NARAIN DASS Vs. BHAGWAN DASS

JUDGEMENT

(1.) This Writ Petition has been filed by Narain Dass landlord under Articles 226 and 227 of the Constitution of India, calling in question the order dated 16th March, 1970 of the Financial Commissioner, Himachal Pradesh, in a third appeal filed by the petitioner before him and which has been dismissed. Narain Dass being landlord of Khasra Nos. 131 and 132 Tika Matiari Dakhli Nagrota filed a suit under Section 77 of the Punjab Tenancy Act in the Court of the Assistant Collector, 1st Grade, Kangra, against his tenants Bhagwan Dass and Roshan Lal, respondents Nos. 1 and 2, and the allegations were that these tenants had not paid the rents from Rabi 1962 to Rabi 1964 and hence they should be ejected from their tenancy. The learned Assistant Collector decreed the suit in respect of Khasra No. 131 and also decreed it in respect of 2 Marias of Khasra No. 132 of which the total area is 4 Kanals and 3 Marias. Accordingly the suit was dismissed in respect of 4 Kanals and 1 Marias of Khasra No. 132 and it was held that the tenant-respondents had become occupancy tenants of this land under Section 8 of the Punjab Tenancy Act. It was held that the tenants and their fore-fathers are in possession for more than 100 years, that they were settled near the disputed land and are permanent residents there and that their rent was one-third of the produce previously and thereafter they were paying one-half of the produce and the assessed rent was uniform and according to the respondents also favourable to the landlord. On these findings, the two tenants were held to be occupancy tenants of the disputed land. Narain Dass came in appeal before the Collector and his appeal was accepted on 30th August, 1966. The tenants were held to be non-occupancy tenants or tenants-at-will and because they had failed to pay the rent they were ordered to be ejected from the land. The respondents came in appeal before Commissioner who accepted the appeal and again held them to be occupancy tenants. Finally the landlord-petitioner Narain Dass came in third appeal before the Financial Commissioner which is the subject-matter of present writ petition. His appeal has been dismissed and now he has taken resort to Articles 226 and 227 of the Constitution.

(2.) It has been contended on behalf of the petitioner that the tenant-respondents could not be held to be occupancy tenants. Section 8 of the Punjab Tenancy Act, according to the petitioner, gives unlimited powers to Revenue Courts to declare any person as occupancy tenant. As such the said section is violative of Article 14 of the Constitution because it Is bound to be interpreted in different manner in relation to different tenants. It is then contended that there is a distinct class of tenants known as "Basiku Upahu" in the District of Kangra. These tenants are settled on the land by the proprietors and there is a presumption of their permanency of tenure. Rather an implied promise not to evict them exists along with their tenancy contract. It is stated that the tenant-respondents could not be considered "Basiku Upahu". They could utmost be "Upahu" having been settled near the land and hence they could not be conferred the right of occupancy. In this connection a reference is made to Kangra Gazetteer (page 395) which contains the settlement report of Sir James Lyall who performed the first settlement of Kangra District. It is contended that this Court has superintendence over the subordinate Courts and the decision of the Financial Commissioner should be set aside.

(3.) The respondents have contested the petition on the allegations that the same is not maintainable under Articles 226 and 227 of the Constitution which provide for an extraordinary remedy. The petitioner having tried three appeals and one regular suit, ultimately did not succeed before Revenue Courts. Even if the decision is erroneous, It cannot be re-opened in this manner. It is also contended that a civil suit can be filed and so there is an alternative remedy. It is stated that the tenant-respondents are "Basiku Upahu" and at any rate their long possession with fixed and favourable rent paid to the landlord and devolution of tenancy by inheritance with no instance of ejectment by the landlord, are sufficient to raise the presumption of permanent tenancy. Besides this, the tenants were also settled adjoining the land and they constructed their house over it. They are in possession of the house as well as the tenancy land since the days of their ancestors. Thus they were settled with a promise never to evict and they are occupancy tenants. Section 8 of the Punjab Tenancy Act is not violative of any provisions of the Constitution and the Financial Commissioner decided the case in a judicial manner. Thus the tenant-respondents claim that no case is made out for interference under Articles 226 and 227 of the Constitution.