HYDERABAD: A division bench of the Sindh High Court, Hyderabad circuit, on Tuesday gave a landmark judgement in respect of peasants’ rights.

The bench comprising Justice Salahuddin Panhwar and Justice Adnan Iqbal Choudhry struck down Section-6 of the Sindh Tenancy (Amendment) Act, 2013 whereby Section 24-C of the Sindh Tenancy Act, 1950 was amended to omit prohibition of begaar (unpaid labour).

According to the ruling, after separation of judiciary from executive, assistant commissioner, additional commissioner and commissioner/collector do not have jurisdiction to make judicial determinations (of disputes) under Sections 27, 29 and 30 of the STA, 1950 and to that extent the said provisions are ultra vires to Article 175, 202 and 203 of the Constitution.

Landmark verdict also asks govt to register every single labourer, enact law on peasants’ rights

The bench observed that till necessary amendments were made to the STA, 1950, the proceedings pending under these (27, 29 and 30) sections of the act be transferred to the district court concerned where the district judge would assign tenancy applications under Section 27 to civil court exercising territorial jurisdictions and appeals and revisions pending under Sections 29 and 30 would be decided by the district or additional district judge.

A 65-page verdict — authored by Justice Panhwar — was announced in the court on Tuesday.

The court had appointed Jhamatmal Jethanand, Suleman Dahri and Jawad Ali Sahar as amicus curiae.

The bench had heard a petition filed by a peasant, Ghulam Ali Laghari, through Advocates Ali Ahmed Palh and Abdul Sattar Sarki.

According to the petitioner’s case, he had been cultivating agriculture land of landlord Leemon Khan Junejo as tenant/hari for 35 years. But for 32 years, Mumtaz Ali (son of Leemon Khan) did not settle his accounts, which were calculated at Rs2.617 million as outstanding against Mumtaz Ali and his brothers.

The landlord asked the petitioner to vacate the land as he wanted to hire some other tenants/haris. The petitioner moved assistant commissioner/tenancy tribunal, Sinjhoro, on Nov 20, 2013 but in vain. He also filed his pleas before same authority on Aug 20, 2014. The tribunal, through its order issued on Sept 8, 2014, declared him permanent tenant of Mumtaz Ali, who was restrained from evicting him from the lands.

The petitioner filed an appeal before Sanghar’s additional commissioner on Jan 3, 2015 for the settlement of accounts which annoyed Mumtaz Ali, who tried to dispossess the hari’s family. The family was finally dispossessed and it led to registration of multiple number of FIRs from both sides.

The appeal filed by the landlord’s side was dismissed by the Sanghar additional commissioner on Sept 8, 2015. The appellant had also raised legal questions before the SHC bench on the jurisdiction of mukhtiarkar/assistant commissioner to act as the Tenancy Tribunal arguing that they were executive officers with no magisterial powers.

The appellant’s counsel contended that the original STA 1950 had a clause that prohibited begaar but through an amendment made in 2013, landlords were allowed to take begaar from haris.

Jhamatmal Jethanand submitted that a committee was formed by government for a new legislation on peasant-landlord relations 15 years back. A draft was prepared in 2007 but it was without sanctity.

He said that at the time of promulgation of STA, 1950, mukhtiarkar having magisterial powers used to be so powerful to enforce his writ.

Suleman Dahri stated that peasants formed 60 per cent of Pakistan’s population and not a single peasant had become a member of the legislative assembly. Therefore, since 1950, no amendment or new legislation for the rights of peasants was seen and their rights continued to be usurped routinely. Influentials and landlords used to be elected to the assembly, he said.

Jawad Ali Sahar said begaar was declared illegal by the Supreme Court. He said assistant commissioner or mukhtiarkar were not competent to act as magistrates, therefore, such section be declared ultra vires and all pending cases be transferred to civil courts.

Additional Advocate General Allah Bachayo Soomro argued that tenancy tribunals should be presided over by judges like labour courts.

Justice Panhwar in his judgement threw light on peasant movement and role of Hyder Bux Jatoi, who had resigned as collector. He observed that “realising gravity of situation, Quaid-i-Mohammad Ali Jinnah constituted Sindh Hari Committee to submit proposal with regard to legislation between zamindar and hari”.

The bench observed that assistant commissioner lacked magisterial powers yet he was authorised to hear and determine all disputes about alleged contravention of provision of the act or of rules.

“Accordingly, legal and binding position of law allows us to declare Section 27 of Act as ultra vires of Article-175 of Constitution. It may be added prima facie executives including assistant commissioner cannot act as tenancy tribunal”.

It said that “we find it in all fairness to authorise civil judge/judicial magistrate to exercise jurisdiction of tenancy tribunal till section 27 of Act is amended by legislature in line with spirit of Article-175”.

The bench set aside orders passed by assistant commissioner and additional commissioner in petitioner’s case under Sections 27 and 29 of the STA, 1950 and said that his tenancy application would be decided afresh by a civil judge under Section 27 preferably within three months.

The bench struck down Section 6 of the Sindh Tenancy (Amendment) Act, 2013 whereby Section 24(C) of STA, 1950 was amended to omit prohibition of free labour.

It asked the Sindh chief secretary to issue directives to the revenue secretary and deputy commissioners across Sindh to comply with rule 3(1) of the Sindh Tenancy Rules, 2002.

It also asked the government to make necessary amendments to the STA, 1950 in order to bring it in line with the Constitution and in accordance with peasants’ rights as defined under the relevant United Nations declaration.

The bench said: “The government is directed to make necessary legislation for agriculture labour within six months and government should also bring on record all labourers through a mechanism to register every single labourer including farm labourer”.

Published in Dawn, October 2nd, 2019