JUDGMENT
Nirmal Singh, J.
1. One of the important questions of law has been mooted in this appeal as to whether the non-proprietors who have been given the grazing rights in the shamlat deh are entitled to share in the compensation for the land which has been acquired under the Land Acquisition Act, 1894 (hereinafter referred to as the “Act”).
2. The facts are not disputed. The Chandigarh Administration vide Notification Nos. P-1/83/80 dated 7.4.1980 and P-1/80-87 dated 22.9.1980 issued under Sections 4 & 6 of the Act had acquired 16.66 acres of land in village Dhanas, U.T. Chandigarh. The Collector assessed the value of the land and the same was deposited in favour of respondent Nos. 2 to 38. The appellants i.e. non-proprietors filed the objections before the Additional District Judge, Chandigarh that by virtue of the decree passed on 20.10.1952, the grazing rights have been reserved in their favour, therefore, they were entitled to the apportionment of the compensation i.e. 50-50 share which was received by the respondents No. 2 to 38. The learned Addl. District Judge, Chandigarh after giving an opportunity of hearing to the respondents, dismissed the objections. Aggrieved by which, the present appeal has been preferred.
3. Ms. Aarti Thakur, learned counsel for the appellants submitted that the appellants were the interested persons in the property which has been acquired under the Act. She further pointed out that the appellants were grazing cattle on the land which had been acquired prior to coming into force of the Punjab Village Common Lands (Regulation) Act, 1961. She further pointed out that there was dispute with regard to the grazing rights between the parties and the appellants had filed a suit. A decree was passed in their favour on 20.10.1952 and as per this decree, the grazing rights were reserved in favour of the appellants. She submitted that grazing right is an easement rights as defined under Section 4 of the Indian Easement Act, 1882. She further submitted that under Section 3(b) of the Act, a person shall be deemed to be interested in land if he is interested in an easement affecting the land. She contended that grazing rights were valuable rights as livelihood of the appellants depend on it and by acquisition of the land, the appellants have lost their source of livelihood. Therefore, they are entitled to 50% apportionment of the compensation.
4. On the other hand, Mr. H.N. Mehtani, learned counsel for the respondents very fairly and candidly made a statement that though there was a decree of grazing right in favour of the appellants, but that does not give right to the appellants to claim compensation. He submitted that the appellants were using the land temporarily for grazing the cattle and they have no permanent right or interest in the land in dispute.
5. In order to appreciate the rival contentions of learned counsel for the parties, a few provisions of the Indian Easement Act, 1882. The Land Acquisition Act, 1894 and The Punjab Village Common Lands (Regulation) Act, 1961 are to be seen.
6. Easement has been defined under Section 4 of the Indian Easement Act, 1882, which reads as under:
“4. Easement defined- An easement is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of certain other land not his own.”
Explanation.- The first and second clauses of this section, the expression “land” includes also things permanently attached to the earth’ the expression “beneficial enjoyment includes also possible convenience, remote advantage and even a mere amenity; and the expression “to do something” includes removal and appropriation by the dominant owner, for the beneficial enjoyment of the dominant heritage, if any part of the soil of the servant heritage, or anything growing or subsisting thereon.”
Illustration (d)- A, as the owner of a certain house and farm, has the right to graze a certain number of his own cattle on B’s field, or to take, for the purpose of being used in the house, by himself, his family, guests, lodgers and servants, water or fish out of C’s tank, or timber out of D’s wood, or to use, for the purpose of manuring his land, the leaves which have fallen from the trees on E’s land. These are easements.”
7. As per illustration appended to Section 4, a person in whose favour the grazing right has been reserved in the land of others has an easementary right.
8. An interested person has been defined in Section 3(b) of The Land Acquisition Act, 1894, which is as under: –
“3(b) The expression “person interested” includes all persons claiming an interest in compensation to be made on account of the acquisition of land under this Act; and a person shall be deemed to be interested in land if he is interested in an easement affecting the land.”
9. From the perusal of Section 3(b) of the Act, it is crystal clear that a person shall be deemed to be interested in the land if he is interested in easement affecting the land.
10. Under the Punjab Village Common Lands (Regulation) Act, 1961, when the land is used for the benefit of the village community or any part thereof for the common purpose of the village that land would come under the definition of “Shamlat Deh”. The Shamlat Deh includes:-
(1) Land described in the revenue records as Shamlat Deh excluding abadi deh:
(2) Shamlat Tikkas
(3) Land described in the revenue records as shamlat,. Taraf, Pattis, Pannas and Tholas and used according to revenue records for the benefit of the village community or a part thereof or for common purpose of village.
(4) Lands used or reserved for the benefit of the village community including streets, lanes, play-grounds, schools, drinking wells, for ponds within abadi deh or gora deh and
(5) Lands in any village described as Banjar quadim and used to common purposes of the village, according to revenue records.
11. In Sub-clause (3) above, the Legislature has intentionally used the word “village community” and not “village proprietor”. When the land is reserved for the benefit of village community or part thereof for the common purpose of the village, then every inhabitant of that village is an interested person in that land.
12. A Full Bench of this Court in Kangra Velly State Company Ltd. v. Kidar Nath and Ors., (1961) 63 Punjab Law Reporter 553 has held as under:-
“I would, therefore, answer the question referred to the Full Bench in this way that Section 3(a) of Punjab Act, No. 1 of 1954 is not limited to the rights, title and interests of proprietors as such, but extends to all persons having the same in the land included in the shamilat deh and further that Section 3(a) extends to rights, title and interests in such land even when the same have been acquired from proprietors as such prior to the coming into force of the Act in relation to the land irrespective of the persons having rights, title or interests in it so long as it is shamilat land.”
13. Admittedly, in this case, there was a decree of grazing rights in favour of the appellants. Therefore, they being the interested persons, are entitled to claim compensation.
14. The next question which remains to be determined in this appeal is what should be the basis of apportionment?
15. Learned counsel for the appellants failed to show me any rule, regulation or judicial precedent that what should be the basis of apportionment. Therefore, for apportionment, I take into consideration the provisions of The Punjab Village Common Lands (Regulations) Rules, 1964.
16. Under The Punjab Village Common Lands (Regulation) Rules, 1964, the shamlat deh is to be auctioned in the manner prescribed as under:-
“6. Leases to be by auction. [Sections 5 and 15(2)(f)].- (1) Subject to the provisions of Sub-rule (1) of Rule 4, all lease of land in shamlat deh shall be by auction after making publicity in the manner laid down in Sub-rule (10). All document executed in this connection shall be signed by a Sarpanch or in his absence by panch performing the duties of sarpanch and (two other panches authorised for the purposes of the Gram Panchayat).
Provided that-
(a) One-third of the cultivated land provided to be leased, shall be reserved for giving on lease by auction to the members of the Scheduled Caste only, and if on two different dates fixed for auction no such person is forthcoming or the Panchayat Samiti refused to confirm the auction under Clause 2(a)(i) the reservation shall cease to have effect, and
(b) xx xx xx”
17. In view of the Rule 6 quoted above, one third land which is to be leased out is to be auctioned in favour of the members of the scheduled caste and this income is to be spent for the welfare of this community. In other words, in the shamlat land, the members of scheduled caste have right to the extent of 1/3rd share.
18. Section 18(iii) of The Punjab Security of Land Tenures Act, 1953, reads as under:-
“18. Rights of certain tenants to purchase land. (1) Notwithstanding anything to the contrary contained in any law, usage or contract, a tenant of a land-owner other than a small land-owner –
(1) (ii) (iii) xx xx xx
(2) xx xx xx xx
(3) The purchase price shall be three-fourth of the value of the land as so determined.”
19. A Division Bench of this Court in Piare Lal v. Co. His Highness Raja Sir Harinder Singh Brar Bans Bahadur, 1979 P.L.J. 474 has held that tenant at will is entitled to compensation for his tenancy right in the acquired land and their Lordships made the apportionment to the extent of 3/4th in the favour of landowner and 1/4th in favour of the tenant.
20. So taking into consideration all the facts and circumstances of the case, I am of the view that it would be just and reasonable apportionment between the parties that the landowners are entitled to 3/4th share and the appellants, who have grazing rights, are entitled to 1/4th share in the compensation. However, the appellants have only claimed 1/8th share, so I order accordingly.
For the reasons recorded above, this appeal is accepted and order passed by the learned Additional District Judge, Chandigarh is set aside.