KARACHI, Jan 28: The Sindh High Court has recommended several changes to the Sindh Tenancy Act (STA) of 1950 to bring it in conformity with the present-day ground realities and to define relationship between the Hari and the Zamindar.
A division bench, consisting of Justice Zahid Kurban Alavi and Justice Musheer Alam, made these recommendations while dismissing over 100 petitions which pertained to dispute between allegedly illegally detained Haris (landless peasants) and waderas (big landowners).
Several criminal miscellaneous applications under section 491 of CrPC and petitions under articles 199 of the constitution were filed in which the applicants/petitioners sought the indulgence of the court. In all these matters it appeared that the respondents were illegally detaining person (s), and the court was asked to get a rule nisi issued for the production of the alleged detainees.
In some of the cases an entire village was considered to be illegally detained. In all of these matters the villain of the scene was not police but the owners of the land where the alleged detainees were working /tilling the soil.
In order to try and stem the flow of such applications/petitions, a general order was passed whereby, instead of police officers or officers of the court, civil judges/judicial magistrates were issued directions to investigate the matter and submit report to the High Court.
In most of the cases the persons who were allegedly detained were Haris. In most of the cases the Haris belonged to the Bheel/Kohli tribes. In almost all cases there was no physical detention but there seemed to be a dispute over money which was borrowed by the Haris from their landlords.
The points which were considered included (1) the scope of section 491 of CrPC and powers of the court, (2) whether under section 491 of CrPC evidence can be recorded, and (3) the Scope of the STA.
Rasool Bux Paleejo gave a brief resume of the Bheel tribe of the Hindu community, and said they might not be physically detained as understood in common parlance but were for all practical purpose under restraint which impeded their free movement which, according to him, amounted to improper if not illegal detention. He did concede that Taqavi loan had been taken and the amounts were due and payable. The so-called right given to the Haris under the STA was a mere eyewash.
Jhamat Jethanand and Allah Bachayo Soomro argued that detainees were Haris and they had taken Taqavi loan from their landlord. Such agreements were executed and thumb marked by them. They contended that in view of this documentary evidence the Haris were to be dealt with in accordance with the provisions of the STA, and they were bound to grow the crops efficiently/ diligently cultivated by them. The alleged detainees were responsible for the proper feeding of all the crops and were duly bound to maintain irrigation, water courses and to perform other labour work that was required for the maintenance of crops. It was contended that these applications were moved in order to defeat the provisions of the STA.
Justice Alavi, who authored the judgment, held that the STA of 1950 required to be amended to bring it in conformity with the ground realities.
Since the entire controversy stemmed from loans taken by Haris from Zamindars, it was recommended that borrowing and any dispute, resulting therefrom, be regulated strictly under the STA of 1950 till such time the limit of such lending/borrowing was fixed. Lending in excess of the amount so fixed might be prohibited by bringing appropriate changes to the existing law.
Under the STA, Mukhtiarkar was required to maintain record of tenants and tenancies, but it was observed no proper record was maintained which also gave rise to much controversy, Justice Alavi observed. He therefore proposed that it should be made obligatory on the part of the Mukhtiarkars to make such entries periodically and update the record regularly. Remedy against inaction by the Mukhtiarkar should be provided in the amended enactments.
It was also recommended that disputes arising out of the relationship of Haris and Zamindars should be adjudicated, decided and determined by a judicial forum, more appropriately by conferring powers of Tenancy Tribunal on the civil judge and or judicial magistrate as the case might be, instead of the Mukhtiarkar. Appeal against the order of such Tribunal should be provided before the district judge. Revisional jurisdiction might be conferred with the High Court.
Under the STA, the Hari was not an ordinary labourer or workman within the meaning of the Industrial Relation Ordinance or the Standing Order. He was a partner/co-sharer in the produce with the Zamindar. Yet a sharp disparity in the living standard of the Hari and the Zamindar existed. For the Hari rights and obligations existed under the STA.
One of the recommendations made was that the Hari should be referred to as agricultural labour and the government should provide enough safeguards through enactments for agricultural labour which had been provided for industrial labour.
Appropriate amendments might be made to regulate the relations of workers and seasonal workers as well as Haris and seasonal Haris with the Zamindar by making appropriate amendments to the law.
Justice Alavi held that till such time the STA was amended as suggested above, the law also provided alternative remedies for redressal of the grievances that had been urged by the petitioners. There was remedy provided under section 100 of CrPC for effecting search and recovery of persons. For wrongful confinement or detention or wrongful restraint of any person recourse could be made to the provision of sections 241 to 345 of PPC as remedy against such action was provided for under the criminal law.
The judgment said the sessions judges by virtue of powers conferred under section 25 of CrPC were ex-officio justices of peace, exercised powers and jurisdiction in accordance with sections 22-A and 22-B of CrPC. All the powers as were conferred on the police officials in accordance with section 54 thereof together with powers to make arrest and take all such actions and measures against whom there appeared to be reasonable complaints or suspicion existed of having committed or participated in a cognizable offence.
Even otherwise the STA did provide remedy with specific reference to the Haris. Where alternative efficacious remedy was available, then a direct approach to this court under section 491 of CrPC or in writ jurisdiction both being discretionary in nature was not to be resorted generally, unless extraordinary circumstances existed that might warrant bypassing the alternative remedy that was both adequate and efficacious.
The court was of the view that no such compelling circumstance existed to persuade it to exercise discretionary jurisdiction existing under article 199 of the constitution or under section 491 of CrPC.
In view of the foregoing all the petitions were dismissed.
