafter provided. (2) Every tenant intending to acquire proprietary rights shall make an application in writing to the prescribed authority in the prescribed manner containing the following particulars, namely: - (a) the area and location of the land in respect of which the application is made; (b) the name of the landowner from whom proprietary rights are to be acquired; (c) such other particulars as may be prescribed. (3) the right conferred upon a tenant to acquire proprietary right in respect of any land under this Section may if such tenant has sublet the land be exercised by the sub tenant to the exclusion of the tenant.” The appellants have not been able to advance any meaningful argument, to hold that findings recorded by the Assistant Collector Ist Grade and the Financial Commissioner are, in any manner, incorrect or that the contesting respondents do not fulfill the ingredients of Section 22 of the Act. The primary submission, by counsel for the appellants, is that as the jamabandi does not record the names of the private respondents' predecessor, the Financial Commissioner should not have held that it is mere stray entry that has to be ignored. It is true that a presumption of truth attaches to an entry in the jamabandi but where an entry appears without any reason or contradicts earlier and subsequent entries, a revenue authority and a court may validly ignore such an entry as an error or a stray entry. The plea that the appellants are not tenants as the land was not given on rent, disregards the definition of tenancy contained in Section 2(k) of the Act read alongwith Section 4(5) of the Punjab Tenancy Act, 1887.
The plea that the appellants are not tenants as the land was not given on rent, disregards the definition of tenancy contained in Section 2(k) of the Act read alongwith Section 4(5) of the Punjab Tenancy Act, 1887. Section 2(k) of the Act, reads as follows: - “(k) 'tenant' has the meaning assigned to it in the Punjab Tenancy Act, 1887 (Punjab Act XVI of 1887) but does not include a person- (i) who holds a right of occupancy, or (ii) who is relative of the tenant within the meaning of sub-clause (2) of clause (g).” Section 4(5) of the Punjab Tenancy Act, 1887, reads as follows: - “a person who holds land under another person, and is or but for a special contact would be, liable to pay rent for that land to that other person; but it does not include- (m) an inferior landowner, or (n) a mortgagee of the rights of a landowner, or (o) a person to whom a holding has been transferred, or an estate or holding has been let in farm under the Punjab Land Revenue Act, 1887 (XVII of 1887) for the recovery of an arrear of land revenue or of a sum recoverable as such an arrear, or (p) a person who takes from the (Government) (Subs. for the work “Crown” by the adaptation of Laws Order, 1950), a lease of unoccupied land for the purpose of subletting it.” A perusal of the aforementioned provisions, reveals that a tenant who holds land under another person and is exempted from paying rent on account of a special contract, shall not be excluded from the status of a tenant. The only persons, who are excluded from tenancy, are an inferior land owner, a person in whose favour a holding has been transferred or holding of an estate has been let in farm under the Punjab Land Revenue Act, for arrears of land and revenue etc. or a person who takes land from the Government as a lessee of unoccupied land for the purpose of subletting. The private respondents were inducted as tenants pursuant to a special contract with the landowners which required them to maintain a piau (water drinking station) in lieu of rent, and, therefore, are not excluded from the definition of 'tenants'. In view of what has been stated hereninabove, the appeals are dismissed with no order as to costs.