Raman Balan and ors. Vs. State - Court Judgment

Excerpt:
- - 3. it is well recognised that, as stated in kunhayyappan v. nor is it by any means so clear that interference cannot be under section 439. however that might be, having failed in both the courts, the petitioner has come to this court praying that the proceedings against him and his fellow accused in the three cases be quashed under section 561a of the code. 5. it is only necessary to read the relevant provisions of act i of 1957 to see that, far from investing a varamdar with possession, the act recognises that a varamdar has no possession and has only got a right to cultivate, considering first the definition of varamdar in section 2(5) we find that a varamdar is 'a person who under the system known as varom, pathivarom, pankuvaram or pankupattom or by any other name, has agreed,.....orderraman nayar, j.1. these three petitions which are by the same persons have been heard together since they involve the same question. the petitioner is the 1st accused in three cases, c. c. 758, 759 and 760 of 1958 on the file of the second class magistrate, mukundapuram,, in each of which he and 10 others have been charged by the police with offences under sections 447 and 143 i. p. c. the petitioner undivided father holds certain lands on verumpattom, and the first informant in each of the cases claims to have been cultivating a piece of land on pankuvarom under, the petitioner's father. the accusation against the petitioner and his fellow accused in each case was that on 28-4-1958 they entered on the lands that were being cultivated by the first informants and proceeded to plough.....

Judgment:
ORDER

Raman Nayar, J.

1. These three petitions which are by the same persons have been heard together since they involve the same question. The petitioner is the 1st accused in three cases, C. C. 758, 759 and 760 of 1958 on the file of the Second Class Magistrate, Mukundapuram,, in each of which he and 10 others have been charged by the police with offences under Sections 447 and 143 I. P. C. The petitioner undivided father holds certain lands on verumpattom, and the first informant in each of the cases claims to have been cultivating a piece of land on pankuvarom under, the petitioner's father. The accusation against the petitioner and his fellow accused in each case was that on 28-4-1958 they entered on the lands that were being cultivated by the first informants and proceeded to plough them. The first informants claimed that they were in possession of the lands, and from that springs the charge of criminal' trespass and of unlawful assembly for the purpose of criminal trespass.

2. The simple question is whether the first informants were in possession of the lands in question. If they were not, it follows that there can be no question of any trespass or unlawful assembly. At the very outset, it is to be observed that, although the first informants say that they were in possession, in the first information they trace their alleged possession, to their pankuvaram agreement. There is no case here (nor was there any in the courts below) that the first informants were in possession otherwise than in their character as pankuvaramdars.

3. It is well recognised that, as stated in Kunhayyappan v. Chatha, 9 Cochin LJ 418, a pankuvararadar has no possession of the land which he cultivates, and that his true legal character is of a! licensee. On this ground the petitioner and his fellow accused raised a preliminary objection befora the trial Magistrate to the effect that the chargesheets against them disclosed no offence whatsoever and that therefore they were entitled to an acquittal Straightaway. This objection the trial Magistrate overruled by an order dated 24-9-1958, and he adjourned the cases for trial. In one of the cases the petitioner went on revision to the Sessions Judge of Trichur praying that a report be made to the High Court under Section 438 of the Code.

This request the learned Sessions Judge declined on the ground that the power of interference of the High Court resided in Section 561A and not in Section 439 and that therefore Section 439 would not apply, although, for myself, I see nothing in Section 438 (excepting perhaps propinquity and the reference in Section 439 to a report) which confines a report under that section to cases where the High Court can act under Section 439 and makes the section inapplicable to cases where the High Court has to act under Section 561A. Nor is it by any means so clear that interference cannot be under Section 439. However that might be, having failed in both the courts, the petitioner has come to this court praying that the proceedings against him and his fellow accused in the three cases be quashed under Section 561A of the Code.

4. There is no case in the first informations, that the particular agreements under which the first informants hold are in any way different from the usual pankuvaram agreements, and the argument both here and in the courts below has proceeded on the footing that the position of the first informants is no higher than that of a varamdar within the meaning of Act 1 of 1957. In fact the argument has been--and it is this argument that found favour with the trial court--that Act I of 1957 invests a varamdar with possession of the land which he cultivates.

5. It is only necessary to read the relevant provisions of Act I of 1957 to See that, far from investing a varamdar with possession, the Act recognises that a varamdar has no possession and has only got a right to cultivate, Considering first the definition of varamdar in Section 2(5) we find that a varamdar is 'a person who under the system known as Varom, Pathivarom, Pankuvaram or Pankupattom or by any other name, has agreed, whether in writing or not, with the owner or other person in lawful possession of any land to cultivate the land and share with him the produce of the land'. This definition clearly recognises that it is the owner or other person with whom the varamdar engages that is in lawful possession of the land and that the only right which the varamdar gets under the agreement is the right to cultivate the land and share the produce.

The definition of 'Varom agreement' in Section 2(6) repeats that the owner or other person is in lawful possession of the land and that the agreement is only 'for the cultivation and sharing of the produce of the land'. If we turn next to Section 6, which it has been argued gives the varamdar an occupancy right and therefore puts him in possession, we find that it does no such thing but only reiterates that a varamdar is not in possession. For, all that it gives the varamdar is the right to continue 'to cultivate the land on the same terms and conditions under which he was cultivating the land at the commencement of the Act'. Therefore if, as is clear, a varoun agreement does not place the varamdar in possession, it follows that Section 6 does not. It only extends the term of the agreement.

6. Act 30 of 1958 which amended Act 1 of 1957 emphasises the position and repeats once again that a varamdar is not in possession. By that Act a new Section 7-A, was introduced for the settlement of disputes regarding the right to cultivate land, and it is worthy of note that while Sub-section (1) of this section refers to a person coming under Section 4 as a person claiming to be in possession and cultivating the land, it is careful enough to refer to a person coming under Section 6, namely a varamdar, as only a person claiming to be entitled to cultivate the land.

That is clear recognition that a person coming tinder Section 6 can have no claim to be in possession of the land but can only claim the right to cultivate it and the remedy provided for such a person under Sub-section (2) of the section is an order by the Tahsildar allowing him to cultivate the land. Sub-section (3) creates a new offence, namely, that of preventing or obstructing a person, who has obtained an order from the Tahsildar under Sub-section (2), from cultivating the land; and this, it seems to me, is the only offence that can be committed against a yaramdar's right to cultivate. Probably it was awareness of the fact that interference with a varamdar's right of cultivation would not amount to the offence of criminal trespass that induced the legislature to create this new offence.

7. It follows from what I have said that the charge-sheets against the petitioner and his fellow accused disclose no offence whatsoever. That being so I think I should interfere whether under Section 439 or under Section 561-A of the Code, it does not much matter, and quash the proceedings against them. That this is the proper course to take has been laid down in a number of decisions of which it is necessary to refer only to Ramanathan v. Subramonia, AIR 1925 Mad 39, Nripendra v. Gobinda. AIR 1924 Cal 1018, Gokul Prasad v. Debi Prasad AIR 1925 All 311(2). Ahdul Wali v. Emperor AIR 1933 Oudh 387 and Palaniswamy Naidu v. Sirkar, 1956 Ker LT 11.

8. I allow the petitions and direct that the proceedings in C. C. 758, 759 and 760 of 1958 on the file of the Second Class Magistrate, Mukundapur ram against the petitioner and the remaining accused! be quashed and they be discharged from the cases.