Patna High Court
Bishwanath Singh vs State Of Bihar And Ors. on 4 July, 1980
Equivalent citations: AIR1981PAT145, 1981(29)BLJR356, AIR 1981 PATNA 145, (1980) BLJ 519, 1981 BBCJ 198, (1980) PAT LJR 533, 1981 BLJR 356
ORDER Hari Lal Agrawal, J.
1. This writ applications has been filed by the petitioner for quashing the order of the Anchal Adhikari, Maner, dated 2-2-1979, annulling an earlier order dated 11-1-1978 by which the petitioner had been granted a parcha under the provisions of the Bihar Privileged Persons Home-stead Tenancy Act, 1947 (for short 'the Act').
2. The case of the petitioner is that he is a privileged person within the meaning of the Act and was entitled to the grant of the parcha with respect to the land over which he had constructed his residence and has been living for several years.
The petitioner's ancestors were residents of village Jamunipur situated on the southern bank of river Ganga. The whole of the village went into the bed of the river in the floods of 1960 and the residents were rehabilitated elsewhere. The Government also acquired certain lands for rehabilitation of the flood-stricken people, but according to the petitioner's own case, no land was given to him. He, therefore, along with a co-villager (Ram Lachhan Singh) took shelter over 5 decimals of land towards the south-eastern corner of survey plot No. 538 under khata No. 221 in village Sarai Naner, be-longing to respondent No. 3 and after raising a hut, began to live there with the members of his family. In this way the petitioner claims that he has been living in said dwelling house right since the floods of the year 1960 and he holding no other land, nor, being a Mahajan etc., was covered within the umbrella of the definition of "privileged tenant" within the meaning of the Act and thus entitled to remain in occupation of the same without any disturbance. It is not the case of the petitioner that he entered upon the land with the consent of respondent No. 3, namely, the landlord of the land, or ever paid any rent to him. All that he has alleged in the petition in this regard is that 5 decimals of land in question has been held and used by him "with consent, express and implied, of the landlord-respondent No. 3, for residential purposes..." and that he "has always been agreeable to pay fair and equitable rent that may be determined by the appropriate authority".
3. Sometime in the year 1977 the petitioner made an application before the Anchal Adhikari, Maner, for grant of a parcha although in the petition he has said that ho made the said application for determination and settlement of fair and equitlable rent "as there was no contract between respondent No. 3 and the petitioner", but the application, a copy of which has been made Annexure 1 to the writ application, does not make such statement. All that is stated therein is that the petitioner has been living in the hut constructed over 5 decimals of land in question from the last 15 years and, therefore, he should be granted the parcha.
It appears that a report was called for by the Anchal Adhikari on this application. Annexure 2 is the copy of the recommendation of the Panchayat Sewak who stated in his report that the petitioner was a landless person and was in possession of the land in question. He, therefore, recommended for grant of the parcha. The report of the Panchayat Sewak was forwarded through the Circle Inspector with a similar recommendation. The Anchal Adhikari then got a sketch map prepared by the Anchal Amin and thereafter with reference to the map, by his order dated 11-1-1978, directed for issue of the parcha. No notice was issued to respondent No. 3 in the matter and the above proceeding was all done ex parte without his knowledge.
4. Respondent No. 3 on coming to know of the above facts filed an objection petition on 26-1-1978 before respondent No. 2, objecting to the grant of the parcha to the petitioner on the ground that he had given the land in question to the petitioner on rent for establishing a timber wood shop (Lakri ka tal). On this objection the Anchal Adhikari called for a fresh report from the Circle Inspector. The Circle Inspector submitted a report dated 10-7-1978 (Annexure 6) still supporting the case of the petitioner, but in his report he mentioned that Maner was brought under a notified area in the year 1976 under the provisions of the Bihar & Orissa Municipal Act, further stating therein that notwithstanding the constitution of the Notified Area under the provisions of the Act, since the petitioner had acquired the status of a privileged tenant, he could not be deprived of that right. The Anchal Adhikari, however, by his impugned order annulled his earlier order on the ground of the constitution of the Notified Area.
5. The petitioner challenges this order on the following grounds:
(i) The order of the Anchal Adhikari was without jurisdiction inasmuch as he had no jurisdiction to cancel his earlier order.
(ii) The conversion of the area in question into a notified area could not deprive him of this right in the homestead.
6. A show cause has been filed by respondent No. 3 and it has been stated in the said petition that in the year 1969 the father of the petitioner had purchased 14 kathas 12 dhurs of land from respondent No. 3 for Rs. 7,300/- by a registered sale deed over which he had constructed a pucca house and the petitioner has been residing in the said house with his family members all through as a member of the joint family up till now. It has been further stated that the family of the petitioner is possessed of several bighas of land in village Jamunipur apart from the residential house aforesaid in village Maner. It has further been stated that in the year 1976 several other persons had filed similar petitions for obtaining panchas claiming themselves to be the privileged tenants in respect of the same plot No. 538 and the karamchari after thorough enquiry had submitted a report on 29-6-1976 stating there that none of them was in possession over the said plot. A copy of the report has been made Annexure A and in that report it is clearly stated that there was no hut or any other construction over plot No. 538 and the whole of the plot was in possession of the land owner, namely respondent No. 3. On this report the said proceeding was also dropped.
It appears that on 27th of June, 1980, the last day of the vacation, a reply to the show cause petition was filed by the petitioner, however without serving any copy to respondent No. 3 and no copy was served until the hearing was taken up. The reply, therefore, cannot be looked into.
7. From the facts stated by the parties as above, it appears that the petitioner was inducted by respondent No. 3 for the purpose of establishing a timber wood business on the plot in question, and in any event, according to the petitioner's own case, he did not, enter upon the land or built the hut with the consent of respondent No. 3. According to his own case, therefore, he is a squatter. A question arises as to whether a squatter who enters upon somebody else's land who might be a landless person, can acquire the right of a privileged tenant by remaining in possession or occupation over the land or any structure, as the case may be for the statutory period of one year. In order to answer this question some of the relevant provisions of the Act need be noticed.
8. The very preamble of the Act shows that it was enacted for making better provisions on certain subjects relating to law of landlord and tenant in respect of homesteads held by certain classes of persons in rural areas in the State of Bihar. It would further appear from the Statement of Objects and Reasons that the Act was enforced to improve the lot of the weaker section of the society, such as labourers and artisans etc. who live either in houses built by themselves on lands given to them by the landlords or the houses built by the landlords; and to provide them with greater security in the matter of their houses and occupation of such homesteads. Provisions have also been made for fixation of fair and equitable rents payable by such landless labourers for their security against their illegal and unreasonable ejectment from the lands.
Section 4 of the Act prescribes that a privileged tenant will have permanent tenancy in his holding subject to the payment of such rent as may be agreed between him and his landlord, or where there is no contract or if the rent is alleged to be unfair or inequitable, such rent as may be fixed by the Collector under the provisions of Section 6. In order to qualify for this privilege the tenant must have held the homestead at any time continuously for a period of one year.
These provisions at once necessitate to consider the definition of the expressions "privileged tenant", "homestead", "holding" and "rent". According to the definitions section, namely. Section 2, "privileged tenant" means a privileged person who holds homestead under another person, and is, or but for a special contract would be, liable to pay rent for such homestead to such person; "homestead" means any land which is held on lease or used with the consent, express or implied, of the landlord for residential purposes and includes any building erected thereon, together with any Sahan and Bari appurtenant thereto; "holding" means a parcel of homestead, held by a privileged tenant and forming the subject of a separate tenancy and "rent" means whatever is lawfully payable or deliverable in money or in any other form by a privileged tenant to his landlord on account of the use or occupation of the homestead held by such tenant.
9. From the definitions of the expressions "homestead", "privileged tenant" and "rent" as defined in Clauses (d), (j) and (k) of Section 2 of the Act it appears that two conditions are contemplated which must exist as a condition precedent before a person can be called a "privileged tenant" within the meaning of the Act. Where the relationship of landlord and tenant exists without any arrangement for payment of rent as such, for example, in cases where the person happens to be an artisan like a carpenter, potter etc. and is allowed to occupy a house on consideration of his rendering service to the raiyat of the landlord concerned, there being always an implied contract on the part of the tenants to compensate the landlord for the use and occupation of the land. This implied contract postulates a promise by the occupier to pay the landlord a reasonable amount for the use and occupation. It is, therefore, difficult to accept the argument of Mr. Gupteshwar Prasad, learned Counsel for the petitioner, that a person who has entered upon somebody else's land, and although might be a privileged person in the sense that he does not possess any other land, without the consent of the raiyat or the landlord, acquires the right of a privileged tenant. In other words, to put it in a more appropriate way, a trespasser or a squatter cannot acquire the right of a privileged tenant and earn the protections and privileges conferred upon a privileged tenant under the statute. Accepting this argument, in my view, would lead to an anarchy and unscrupulous persons entering upon somebody else's land by force or by manoeuvre and then simply by dint of maintaining their possession for a period of more than one year would make their wrongful act indefeasible. The legislature never intended to recognise such a right as that would be on the other hand, defeating the rule of law itself.
Admittedly the petitioner has never paid any rent to respondent No. 3 although he claims to have been in possession of his land for over 18 years by now, nor his case is that he had taken possession of the same by his permission. All that he has stated is that inasmuch as he was uprooted from his village home and the Government failed to provide any alternative site in the rehabilitation scheme, he along with other person took possession of 5 decimals of the plot in question. These allegations apparently constitute a case of a trespass and would not constitute the petitioner a tenant of respondent No. 3. Even if such a person, agrees or indicates his willingness to pay any rent to the owner of the land subsequently unless the said owner acquiesces in his attornment that conduct also, in my view, would not validate the conduct of the person and provide him with any protection.
The case of respondent No. 3 that the petitioner was inducted over the land in question for the purpose of establishing some timberwood business would also not enure to the benefit of the petitioner in as much as the scheme of the Act applies only to such lands which are held for residential purposes only and not for any purpose other than that. Reference in this connection may be usefully made to a Bench decision of this Court in Ragho Singh v. State of Bihar, (AIR 1957 Pat 163) where it was held that the law implies a promise by the occupier to pay the landlord a rent and that a relationship of landlord and tenant must exist between the parties in order to attract the provisions of the Act.
10. Having thus answered the main argument against the petitioner that he has failed to establish that he had acquired the status of a privileged tenant within the meaning of the Act and thus was not entitled to the grant of parcha by the Anchal Adhikari, the other argument advanced on behalf of the petitioner by Mr. Gupteshwar Prasad does not require any detailed consideration. The earlier order granting parcha to the petitioner was an order adverse to respondent No. 3 in as much as it was passed without any notice to him. He had, therefore, every right to challenge the same and the Anchal Adhikari who had passed the order could set aside the same. It is, no doubt, true that the order has been set aside and the grant of the parcha has been cancelled on the ground that the area of the land situated was converted into a notified area inasmuch as proviso to Section 3 itself protects such a privileged tenant, on the view that I have taken of the matter, the impugned order can still be sustained.
Learned Counsel for the petitioner, however, placed reliance upon the case of Ganga Ram Bhagat v. Deputy Commr., Dumka, (1977 BBCJ (HC) 562) ; AIR 1977 NOC 177) and submitted that the parcha could not be cancelled by the Anchal Adhikari, once having been granted by him. This decision is not an authority from which this proposition can be supported. In this case the order of the Circle Officer who had granted the parcha was cancelled by the Deputy Commissioner acting as an appellate or reviewing authority. In these circumstances it was held that the Deputy Commissioner had no such power under the Act to review the order of the Circle Officer who acted as the Collector under the Act. From the facts as stated in paragraph 3 of this decision also, it would appear that the privileged tenants had constructed their houses with the consent of the Jamabandi raiyats who had allowed them to construct houses on their lands.
Reliance was also placed on the case of Nagina Sah v. Rajpati Devi, (1979 BBCJ (HC) 245). The facts of this case have hardly got any application to the case in hand. In this case the question decided was that a person already in possession of a homestead cannot claim or acquire right in another land as a privileged person and allow the structure on that homestead to fall down for acquiring right in the other.
11. The further circumstances against the petitioner as alleged in the counter-affidavit to the effect that he is already possessed of a residential house built by his father and that the petitioner's family is possessed of extensive land, having not been controverted, would also go against the claim of the petitioner, as a privileged person should not hold any other land exceeding 1 acre (see also Bijli Sahu v. Bahadur Mahton: 1968 BLJR 281).
12. Having thus examined the case of the petitioner from all possible aspects, I do not find any merit in this application and would accordingly dismiss the same, but in the circumstances, however, I shall leave the parties to suffer their own costs.