- (1.) THIS is a petition under Art. 226 of the Constitution of India.
(2.) THE case of the petitioner is that he is a tenant of Khewat No. 1, containing 2826 Bighas and 6 Biswas of land, situated in village Weirtehsilweir,distt. Bharatpur. It was alleged that patta for this land was granted to the petitioner for a period of 12 years from Svt. 2001 to Svt. 2012. THE name of the petitioner was thereafter entered as a tenant in the revenue records. On 23rd January, 1956, the Tehsildar, Weir, issued a notice to the petitioner asking him not to cultivate and manage the land after the Rabi crops of the year 2012 were harvested. THE petitioner filed a writ application which was writ Application No. 90 of 1956, against the orders of the Tehsildar as being without authority. This petition was disposed of on 11th March, 1957, by an observation that - It is enough to say that the Tehsildar has no jurisdiction to act under sec. 181 which applies to cases of ejectment under sec. 180 (Rajasthan Tenancy Act, 1955 ). THE power to act under sec. 180 is in the Assistant Collector. It is also clear from the proviso to sub-sec. (3) of sec. 182 that if the land, about which action under sec. 180 is to be taken, is Government land, the Tehsildar is to make an application to the Assistant Collector and cannot give notice himself. Further a look at the notice given by the Tehsildar in this case shows that it is not a notice as required under sec. 181 of the Rajasthan Tenancy Act. It is merely an executive notice telling the applicant to get out after the 30th of June, 1956. It is not for us in these proceedings to determine the rights of the applicant nor does he want us to do so. All that is necessary in these proceedings is to see that the applicant, who is a lessee of this land, is not disturbed except under the provisions of law. Shri Ram Avtar, appearing on behalf of the State has assured us. that the State will take action under the law, and will not dispossess the applicant otherwise. " In view of the assurance given by Mr. Ram Avtar Gupta, Deputy Government Advocate, and the remarks, the application was dismissed without any order as to costs. The petitioner's grievance is that the Tehsildar, instead of acting according to the advice mentioned above, under instructions of the Collector and the State of Rajasthan gave two notices to the petitioner on 1st May, 1957, one purporting to be under sec. 91 of the Rajasthan Land Revenue Act, 1956 and the other under sec. 201 of The Rajasthan Tenancy Act, 1955, ordering the petitioner to get out of possession from the aforesaid land. Sec. 91 of the Rajasthan Land Revenue Act relates to a proceeding against a trespasser, and sec. 201 of the Rajasthan Tenancy Act relates to a proceeding against an Ijaradar or Thekadar. The petitioner replied that he was neither a trespasser nor an Ijaradar or Thekadar, and the notices were not valid. The Tehsildar, however, by beat of drum announced the dispossession of the petitioner on 28th May, 1957. It was urged on behalf of the petitioner that he was a tenant of the State, and by virtue of sec. 15 of the Rajasthan Tenancy Act had acquired Khatedari rights, and was not liable to ejectment, except as provided by Chapter XI of that Act. It was alleged that the action of the Tehsildar, Weir, was illegal and unauthorised, and was in violation of the assurance given by the Deputy Government Advocate at the time of the disposal of the earlier petition on 11th March, 1957. The Tehsildar, Weir, the Collector, Bharatpur, and the Government of Rajasthan were made respondents to this petition. In the reply filed by the respondents it was stated that the patta granted by the erstwhile State of! Bharatpur to the petitioner on 18th May, 1945, was for a period of 12 years at a rent of Rs. 3400/-, but the said lease expired on 31st May, 1956. The issue of the earlier notice and the filing of the writ petition was admitted, but it was said that the instructions of the High Court were only that the petitioner should not be disturbed except under the provisions of law. It was then said that the Tehsildar by issue of notices under sec. 91 of the Rajasthan Land Revenue Act and sec. 201 of the Rajasthan Tenancy Act had acted in accordance with law, as the period of the patta expired on 31st May, 1956, and the subsequent occupation of the petitioner was only as a trespasser. It was also alleged that there were arrears of land revenue amounting to Rs. 8732/1/- outstanding against the petitioner, and therefore, be was asked to vacate the land by 18th May, 1957. It was said that the Tehsildar was acting on his own, and no instructions were given by the Collector or the State Government. As to the objections submitted before the Tehsildar, it was said that they were by one Bhupendra Singh, who was an authorised person. The grounds on which the notices under sec. 91 of the Rajasthan Land Revenue Act and sec. 201 of the Rajasthan Tenancy Act were given were amplified in para 9 of the reply that since the term of 12 years granted to the petitioner Thakur Gajendra Singh, vide his patta, had expired on 31st May, 1956, and the petitioner also did not pay any rent of the land, his possession was considered by the Tehsildar as an unauthorised one, and he was considered to be a trespasser within the meaning of sec. 91 of the Rajasthan Land Revenue Act and Rajasthan Tenancy Act. The notice and the proclamation that the petitioner should not cultivate the land were said to be in accordance with the provisions of law. It was pleaded that the petitioner had other suitable remedy open to him, even if the action of the Tehsildar be alleged to be erroneous. It was then said that the petitioner was dispossessed of the land on 28th May, 1957, according to the report of the Girdawar, Ex. S. 3, and as such the petitioner should be directed to apply to the Assistant Collector for reinstatement under sec. 186 of the Rajasthan Tenancy Act. The present petition by Thakur Gajendra Singh was filed on 29th May, 1957, that is, next day after the alleged dispossession of the petitioner. The original patta has been produced by the petitioner. It is issued by the Tehsil Weir, in the name of Thakur Gajendra Singh, on 20th June, 1944. The subject is mentioned as File No. 36/102 Biswat instituted on 6th March, 1944, in In re Thakur Gajendra Singh regarding his application for grant of patta till the period of settlement in respect of Kham land Seer Sarkar. The patta then proceeds : - "in this connection by order of the Bharatpur Government dated 7. 6. 44, R. Bench 7. 6. 44 and Revenue Bharatpur 9. 6. 44 land 2687 Bigha of the land revenue Rs. 1927/6/- besides Abwab in lieu of Rs. 3400/- annually has been sanctioned in your name for 12 years. The trees, which are in the Kham area, will be protected. The pattedar will try to improve the condition of the land, The order is being communicated to you. " The order of the Government of Bharatpur is Ex. S. 1, produced on behalf of the State, and is in the terms mentioned in the patta granted by the Tehsil. The petitioner has produced the Khasra Girdawari, which is a document included in the records of fights. In this document column 5 is for entering the name of the landholder, and column 6 for entering the name of the tenant. For Samwat years 2010, 2011, and 2012 Thakur Gajendra Singh petitioner is mentioned as tenant. No change is mentioned also in the Samwat year 2ol3, but in the entry for Samwat year 2014 Thakur Gajendra Singh is shown as trespasser in the column for cultivator, while the other entries are the same. The law of Bharatpur in force at the time of issuing the Patta has not been traced in any printed book, but there is a typed copy of the Revenue Code for the Bharatpur State, 1905, in the possession of learned counsel for the petitioner and another copy of the same was in the hands of the Assistant Government Advocate and both rely on the same as being the law in force in Bharatpur before the Rajasthan Tenancy Act. "patta" means a written lease, according to the glossary given at page 131 of the typed copy of the Bharatpur Revenue Code. "kham" means "without masonry; not assessed permanently; direct management of estates by. Tehsils. " The term "seer Sarkar" as referred in the Patta meant that the land was under the direct management of the State without intervention of any Biswedar. Sec. 150 of the Bharatpur Revenue Code says - "all tenants except those specified in secs. 132 and 144 are non-occupancy tenants, whose rent is fixed by the consent of the patties. In cases of dispute the owner shall be entitled to receive rent either according to the terms of the Patta if any, or to the same rent as in the previous year. Sec. 132 relates to occupancy rights and sec. 144 to rent due to the owner and that it shall have priority over decrees etc. It is common ground between the parties that in the Bharatpur Revenue Code there is no reference to Ijardar or Thekadar. Looking to the terms of the Pattas specially when the pattadar is directed to try to improve the quality of the land and to protect the trees standing on the land, and the entry in the record of rights that Thakur Gajendra Singh is a tenant, no room for doubt remains that the rights granted to Thakur Gajendra Singh were tenancy rights for a particular term, and according to sec. 150 of the Bharatpur Revenue Code, he was a non-occupancy tenant. His possession as a tenant is also clear from the admissions made in the reply filed on behalf of the respondents. In para 1 it is averred that the petitioner was holding the land in question under a Patta for a period of 12 years on a rent of Rs. 3400/- per year. In para 9 it ,is said that the action of the Tehsildar was prompted because the terms of 12 years granted to the petitioner for cultivation of the land had expired on 31st May, 1956, and the petitioner did not pay rent of the land in his possession. It is clear that the petitioner was conferred the tenancy rights by the Patta granted by the Bharatpur Government for a period of 12 years, and his rights as a tenant continued till the end of Samwat 201. 2, that is 3lst May, 1956 (Patta having been granted in June, 1944 ). The Rajasthan Tenancy Act came into force on 15th October, 1955. Sec. 15 of that Act conferred upon every person who, at the commencement of the Act, was a tenant of the land, otherwise than as a sub-tenant, or a tenant of Khudkasht, the rights of a Khatedar tenant with certain exceptions with which we are not concerned at present. The ejectment of tenants of whatever sort, after the enforcement of the Rajasthan Tenancy Act, has to be done in accordance with Chapter XI of that Act While disposing the earlier writ petition No. 90 of 1956, filed by the petitioner, it was observed that the petitioner was a tenant, and action could only be taken against him according to law, and this was also the assurance given by the Deputy Government Advocate. How the Tehsildar came to regard the petitioner as a trespasser on 1. 5. 57 is understandable. He obviously refused to take into consideration the provisions of sec. 15 of the Rajasthan Tenancy Act The learned Assistant Government Advocate tried to support the second notice purporting to have been issued under sec. 201 of the Rajasthan Tenancy Act by reference to a petition purporting to have been filed by the petitioner on 6/9th January, 1953. In this petition Thakur Gajendra Singh has tried to shift the liability to pay Rs. 3400/- per annum by saying that he was a contractor. The position is, however, to be examined according to the nature of the Patta granted, and the entry in the record of rights, and not according to what the petitioner may have said in an unguarded moment in order to escape some liability. The averments made by the State in the reply in the present case, as stated earlier,assume the position of the petitioner Th. Gajendra Singh at the time of the grant of Patta to be that of a tenant. We have no hesitation in holding that the action of the Tehsildar by issuing notices under sec. 91 of the Land Revenue Act and sec. 201 or the Tenancy Act was wholly unjustified. Since the petitioner still holds the land although he is described erroneously as a trespasser in the Khasra Girdawari no further order is necessary except saying that the action of the Tehsildar in issuing the notices dated 1st May, 1957, under sec. 91 of the Rajasthan Land Revenue Act and sec. 201 of the Rajasthan Tenancy Act is without jurisdiction, and the position of the petitioner continues to be that of a tenant. If the Tehsildar or the State consider that there are any grounds for ejecting the petitioner, they have to take action according to the provisions of Chapter XI of the Rajasthan Tenancy Act. It may be mentioned that the averment of the petitioner is that he has been given notices under instructions of the higher authorities by the Tehsildar. In such circumstances we do not consider that the petitioner should be directed to seek any other remedy by instituting a suit or application in the revenue court. That remedy may not prove efficacious. The petition is allowed. The petitioner will get his costs from the respondents, counsel's fee being taxed at Rs. 80/- per hearing. . ;