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CASE NO.: Appeal (civil)  433 of 2000

PETITIONER: Gram Panchayat, Vill Haripura

RESPONDENT: The Commissioner,Ferozepur Division and Anr

DATE OF JUDGMENT: 15/09/2006

BENCH: A.K.MATHUR & TARUN CHATTERJEE

JUDGMENT: J U D G M E N T  

WITH CIVIL APPEAL NO.434 OF 2000

A.K.MATHUR,J.

               Both these appeals involve common questions of  law & fact therefore, they are disposed of by this common  order.                  For convenient disposal of these appeals, the facts  given in C.A.No.433 of 2000 are taken into consideration.                  This appeal is directed against the order dated   21.7.1998 passed  by learned Division Bench of the High Court  of Punjab & Haryana. The Division Bench disposed of C.W.P.  No.11059  of 1998  and C.W.P.No.11066 of 1998 both by this  order.  The  Division Bench took the view that by virtue of  Section 8 of the Punjab Security of Land Tenures Act, 1963,  (hereinafter to be referred to as the Act of 1963 ) tenancy does  not  come to an end  on change of ownership or even on the  death of the land owner. It was also held  that the appellants  became the owner of the disputed land and the contesting  respondents were tenants. This finding of fact was given on the  basis of the jamabandi i.e. revenue  records.  In jamabandi it  was recorded that  the respondent  was a tenant on payment  of Rs.64/- per kila sal tamam  i.e. for one year. It  further  observed  that after the Gram Panchayat became the owner it  was receiving the rent from the contesting respondents,   therefore,  the Gram Panchayat accepted them as tenants.  This was contested by the Gram Panchayat  and it was  submitted that such voluntary deposit of rent by occupier of  land cannot be deemed to be tenant.  In this connection, the  Full Bench decision in the case of  Gram Panchayat, Village  Haripura vs. Commissioner, Ferozepur & ors.  reported in 1989  Punjab Law Journal 221 was placed before the Division Bench.  The Division Bench distinguished this case and dismissed the writ  petition holding that the decision in the case of Gram  Panchayat, Haripura (supra) was with regard to tenancy on  year to year lease basis  and after expiry of the lease by efflux  of time tenancy  had come to an end.   Aggrieved against this  order of the Division Bench present special leave petition was  filed and leave was granted and it was registered as appeal.  Learned counsel for the appellant submitted that  the view  taken by the Division Bench is erroneous and Full Bench  decision  squarely covers the present case on facts as well as  law.   Brief facts of this case are that an  application was filed by

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the Gram Panchayat, Haripura  through its Sarpanch under  Sections 4 & 7 of the Punjab Public Premises (Eviction and Rent  Recovery) Act, 1973  against the contesting respondent  for his  ejectment from the land situated within the revenue estate of  the village Haripura on the ground that the Gram Panchayat is  the owner of the land in question  and the contesting  respondent was cultivating the land unauthorisedly and the  respondent has not vacated the land  in question despite  request and the respondent be ordered to pay  Rs.2933.60 as  rent for use and occupation of the land  in dispute.  The  respondent on  being summoned appeared and was given an  opportunity to file  his reply. Both the parties were directed to  place  evidence in support of their respective pleas. The Gram  Panchayat produced Sh.Badasukh, Panch  and  Nathu Ram,  Sarpanch and respondent  produced Ramesh Gupta, Ahlmed   of court of E.M.,  Abohar Sh. Krishan Murari Clerk and Sh.  Gurdev Singh Patwari Halqe Haripura.   It was submitted before  the Collector that  there is no valid record produced by the  respondent to show that he has been cultivating the land with  the consent of the Gram Panchayat  therefore  the Sarapanch  of the Gram Panchayat has been authorised to file the present  suit. It was prayed that the respondent be ejected from the  land in question.  On the other hand, it was submitted by the  respondent that  the rent for the land in question has already  been paid by the respondent and that the respondent has  been cultivating the land as a tenant at  will under the Gram  Panchayat since very long time. It was  also contested  by the  Gram Panchayat that  mere entry of the respondent in the  revenue record as a tenant from year to year does not  characterise them  as an authorised  tenant  in the land in  question.                   The Collector after examining the Jamabandi and  Khasra Gridawari came to the conclusion that the land belongs  to the Gram Panchayat, Haripura and that it is public premises  as defined under Section 2(e) of the Act.  It was  also pointed  out that the respondent has not been able to bring any  material to show that this land was  leased out or granted or  otherwise  entered into possession of the land authorisedly.  There is only an entry in the revenue record  as tenant from  year to year  basis and that does not characterise him as an  authorised tenant of the land in dispute. The  Collector  ordered  that the respondent is in unauthorised possession of the land in  question and accordingly  he is liable to be evicted under  Section 5 of the Act.  However with regard to the damages for  use and occupation of the land in question, the Collector  found that the Gram Panchayat has failed to produce any  record  from which it could be inferred that the amount for the  period in question is still due against the respondent. Therefore,  this part of the relief was denied. Against this order dated  3.3.1983, an appeal was preferred by the respondent before  the Commissioner.  Learned Commissioner after examining the  matter set aside the order of the Collector and held that as per  the Jamabandi , the respondent had been shown as  Gair  Marusi paying lagan @ Rs.64/- per killa per annum.  Therefore,  on the basis of the entry made in the Jamabandi, learned  Commissioner concluded that the respondent cannot be held  to be an unauthorised occupant of the land in question.  Learned  Commissioner   on the basis of the jamabandi  allowed the appeal filed by the respondent and set aside the  order of the Collector and dismissed the application  of the  appellant.  Aggrieved against this order the Gram Panchayat  filed a writ petition before the High Court which came to be  dismissed  along with Writ Petition No.11059 of 1998.  The  Division Bench of the High Court accepted the reasoning given  by the Commissioner to the effect that on the basis of the entry

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in Jamabandi the respondent was not  unauthorised  occupant  but  he was a tenant of the Gram Panchayat.  The Division  Bench also cursorily distinguished the Full Bench judgment in  the case of Gram Panchayat, Haripura (supra)  on the ground  that  it was a case of year to year lease and after expiry of the  lease by efflux of time the tenancy had come to an end.  

               We have heard learned counsel for the parties and  perused the records.   

               We fail to understand the reasoning given by the  Division Bench  in distinguishing the Full Bench judgment. The  Full Bench judgment clearly covered the facts of the present  appeal.  In order to appreciate the controversy, it may be  relevant to mention the facts of the Full Bench decision, which  relate to the same Gram Panchayat of village Haripura.    The  land in question was ’Shamilat Deh’ .  By virtue of the Punjab  Village Common Lands (Regulation) Act, 1953 ( hereinafter  referred to as the Shamilat Law), the shamilat Deh, the land  vested in the Gram Panchayat. It is alleged that the owners of  the   shamilat land adopted a device  & formed a  memorandum of association of Haripura Trust Committee,  Haripura and got it registered.  It was mentioned therein that  the General Committee would consist of 8 members who are  the owners of the shamilat land  which has been transferred  to  the Trust  and the land was mutated in the name of the Trust in  the year 1954.  By the same  device  those persons were  inducted as tenants of the trust.  This shamilat law was  substituted by new enactment known as Punjab Village  Common Lands (Regulation) Act, 1961. Section 2(g) of the said  Act of 1961 defined  ’Shamilat Deh’. i.e. Various types of lands   were   included in shamilat deh and no dispute was raised  that  the present land is not shamilat deh. Prior to  mutation in favour  of the Trust, it continued   as shamilat deh.  In the year 1957, a  corrective mutation was entered  and the land was remutated  in favour of the Gram Panchayat. It was submitted that  though  the land was mutated in the name of the Trust but the  contesting respondents claimed that they were the tenants of  the trust.  In the year 1965-66  the consolidation operation took  place and  the contesting  respondents claimed that they  continued as tenants under the Gram Panchayat and that in  Jamabandi for the year 1970-71 each of them was recorded as  tenant on payment of fixed cash rent.  The appellant-Gram  Panchayat Haripura  filed five separate petitions before the  Collector, Fazilka under sections 4 & 7 of the Act of 1961 and  the same plea was raised that they were not unauthorised   occupants and on the basis of Jamabanbdi of 1971, they were  recognised as tenants by the Gram panchayat. The Collector ,  however, did not feel persuaded  and passed an order of  ejectment in all the five cases. The matter was taken up in  appeal before the Commissioner, Ferozepur Division. The  Commissioner relying on the jamabandi of 1970-71  held that  on the basis of the aforesaid jamabandi nothing  further  was  required to prove the status of the tenants since they were  recorded as tenants under the Gram Panchayat and the  jamabandi entries shall be presumed to be correct as they  were not rebutted.  Therefore, the Commissioner reversed the   decision of the Collector. Under these circumstances the  matter was brought up before the Full Bench of the High Court.  The Full Bench after  going through the revenue records came   to the conclusion that  each tenant  was shown in col. 5 of the  jamabandi as ’ Gair Marusi’ which means a tenant-at-will under  the Gram Panchayat.  In col. 9, meant for the rent, entry is ’  Lagan Naqdi Rs.64/- fee Killa Saal Tamaam’ which when  translated in English means " Rent-in-cash at the rate of Rs.64/-

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per acre for the whole year"  and the same argument was  raised before the Full Bench that because of this entry, unless  the tenancy is terminated by giving notice under section 106 of  the Transfer of Property Act the tenant has a right to continue  over the  land and the provisions of  Sections 4 & 7 o the Act of  1961 are not applicable.  Thereafter, the Full Bench  quoted the  provisions of Section 3 of the Act. Section 3 of the Act reads as  under :

               " Unauthorised Occupation of Public  Premises.                 3. For the purposes of this Act, a person  shall be deemed to be in unauthorised  occupation of any public premises \026                 (a) where he has, whether before or  after the commencement of this Act, entered  into possession thereof otherwise than under  and in pursuance of any allotment, lease or  grant; or                 (b) where he, being an allottee, lessee  or grantee, has, by reason of the determination  or cancellation of his allotment, lease or grant in  accordance  with the terms in that behalf  contained, ceased, whether before or after the  commencement of this Act, to be entitled to  occupy or hold such public premises; or                 )  where any person authorised to  occupy any public premises has, whether  before or after the commencement of this Act,-                 (i) sub-let, in contravention of the  terms of allotment, lease or grant, without  the permission of the State Government or  of any other authority competent to permit  such sub-letting, the whole or any part of  such public premises, or                 (ii) otherwise acted in contravention  of any of terms, express or implied under  which he is authorised to occupy such  public premises.                          Explanation.- For the purposes of clause  (a), a person shall not merely by reason of the  fact that he has paid any rent be deemed to  have entered into possession as allottee, lessee  or grantee."

The Full Bench interpreted this provision  and observed as  under:          "     It is patent from the reading of the  aforequoted provisions that any person who has  entered into possession of a public premises  otherwise than under and in pursuance of any  allotment, lease or grant, is an unauthorised  person deemingly, and may not be so under the  provisions of any other law. The opening words   of the afore-quoted provision are also a pointer  that unauthorised  occupation of any public  premises for the purposes of the Act qua a  person is deemingly and it is on that basis that  the Act works.  The explanation specifically  makes it clear that for the purpose of clause (a)  a person shall not merely by reason of the fact  that he has paid any rent be deemed to have  entered into possession as allottee, lessee or  grantee."

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The Full Bench also  quoted   sub-rule (7) of Rule 6 of the Punjab  Village  Common Lands (Regulation) Rules, 1964,  and pointed  out that  as per the Jamabandi rent was payable in   advance  at the rate of Rs.64/- per acre  for the land in question and if the  rent  is already paid then the lease shall be determinable by  efflux of time. Therefore, it was observed that the Jamabandi  in  question  established a tenancy from year to year  determinable only by a notice in writing under section 106 of  the Transfer of Property Act is not correct.  It was further  observed that the view taken by the Commissioner  in treating  the contesting respondents as tenants  at will    that they had a  right to continue on the land  uninterrupted till the lease in their  favour is not terminated cannot be sustained.   It was also  pointed out that  there is prescribed procedure as to how  auction  of land in   shamilat deh  should be done. It was  observed as under :

               "    Rule 6 afore-referred to has also  other facets which have to be taken note of.  Sub-rule (1) therefore provides  that all leases of  land in shamilat deh shall be by auction, after  making publicity in the manner laid down in sub- rule (10). All documents executed  in this  connection shall be signed by a Sarpanch or in  his absence  by the Naib Sarpanch or in the  absence of  both by a Panch performing the  duties of the Sarpanch and two other Panches  authorised for the purpose by the Gram  Panchayat. It is obvious  therefrom that the  creation of a lease  and that too, by public  auction has to be authenticated  and  documented  by three persons named therein. It  is not a one-man show. Obviously, this rule has  been enacted to protect the interests  of the  Panchayat, and seemingly in order to undo the  vast  corruption resorted to by some of the  Sarpanches of the Panchayats in passing over  the panchayat properties to their favourites  and  others by underhand means  in causing loss to  the revenue of the Panchayat, which is meant  to be spent for the welfare of the rural  population. So, a lease in contravention of rule 6  is no lease in the eye of law and obviously the  Panchayat  can, in such circumstances, resort to  the provisions of section 4 of the Act, seeking   eviction of the supposed lessee who comes on  the scene without a valid title under sub-rule (1)  of rule 6."

 In this background the Full Bench  observed as under :

               " Compelled,  in these circumstances, if  the Panchayat had accepted advance rent in  cash from the contesting respondents, that by  itself would not take the contesting respondents  out of the purview of sections 3,4 and 7 of the  Act, for the leases in their favour had been  determined in accordance with the terms of  that lease, even though the lease was oral and  not reduced to writing. The contesting  respondents  ceased to be entitled to get or  hold the public premises after the efflux of on

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agricultural year from the payment of lease  money last made for the purpose consciously to  the Panchayat and to none other."

Therefore, the Full Bench took the view that  because some rent  had been paid  that would not make  a tenant ipso facto  a  lessee. A particular method has been prescribed that how  lease to be executed as per Rule 6.  Therefore, in this view of  the matter, we are of opinion  that unless proper lease is  granted  in the manner provided in rule 6 of the Rules  till that  time simply because  someone  has paid rent that would not  entitle him to claim as  a tenant. In the absence of  statutory  provisions and  rules  thereunder,  it is difficult to accept that  since the  rent had been deposited with the Gram Panchayat  that would make  them tenants. Thus, the conclusion drawn by  the Commissioner, Firozepur Division and affirmed by the  Division Bench of the High Caurt cannot be sustained. We are  unable to understand the reasoning  of the Division Bench to  ignore the Full Bench judgment on the ground that in the  aforesaid case the lease was granted year to year basis.  The  question is not  the grant of lease on year to year basis. The  question is whether  the Gram Panchayat has recognized  the  contesting respondent as a tenant or not.  Simply someone has  paid or deposited  the rent with the Gram Panchayat  voluntarily after unauthorisedly occupying the Gram  Panchayat land, he would not be deemed to be a tenant. This  would be mockery  of law. A lawful tenant is one who has been  admitted as tenant after following  due procedure of law.    It is  not one man show of the Sarpanch of  the Gram Panchayat  that he can surreptitiously  take someone as a tenant without  following the procedure under the rules, in case the Sarpanch  or any Panch inducts someone as a tenant  without following  the procedure prescribed under the Rules then such induction  of the person  will not be authorised or lawful  and the Gram  Panchayat  will not be bound by that.  In fact   for lease of  Shamilat deh  land     proper procedure has been prescribed    that the land  has to be auctioned and  proper document has  to be executed  and  it has to be authenticated.  In the  absence of the proper formalities being undertaken  the  voluntary deposit of the rent or even  accepting the rent by the  Gram Panchayat will not make  that person a lawful tenant   under the Gram Panchayat.   

               In this view of the matter, we are of opinion that the  Full Bench judgment clearly held the field and rightly so in our  opinion.  Therefore, this  appeal is allowed  and  the judgment  and order dated  21.7.1998 passed by the  Division Bench of  the High Court of Punjab & Haryana in Civil Writ Petition  No.11066 of 1998 is set aside and the order dated 13.2.1984  passed by the Commissioner, Firozepur Division is  also set aside   and the order dated 3.3.1983 passed by the Collector, Fazilka is  affirmed.    

               In view of the aforesaid reasoning,  the civil appeal  No.434 of 2000 is allowed and the judgment order dated   21.7.1998 passed by the Division Bench of the High Court of  Punjab & Haryana  in Civil Writ Petition No.11059 of 1998 is set  aside and  order dated 13.2.1984 passed by the Commissioner,  Firezepur Division is also set aside and the order dated  3.3.1983  passed by the Collector Fazilka is affirmed. No order as to costs.

       However  in case any crop of the respondent are  standing in the field then  the  contesting respondents may be  given time to harvest  the crop and thereafter  the Gram

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Panchayat may take the possession of the land in question.