DHAUNKAL SHEO RAM Vs. MAN KAURI RAM JAS

JUDGEMENT

(1.) THE total area of land in the ownership of Man Kauri, respondent 1, on April 15, 1953, the date from which the Punjab Security of Land Tenures Art, 1953 (Punjab act 10 of 1953), became effective, was 228. 65 ordinary acres, equivalent to 70. 76 standard acres. She had not reserved any area, as the expression 'reserved area' is denned in Section 2 (4) of the Act. under any of the Acts mentioned in that definition. There was an amendment of the Act by the Punjab Security of Land tenures (Amendment) Act, 1957 (Punjab Act 46 of 1957), which added to the principal Act Sections 5-A, 5-B and 5-C. Punjab Act 46 of 1957 came into force on december 20, 1957. According to Sub-section (1) of Section 5-B, a land-owner who had not reserved any area previously has been given an opportunity to select his permissible area and to intimate tho selection to the prescribed authority within the period specified in Section 5-A, which is six months from the date as given above, and in such form and manner as may be prescribed. The form in this respect was not prescribed until Punjab Government Notification No. 3223-LR-II57/ 1624, published in the gazette extraordinary of March 22, 1958 and the learned Financial Commissioner in Dhaimat Rai v. State of Punjab. 1901 Lab LT 9, therefore, rightly held that the selection could be made by a land-owner according to Sub-section (1) of Section 5-B within six months of the date of the publication on of that notification, which means within six months of March 22, 1958. Respondent 1 filed forms A, C and E, making selection of her permissible area under Section 5-B (1), on June 20, 1958. The forms have been prescribed with the punjab Security of Land Tenures Rules, 1956. So she had made the selection of her permissible area within the statutory period prescribed in Sub-section (1) of section 5-B. Meanwhile, before the question of surplus area with respondent 1 could be determined in the wake of the selection made by her of her permissible area, consolidation of holdings in her village supervened. In consolidation obviously she lost the survey numbers of the land with her before consolidation and in lieu thereof, in repartition, came to be allotted to her new rectangles of land. The Surplus Area Collector of Sirsa attended to her case for the matter of finding out the surplus area with her on August 15, 1951. A copy of his order is annexure 'a', made on August 29, 1961. He left with her permissible area of 60 ordinary acres, declaring 58. 17 ordinary acres, equivalent of 17. 48 standard acres, as her surplus area. In the account of her land, which he detailed in his order, he left out 119. 25 ordinary acres, equivalent of 37. 27 standard acres, as 'area under the old tenants in village Asa Khera. ' In the last paragraph of his order he stated that 'form F be prepared and sent to all concerned under Rule 6 (7) of the Punjab security of Land Tenures Rules, 1956'. There is column 5 in Form F which reads -" area out of area mentioned in column 4 which the tenant (s) concerned desire (s)to retain as his (their) permissible area (State name, parentage and residence of tenant (s)" ). Apparently, according to the direction in the last paragraph of the surplus Area Collector's order, a copy of this form should also have been sent to those who were mentioned, if mentioned at all, in column 5 of Form F. It has been nobody's case that this part of the direction of the Surplus Area Collector was not complied with. With the order, copy Annexure 'a', of the Surplus Area Collector are given the rectangles, with Killa numbers and areas of Killa numbers, of the land of respondent 1 declared surplus, and what is to be noted at this stage is that rectangles 60 and 65 are not mentioned therein.

(2.) AN application under Section 18 of the Act was moved by Dhaunkal appellant for purchase of 28 Bighas and 10 Biswas of land, old survey Nos. 103 min. (23-10)and 104 (5-0), of which, after consolidation, the description has been rectangle 60/7 (7-0), 8 (7-11), 13 (8-0), 14 (7-8), 17 (7-8 ). 18 (8-0), 19 (8-0), 20 (8-0), 21 (80), 22 (8-0), 23 (8-0) and 24 (7-8) and rectangle 65/1 (8-0), 2 (8-0 ). 3 (8-0 ). 4 (7-8), 10 (8-0) and 11 min. (3-7 ). The original area of the old survey numbers was 25 bighas and 10 Biswas and the increase probably occurred on account of the consolidation, but this is not a material matter or one of controversy in these appeals. The appellant claimed to have been the tenant of this land under respondent 1 and to have fulfilled the conditions of Section 18 of the Act, which again are not matters of controversy at this stage. The position taken bv respondent 1 was that the appellant was not her tenant of this land on April 15, 1953, when the Act came into force and. in any case, this land has been included by her, according to law, within her selected area, and that, therefore, according to Sub-section (1) of Section 18 of the Act, the appellant has not been entitled to purchase her selected or reserved area. The Assistant Collector First Grade in his order, copy Annexure 'b', of August 31, 1963, found on the evidence of the Patwari that in Kharif 1952 and Rabi 1953 respondent 1 had in her self-cultivation 82 bighas and 5 Biswas of land and the Jamabandi of that year showed that 25 bighas and 10 Biswas of land in question was in the possession of the tenant. He referred to the statement of a clerk from the Surplus Area Collector's Office, Beg rai that respondent 1 had selected her permissible area, bv filing Forms A, C and e on June 20, 1958, a total area of 96 Bighas and 5 Biswas. including the old survey numbers sought to be purchased by the appellant as a tenant. He further pointed out that in Form F of the 1956 Rules, no area owned by respondent 1 in rectangles 60 and 65 was shown surplus. According to Rule 6 (1) of those rules B is the duty of a Patwari to prepare statement in Form D in the case of a landowner who holds land in excess of the permissible area in the circle of the Patwari. Such a statement is then checked by the Circle Kanungo according to Sub-rule (2) of that rule and forwarded to the Circle Revenue Officer. In Form D there is column 8 in this manner -- 'name and parentage of tenants and particulars of area with each. ' It is Sub-rule (3) which provides that the Circle Revenue Officer shall, after holding such enquiry as he thinks fit and after giving the persons concerned an opportunity of being heard, forward his report to the Collector. ' The Collector then checks not only Form D but also Forms A, C and E put in by a land-owner and sends the same to the Special Collector. Where the forms have been furnished to the Special Collector according to Sub-rule (5) or where the same have been furnished to the Collector according to Sub-rule (6) of this rule that officer, 'after giving the landlord or tenant an opportunity of being heard', makes such enquiry as he thinks fit and then assesses the surplus area of the land-owner concerned. It is accepted by the Assistant Collector First Grade that on the basis of Forms A, C and E, furnished by respondent 1, rectangles 60 and 65 were not included in her surplus area. He further pointed out in his order that according to the Patwari's evidence from Kharif 1952 to Rabi 1953, respondent 1 had survey Nos. 93-min and 96-min, measuring 40 Bighas 14 Biswas, and 19 Bighas respectively in her cultivating possession. So she had, apart from survey Nos. 90, 97 and 98, throughout area of those two survey numbers in her self-cultivation. It was also pointed out that while 19 Bighas of survey No. 96-min remained in her cultivation, 40 Bighas and 14 Biswas of survey No. 93-min had, with possession, gone over to respondent 1's Mukhtar Daulat Ram. This was the position according to the assistant Collector First Grade in the year 1952-53, which would be the relevant time on April 15. 1953, in regard to the area In the self-cultivation of respondent 1 at the commencement of the Act. The Assistant Collector First Grade's reference in his order to respondent 1 having in her self-cultivation 59 Bighas and 2 Biswas in the year 1957-58 is irrelevant, because what is material is the position on the date the Act came into force and not thereafter. The Assistant Collector First Grade then proceeded on the basis (a) that respondent 1 had failed to make reservation or selection of the area within the period presrribed at the beginning of the Act, (b) that she failed to include all the area under her self-cultivation in the area selected, and (c) that she selected an area which exceeded her permissible area; and thus came to the conclusion that the selection made by respondent 1 of her permis-sible area according to Section 5-B (1) of the Act. as explained above, was not valid and not binding on the tenant, the appellant. On the finding that the appellant had been tenant for the statutory period on the land in question, the assistant Collector First Grade by his order of August 31, 1963, copy Anncxure 'b', proceeded to accept the application of the appellant under Section 18 of the Act for purchase of the land, directing payment of the first instalment of the price within fifteen days of the date of the order and payment of the remaining instalments after every six months. Respondent 1 was in appeal from the order of the Assistant Collector First Grade to the Collector whose order, copy Annexure 'c'. is of January 30, 1964. The appeal was accepted by the Collector who came to the decision that "the land in dispute has already been selected by the Collector surplus Area, and the Assistant Collector First Grade has no jurisdiction to go over and above his order. The order of Collector Surplus Area can only be questioned by the Commissioner if anyone goes in appeal before him. Moreover Section 25 of the Act is quite clear. The validity of any proceedings or orders taken or made under the Act shall not be called in question in any Court or authority except in accordance with the provisions of the Act. " So the appeal of respondent 1 was accepted and the application under Section 18 of the Act by the appellant was dismissed.

(3.) IT was after this that the appellant, either himself realised or was advised to do so, proceeded by way of appeal from the order, copy Annexure 'a', dated August 29, 1961, of the Surplus Area Collector, to the Commissioner. The order of the assistant Collector First Grade in the appellant's application under Section 18 of the Act made on August 31, 1963, shows that the Surplus Area Clerk, Beg Rai, was examined before that authority. His statement was recorded on November 21, 1962. By that date the surplus area of respondent 1 had already been so declared by the Surplus Area Collector, copy of whose order is Annexure 'a'. So at least the appellant came to know of the existence of that order on November 21, 1962.