NATHA SINGH Vs. FINANCIAL COMMISSIONER TAXATION PUNJAB

JUDGEMENT

(1.) This appeal by certificate under Article 133 (1) (a) of the Constitution of India granted by the High Court of Punjab and Haryana at Chandigarh is directed against its order dated May 1, 1967, dismissing in limine the writ petition filed by the appellants herein.

(2.) The facts giving rise to this appeal are:Natha Singh, appellant No. 1 herein, was recorded in revenue records as land-owner in respect of 39 standard acres and 9-3/4 units of land in village Malout, 53 standard acres and 5 1/2 units in village Kanamgarh and 4 standard acres and 2 units in village Bhagwanpur. By his order dated July 5, 1959, the then Collector, Ferozepore, acting under the provisions of the Punjab Security of Land Tenures Act, 1953, hereinafter referred to as 'the Act' declared an area of 63 standard acres and 1-1/4 units out of the aforesaid land aggregating 93 standard acres and 1/4 units as surplus in the hands of Natha Singh, Rajinder Singh and Jarnail Singh, appellants Nos. 2 and 3 herein, who are the sons of appellant No. 1, went up in appeal against the said order of the Collector to the Commissioner, Jullundur Division, who vide his order dated July 20, 1965 allowed the appeal, set aside the aforesaid order of the Collector and remanded the case for fresh determination of the "Surplus Area." After re-examination of the case on remand, the Collector, Ferozepore, vide his order dated December 20, 1965, overruled the plea raised by appellants Nos. 2 and 3 that the area comprised in Khasra Nos. 296, 297, 517, 519, 285,293 and 206 which was in their cultivating possession as tenants under appellant No. 1 before the commencement of the Act should be treated as 'Tenants Permissible Area and excluded from the surplus pool and held that the entries in khasra girdawaries on which the claim of the said appellants was grounded could not be relied upon as they had been tampered with. The Collector further held that even taking the entries at their face value, appellants Nos. 2 and 3 could not be treated as tenants as contemplated by the Punjab Tenancy Act, 1887 (Act XVI of 1887) as they were not paying any rent to appellant No. 1 The Collector also overruled the plea raised by appellant No. 1 that there was some 'banjar' land which had to be excluded while reckoning the permissible area. Dissatisfied with this order, the appellants preferred an appeal to the Commissioner, Jullundur Division, who by his order dated November 7, 1966 dismissed the same and upheld the aforesaid order of the Collector, Ferozepore, Aggrieved by these orders, the appellants took the matter in revision to the Financial Commissioner, Taxation, Punjab, who also by his order dated March 3, 1967, affirmed the aforesaid orders of the Collector, Ferozepore, and Commissioner, Jullundur Division. All these orders were challenged by the appellants before the High Court of Punjab and Haryana by means of a petition under Article 226 of the Constitution but the same, as already stated, was dismissed in limine. The High Court, however, granted a certificate to the appellants under Article 158 (1) (a) of the Constitution.

(3.) Appearing in support of the appeal, Mr. Hardayal Hardy has contended that the writ petition filed by the appellants could not, in the facts and circumstances of the case, be dismissed in limine by the High Court. Elaborating his submission, the learned counsel has urged that the orders passed by the revenue authorities could not be sustained as they did not, while computing the Surplus' Area', leave out the permissible which even according, to the khasra girdawaries and Roznamcha Wqali. which is maintained for the purpose of recording changes in cultivation was being cultivated by appellants Nos. 2 and 3, as tenants of appellant No. 1 since 1951-52; that 30 bighas of land which was recorded as 'banjar' at the time of the commencement of the Act and did not fall within the definition of land as contained in Section 2 (8) of the Act had not been taken into account while evaluating and assessing the "Surplus Area", and that appellants Nos. 2 and 3 were not afforded proper and adequate opportunity by the Collector to prove the claim put forth by them.