RECENTLY a division bench of the Sindh High Court, Hyderabad Circuit, gave a judgment of great significance in which it proposed certain amendments in the Sindh Tenancy Act, to reform the age-old relationship between the haris and the landlords. But given the impoverishment and illiteracy of the haris and the proliferating power of the landlord, will it be possible, is a big question.
The case before the division bench comprising Justice Zahid Kurban Alavi and Justice Musheer Alam of the SHC, reflected the traditional conflict between tillers of the soil and owners of the land, the zamindar or waderas, who are generally accused of using coercive means for perpetuating these stranglehold over the impoverished and illiterate haris.
The judgment assumed great importance in view of the discovery of private jails and recovery of some of the people who were kept in chains.
It emerged from the proceedings that the problem in most cases stemmed from the non-payment of Taqavi loans these haris or their ancestors had taken from the zamindar.
Under the Sindh Tenancy Act the hari is not an ordinary labour or workman within the meaning of the Industrial Relations Ordinance or the Standing Order. He is a partner / co-sharer in the produce with the zamindar. One of the recommendations made was that the hari should be referred to as agricultural labour then the government should provide enough safeguards through enactments for agricultural labour as they have provided for industrial labour. Yet a sharp disparity in the living standard exists between the hari and the zamindar. While both are equal stake holder, one has the luxury of Pajero culture and unspecified bank accounts while the other is heavily indebted, impoverished and illiterate, having nothing of his own. So there must be some truth in the general perception about the landlords. The lot of haris should have improved if the law was practised in letter and spirit.
Several Criminal Miscellaneous Applications under 491 Cr P.C. and petitions under 199 of the Constitution of the Islamic Republic of Pakistan were filed where the applicant / petitioner sought the indulgence of the court. In all these matters it seemed 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 detenues. In quite a number of cases application were also made for raids to be conducted by officers of the court, police and by Civil Judges / Judicial Magistrates. The raids were to ascertain whether the so called detenues were indeed illegally / improperly detained by the private respondents.
The ratio of cases being filed before the High Court of Sindh, Hyderabad Circuit Bench reached a alarming level. The number of detenues also increased and in several petitions / applications the list went upto 100 odd persons whose ages ranged from 80 years to 2 months. In some of the cases an entire village was considered to be illegally detained. In all the matters the villain of the scene was not the police but the owners of the land where the alleged detenues were working / tilling the soil. In order to try and stem the flow of such applications / petitions a general order was passed by the Judges sitting in the High Court where instead of the police officers or the officers of the court, the Civil Judges / Judicial Magistrate were issued directions to investigate the matter and submit report to the High Court. The reports were submitted by the officers concerned who depending on each individual case did make certain observations which were common. In most cases the persons who were allegedly detained were haris. In most cases the haris belonged to the Bheel / Kolhi 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. In quite a number of cases the haris were released or were allowed to go where ever they wanted to go, either by the court directly or after the investigation was done, by the Civil Judge / Judicial Magistrate. Lots of publicity was given and an attempt was made to give the colour of discrimination against the minorities. The situation warranted attention specially when foreign media got involved.
Curiously all the applicants centred round the areas of Mirpurkhas, Sanghar, Umerkot. In no other areas of Sindh such applications were made.
It also came to the fore that illegal detention was also done with the mutual consent of some of the zamindars. There have been reports in some case that a zamindar had allegedly sold his indebted hari to another zamindar against the payment of his principal along with the premium, thus indulging in a some sort of human trafficking.
Mr Rasul Bux Palejo , who addressed the court on behalf of the Hari Committee gave a brief resume of the Bheel community and said that such persons though might not be physically detained as understood in common parlance but were for all practical purposes under restraint which, impedes their free movement which. according to him, amounts to improper if not illegal detention.
Continuing his argument, Mr Palejo contended that the haris had remained virtual slaves of the waderas from the time they were born. They had no way to safeguard there own right. According to him no right existed and therefore, the Haris were made to undergo tremendous hardship and suffer great humiliation. He did concede that Taqavi loan had been taken which had subverted the haris to the wadera and it was conveyed to him that the amount were due and payable. The so-called right, given to the haris under the Sindh Tenancy Act was a mere eye wash, he said.
He also raised a point that detention has also to be mental where for all practical purpose there would be no physical impediment in the movement of the haris but he would know very well if he moved beyond a certain undefined boundary the consequences would be dangerous. This raised the question as to what would be the extent of mental detention.
The court had noted that in the present circumstances, the so called detention of the haris come within the ambit of private custody and yet the police are called upon to conduct raid, bring the alleged detenues to court and then in appropriate cases they were set free.
In majority of the cases, the detenues insisted that they had gone through the most horrendous experiences in their detention. In direct contrast the report submitted by the Judicial Magistrate and the Civil Judges who were asked to investigate the matter and submit reports were unanimous on the point that there were no physical signs or indications of improper or illegal detention.
Mr Jhamat Jethanand and Mr Allah Bachayo Soomro had argued that detenues 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 are to be dealt with in accordance with the provisions of the Sindh Tenancy Act and they are bound to grow the crops efficiently / diligently cultivated by them. The alleged detenues 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.
Their contention was that a dispute between applicant and the detenues was to be dealt with under sections 23, 24 and 25 of Sindh Tenancy Act and that they should approach the Tribunal under the Sindh Tenancy Act for resolving the outstanding controversies over the settlement of accounts. Sections 23, 24 and 25 of the Act relate to the duties and rights of tenant and landlord and debts are to be paid by the tenant before leaving, if he is indebted to his landlord at the time of termination of his tenancy.
The bench observed that this relationship of landlord and tenant was customary in this province since the inception of Sukkur Barrage. The people took Taqavi loans from landlord and worked as haris with mutual consent but if some dispute arise, the matter was referred to the Tribunal under the Sindh Tenancy Act. The allegations of confinement of detenues were falsified by the report of the Commissioner. The detenues were neither under guard nor any kind of pressure was over them. No compound wall was found available around the houses of detenues.
From the provision of the Sindh Tenancy Act 1950 it is abundantly clear that special forum is provided to regulate relationship between hari and zamindar. The Sindh Tenancy Act 1950 also provides for rights, obligations and remedies that may be available to the haris as well as to the zamindar.
After hearing the contentions, Justice Zahid Kurban ALavi, who authored the judgment, held that the provision of the Sindh Tenancy Act 1950 needs to be amended so as to bring it in conformity with the requirement of the ground realities.
Since the entire controversy stems from the loans taken by the haris and given by the zamindars it was, therefore, recommended that borrowing and any dispute, resulting therefrom, be regulated strictly under the Sindh Tenancy Act 1950 till such time a limit of such lending / borrowing is fixed, and lending in excess of the amount so fixed, may be prohibited by bringing appropriate changes in the existing law.
In the Sindh Tenancy Act Mukhtiarkar is required to maintain the record of tenants and tenancies but it is observed no proper record is maintained which also give rise to much controversy. Therefore the bench held that it is obligatory on the part of the Mukhtiarkar to make such entries periodically and update the record regularly. Remedy against inaction on the part of the Mukhtiarkar may be provided in the change enactments.
It was also proposed that disputes arising out of the relationship of haris and zamindar and matters incidental an ancillary thereto are to 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 may be, instead of Mukhtiarkar. Appeal against the order of such Tribunal may be provided before the District Judge. Revisional jurisdiction may be conferred with the High Court.
Duties of the tenant: Following are the duties of a tenant under the Sindh Tendency Act, 1950:
(a) he shall be responsible for the provision of requisite animal labour, manual labour and the implements of husbandry to enable the crops grown y him to be efficiently cultivated;
(b) he shall be responsible for the proper weeding of all the crops grown by him and for the cost of such weeding;
(c) he shall be responsible for the necessary construction and proper maintenance of irrigation bunds and water-courses within the land allotted to him and for the cost of such construction and maintenance;
(d) he shall not cultivate the land of any other landlord, if he has been allotted a family holding;
(e) he shall be responsible for the seed required for owing; but where a landlord supplies any seed to his tenant, he shall be entitled to recover from the tenant, only the quantity of seed actually supplied and nothing in excess thereof; further when the landlord gets remission of land revenue assessment in respect of any survey number the amount of seed which the tenant shall be required to return shall be proportionate to the amount of remission of land revenue assessment obtained by the zamindar in respect of that survey number;]
(f) he shall transport the landlord’s share of produce after “Batai” to the landlord’s local place of storage [at the expense of the landlord;]
(g) he shall be responsible for growing such crops and such average of crops and in such manner as may be specified by the landlord:
Provided that the tenants cultivating right under this Act shall not be affected;
(h) any other duties as may be prescribed, from time to time.
Duties of the landlord:
The following are the duties of a landlord:
(a) he shall be responsible for the proper maintenance of the main water-courses leading from the canal-modules to the land, and for the cost of such maintenance; provided that the tenant shall be bound to give his labour for the silt-clearance of such water-courses during the irrigation season and in return therefore the landlord shall be bound to feed the tenant at his own cost;
(b) he shall be responsible for ensuring the supply of the proper share of available irrigation water to the land allotted to his tenant;
(c) he shall be responsible for lending seed, for sowing to the tenant if the tenant so demands.
(d) any advance of food-grains by the landlord to a tenant for domestic needs shall be repaid in cash at the market rate at the time it was lent or in kind of equivalent value;
(e) he shall be responsible for allotting a prescribed area on prescribed conditions to the tenant for growing cattle-fodder and vegetable cultivation for the personal use of the tenant in areas where only cotton or sugar-cane or tobacco or such other crops are grown which do not provide fodder for the cattle;
(f) any other duties as may be prescribed from time to time.
General provisions regarding debt:
(1) The produce of a tenant after deducting such portion thereof as is necessary for the purpose of providing until the next harvest for the due cultivation of the land and for the support of the tenant and his family may e appropriated towards the debt due from the tenant to his landlord.
Explanation: For the purpose of evaluating in case the produce of the tenant, the wholesale control price fixed for the locality by the Government, and if no such is fixed the wholesale price prevailing in the local market shall be taken as the basis.
(2) After making recoveries set forth in sub-section (1) the balance of debt, if any, shall be deemed to be flotation debt recoverable from the tenant’s share of other crops.
(3) In case a tenant is indebted to his landlord, it shall be his duty to deposit his share of crop in the landlord store. Such crop shall remain in the join possession of the tenant and the landlord until it is divided or until deliver is taken by the buyer.
(4) On termination of the tenancy, a tenant if he is in debt to his landlord, shall be liable to pay off his debt before leaving.
