LALL SINGH Vs. SAROOP KRISHEN

JUDGEMENT

(1.) Lall Singh and others have filed this petition under Articles 226 and 227 of the Constitution of India, calling in question the legality and propriety of the orders of the Collector, the Commissioner and the Financial Commissioner dated 19th August, 1963, 31st January, 1964 and 7th January, 1965 (copies Annexures 'A', 'B' and 'C' to the petition respectively).

(2.) It is not necessary to state the facts as the only contention that has been raised before me by Mr. B.N. Aggarwal, learned counsel for the petitioners, is that area measuring 35 Kanals which was shown in the revenue papers as Banjar Qadim, could not be taken into consideration while determining the surplus area of Lall Singh petitioner. It is also contended by the learned counsel that the learned Financial Commissioner failed to exercise jurisdiction vested in him by refusing to go into this question on the ground that the same had not been raised before the Collector or the Commissioner. According to the learned counsel it is an admitted fact that 35 Kanals of land is shown in the revenue papers as Banjar Qadim and as such this land could not be taken into consideration at the time of the declaration of the surplus area.

(3.) After hearing the learned counsel for the parties I am of the view that there is considerable force in the contention of the learned counsel for the petitioners. In ground (iii) of paragraph 11, a specific plea has been taken in the petition that 35 Kanals of land is shown in the revenue papers as Banjar Qadim. No written statement has been filed on behalf of the respondents controverting this plea. When the point was raised before the Financial Commissioner, the same was rejected on the ground that it had not been taken before the Collector or the Commissioner. It was also observed that the area could be saved only if it was shown that it was not being used for a purpose subservient to agriculture. If the area was shown in the revenue records as Banjar Qadim, the onus lay on the revenue authorities to show that it was used for a purpose subservient to agriculture. See in this connection the Full Bench decision of this Court in Rajinder Parshad and another v. The Punjab State and others, 1966 PunLJ 28. In this situation the fact having not been disputed, the Financial Commissioner should have gone into this matter and decided the same on merits. In this view of mine I am fully supported by the Division Bench decision of this Court in Jindu Ram v. State of Punjab and others, 1971 PunLJ 684. Thus, the area which was Banjar Qadim could not legally be declared surplus.