Patna High Court
Hargobind Singh And Ors. vs Rambaran Paswan And Ors. on 14 January, 1954
Equivalent citations: AIR 1954 PATNA 334
JUDGMENT Choudhary, J.
1. These two proceedings are between the same parties, and arise out of the same matter. M. J. C. No. 145 of 1903 is under Article 227 of the Constitution of India, and M.J.C. No. 143 of 1903 is under Article 226 of the said Constitution.
2. The proceedings relate to .45 acre of land consisting of plot Nos. 229, 200, and 228, situate in village Sultanpur in the District of Patna appertaining to tauzi No. 132C/473. The case of the petitioners is that the land in question was their 'raiyati' land and they were in actual possession of plot No. 229. Plot Nos. 228 and 200 were in possession of respondents 1 to 4, not as tenants, but by their leave and license as they rendered services to them as ploughmen. The petitioners filed a title suit, No. 93 of 1948, in the court of the Munsif at Barn for ejectment of the aforesaid respondents from plot Nos. 200 and 228 and for confirmation of their possession over plot No. 229. The suit was decreed by the trial court on 23-4-1951, and the said respondents filed an appeal before the lower appellate court. The learned Additional Subordinate Judge who heard the appeal upheld the judgment and decree of the trial court on 30-4-1952. (1951?) According to the decree in that suit the petitioners were held to be in possession of plot No. 229 and their possession was confirmed, and with respect to the other two plots they obtained a decree for recovery of possession.
Accordingly on 3-8-1951, they obtained delivery of possession through court over plot Nos. 228 and 200. Some time in 1950 the respondents 1 to 4 made an application to the Collector of Patna under Section 6(1), Bihar Privileged Persons Homestead Tenancy Act, 1947 (Bihar Act 4 of 1943), for assessment of fair rent in respect of the land appertaining to the aforesaid three, plots. A Deputy Collector, Mr. R. Prasad, was asked to inquire and report about the merit of the application. The said Deputy Collector found that plot No. 229 was not the homestead land of the respondents, and assessment of fair rent for that plot was outside the scope of the said Act. With respect to the other two plots, namely, plot Nos. 228 and 200, he reported that they were in possession of those respondents and recommended for fixing a rent of Rs. 2 per month. The Collector accepted the report of the Deputy Collector and passed an order on 13-8-1951, assessing a fair rent in accordance with the report made by him. On 27-1-1953, these respondents started a proceeding under the said Act for being restored to possession over the three plots in question, which was numbered as case No. 175 of 1952-53.
On 20-3-1953, the Collector passed an order directing the petitioners to put the respondents 1 to 4 to possession of the aforesaid three plots in the condition in which they existed before they were ejected. The petitioners have, therefore, moved this Court for issue of a writ of certiorari for quashing the proceeding for restoration of possession started under the provisions of the Bihar Privileged Persons Homestead Tenancy Act, 1947 (hereafter to be referred to as the Act), and they have also prayed for quashing the order of the Collector dated 20-3-1953, directing them to restore possession of the aforesaid three plots to the respondents 1 to 4.
3. The Act came into operation on 18-2-1948, and subsequently it was amended on 19-12-1951. Section 2 (d) of the Act defines "homestead" to mean 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, but does not include -- (i) a homestead to which the provisions of Section 182, Bihar Tenancy Act, 1885, apply or (ii) a land which was originally used for purposes other than residential but is being used for such purposes without the consent, express or implied, of the landlord. Clause (1) of that section defines "privileged person" as follows:
" 'Privileged person' means a person who satisfies all the following conditions, namely:
(1) he holds no land or no other land except his homestead;
(2) he is a member of the scheduled castes within the meaning of the Government of India (Scheduled Castes) Order, 1936, or a member of the backward tribes as defined in paragraph 19 of the Fifth Schedule to the Government of India Act, 1935, read with sub-paragraph (2) of paragraph 6 of Part VII of the Government of India (Provisional Legislative Assemblies) Order, 1936; or a member of the Muslim community belonging to such class or classes as may from time to time be notified by the Provincial Government in this behalf; and (3) he is not a proprietor or tenure-holder, under-tenure-holder, raiyat or mahajan."
According to Clause (j) of that section "privileged tenant" is 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. Section 5(1) of the Act, provides that "if any privileged tenant has been ejected by his landlord from his homestead or any part thereof within one year before the date of the commencement of this Act, otherwise than in due course of law, such tenant shall, for the purposes of Section 4, be deemed to have held such homestead or part thereof, as the case may be, continuously for a period of one year before the commencement of this Act and he may apply to the Collector for the restoration of his possession over the homestead or part thereof from which he has been so ejected."
Section 8(1) of the Act provides the grounds on which a privileged tenant shall be liable to ejectment. By the amending Act of 1951, Sub-section (5) was added to the section, which provided:
"If a privileged tenant has been ejected by his landlord from his homestead or any part thereof, otherwise than in accordance with the provision contained in Sub-section (1), then the tenant may apply to the Collector for restoration of his possession over the homestead or part thereof from which he has been so ejected." It has to be seen whether under these provisions of the Act the Collector had any jurisdiction to pass the order in question.
4. I shall, first, deal with plot No. 229. As already stated, the petitioners' case is that they were all along in khas possession of this plot, and the civil court also found them to be in possession of this plot and confirmed their possession. Even the Deputy-Collector, who made the enquiry during the course of the proceeding for assessment of fair rent, found that the proceeding with respect to this plot was beyond the scope of the Act, and his report was accepted by the Collector.
5. In the present proceeding the Collector does not seem to have considered this fact. He starts on the assumption that while passing the order for assessment of fair rent the respondents were treated as privileged tenants with respect to this plot also, and that they were ejected as a result of a petition moved by the landlord in the civil court. He commits an error apparently on the face of the record. The civil court decree was not to eject, the respondents from this plot; rather by that decree, as already stated, the petitioners were held to be in possession, and their possession was confirmed. In the proceeding for assessment of fair rent also the Collector passed an order in accordance with the report of the Deputy-Collector, according to whom, this plot was beyond the scope of the Act. Therefore, there was nothing before the Collector to show that this plot was the homestead of these respondents within the meaning of the Act, nor was there anything to show that they were evicted by the petitioners from that plot. As held in the title suit the land was in possession of the petitioners, and the Collector had no jurisdiction to proceed as against that plot under the Act. The order in question, therefore, so far as this plot is concerned, is without jurisdiction.
6. The question with respect to the other two plots is different. They were undoubtedly in possession of the respondents who had their residential houses on these plots. It is contended on behalf of the petitioners that the respondents were in possession of these plots by their leave and license as they were the ploughmen of the petitioners and not as tenants. There was no relationship of landlord and tenant between them and no rent was ever paid by the respondents to the petitioners for these two plots. Reliance has been placed on the case of -- 'Athakutti v. Govinda', 16 Mad 97 (A), where the defendants were allowed to occupy on condition of doing certain work. It was held that it was not the case of a tenant, but the case of a licensee, and on ceasing to do work, the defendants were liable to eviction without notice. It has been conceded that the respondents are privileged persons within the meaning of the Act. But, it has been argued that they are not privileged tenants. In order to be a privileged tenant, he is or but for a special contract would be liable, to pay rent for such homestead to the person under whom he holds it.
The contention is that the respondents were never liable to pay any rent, nor was there any contract but for which they would have been liable to pay rent. It has also been contended that rendering of service as ploughmen does not amount to rent within the meaning of the Act, which, according to Section 2(k) of that Act, 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 home-stead held by such tenant. The Government pleader who has appeared for the Collector, respondent No. 5, and also for the tenants, respondents 1 to 4, has, however, contended that a person holding a service tenure can also be a tenant, and whether he is a tenant or not, will have to be determined with reference to the evidence adduced in the case. In the present case there was some evidence before the Collector, such as, the judgment of the title suit, wherein respondents 1 to 4 were held to be tenants at will and the order of the Collector in the proceeding for assessment of fair rent which was passed on the basis that they were tenants of the two plots. Even in paragraph 8 of the petitions of both the cases the petitioners have themselves stated that it was finally determined in the suit 'inter partes' that the respondents were mere tenants at will. It has, therefore, been contended on behalf of the respondents that the Collector had jurisdiction to pass the order in question with respect to these two plots. The Collector had no doubt jurisdiction to decide whether these plots were the homestead of the respondents within the meaning of the Act. It is a question of fact, and we cannot go into the question of fact in a proceeding under Article 226 or 227 of the Constitution of India.
7. In my opinion, therefore, it has not been established that the order of the Collector with respect to these two plots is without jurisdiction.
8. In the result the applications succeed so far as plot No. 229 is concerned and the order dated 20-3-1953, passed in Case No. 175 of 1952-53 under the Bihar Privileged Persons Homestead Act, 1917 (Bihar Act 4 of 1948), is set aside.
9. A writ in the nature of 'certiorari' is issued against the respondents quashing the proceeding and the said order of the Collector to this extent. The applications with regard to the other two plots are dismissed. In the circumstances of the case the parties will bear their own costs.
Ramaswami, J.
10. I agree.