LAND ADMINISTRATION
MANUAL
PUNJAB LAND ADMINISTRATION MANUAL
CHAPTER I
INTRODUCTORY
1. Land revenue not a tax,
but rent payable to the State. In the first edition of this work it was contended that the land revenue
was a rent and not a land tax, and this view has been retained in the opening
paragraphs of the fourth edition of the Settlement Manual. This is not the
place to embark upon a summary of the prolonged controversy on the subject; the
question was examined with care by the Indian Taxation Enquiry Committee of
1926, which was found itself unable to arrive at any agreed finding. As that
committee pointed (See paragraph 53 of
this Manual) out “according to the description given by Manual of the
fiscal administration of an ancient Hindu State, The main source of the State
revenue was a share of the gross produce of all land, varying according to the
soil and the labour necessary to cultivate it. In normal times the share varied
between one twelfth and one-sixth, but was liable to rise even to one-fourth in
times of war or other public calamity. The revenue was collected not from individual
cultivators but from the community represented by the headman…. In the early
days of Muhammadan administration, the State share of the gross produce
demanded by the Hindu kings was converted into the khiraj or tribute payable on
land in countries under Muhammadan rule though the share taken was greater than
before.” The committee found that the land revenue has ceased to represent a
portion of gross produce…. That in the Punjab …….the Government demand is
theoretically based on an economic rent, but actually takes many other factors
into consideration…Under both Hindu and Muhammadan rule, the State never
claimed the absolute or exclusive ownership of the land and definitely
recognized the existence of private property in it.”(See paragraph 80 of this Manual).
The General finding of the Committee was that in some cases the revenue was a pure rent and in others it is more difficult to maintain this view. In this province, the theory still holds that the revenue is of the nature of a rent charged by the State as overlord of the land.
The term “Rent” includes the payment
of land revenue and cesses on behalf of the landlord.”
2. Collector,
and steward. The
officer entrusted with the duty of realizing the land revenue is not a mere
rent collector, especially in provinces like the Punjab, where the demand is
fixed for a period only, and the State continues to have a direct and immediate
interest in the improvement of the land. His position is rather that of the
steward of a great landowner. As such, he is bound to respect, and preserve
from encroachment by others every private right in the soil which has been
created or confirmed by the state. Where the revenue has been fixed for a term
only, he has not only to collect it, but also to look forward to a time when it
will be revised, and to collect and record in systematic manner statistical
information, which will facilitate its equitable reassessment. He must initiate
and assist measures to prevent, so far as may be the loss of crops from causes
which are in any degree controllable by man, and must prepare in ordinary times
for those graver natural calamities which produce intense and widespread
scarcity of food. In particular the collector must do everything in his power
to conserve the soil of his district and to maintain its fertility. The top
–soil contains most of the fertility of the land, but on sloping ground in many
parts of the Punjab, especially in districts bordering on the Himalayas and in
the Salt range it is being rapidly removed by erosion. Erosion is assisted by
the long periods of drought, the short growing periods of grass and the heavy
rainstorms characteristics of the Punjab. Conservation of soil is effected by
the control of grazing, felling and lopping in uncultivated land and by the
embanking and where necessary terracing of cultivated land. Fertility is maintained by ploughing,
manuring, cultivation, hoeing, weeding and following, and by suitable rotations
of crops. It is the first duty to a farmer to keep his land in good heart, to
ensure its stability and if possible to increase its fertility. This is done by
the best farmers, but many allow their land to deteriorate.
The aim of land policy is the true
symbiosis, or permanent association, of man his animals and the land. It is
wrong that any man, by slothful cultivation, by excessive grazing, or by
exploitation of the surrounding vegetation should imperil the stability of the
soil of his own or his neighbors holdings. It is his duty to hand on his fields
intact to his successor. The Collector must, therefore, encourage and assist
every effort made by right holders to maintain the fertility of their land, to
conserve the valuable top-soil, and to develop their estates. In addition he
must in co-operation with the Forest, the Agricultural, Veterinary and
Co-operative Departments devise means of combating the menace of erosion
throughout his district as a whole.
He must encourage and assist every
effort made by right holders for the development of their estates. In many parts
of the province, such as the colony districts, the State is not only supreme
landowner of the soil generally, but also sole landowner of a considerable part
of it, and it is the duty of its local representation to administer this
property so that it may be profitable to the State as representing the people
as a whole, and at the same time beneficial to the colonists, whose prosperity
is the first care of a progressive Government.
3. Scope
of handbook. It is
the object of this book to describe how these various functions can best be
carried out by the officer incharge of a district. As a revenue officer, he is
legally known as the Collector, but the more familiar title of Deputy
Commissioner will generally be used in this work. His functions will be described
in the several capacities in which he is called upon to act: --
(i)
As a
recorder of agricultural statistics.
(ii)
As
guardian and registrar of the rights in the soil enjoyed by private persons.
(iii)
As a
collector of the land revenue;
(iv)
As a promoter of the stability and improvement
of landed property;
(v)
As a
custodian of State property;
(vi)
As a
judge between landlords and tenants.
The head of a district has many
other important duties to perform, but the discussion in this work is confined
to his functions in connection with the administration of the land.
4. Rural communities. Before describing the machinery of the administration, it is well to
say something of the agricultural communities for whose benefit mainly it
exists. The reader is supposed to be familiar with the chapters in the
Settlement Manual, which deal with “Tenures and the Rights of Landowners” and
“The Rights of Tenants.”(Chapters VIII
and IX. The former may be usefully supplemented by “Tribal Law in the Punjab”
by Roe and Rattigan 4th edition. As regards the other classes found
in village communities – the grain dealers, artisans and menials – see
paragraphs 130,338 and 390 and as regards rents, see paragraphs
311,312,322,339,344 and 355 of the Settlement Manual , 4th edition) The
former may usefully be supplemented by some account of the law of presumption
applicable to village lands and of the important restrictions impressed upon
landowners of the agricultural class by the passing of the Punjab Alienation
of Land Act, XIII of 1900.
Perpetuity cultivation with
condition that cultivator will maintain peachy creates relationship of landlord
and tenant.
5. Punjab,
a country of peasant landowners. The Punjab is essentially an agricultural country one-half of which is
owned and tilled by peasant landowners. There are a few large proprietors in
most districts but in the whole province of number who pay more than Rs. 500
land revenue is less than 2,500. The majority of owners holding in the plains
are less than ten acres, in the hills they are mostly under three acres. The
bulk of the population of the Punjab consists of landowners and their
dependents and their prosperity and contentment must always be the chief
solicitude of Government.
6. Dangers to peasant ownership from
division of holdings and mis-appropriation by money-lenders - There are two grave economic
dangers, which beset the ownership of land in small parcels by peasant
proprietors. The first of these is the reduction of the size of many holdings
below an area sufficient to support a family in comfort. This is due to the
operation of the law of inheritance under which sons, on the death of their
father, each take an equal share of the family land. It is easy to exaggerate the
effect of this law. Most small owners are able to get additional land on rent,
and where means of livelihood are scanty, the difficulties in finding brides
are apt to prove insuperable. Apart from the unpopular remedy of interfering
with the law of inheritance, there are indirect means of mitigating the evil of
over population. One has been found in the colonization of large tracts of
State land rendered culturable by the construction of new canals. Another has
been the increasing diversification of occupations in towns.
The second, and more serious, danger
was the transfer of land by sale and mortgage to those whose outlook on life
prevented them from cultivating it with their own hands. (See in connection with this subject paragraph 379-381 and 402-406 of
the settlement Manual 4th edition)
7. Oscillations
of opinion on subject - The political advantage of maintaining the existing framework of
society, and of keeping the land in the hands of those whose hereditary
occupations was tillage, was fully recognized by the first administrators of
the Punjab. There followed a time in which the importance of this object was
less keenly felt and the possibility of attaining it was denied. The third
phase of opinion, which is that now predominant, regards the expropriation of
the old landowning tribes with at least as much aversion as did the earliest
administrators of the province, maintaining that it is not only politically,
but also economically, disadvantageous. The causes of these remarkable
oscillations of opinion from a curious chapter in the revenue history of the
Punjab, which may be noticed briefly before describing the actual provisions in
force at different times regarding pre-emotion and restrictions on the transfer
of land.
8. Apologetic tone adopted by early
administrators as to measures adopted to preserve stability of village
communities - While
experience acquired elsewhere led shortly after annexation to the adoption of
measures to prevent the intrusion of aliens into village communities by the purchase
of land, some of the ablest officers held that these measures were open to the
reproach of economic unsoundness, and that the prospect of agricultural
improvement by the attraction to the soil of the capital of the moneyed classes
was being sacrificed to the importance of political stability. IN his
commentary on the Punjab Civil Code, Mr. Montgomery felt constrained to
apologize for the maintenance of the law of pre-emption. Later, Mr. Cust
remarked in his Revenue Manual: “The principle (of pre-emption) is not defended
on any economic grounds, but is maintained for social and political reasons,”
and contemplated without regret” a gradual process” by which the existing
village communities might “melt away and give place to a more modern, and
perhaps more politically nice, distribution of property.”
9. Causes
of increase of transfers. The disposition to look on unlimited power of transfers as an essential
feature of proprietary right and a necessity of economic progress was
strengthened by the assimilation of the law and procedure of the Punjab with
that of the older provinces, which resulted from the extension of the Code of
Civil Procedure to the province in 1866, and the establishment of a Chief Court
in Lahore in the same year. About the same time the policy of moderation and
fixation of the land revenue began to make land attractive as an investment.
Titles had been clearly determined, and the moderation of the demand made the
ownership of land a source of income. The peasant proprietor found his credit
rapidly expanding. The old system of limited borrowing on the security of
crops, cattle, and ornaments was supplanted by one of extravagant borrowing on
the security of the land.
10. Increase
looked on as beneficial or at least inevitable. Sales and mortgages of land to money-lenders
became a feature of village life. By some this was looked upon with little
alarm and even with complacency. It was maintained that the resources of the
country would be developed by the application to the improvement of the land of
capital of the moneyed classes. Even those who disliked the process, were
disposed for a time to look on it as the outcome of an irresistible economic
law.
11. Growth of opinion hostile to free
transfer. But, with
each quinquennium the alienation of land proceeded everywhere at a more rapid
rate and in some parts of the country the area which had passed out of the
hands of the original owners amounted to a considerable total. The social and
political evils likely to spring from the expropriation of the old landowning
classes again came to be keenly felt, and acquiescence became increasingly
difficult, and ceased to be regarded as inevitable. The policy of laissez faire
expounded by the English economists was no longer considered as applicable to every
country and stage of society. Experience also showed that the expectation that
the new proprietors and mortgages would be improving landlords was not
fulfilled. Very few turned out to be anything but rent receivers, and their
tenants lacked the devotion and pains-taking labour of peasant owners.
12. Reasons
for change of opinion. The interest in primitive institutions aroused by the works of Sir
Henry Mayne, and stimulated by the abundant evidence of their survival in
India, worked in the same direction. The records of tribal law compiled by
Settlement Officers supplied unmistakable evidence that ownership of the modern
western type was alien to the ideas of the rural population. It was seen that
the Indian conception of property in the soil is that it is vested in family,
and not in an individual, and that the owner for the time being is not entitled
to dispose of it how and to whom he will.
13. Civil courts accept doctrine of limited
ownership - This
doctrine invaded the civil courts, which were bound by section 5 of the Punjab
Laws Act to decide questions of inheritance, adoption and gifts primarily on
evidence of custom, and from 1887 onwards it formed the foundation of a series
of decisions by the Chief Court on sales and mortgages by sonless proprietors,
adoption, gifts and pre-emption.(See
chapter III of “Tribal Law in the Punjab “ By Roe and Rattigan) But these
decisions, valuable though they were , did not prove effective restraints on
the actions of landowners, and in no way reduced the seriousness of the problem
which Government had to face.
14. Necessity of restricting credit basis of
Punjab Alienation of Land Act. The position was at last accepted that the root of the evil was to be
found in the inflation of the peasant owners credit and that the only hope of
checking it lay in lessening his powers of borrowing by imposing legal
restrictions of the sale and mortgage of land. This policy was embodied in the
Punjab Alienation of Land Act, XIII of 1900, the provisions of which will be
noticed presently.
15. Classification of measures taken at
different times to protect landowners. The measures taken at various times for the
protection of the landowners of the Punjab may be classed under the heads: -
(a)
The
legal enforcement of the custom of pre-emption:
(b)
The
restriction of transfers by landowners belonging to agricultural tribes:
(c)
The
exemption from sale in execution of decree of land and other property of
hereditary agriculturists.
16. Pre-emption:
its nature - The
origin of pre-emption is clearly explained in “Tribal Law of the Punjab”. “It
has been usual to regard this as a village, not as a tribal, custom and as
originating in the Mohammedan law. I think that this is quite an erroneous
view, and that pre-emption is merely a corollary of the general principles
regulating the succession to, and power of disposal of land. In these matters
the holder of the estate for the time being is subject, generally speaking to
the control of the group of agnates who would naturally succeed him….. They can
, as a general rule, altogether prevent allegations by adoption or gift, or by
sale for the holder’s own benefit , it
would be only a natural rule that, when a proprietor was compelled by
necessity to sell , these agnates should be offered the opportunity of
advancing the money required, and thus saving what is really their own
property.” (“Tribal Law in the Punjab, by
Roe and Rattigan pages 82-83)
17. Early
provisions in Punjab Civil Code, etc. The first administrators of the Punjab brought
a knowledge of the existence of pre-emption in village communities from what is
now the united provinces. In 1852 the Board of Administration issued a circular
(No. 28 of 1852) requiring a landowner
who wished to sell his share to offer it in the first instance to the whole
community or to some individual co-parcener at a reasonable price to be fixed
by agreement, falling which the revenue officer and three assessors were to
determine the fair value. Two years later this instruction was embodied and
elaborated in section XIII of the Punjab Civil Code. Pre-emption was there
declared to apply to village lands and sites in villages and kasbas occupied by
shareholders in the estate and to extend to private sales, sales in execution
of decree and foreclosures of mortgage. If none of the owners wished to buy,
the hereditary tenants (if any) might exercise the right. Provision was made
for the valuation of land in case of dispute by committee appointed by the
revenue authorities. Pre-emption suits were to be brought in the civil courts,
but any issues as to priority among
contending claimants and the value of the land were to be referred for
decision to the revenue authorities.The chief Commissioner,in 1856,with the object
of preserving the integrity of village
communities, extended the right to usufructuary mortgages.(Financial Commissioner’s Circular No. 41 of 1856)
18. Entries in village administration papers. The customs governing pre-emption
were also recorded in village administration papers draw up at settlements made
before the passing of the Punjab Laws Act, IV of 1872. “In nearly all the old
wajib-ul-arz we find a provision securing this right either to the next heirs,
or to the agnates generally, and after
them to all members of the village community to the exclusion of strangers.(“Tribal Law of Punjab by Roe and Rattigan
page 88)
19. Right
restricted by Civil Courts. Two early judgements of the Chief Court robbed pre-emption of most of
ties value . The court held that the
right did not extend to usufructuary mortgages, (Punjab Record case No. 87)except where the village administration
paper provided otherwise, and that proprietor by purchase through a stranger
to, and at bitter strife with, the original village brother-hood , had as good
a title to claim pre-emption as any member of it.(Punjab Record case No. 4)
20. Provision
of Punjab Act, IV of 1872. The same limitation of the right as regards the transaction in respect
of which it exists, and the same extension of it as regards the persons who may
claim to exercise it, were unfortunately embodied in the sections of the Punjab
Laws Act, IV of 1872, which dealt with pre-emption. That Act, as amended by Act
XII of 1878. Provided that the right arises in the case of sales under a decree
of otherwise and foreclosures of mortgage, (Section
9)and that unless a custom or contract to the contrary is proved, it exists
in all village communities , and extends---
(a)
to the
village site and houses;
(b)
to all
lands within the village boundary;
(c)
to all
transferable rights of occupancy in such lands. (Section 10)
In the absence of custom to the
contrary. the right was declared to belong to the following persons in the
order stated:-
(a)
first,
in the case of joint undivided
immovable property, to the co-sharers;
(b)
secondly,
in the case of villages held on ancestral shares, to co-sharers in the village
, in order of their relationship to the vendor or mortgagor;
(c)
thirdly,
if no co-sharer or relation of the vendor or mortgagor claims to exercise such
right, to the landowners of the Patti or other sub-division of the village in
which the property is situate jointly;
(d)
fourthly,
if the landowner of the Patti or other sub-division make no joint claim to
exercise such right, to such landholders, severally;
(e)
fifthly,
to any landholder of the village;
(f)
sixthly,
to the tenants (if any) with rights of occupancy in the property;
(g)
seventhly,
to the tenants(if any ) with rights of occupancy in the village.
In case of transfers of rights of
occupancy under section 5 of the Punjab Tenancy Act, XVI of 1887, the prior
right of the landlord was secured by section 53 of that Act. If he failed to
exercise it, pre-emption belonged, first, t the tenants (if any)having a share in the occupancy
right proposed to be sold and secondly, to the other occupancy tenant in the
village. (Section 12. By a proviso to the
section if Government owned the trees growing on land, it had a right of
pre-emption in the land superior to that of any private individual)Where
the charkadari tenure prevails(See
paragraph 167-170) of the Statement Manual), the adna maliks possessing shares in a well had a right of pre-emption
in these shares in preference to the ala malik.(Section 20)
Where tow or more persons were
equally entitled to pre-emption, the vendor or mortgagor might determine which
of them should exercise it(Section 12).
Section 13 to 18 of the Act provided for the enforcement of the right. The
matter was left entirely to the civil courts, no provision being made for the
reference of any question in dispute to the revenue officer.
21. Interpretation applied as regards
customary rights of pre-emption. It will be observed that, as regards the persons entitled to
pre-emption, the Act expressly saved custom.(Section
12) But in practice its 12th section was usually taken, both by
Settlement Officers and civil courts as, disposing of the whole matter. The
entry on the subject usually made by the former in codes of tribal
custom(riwaj-iam)was that pre-emption was regulated by the Punjab Laws Act.(“Tribal
Law in the Punjab” by Roe and Rattigan page 83) The chief Courts has held
that the village administration papers furnish valuable evidence of custom as
regards the persons entitled to claim pre-emption.(Punjab Record No. 98 of 1894. See “Tribal Law in the Punjab “ Page 128
and 130)
22. Punjab
Act, II of 1905.
The recasting of the law of pre-emption with the object of brining it into
accord with village custom and ideas became imperative when the Punjab
Alienation Land Act came into force the necessary amendments were effected by
Punjab Act II of 1905. The right of preemption was declared to exist in respect
of agricultural land, as defined in the Punjab Alienation of Land Act, and
village immovable property i,e. immovable property within the limits of
village sites other than agricultural land.(See
Section 3(1) and (2) and section 5 of Act II of 1905. The provisions which
relate to urban immovable property lie outside the scope of this work.”) It
extends to sales of both proprietary and occupancy right in agricultural land.”(Section 3(4) and 11 of Act II of 1905)
. In respect of such land , no one has a right of pre-emption except “a member
of an agricultural ,” as defined in the Alienation of Land Act . But this is
subject to the proviso that “if the vendor is not a member of an agricultural
tribe, the right of pre-emption may be
exercised also by a member of the same
tribe as the vendor, who is recorded as the owner or as the occupancy tenant of
agricultural land in the estate in which the property is situate and has been
so recorded for twenty years precious to the date of the sale either in his own
name or in that of any agnate who has previously held his agricultural land.(Sections 3(4) and 11 of Act II of 1905)”
The most important section of the Ac is section 12, which declares the persons
who are entitled to pre-emption and the order in which they can claim it. The
intention of sections 22 and 12 of course, is to bring the law into conformity
with village custom. Section 12 runs-
Subject to the provisions of section
11(Now see section 15 of Act I of 1913),
the right of pre-emption in respect shall vest ----
(a)
in the
case of the sale of such land or property by a sole owner of occupancy tenant,
or when such land or property is held jointly, by the co- sharers in the
persons who but for such sale would be entitled to inherit the property in the
event of his or their decease, in order of succession;
(b)
in
the case of a sale of a share of such land or property held
jointly, first in the lineal descendants of the vendor in the male line, in
order of succession;
Secondly, in the
co-sharers, if any, who are agnates; in order of succession;
Thirdly, in the persons
described in sub clause(a) of this sub-section and not herein before provided
for;
Fourthly , in the
co-sharers, (I) jointly (ii) severally;
(c)
If no
person having a right of pre-emption under sub-clause (a) or sub –clause (b)
seeks to exercise the right---
First, when the sale effects the superior or
inferior proprietary right and the superior proprietary right is sold, in the
inferior, proprietors, and when the inferior proprietary right is sold in the superior proprietors.
Secondly, in the owners
of the Patti or other sub-division of the estate within the limits of which
such land or property is situate, (I) jointly, (ii) severally;
Thirdly, in the owners
of the estate, (I) jointly (ii) severally;
Fourthly, in the case of
a sale of the proprietary right in such land or property, in the tenants(if
any)having rights of occupancy in such land or property, (I) jointly, (ii)
severally;
Fifthly, in any tenant
having a right of occupancy in any agricultural land in the estate within the
limits of which the property is situate.
Explanation 1.- In the case of a sale of a right
of occupancy, clauses (a) ,(b),and (c) of this sub-section with the exception
of sub –clause fourthly of clause (c), shall be applicable.
Explanation 2. – In the case of sale by a female of property to which she has
succeeded through her husband , son , brother or father, the word “agnates” in
this section shall mean the agnates of the person through whom she has so
succeeded.
Chapter IV of the Act deals with
procedure. It maintains the jurisdictions of the civil courts. but makes
careful provision to prevent pre-emption being used to defeat the objects of
the Punjab Alienation of Land Act, XIII of 1900.(Section 20,21,26 and 27 of Act II of 1905)
22-A. Punjab Pre-emption Act, 1 of
1913. The
experience gained after the passing of the Punjab pre-emption Act of 1905
showed that several alterations and amendments were necessary. In the Punjab
the law of preemption must march hand in hand with the law governing the
alienation of land; and although the proposal to amend the Act of 1905
originated in the necessities for removing certain ambiguities and defects of drafting and for rendering
more precise the application of section 8, one of the main changes introduced,
to wit, the change in section 14, was designed to bring the law of pre-emption
more closely into line with the Land Alienation Act. As the statutory
agriculturist had disappeared from the latter Act, it was felt that the only differentiating restrictions required
were in respect of agricultural land sold by the member of an agricultural
tribe, and in respect of such land the right of pre-emption was limited to
persons who were members of an agricultural tribe in the same group as the
vendor. For all other lands membership of an agricultural tribe in itself
created no special preferential right Another main change was in section 8. In
the Act of 1905 section 8(2) was introduced mainly to protect from pre-emption
land required for commercial and industrial purposes, but it was found
inadequate to accomplish the object
without the issue of separate notifications by the local Government in the case
of each plot concerned. It was, therefore, amplified so as to allow for a
general notification exempting all agricultural land sold in good faith for
industrial , commercial or residential objects. Punjab Act II of 1905 was, therefore,
repealed; and the new Act I of 1913 referred to above it was found that the
provisions of the law of pre-emption were being defeated by the purchaser
splitting his transaction into two parts by purchasing one kanal of land on the
first day and the balance on the second day. If a suit for pre-emption was
brought with respect to the second sale by the village proprietors, he could
successfully defend the suit on the ground that he acquired proprietary right
in the village one day prior to the second purchase. (See case of Nadir Ali Shah versus Wali & C. Published at page 486
of Indian Law Reports Lahore series volume V of 1924) To prevent such cases
occurring in the future, a new section, No. 28-A ; was inserted in the main Act
by an amending Act. No. II of 1928 which came into force from the Ist December,
1928. By this addition it should be
impossible for a purchaser to defeat
the law of pre-emption by splitting his transactions into two parts and to
retain the property acquired by the seconds purchase, even through he may
subsequently lose the property acquired by his first purchase.
23. Commissioner’s
sanction to transfers to strangers formerly required. There used to be an old rule which
required the sanction of the Commissioner to the transfer to a stranger of a
share of land in a village community. It was more a device to ensure that
reversions had an opportunity of exercising their right of pre-emption than an
attempt to restrict freedom of contract. Mr. Cust, in 1860, explained it as
follows:” The right of pre-emption is not to be evaded; the sanction of the
Commissioner must precede all such mutations and. Within a period of three
months from the transfer taking place or being made known to the parties
concerned, the validity of the transfer may be dispute by a regular revenue
suit under paragraph II, part I, Chapter XIII; of the Punjab Civil Code.”(paragraph 13 of Financial Commissioner’s
Book Circular No. XLVII of 1860)
The rule was retained in the
instructions on mutation procedure under the first Punjab Land Revenue Act ,
XXXIII of 1871 . But it was there directed that “if the transferee has obtained
possession, and no suit for pre-emption is brought within the term of
limitation, or if such suit, when brought is dismissed, mutation of names shall
be sanctioned.” This may have had some
effect in discouraging transfers to strangers, the tendency being to
regard a transaction of the sort as incomplete till it had been recognized by
an entry in the record of rights.
24. Far-reaching
change effected by Punjab Land Alienation Act. The causes which led to the passing of the
Punjab Alienation of Land Act, XIII of 1900 , have already been explained. The
direct restraints which it imposed on freedom of transfer appeared novel at the
time although restrictions on free transfer are found in one form or another in
many countries.
25. Scope
of the Act. The Act came into force on the 8th
of June, 1901. It extends to the whole of the Punjab(Section 1(2), but power is given to exempt by notification any
area, person, or class of persons wholly or partially from its operation(Section 24). The only exempted district
ins Simla, except the ilaqa of Kotgarh in the Kot Khai Tahsil, but all
municipal and cantonment areas in other districts have been excluded from the
operation of the provisions restricting
freedom of transfer(Punjab
Government notification No. 16176-R. & A dated 21st June 1919.
The provisions forbidding mortgages by way of conditional sale (section 10) and
sale in execution of a decree of land belonging to a member of an agricultural
tribe(section 16) apply to municipal and cantonment areas.). The Act
applies to the rights of occupancy tenants as well as to those of landowners(See section 2(3) of Act XIII of 1900 . As
to transfers by occupancy tenants see also chapter V of the Punjab Tenancy Act
XVI of 1887). It classifies alienation’s as permanent and temporary. The
former includes sales, exchanges, gifts and wills(Section 2(4) Gifts for a religious or charitable purpose , whether
made inter vivos by will are not permanent alienation’s for the purpose of the
Act,); the later mortgages and leases.
26. Usufructuary and collateral mortgages. Mortgages are broadly divided into
usufructuary and collateral mortgages. In the former the mortgagee takes
possessions of the mortgaged land, enjoying the rents and paying the land
revenue, the difference between the rent and the revenue being regarded as
equivalent to the interest on the mortgage debt(This was the almost universal form of usufructuary mortgage in the
Punjab before the passing of Act XIII of 1900 . “(Possession means of course
possession of the rights of a landlord. The mortgagor was often retained in
cultivating possessions as tenant at will under the mortgagee. For the legal definition of usufrctuary mortgage see
section 2(5). It embraces cases in which the rent and profits are appropriated not only in liew of
interest , but also “in payment of the mortgage –money , or party in lieu of interests
and partly in payment of the mortgage money.). In a collateral mortgage the
mortgagor retains possession of the land so long as he pays interest and
installments of principal according to the terms of the mortgage-deed . If he
makes default , the mortgagee can claim to be put in possession.
27. “Members of Agricultural Tribes” And “Agriculturists”. The provisions of the Act which
deal with temporary alienation’s only recognize two classes of persons—
(a)
Those
who are members of agricultural tribes and
(b)
Those
who are not members of agricultural tribes.
Upon the latter no restrictions of
any kind are imposed. Those relating to permanent transfer originally
introduced a third class described as –
(c)
Agriculturists.
28. “Members of Agricultural Tribes” meaning of term.- The first class
consists of persons belonging to the tribes notified as “Agricultural” under
the powers conferred by section 4 of the Act, and the second obviously includes
all other persons. Subject to the exceptions noted below, the lists of
agricultural bribes which have been gazette(Punjab
Government Notification No. 63, dated 18th April 1904 and Appendix A
to Financial Commissioner Standing Order No. 1 –Alienation of Land)
comprise every tribe dependent on the land for support which owns any
considerable area of land in the district under which its name is shown.
Brahmans have been excluded for the present even from the main group of those
districts in which they own much land and cultivate with their own hands
because they are largely engaged in money-lending and other non-agricultural
pursuits. They have been notified in separate groups.
29. “Agriculturists”;
meaning of term.
The first two groups are in the main natural ones, but the third, or that of
“agriculturist” was defined as “a person holding agricultural land who,
either in his own name or in the name of his ancestor in the male line, was
recorded as the owner of land or as an occupancy tenant in any estate at the
first regular settlement; or if the first regular settlement was made in or
since the year 1870, then at the first regular settlement or at such previous
settlement as the local Government may by order in writing, determine.” The
provision was introduced to mitigate what appeared to be the hardship of
preventing acquisition by those who were old landowners . Experience proved
that it was unsuitable and it was repealed in 1907.
30. Cancelled.
31. Restrictions
on sales. There are
no restrictions on the purchase of land but only on its sale. The sale by the
member of an agricultural tribe to anyone not belonging to such a tribe in the
same district requires the sanction of the Deputy Commissioner(Sections 3(1) and (2)). Sanction may be
given either before or after a deed of sale has been drawn up and possession
given . If sanction is refused the sale takes affect as an usufructuary
mortgage in the first of the three forms described below (See paragraphs 40-42 of this manual)for such term not exceeding
twenty years and on such conditions as
the Deputy Commissioner may think reasonable.(Section 14).
32. All agricultural tribes in each district
from a single group.
For the present all the agricultural tribes in each district, with a few
exceptions noted below. Have been notified as forming a single group(Punjab Government notifications No.21-S
dated 22nd May 1901 and No. 114, dated 16th July 1902).
Members of agricultural tribes have therefore, with these exceptions, full
powers of selling and buying inter se within the limits of the district in
which they own land . Should this broad system of grouping lead anywhere to the
rapid expropriation of one tribe by another, the formation of small groups of
tribes my become necessary. Brahmans and other agriculturists in some districts
have been declared as separate groups of agricultural tribes within their
respective districts from 1909 onwards. (See
part B of the appendix to Financial Commissioner’s Standing Order No. 1)
33.
Cancelled.
34. Cancelled.
35. Order
sanctioning sale does not affect rights of
reversions .
The executive order by which a Deputy Commissioner sanctions a sale in no way
affects any right which reversion’s or other have to contest the validity of
the transfer by legal proceedings or to claim pre-emption.(Section 5)
36. Exchanges
gifts and wills.
All that has been said above of sales applies equally to exchanges , gifts and
wills . Death –bed gifts to Brahmans often known as dohli, are not usually
regarded as subject to the provisions of the Act. But the amount which can be
alienated in this way is limited by custom, and if it is exceeded. The donor’s
heir can sue to have the area reduced to what is permissible by tribal law.
37. Instructions as to giving or withholding
sanction to sales. The
following instructions have been issued by the financial commissioners with the
approval of Government as to the considerations, which should influence a
Deputy Commissioner in giving or withholding sanction. Subject to the proviso
to sub-section (iii) below he need not concern himself with the possible rights
of reversions or pre-emptors. –
(i)
Sanctions
should not be given unless the Deputy Commissioner is satisfied that the
transfer is really advantageous to the vendor and his family. If a zamindar
depends entirely or mainly on his land, no alienation should ordinarily be
allowed which will reduce the land he retains to less than is required for the
support of himself and his family.
(ii)
Sanction
should be given if the Deputy Commissioner is satisfied that there is no
intention of evading the Act when the object of the purchase is to obtain.-
(a)
A site
for a workshop or factory, for building for the accommodation or welfare of
persons to be employed in them, for a power installation for working industrial
enterprise, the health of persons engaged as laborers or otherwise in
connection with such;
(b)
A
building site close to a town or village site.
(iii)
Sanction
may be given to an alienation of land-
(a)
by
wealthy zamidars owning much land, for commercial reasons or to improve or
consolidate their properties;
(b)
by
indebted zamindars owning mortgaged land, and desiring to sell a part of their
land, in order to raise money to redeem the whole or part of the rest only if
the Deputy Commissioner is satisfied that the transfer is really advantageous
to the vendor and his family, and that the vendor is not able to sell the land
to a member of an agricultural tribe included in the same group as the vendor
at a price which will enable him to attain his object;
(c)
proposed
or effected in favour of zamidars who, by reason of their insignificant
numbers, have not been classed in the particular district as members of
agricultural tribes;
(d)
to
bonafied artisans who are not professional money-lenders. It is desirable to
encourage thrifty members of the artisan class to become owners of small plots
of land when the alienation is not disadvantageous to the vendor and his
family;
(e)
by a
member of an agricultural tribe in one Punjab district to a member of the same
tribe or group of tribesi n another Punjab district. In such a case sanction
should usually be given as a matter of course unless the allegation is clearly
contrary to the intention of the Act. These instructions also apply in the case
of persons holding land in districts of the other provinces adjoining Punjab districts who, if they had held land
in the Punjab districts, would have been deemed to belong to agricultural tribes. To applications for sanction in
favour of subjects of Indian states adjoining Punjab districts somewhat
different considerations; apply and such applications should be deal with on
their merits:
provided that in cases
(a),(b).(c) (d) and (e) no member of an agricultural tribe included in the same
group as the vendor has offered, or is ready to offer, a fair price for the land.
38. Mortgages
by way of conditional sale abolished. The only restraint on mortgage which the Act
makes generally applicable is contained in its 10th section, which
abolishes the form of mortgage by way of conditional sale. This was a form
whereby the mortgagor agreed that if he failed to redeem by a certain date the mortgage would be changed
to sale. All that the money-lender had to do was to prevent repayment of the
debt by any will or artifice and the rights of the owner became extinguished
without recourse to court.
39. Scope
of other restrictions.
The other provisions regarding mortgages apply only to those made by members of
agricultural tribes in favour of persons who are not members of the same tribe
or of a tribe in the same group, or in other words , as matters at present
stand in the same district (Section 6(1)).
When hypothecating his land to such persons, a member of an agricultural tribe
must choose between three kinds of mortgages. Two of these are usufructuary
mortgages, the mortgagee acquiring for the time being the rights of landlord.
40. Usufructuary mortgage for limited period,
usufruct extinguishing principal and interest. The first is a mortgage for a limited period
not exceeding twenty years, all the rights of the mortgagor being suspend, and
the rents and profits enjoyed by the mortgagee being taken as extinguishing by
the end of the term his claim for both principal and interest (Section 6(1)(a). This form of mortgage
was rare in the Punjab before the act was passed(In Ambala a mortgage of this description was known as “chakota rihn”).
41. Usufructurary
mortgage for unlimited period with reservation of right of occupancy. In the second form of usufructurary mortgage
the term is subject to no statuary limitation; the mortgagor reserves the
rights of an occupancy tenant at such cash rent as may be agreed upon
consisting of –
(a)
the land revenue, plus,
(b)
the
rates and cesses, plus
(c)
an
additional sum of exceeding (a)
and this rent is
taken as equipment to interest. The mortgagor tenant can not alienate his right
of cultivation, and he can only be ejected on some ground which would, under
section 39 of the tenancy Act, Justify the ejection of an occupancy tenant(Section 6(1)(c)). Should he abandon the
land or be ejected from it, the mortgage takes effect as one in the first form
for such term no exceeding twenty years from the date on which his possessions
came to an end, and for such a sum of money as the Deputy Commissioner may
think reasonable(Section 6(2)). This
form of mortgage is very rarely adopted.
42. Collateral
mortgage. The third
form of mortgage is a collateral one in which the mortgagor retains all rights
of ownership and cultivation ,a subject however, to be the condition that if he
fails to pay principal and interest in accordance with the terms of the
contract, the mortgagee may apply the Deputy Commissioner to put him in
possession of the land. The mortgage then becomes converted to a susfructary
one of the first form for such reasonable. It is also his duty to determine
what the principal of the debt in the case of the new mortgage shall be. This
will consist of whatever amount he finds to be due on account of the balance of
principal and interest outstanding on the old mortgage. In making up the
account the Deputy commissioner, need not accept the rate of interest
contracted for but may award whatever amount of simple interest the thinks
reasonable (Section 6(1)(b).).
43. Conditions which may be interested in
statutory mortgages -
In these statutory mortgages conditions may be inserted limiting the right of a
mortgagor or mortgagee in possession to cut, sell or mortgage trees. Or to do
any act affecting the permanent value of the land(Section 8(b)). The time in the agricultural year at which a
mortgagor who redeems his land may resume possession of it may also be fixed(Section 8(a)) . Any conditions not
permitted by the Act which are inserted in these mortgages are null and void(Section 8(2)see also paragraph 47)).
44. Revision of terms of unauthorized
mortgages. If a
member of an agricultural tribe mortgages his land in any unpermitted form, the
deputy Commissioner is authorized to revise the terms so as to bring the
transaction into conformity with whichever of the statutory forms the mortgagee
a appears equitably entitled to claim (Section
9(1)). In the case of mortgages by way of conditional sale executed by
members of agricultural tribes before the commencement of the Act, the deputy
Commissioner may call on the mortgagee to choose whether he will retain the
existing mortgage with the sale condition struck out, or accept, in lieu of it,
a mortgage in the first of third of the forms described above(Section 9(2)).
45. Procedure in suits to enforce
unauthorized mortgages - If a suit is instituted in a civil court on a mortgage by way of
conditional sale or in a form unauthorized by the Act executed by a member of
an agricultural tribe, the court is bound to make a reference to the deputy Commissioner
so that the court is bound to make a reference to the deputy commissioner so
that he may exercise the powers referred to in the last two paragraphs.
46. Mortgagor’s right of redemption
unrestricted - The
execution of a mortgage in one of the statutory forms in no way interferes with
the mortgagor’s right to redeem his land at any time on payment of the mortgage
debt, or in the case of a mortgage in the first or third form, of such
proportion of the mortgage debt as the Deputy Commissioner determines to be
still due.
47. Question whether statutory mortgages will
come into use - The
local Government has power to permit any therefrom of mortgages to be used by
members of agricultural tribes and to the conditions admissible in the forms
permitted by the act. Thirty years experience has shown that only the first
form of mortgage has proved acceptable. The second form is almost unknown. The
conditional sale clause has now practically disappeared.
48. Leases - As it would be easy to evade the
provisions regarding mortgages by making transfers for long periods in the form
of lease the term of leases made by members of agricultural tribes in favor of
persons who are not members of the same tribe or a tribe in the same group has
been limited to twenty years.
49. Restriction on extensions of mortgages
and leases. The
object of the Act would also benefited if, during the currency of a mortgage or
lease for a term limited by law to twenty years, the mortgagor or lessor were
free to extend the period by executing a fresh transfer. If the alienation
already effected is for twenty years, no further transfer by way either of
mortgage or of lease is permitted; if it is for less, a further mortgage or
lease is allowed for such a number of years as will Bering the whole period of
transfer up to twenty years.
50. Restriction
on hypothecation of crops. Another device for evading the Act had also to be guarded against.
Three is little difference in effect between a mortgage of land and mortgage of
its produce. Members of agricultural tribes are, therefore, forbidden to
aliendage or charge the produce or any part of the produce of their land for a
period exceeding a year without the sanction of the deputy commissioner. There
is no interference with borrowing on the security of the next two harvests. The
period of one year will as a rule, cover contracts made by landowners with the
agents of largess firms engaged in the wheat and oil –seed export trade? Such
dealings have been of great benefit to the zamidars in may parts of the
country, and if engagements of the sort for a period exceeding one year come
before a deputy commissioner, he need feel no hesitation about sanctioning
them.
51. Sale
in execution of decree. The sale of agricultural land in execution of a decree has always been
subject to severe restrictions in the Punjab. At first the sanction of
commissioners was sufficient. In 1859 that of the Judicial Commissioner was
required when the property was ancestral, and not acquired. Afterwards the
Financial commissioner became the authority to whom sale proposals had to be
submitted. The direct result of these rules was that sales in execution were
almost unknown; the indirect that loan without the security of a mortgage on
the debtor’s land were discouraged. The same Act, which has put restrictions on
mortgages, has forbidden the sale in execution of a decree of land belonging to
a mamber of an agricultural tribe. The provisions of section 72 of the Civil
Procedure Code (Act V of 1908) have therefore ceased to be of much practical
importance so far as the Punjab is concerned. Orders issued by any court for
the attachment, sale or delivery of land or interest in land or for the
attachment or sale of produce. Must be executed by the collector or some
revenue officer appointed by him. The rules on the subject will befouled in
chapter 12-m and 12-n of the Rules and Orders of the High Court, volume I and
Finical Commissioners Standing Order No. 64.
51-A Temporary
alienation’s in execution of decrees. Sale of land belonging to a member of an
agricultural tribe in execution of a decree is forbidden by section 16, but at
one time a learned judge of the High Court held that the land of an insolvent
agriculturist vested in the official receiver who could sell it to another
member of an agricultural tribe in satisfaction of a decree passed by an
insolvency court. Division Bench of the same court subsequently overruled this
interpretation of the law.
It is, however, a settled question
that a civil court can in execution of a decree, orders a temporary alienation
of the land of a judgment –debtor who is not a temporary alienation of such
land. (Vide Full Bench rulings in one Lahore 192). Following that ruling, a
learned judge held that an order by a civil court, directing the temporary
alienation of the land of a member of an agricultural tribe for more than
twenty years, even if the lease be ordered in favor of a person who is not a
member of an agricultural tribe, did not contravene the provisions of the Punjab
Alienation of Land Act. Formerly it had been the settled practice of the civil
courts not to order temporary alienation’s for more than twenty years in such
cases. But as result of this ruling the practice was departed from. And in not
a few cases civil courts ordered alienation’s for as long as fifty years. As
such action was a violation of the original objects and scope of the Act, the
Punjab Alienation of Land (Amendment) Act, 1 of 1931, was passed. The new Act,
which sought to re-establish and preserve the status quo ante, has absolutely
limited temporary alienation’s in all cases whatsoever, to a maximum period of
twenty years and permits mortgages only in one of the forms mentioned in
section 6 of the original Act.
52. Other exemptions in favor of agriculturists. By section 60(1),(b) and (c) of the
Civil Procedure Code (V of 1908) the following kinds of property belonging to
an agriculturist are exempted from attachments :-
(a)
implements
of husbandry:
(b)
Such
cattle and seed grain as may, in the opinion of the court, be necessary to
enable him to earn his livelihood as such;
(c)
The
materials of houses and other buildings owned and occupied by him.
When the agriculturist is person
liable for the payment of land revenue the proviso to section 70 of the land
Revenue Act, XVII of 1887, becomes applicable, and if an order to attach
produce is issued, the court should ask the collector to decide what portion of
it should be exempted as being necessary for seed grain, and for the
subsistence until the harvest next following of the defaulter and his family.”
No revenue court or officer must,
except for reasons of urgency to be recorded, issue any process of arrest
against tenant or against a landowner who cultivates his own land during either
of the two harvesting seasons.
53. Provisions of Tenancy Act regulating
relations of landlords and tenants at will. The chapter on the Rights of Tenants” in the
Settlement Manual treats mainly of the history of hereditary tenant right in
the Punjab and of the existing law on the subject contained in Act XVI of 1887.
The remainder of the present chapter deals mostly with the relations of
landlords and tenants –at will.
54. Proportion of land cultivated by tenants
–at-will. About 43
percent of the land in the province is tilled by the landowners themselves, 9
percent by occupancy tenants at will, a few of whom pay no rent, if the five
south western districts of Jhang, Montgomery, Multan Muzaffargarh and Dera
Ghazi Khan are excluded, 44 percent are cultivated by tenants – at will, 47
percent by the landowners and 9 percent by occupancy tenants. The tenants –at
–will are for the most part also landowners in the same village who owns too
little land of their own to provide a decent livelihood.
55. Lien
of Landlord on produce. The rent of a tenant’s holding is a first charge on its crops. If any
other creditor gets the produce attached in execution of a decree against the
tenant, the landlord can insist on the its sale and on being paid from the
proceeds whatever he proves to be due on account of the rent of the current
harvest and of any unpaid rent which fell due within the year immediately
preceding the date of his application to the revenue of fiber on the subject.
The finding of the revenue officer as to the amount to which the landlord is
entitled has theforce of a decree.
56. Rights and duties of landlords and tenants as regards produce.
Except in the case just mentioned t, the landlord must not intermeddle with the
tending, cutting or harvesting of his tenants crops. But of course where the
rent cossets or a portion of the produce he has a right to take part in the
division, and to remove his own share. The tenant on his part is bound, where
thereunto is taken by division battle or appraisement (kankut) not to remove
any portion of the produce at such a time or in such a manner as to prevent the
due division or appraisement thereof” and to abstain from dealing with it in a
manner contrary to established usage. If he wrongs his landlord in either of
these ways, and a rent suit is the result “ the produce may be deemed to have
been as full as the fullest crop of the same description on similar land in the
neighborhood for that harvest.”
57. Division by referee appointed by
Tahsildar. Delay in
dividing a garnered crop may result in very serious loss from the sprouting or
rotting of therein. The landlord or tenant who is injured by the failure of the
other party to attend may apply to the tehsildar for the appointment of a
referee to divide or appraise the produce. The referee may carry out the
division or appraisement in the absence of one. Of the parties, if after due
notice he fails to appear. The result of the referee’s proceedings must be
reported to the tehsildar for confirmation. The same procedure may be adopted
when there is an dispute between the landlord and the tenant about the division
or appraisement.
58. Payment
of rent though tahsil. When two or more persons are landlords in respect of a single tenancy
the tenant is not bound to pay part of his rent to one and part to another. It
is their business to appoint one of their numbers to receive the whole rent.
Where rent is payable in cash, the landlord may, for some reason refuse, to
receive it, or to grant a receipt. Their may for example, be a dispute about
the amount and he may refuse to sign an acquttance unless the tenant will give
him all the claims. Again a tenant may occasionally be in doubt that the person
is who is entitled to be paid the rent. In either case it is open to him to
apply to the tahsildar to accept the rent as a deposit, and pay it to the
person whom he considers entitled to receive it.
59. Notice
of relinquishment. Tenants
at –will usually hold by the year only, leases for a term of years being still
uncommon. Arrangements are as a rule, made for the agricultural year (Kharif
–rabi) the outgoing tenant giving up the land after the spring crops have been
harvested. The law provides that neither party to a contract of letting shall
be able to put the other in difficulty by failing to give timely notice of his
intentions as regards the next agricultural year, which means in the tenancy
act, the twelve months beginning on the 16th of June. A tenant who
proposes to quit his holding after the Rabi harvest must inform his landlord on
or before 15 January. If he fails to do so he becomes liable for the rent of
the next agricultural year unless the landlord arranges for the cultivation of
the land by someone else. Except with the consent of the landlord a notice of
relinquishment must apply to the whole of the lease land. If the tenant thinks
it desirable for his own security. He can give notice to the landlord through
the tahsil.
60. Notice
of ejectment of yearly tenants. A landlord who wishes to eject a tenant at will can apply to a naib
tahsildar or tahsidar for the issue of a notice. The application must be made
in time for service to be effected on or before the 15th of
November. Subject to that qualification, the application can be lodged at anyy
time after the beginning of the agricultural year. The above date is a very
suitable one as it falls before the chart crop has been completely cleared off
the ground and before the winter rains. The tenant therefore gets notice before
ploughing for the harvests of the next agricultural year begins.
61. Contents
of notice. The
notice requires the tenant to give up the landbefore the 1st of May
and informs him that if for any reason he disputes his liability to ejectment,
he must bring a revenue suit for that purpose within two months from the date
of service. It also warns him that, in the event of his having any claim to
receive compensation for improvements or disturbance before ejectment. He must,
within two months, present an application to an Assistant Collector of the first
grade. The circumstances under which such a claim arises will be discussed
later. It is enough to say here that if it is established ejectment must be
styed until it is satisfied.
62. Ejectment
order. The tenant
may obey the notice and relinquish the land before the 1 May. If without
instituting a suit to contest liability to ejectment or lodging an application
for payment of compensation. He simply remains in possession, the tahsildar, on
being satisfied that the notice has been served passes an ejectment order. If
compensation is claimed the order must be issued by an Assistant Collector of
the first grade. An ejectment order is enforced in the same way as a decree of
a civil court for the possession of land. It can only be executed between the 1
May and 15 June. Falling execution at the proper time the tenant is entitled to
keep the land for the next agricultural year. Applications for compensation on
account of improvements or disturbance should bedealt with promptly. It is
unfair that a landlord should be kept out of his rights by the dilatoriness of
a revenue officer.
63. Protection
of standing crops.
If, when the order is executed. It is found that the tenant has crops standing
on any part of the land he must not be ejected from that part till they ripen
and he has had a reasonable time for harvesting them. On the landlord’s
application, the revenue officer who ordered the ejectment may fix a fair rent
to be paid by the tenant for his extended use of the and or the may value the
crop and allow the landlord to take possession on paying the amount into his
office. Where the tenant has prepared land for sowing but has not sown it he
may ask the revenue officer to determine what amount is due to him from the
landlord on that account. His right to receive anything is contingent on his
having acted conformably with local usage in the method of tillage adopted.
64. Ejectment
of tenants for a fixed term and occupancy tenants. So far we have been dealing with the method by
which a landlord can get rid of a yearly tenant. The law as regards the
ejectment of occupancy tenants is briefly described in paragraph 213 of the
Settlement Manual but it will be convenient to state it more fully here in
connection with that which governs the case of tenants for a fixed term
exceeding one year under a lease or a decree or order of a competent authority.
A tenant of the latter calls may throw up his holding at the end of the term
without giving any notice to his landlord. Till then he is like an occupancy
tenant protected from ejectment by any summary process. A landlord seeking to
outset him must bring a regular suit against him.
65. Order for ejectment of occupancy tenant
failing to satisfy decree for rent. There is one case in which summary process can
be used against an occupancy tenant but not apparently against a tenant for a
fixed term exceeding one year. An Assistant Collector of the 1st
grade can order the ejectment of an occupancy tenant when a decree for an
arrears of rent has been passed and remains unsatisfied. But he must first give
the tenant an opportunity or satisfying the landlord’s claim by warning him
that ejectment will be ordered unless within 15 days he pays the amount due
into the Assistant Collector’s Office. These provisions , if worked
mechanically may cause hardship where there is much difference between the
amount of the arrears and the value of the tenant right. It must be borne in
mind that the tenant is often a very ignorant person. A considerate revenue officer will in such a
case summon him to receive the written notice in his presence and explain to
him the result which will follow on failure to pay within the appointed time.
There is no legal objection to granting a short extension of time for payment
for the issue of ejectment order may be deferred if good cause is shown for so
doing. The assistant Collector should also ascertain whether the tenant has any
claim to compensation for improvements or for disturbances. If he has it must
be gone into before any further action is taken. Where an ejectment order is
passed it can as rule as in the case of a tenant at will only executed between
the 1st May and 15th June. But where this limitation
would be unfair to the landlord, as it might be for example where the tenant
had delayed matters by a basses claim for compensation execution can be allowed
at any time.
66. Remedy
of tenant dispossessed before receipt of compensation due. If by any accident or mistake a
tenant entitled to compensation for improvements or disturbance or for the
value of unharvested crops or the preparation of land for sowing is ejected
before the amount due has been determined he will not be reinstated but he can
within one year from the date of his dispossession, apply to the court which
decreed or to the revenue officer who ordered his ejectment to fix the sum due
and require the landlord to pay it. An order passed on such application has the
same effect as a decree for money.
67. Grounds of action for ejectment and
reinstatement. The
grounds on which an action for ejectment may be brought and the circumstances
under which a tenant who considers that the has been wrongfully dispossessed
may sue for reinstatement or for compensation
will be dealt with in the chapter on Revenue courts.
68. Nullity
of entries in records of rights or agreements increasing landlord’s power of
ejectment. Any
clause in a record of rights whenever made or in an agreement made after the
passing of Act XVI of 1887 empowering a landlord to eject a tenant otherwise
than in accordance with that enactment is void.
69. Leases
current when new assessment is introduced.
Provision is
made in section 34 of the Act for the avoiding of leases whose term is still
running when the revenue is altered at a general reassessment, failing a
revision of terms made with the assistance of a revenue court and accepted by
the tenant, when the assessment has been raised and by the landlord when it has
been reduced. Leases for the term of settlement continue in force until a
revised assessment actually takes effect unless a contrary intention clearly
appears in the agreement.
70. Improvements - The question of “Improvements in tenants holdings may
occasionally cause some little difficulty for no very broad line of distinction
can be drawn between the simplest kinds of improvements and some of the
operations carried out by tenants in the ordinary course of tillage. An
exhaustive explanation of the terms as applied to a work executed on an
agricultural tenancy is given in section 4(19) of the tenancy Act. The
important point is that the work must be one by which the value of the tenancy
has been and continues to be increased. The term does not embrace every
operations which increases for a time the value of he holding. But only such
are outside the everyday course of husbandry and possess a greater or less
degree of permanency. The sinking of a masonry well to irrigate a field
hitherto dependent on the rainfall is obviously an “Improvement” So is the
making of a kacha well in stiffest soil for this involves a good deal of labour
and the well will last for several years. But
the digging of a shallow kacha
well of the ordinary type which waters a few bighas of crops in the rabi and
falls in the rainy season. Is not improvement.”
71. Improvements
by landlords. In a
country of peasant proprietors like the Punjab the bulk of agricultural
improvements is made by the landowners on lands over which they have full
control. The question of improvements in tenants holding is only of practical
importance as regards those which are affected by occupancy tenants and the
particular class of improvements known as Jangal tarashi or clearance of waste
carried out by tenants at will. It is true that by Act XVI of 1887 landlords
have the right to make improvements in the lands of occupancy tenants with the previous permission of the Deputy
Commissioner and that provision is made in the Act for enhancing the rent of
the improved holdings. But as a matter of fact landlords are very chary of
speeding money on lands with which their con mainly confined to receiving a
rent fixed by authority. Should an application for permission to do so be
presented the tenant ought to be board. The point is realty of little
importance as disputes are very rare.
The
Act permits the local Government to issue rules on the subject of landlords
improvements but none have been framed so far.
72. Improvements
by tenant at will - A
tenant at will can only make an improvement with the assent of his landlord but
consent may be assumed from circumstances. The courts have now given a number
of ruling which are of value as guides. It must be remembered that the question
of improvements by tenants is only of importance when compensation is demanded
by the tenant.
73. Compensation
for disturbance. In
any case every tenant “who has cleared and brought under cultivation waste land
in which he has not a right of occupancy
is entitled to compensation great or small . If he is ejected before he
has got a full return for his expenditure compensation for disturbance must in
no case exceed five years rent of the land and would in many cases probably be
far less. If a substantial and lasting improvements has been made the recant
will receive compensation for it in addition to compensation for disturbance. A
village proprietor tilling part of the common land of the estate or one of
several co-sharers cultivating the joint holding cannot claim compensation for
disturbance on ejectment. Where rent is paid in grain or by a money rate on
crop (Zabti) or by a cash rent consisting only of the land revenue and cesses
the rent for the purpose of calculating
compensation may be taken as four time the land revenue. The same rule applies
where no rent at all has been paid. As the land was ex-hypothesis waste when the tenant got it it will in many
cases not be assessed to land revenue. In such a case the above provision must
be interpreted as meaning that the rent
may be assumed to be equal to four
times the land revenue reduced by applying to the holding the rate at which
similar cultivated lands in the same estate are assessed .
74. Improvements
by occupancy tenants.
The little of occupancy tenants to make improvements on their own holding is
asserted in the 63rd section of the Act. But, when the Punjab was
first annexed and for many years afterwards their right to do so was held to be
subject to freight restrictions. The points is really of little practical importance now as the law is generally well
understood.
75. Provisions
of the Tenancy Act as to tenants improvements. The first Punjab Tenancy Act. XXVIII of 1868
put the law to tenants improvements substantially on its present footing except
that the provisions of that enactment
on the subject could be overridden by
written agreements or properly attested entries in the records of a regular
settlement. This has now been altered. An entry in a record of fights whenever
framed or condition in an agreements made after the passing of Act XVI 1887
which purports to limit the rights of tenants to make improvements or to
receive on ejectments compensation for improvements already made or for
disturbance. Is null and void. A tenant is however free covenant to pay an
enhanced rent on account of an improvement made or to be made by his landlord.
A written agreement made before the 1st November, 1887, restraining
a tenant at will from making improvements is a bar to any claim for
compensation. But with this exception improvements made before the Act came
into force are deemed to have been made in accordance with the Act.