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Judgment
G.K. Misra, C.J.—Petitioner''s case may be stated in short. The disputed properties as recorded in the last settlement have been described in the Schedule to the writ application as follows:
Schedule of land
District
Mouza
Khata
Plot
Area
Recorded Sikimi in favour of
Puri
BhagirathiPur
13
53
A. 0- 170
Doma Swain & Bichi Swain SlkimiKhata 6
Do
DJ
do
54
A. 0- 152
do-do
Do
Do
do
76
A. U.24Y
GckulanandaaridaSlkimiKhata No.5
Do
Do
do
18Y
A. 0- 403
BauribandhuMaharathi, SikimiKhata no. 7
Do
Qo
do
182
A. O. 390
SahadEvMatagajsingh, StkimiKhata no. 9
Do
D0
do
184
BauribandhuMaharathi, SikimiKhata no. 7
The last settlement record-of-rights were finally, published on 14-5-1966 u/s 119(2) of the Orissa Tenancy Act,) 913 (hereinafter to be referred to as the 1913 Act). Therein opposite parties 1, 2 and deceased father of opposite parties 3 to 6 were recorded as ''Sikimi tenants'' though they were only ''Bhagchasis'' under the Petitioner who has occupancy right in the disputed land. Being aggrieved by such entry the Petitioner filed a revision before the Board of Revenue for revision of the record-of-tights which was dismissed. The writ application has been filed under Articles 226 and 227 of the Constitution for issue of an appropriate writ to quash the judgment in Annexure-1 of the Member, Board of Revenue, and for issue of a direction to correct the settlement entry.
Opposite parties 1 to 6 did not appear despite service of the notice. The learned Standing Counsel contested the writ application on behalf of the Assistant Settlement Officer (opposite party No. 7) and the Member, Board of Revenue (opposite party No. 8).
A preliminary objection was raised by the learned Standing Counsel that the writ application is not maintainable as an alternative remedy lies by way of a suit u/s 42 of the Orissa Survey and Settlement Act, 1958. Section 42(1) runs thus:
(1) No suit shall be brought in any Civil Court in respect of any order directing survey, preparation of record-at-rights or settlement of rent under this Act or in respect of framing, publication, signing or attestation of any record thereunder or any part thereof:
Provided that any person aggrieved by any entry in or omission from any record finally published u/s 6-C, 12-B or 23 or in pursuance of Section 36 may, within three years from the date of such publication, institute a suit for relief in a Civil Court having jurisdiction,
There is no doubt that under this section the Petitioner could file a suit for correction of the settlement entry.
It has, however, been repeatedly laid down by this Court that existence of an alternative remedy does not oust the jurisdiction of this Court under Articles 226 and 227 of the Constitution though in a particular case this Court may not exercise its jurisdiction. As it would be pointed out, the question raised is a substantial question of law and it would be better for the High Court to dispose of the matter rather than leave It to the Civil Court. The preliminary objection is overruled.
The only question for consideration in this writ application is whether a ''Bhagchasi'' is an under-raiyat.
Section 3(3) of the Bengal Tenancy Act, 1885 defined a tenant thus:
"Tenant" means a person who holds land under another person, and is, or but for a special contract would be, liable to pay rent for that land to that person.
The Bengal Tenancy Act was in force in Orissa until the passing of the 1913 Act which came into force on 11th June, 1913. The "Bengal Tenancy Act, 1885 was repealed by this Act.
Section 3(23) of the 1913 Act defines a tenant thus:
"tenant" means a person who holds land under another person; and is, or but for a special contract would be, liable to pay rent for that land to that person:
It would be noticed that the 1913 Act adopted the definition of "tenant" given in the Bengal Tenancy Act.
In several cases before the Calcutta High Court the question whether a "Bhagdar" is a tenant within the meaning of
Section 3(3) of the Bengal Tenancy Act came up for consideration. It was held that a "Bhagdar" may be either a servant or a tenant according to the facts and circumstances of each case. "Bhag" means "division". "Chasi" means "cultivator". A "Bhagchasi" means a person who cultivates land of another on condition that the produce of the land will be divided in certain proportion as agreed between the parties.
The status of such a Bhagchasi may be that of a labourer or tenant. He may be a labourer in the sense that without taking remuneration for each day''s work on the land he may enter into an agreement with the landlord that he would take a stipulated share of the produce at the end of the year. Ordinarily, in such cases the landlord would supply seeds, ploughs and meet other expenses of cultivation such as transplantation and reaping as and when necessary. In such a case the share of the produce so given to the cultivator is not rent.
On the other hand, the cultivator may enter into an agreement with the landlord that the former would take the entire responsibility of cultivation and pay a share of the produce to the landlord. The share of the produce so paid is rent and the person cultivating the land is the tenant.
Each case would thus depend on its own facts and circumstances. The Court would be circumspect and would pierce the veil to find out the exact nature-of the transaction whether it establishes the relationship of master and servant or of a landlord and tenant.
Some of the decisions of the Calcutta High Court are Lalji Panday v. Barhamdeo Pandey 16 C.W.N. 89, Deb Nath Das Bairagi and Ors. v. Ram Sundar Barman 19 C.W.N. 1225. Sheikh Pukhan v. Rajani Kamal Chuckerbutty 23 C.W.N. 614 Brahmlmoyee Barmani v. Sheikh Mumur 32 C.L.J. 37, Jadab Chandra Santra v. Gopal Chandra Debnath 28 C.W.N. 848, Rahimuddin Mollah if Ors. v. Nirodbarani Debi 40 C.L.J. 197.
It is not necessary to refer to the facts of these cases in detail. All that is to be stated is that in each of these cases the question was considered in relation to the facts of that case whether a Bhagdar was a tenant or a servant. It would be sufficient to extract a passage in Brahmamoyee Barmani v. Sheikh Munsir 32 C.L.J. 37, to reflect the controversy. Their Lordships in a Letters Patent appeal while reversing a Single Judge decision observed thus:
It is sufficient to say that the document does not, in our opinion, create a tenancy. In the first place, there is no covenant to pay rent and, in the second place, there is no clause which creates in favour of the Defendant an interest in the land. Consequently, the two essential elements requisite for a lease are absent.
The Defendant no doubt become a burgadar, but it is well-settled that a burgadar is not necessarily a tenant. A burgadar is a person who enters into a profit-sharing arrangement; he cultivates the land, gives a share of the profit to the owner and keeps the remainder as his remuneration. In individual cases, the terms of the contract may indicate that the intention of the parties was to create in the grantee an interest in the land in another words, if there is a demise, a tenancy is created.
On account of the controversy whether a Bhagdar is a tenant or not the definition of ''tenant'' in Section 3(3) of the Bengal Tenancy Act was amended in 1928 as follows:
Section 3(3) "Tenant" means a person who holds land under another person, and is, or but for a special contract would be, liable to pay rent for that land to that person:
Provided that a person who, under the system generally known as ''adhi'', ''barga'' or ''bhag'' cultivates the land of another person on condition of delivering a share of the produce to that person, is not a tenant, unless
(i) such person has been expressly admitted to be a tenant by his landlord in any document executed by him, or.
(ii) he has been or is held by a Civil Court to be a tenant,
Thus after the 1928 amendment, in the Bengal Tenancy Act a Bhagdar would not be a tenant except in the two circumstances mentioned in the definition.
The 1913 Act was not amended as was done in the Bengal Tenancy Act. Bhagdars can, therefore, become tenants within the definition of Section 3(23) of the 1913 Act. As has already been stated, whether the Bhagdar is a tenant or a mere servant would depend on the facts and circumstances of each case. The position, however, is that he could be a tenant under the 1913 Act.
From the definition of the word ''tenant'' it appears that a person must hold land under another person. The word ''hold'' has not been defined either in the Bengal Tenancy Act or in the 1913 Act. Some of its meanings as given in the Chamber''s Twentieth Century Dictionary are as follows:
to keep; to have: to grasp: to have in one''s possession, keeping or power.
It would thus appear that the concept of having the land in one''s possession, keeping or power inheres in the word ''hold''. A Bhagdar who cultivates the land of another may hold such land in his possession or power and in such cases he would be a tenant.
We would next determine the status of Bhagchasis'' who are tenants. In other words, it is to be considered whether the incidence of the tenancy of Bhagchasis is that of an underraiyat.
In Section 4 of Chapter II of the 1913 Act various classes of tenants have been enumerated. Section 4, so far as relevant, runs thus:
There shall be, for the purpose of this Act, the following classes of tenants, namely:
(1) tenure-holders, including under-tenure-holders,
(2) raiyats,
(3) under-raiyats, that is to say, tenants holding, whether immediately, or mediately, under raiyats, and
(4) chandnadars;
It is not disputed that Bhagchasis do not come within the ambit of classes (1), (2) and (4), that is to say, they are not tenureholders, raiyats or chandnadars. The only question for consideration is whether Bhagchasis who are tenants are under-raiyats.
An under-raiyat is a tenant holding, whether immediately, or mediately, under raiyats. Petitioner is admittedly an occupancy tenant. Opposite parties 1 to 6 are Bhagchasis immediately under the Petitioner.
The incidents of under-raiyats are to be found in Sections 56 and 57 of Chapter VIII of the 1913 Act. Section 56 is not relevant and need not be adverted to Section 57 runs as follows:
An under-raiyat shall not be liable to be ejected by his landlord, except:
(a) on the expiration of the term of a written lease; or
(b) when holding otherwise than under a written
lease, at the end of the agricultural year within which a notice to quit has been served upon him by his landlord, provided that such notice has been served upon him not less than six months before the end of the year.
Thus under-raiyati tenancy is a precarious one. Though an under-raiyat is a tenant-at-will in the sense that he can be evicted from the land on fulfillment of the conditions prescribed in Section 5/ he is not entirely a tenant-at-will unless those conditions are fulfilled For instance, the landlord cannot evict an underraiyat during the currency of the agricultural year. Neither he can evict him for the next year unless a notice has been served upon him not less than six months before the end of the year. An under-raiyat cannot be wholly equated with a tenant-at-will.
The classes of tenants enumerated in Section 4 of the 1913 Act are exhaustive. We accept the observations of Ahmad C.J. in Shyamahari Mohanty v. Gadadharnath Sharma and Ors. 32 (1966), C.L.T. 303. (see para 5).1 If a-Bhagchasi can be a tenant depending on the facts and circumstances of each case and if the classes of tenants in Section 4 of the 1913 Act are exhaustive it follows as a matter of necessary logic that a Bhagchasi who is a tenant must have the status of an under-raiyat.
At this stage it would be appropriate to point out that the under-raiyati right is not heritable or transferable, except by proof of custom. Where such incidents are established by custom an under-raiyat can acquire occupancy right; otherwise not. Statutorily under-raiyati rights are not heritable or transferable and the 1913 Act does not contain any specific provision conferring such rights as in the case of occupancy raiyats. Law is, however, well settled that under-raiyati rights are not heritable or transferable, except by proof of custom. Such rights existing on the basis of custom have been saved u/s 237 of the 1913 Act which says that "Nothing in this Act shall affect any custom, usage or customary right not inconsistent with, or not expressly or by necessary implication modified or abolished by its provisions." Thus this section protects under-raiyati rights, heritable or transferable, by custom to continue as such.
Illustration (2) appended to the section is as follows:
(2) The custom or usage, that an under-raiyat should, under certain circumstances, acquire a right of occupancy is not inconsistent with, and is not expressly or by necessary implication modified or abolished by, the provisions of this Act. That custom or usage, accordingly; wherever it exists, will not be affected by this Act.
The section and the illustration give legislative recognition to the well-established position of law that under-raiyati right is not heritable or transferable except by proof of custom. We endorse the view expressed in Biseswar Giri Vs. Haraprasad Behera and Others, , (see para 5). It is to be noted that under-raiyats are recorded as Sikimi tenants in the districts of Cuttack, Puri and Balasore.
The result (If the aforesaid discussion is that Bhagchasis may be Sikimi tenants (under-raiyats) depending on the facts and circumstances of each case and this was the position of law prevailing in Orissa under the Bengal Tenancy Act and the 1913 Act.
The Orissa Tenants Protection Act, 1948 (Orissa Act 3 of 19-18) (hereinafter to be referred to as the 1948 Act'' came into force on 1-9-1947. The Orissa Tenants Relief Act, 1955 (Orissa Act 5 of 1955) (hereinafter to be referred to as the 1955 Act) which repealed the 1948 Act came into force on 1-7-1954. In these Acts Bhagchasi, were given temporary protection from eviction and certain other privileges were also conferred upon them. It is not necessary to order to the provisions of the 1948 Act. It would be sufficient to deal with the material provisions of the 1955 Act.
Sections 2(1)(j), 2(2),2(3) and 3(1)(a) and (b) may be extracted:
2(1)(j) "tenant" means a person who under the system generally known as Bhag, Sanja or Kata or such similar expression, or'' under any other system, law, contract, custom or usage cultivates the land of another person on payment of rent in cash or in kind or in both or on condition of delivering to that person
(1) either a share of the produce of such land,
or
(ii) the estimated value of a portion of the crop raised on the land, or
(iii) a fixed quantity of produce irrespective of the yield from the land, or
(iv) produce or its estimated value partly in anyone of the ways described above and partly in another;
Explanations-The following persons shall not be deemed to be tenants within the meaning of this definition:
(1) a member of the landlord''s family;
(2) a servant or hired labourer, cultivating the land under the personal supervision of the landlord or any member of his family on payment of wages in cash or in kind but not by way of a share in the produce of the land; and
(3) a person holding land directly under Government with permanent and heritable rights of cultivation therein on payment of rent either wholly or partly in cash;
2(2) The provisions of this Act in its application to any local area or to any tenant shall be read and construed so far as may be as forming part of the law or custom or usage having the force of law relating to landlord and tenants in force in such area and applicable to such tenant and in case of any inconsistency or repugnancy the provisions of this act shall prevail.
2(3) Nothing in this Act shall be deemed to confer any additional right in land on any tenant and on expiry of this Act such tenant shall possess the same right which he would have possessed if this Act had not been passed.
3(1) Notwithstanding anything in any law contract or usage or in any decree or order of any Court but subject to the provisions of this Act.
(a) no tenant in lawful cultivation of any land on the 1st day of July 1954 or at any time thereafter shall be liable to be evicted from such land by the landlord;
(b) no such tenant shall be bound to pay more than one-fourth of the gross produce of the land or the value thereof or the value of one-fourth of the estimated produce as rent to the landlord:
Provided that in no event the rate of rent per year per each acre of land III cultivation of the tenant shall exceed the value of four standard maunds of paddy in case of dry lands and six such maunds of paddy in case of wet lands:
Provided further that if any of the crops specified in the schedule to this Act has been grown on the land by the tenant during the year such rate of rent shall not exceed the value of eight standard maunds of paddy:
Provided also that the value of such quantities of paddy shall be the market value as may be declared from time to time with respect to different areas by the State Government by notification in that behalf; xx xx
The resultant legal position that emerges as a result of the introduction of these sections may be noticed.
A share-cropper coming within the ambit of Section 2(1)(j) becomes a non-evictable tenant and is not evictable except as provided u/s 9. He is also not to pay rent more than the share of the produce prescribed under the 1955 Act. Despite the acquisition of the right of non-evictability and not paying rent more than a particular share of the produce the status of a Bhagchasi as a tenant is not altered. In other words, if he was a Sikimi tenant (under-raiyat) before 1st September, 1947 he would continue as such despite the higher rights conferred upon him by the 1948 and 1955 Acts. Prior to that an under-raiyat was evictable in accordance with the provisions of Section 57 of the 1913 Act. By virtue of Section 2(2) of the 1955 Act eviction by service of notice not less than six months before the end of the year becomes inconsistent with the provisions for eviction of the 1955 Act and is inoperative. In Satis Chandra Bardhan v. Raghunath Das and Ors. 1971 (2) C.W.R. 690, a Bench of this Court held that it is not open to contend that inspite of the Sikimi tenant incurring a liability for eviction from the lands under the provisions of the 1955 Act they are still entitled to claim the benefits of the provisions of Section 57 of the 1913 Act.
It is to be noted that the rights of the tenants under the 1955 Act came up for consideration in Chander Sekhar Singh Bhoi Vs. State of Orissa, . In paragraph 22 of the judgment their Lordships observed thus:
It is quite clear that under the tenure known as Bhagchas, the cultivator shares his crop with the owner. So, when he grows, the crop he grows it In his own right and not on behalf of any person. Therefore, it is difficult to hold that a crop-sharer cultivates on behalf of the landlord.
It is not the case of the Petitioner that opposite parties 1 to 6 were Bhagchasis as servants. Clearly they were Sikimi tenants (under-raiyats). 1 hey continued to be under-raiyats till 1962 when record-of-rights were finally published. They were rightly recorded as Sikimi tenants.
There is no merit in this writ application which is accordingly dismissed. As there is no appearance for opposite parties 1 to 6 there will be not order as to costs.
P.K. Mohanti, J.
I agree.