Back
2015 Supreme(P&H) 396
IN THE HIGH COURT OF PUNJAB AND HARYANA
[DIVISION BENCH]
Before
The Hon’ble Mr. Justice Rajive Bhalla
The Hon’ble Mr. Justice Amol Rattan Singh
CWP-3368 of 1988
Om Parkash & Anr.
v.
Commissioner, Ambala Division, Ambala & Ors.
{Decided on 29/07/2015}
For the Petitioners:Mr. Rajbir Singh Sehrawat, Advocate.
For the Respondent No.1 to 3: Mr. D. Khanna, Addl. A.G., Haryana.
For the Respondent No.4:Mr. Sumeet Sheokand, Advocate, for Mr. R.S. Tacoria, Advocate.
Headnote:Dholidars--Nature of Protection--Section 4(3)(i) of the 1961 Act, does not protect the rights of a Dholidar who has stopped performing his obligation, under the Dholi--The moment a Dholidar stops performing his obligation, the settler of the Dholi or his successor, may maintain a claim for restitution of the land settled by the Dholi.
(A) Punjab Village Common Lands (Regulation) Act, 1961, S.4(3)--Dholidars--Nature of Rights--There is no prohibition for settler of a Dholi, from altering the terms & conditions of a Dholi or for a revenue officer from recording undisputed acquisition of interest in a Dohli recorded in the record of rights--Therefore, rejection of entries in wazib-ul-arz for the years 1909-10 and 1957-58, on the ground that wazib-ul-arz recorded at the time of settlement cannot be varied are legally incorrect. (Para 27)
(B) Punjab Village Common Lands (Regulation) Act, 1961, S.4(3)--Dholidars--Nature of Rights--The right to inherit a Dholi flows from the terms & conditions of the Dholi and cannot be prescribed by the Dholidar and, therefore, cannot be inherited by a will. (Para 29)
(C) Punjab Village Common Lands (Regulation) Act, 1961, S.4(3)--Dholidars--Nature of Protection--Section 4(3)(i) of the 1961 Act, does not protect the rights of a Dholidar who has stopped performing his obligation, under the Dholi--A Dholi is a mutually beneficial, bilateral grant of land in return for services to be rendered--The obligation to perform a service, religious or social, is integral to a Dholi and its continuation--The moment a Dholidar stops performing his obligation, the settler of the Dholi or his successor, may maintain a claim for restitution of the land settled by the Dholi. (Para 37)
(D) Punjab Village Common Lands (Regulation) Act, 1961, S.4(3)--Dholidars--End of rights--Non performance of obligation--In present case, the wazib-ul-arz for the year 1879 clearly records that the Dholi shall continue so long as the Dholidar continues to serve drinking water--The Dholi made heritable, by the subsequent wazib-ul-arz for the years 1909-10 and 1957-58, does not alter the basic condition of the grant of the Dholi i.e. the Dholidar must continue to serve water for him to enjoy the usufruct of the land--Categoric findings that Dholidar has stopped serving drinking water--Therefore, the Dholi whether permanent or temporary, whether heritable or not, has thus come to an end for failure of the petitioners to perform their obligation to serve water--The petitioners have been divested of any right in the land, in dispute, whether as Dholidars or in any other manner, by their own conduct. (Para 39)
(E) Punjab Village Common Lands (Regulation) Act, 1961, S.4(3)--Dholidars--Meaning of--The Shamilat Deh (common land) of a village, before it came to statutorily vest in a Gram Panchayat, was owned and possessed by proprietors--The proprietors could sell, mortgage, gift, partition etc. the Shamilat Deh of a village and could also create a customary dedication of property for religious or charitable purposes etc. called a “Dholi”. (Para 9)
(F) Punjab Village Common Lands (Regulation) Act, 1961, S.4(3)--Dholidars--Nature of Rights--The right to create a “Dholi” flows from custom but the terms and conditions of a Dholi are settled by private covenant, leaving it to each settler to prescribe his particular set of conditions--The recipient of a Dholidari grant is required to discharge, in return, certain religious, social or charitable obligations--A Dholi may be temporary but subsists only so long as the “Dholidar” continues to perform his obligation--A Dholi tenure is inalienable but whether it is heritable and in what manner, depends upon the terms & conditions of a Dholi. (Para 21)
(G) Punjab Land Revenue Act, 1887, S.31--Sharat Wazib-ul-arz--A sharat wazib ul-arz, also called the village administration paper, records the customary rights of a village, including the rights of proprietors to use, sell, mortgage, partition and gift etc. the Shamilat Deh of a village--A sharat wazib-ul-arz was prepared for every revenue estate at the time of settlement of land holdings. (Para 25)
(H) Words & Phrases--
(i) Chah Abnashi--A well
(ii) Davami--Permanent
Mr. Rajive Bhalla, J.:- The petitioners pray for issuance of a writ of certiorari, quashing, orders dated 14.08.1986, 10.11.1986 and 17.12.1987, passed by the Assistant Collector Ist Grade, Jhajjar, the Collector, Rohtak and the Commissioner, Ambala Division, Ambala, respectively.
2. Counsel for the petitioners submits that the petitioners are “Dholidars” whose rights are protected by Section 4(3)(i) of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as the “1961 Act”) (as applicable to the State of Haryana). The impugned orders holding that the petitioners cannot inherit Dholidari rights or that the Dholi tenure has come to an end, for failure to serve water, are contrary to the record.
3. The “wazib-ul-arz” for the year 1879, records the creation of a “Dholi” requiring Harnam Dass, chela Hardayal, to excavate a well and serve water and in return to cultivate the land, in dispute, and appropriate its produce. As recorded in the wazib-ul-arz for the year 1909-10 and repeated at the time of consolidation, in the year 1957-58, the proprietors altered the terms & conditions of the Dholi and provided that henceforth the Dholi would be “Davami” (permanent) and after the death of the Dholidar, it would devolve upon his chela “Gadi Nashin”. The terms settled in 1879 or thereafter do not record that in case, the Dholidar stops serving water, the Dholi would come to an end. The fact that the new terms & conditions were accepted by the proprietors, is proved by the fact that after the death of Harnam Dass, his chela Nar Singh Dass was recorded as Dholidar without any objection from any proprietor. After the death of Nar Singh Dass the Dholi has devolved upon petitioners No.1 and 2, on the basis of a will, executed by Nar Singh Dass. The authorities have, however, rejected entries recorded in the wazib-ul-arz, for the years 1909-10 and 1957-58 by holding that entries recorded at the time of settlement, in the year 1879, cannot be varied. The authorities have ignored the fact that in 1909-10, the proprietors decided to vary the terms and prescribed that the Dholi would be permanent and heritable. The authorities also ignored Sections 36 and 37 of the Punjab Land Revenue Act, 1887 that empower a revenue officer to update entries in the record of rights if they are based upon undisputed acquisitions of rights in land. The authorities also appear to have confused the customary right to create a “Dholi” with the private right to prescribe the terms & conditions of a Dholi.
4. The petitioners’ claim that they have inherited Dholidari rights, have been rejected by holding that a Dholi cannot devolve by way of a will. The rights of petitioner No.2 have been rejected by holding that a female cannot be a Dholidar. Counsel for the petitioners submits that even if the will is ignored, as petitioner No.1 is admittedly the chela of Nar Singh Dass, he would succeed to the Dholidari rights. As far as petitioner No.2 is concerned, she was the wife of Nar Singh Dass and was only conferred a life estate.
5. Counsel for the petitioners further submits that the finding that the Dholi tenure has come to an end for failure of the Dholidars to serve drinking water, is incorrect as terms of the Dholi recorded in 1909-10 do not prescribe that failure to serve water would bring the Dholi tenure to an end. The finding, even otherwise, is not based upon any evidence much less evidence adduced by the Gram Panchayat. The writ petition may be allowed by setting aside the impugned orders, dismissing the application filed by the Gram Panchayat and declaring that the petitioners are Dholidars protected by Section 4(3)(i) of the 1961 Act.
6. Counsel for the respondent No.4-Gram Panchayat submits that the Dholi created in 1879, was not heritable. A revenue officer, is not empowered to alter entries in the record of rights. The entries recorded in the wazib-ul-arz, for the years 1909-10 and 1957-58 have been rightly discarded. This a
