KAHAN SINGH Vs. FINANCIAL COMMISSIONER

JUDGEMENT

(1.) The vires of the Explanation to rule 5 of the Pepsu Tenancy and Agricultural Lands Rules, 1958, have been questioned in this writ petition by Kahan Singh petitioner out of whose holding 4 standard acres and 5-1/2 units were declared to be his surplus area by the order of the Special Collector II, Punjab, dated the 11th April, 1963 (Annexure 'A'). The land of the petitioner is in village Sherpur Sodhian, tehsil Malerkoda, district Sangrur. In pursuance of the order of the Collector, Agrarian Reforms, Sangrur, dated the 31st October, 1961, a draft statement declaring the surplus area of 4 standard acres and 5-1/2, units was served on the petitioner. As many as seven objections were filed by the petitioner against the draft statement which included an objection to the effect that the land measuring 40 Bighas out of his total holding was "Bhud" land though it had been recorded as Barani land in the jamabandi prepared during the consolidation proceedings held in 1954-55, and that the land had to be evaluated for purposes of converting it into standard acres according to the quality of the soil and the yield therefrom, and those considerations could not be ignored. On that basis a specific objection about the abovesaid rules being ultra vires the Act was raised. Objections were also taken about kallar land having been shown as Chahi land and other such matters. As already stated his objections were dismissed by the Collector on the 11th April, 1963. In his appeal before the Commissioner, the petitioner pressed all the objections preferred before the Collector and also submitted in addition that the Collector had wrongly included in his holding certain land of Arjan Singh which had been originally mortgaged with the petitioner, but which had been redeemed in October, 1962. This objection was dismissed by the Commissioner in the following words :

(2.) While contesting the writ petition, the respondents (the State of Punjab, the Financial Commissioner, Development, the Commissioner, Patiala Division and the Special Collector) have not disputed that in fact part of the land of the petitioner was "Bhud" area and that there was some Kallar land also, but have justified the evaluation on the solitary ground that under Section 32-NN of the Act read with rule 5 of the Rules, for the purpose of evaluating the holding of the petitioner, the kind of the land has to be taken as it is entered in the latest Jamabandi prevalent on the 30th October, 1956, and that the valuation of the petitioner's holding has been correctly made on the basis of the latest Jamabandi of 1954-55 which was prevalent on that day. Not giving of different or lower valuation of Bhud land has been justified on the ground that no land of the petitioner was shown as Bhud in the said Jamabandi of 1954-55. Similar is the reply of the respondents regarding the claim of the petitioner about the valuation of Kallar land. On the question of the area which had originally been mortgaged with the petitioner by Arjan Singh and subsequently redeemed in October, 1962, the reply of the respondents is contained in paragraph 13 of the written statement in the following words :

(3.) Before taking up for decision the two legal questions which have been seriously pressed by Mr. Nehra, it appears to be necessary to place on record certain additional facts which appear to be relevant. By allowing the application of the petitioner (C.M. 777 of 1969), the petitioner has been permitted to place on the record of this case two documents, viz. (i) a translation of the Jamabandi for the year 1958-59, of village Sherpur Sodhian, tehsil Malerkotla, district Sangrur, showing that the land of Arjan Singh comprised in Khasra Nos. 517 and 518 measuring 3 Bighas and 8 Biswas (including 15 Biswas of Chahi land) had been mortgaged by Arjan Singh son of Hukam Singh with the petitioner (the document bears endorsement to the effect that the land comprised in Khasra Nos. 517 and 518 measuring 3 Bighas 8 Biswas had been redeemed in favour of Arjan Singh son of Hukam Singh according to mutation No. 1139, dated the 23rd October, 1962); and (ii) translation of Fard Intikhabat Jamabandi containing the entry relating to the redemption of the mortgage and the mutation, dated the 23rd October, 1962, regarding the redemption. The factum of redemption of the mortgaged land by Arjan Singh on the 23rd October, 1962, (that is long before the consideration of the question of surplus area of the petitioner) has not been disputed by the respondents, either in any of the proceedings before the departmental authorities or before me. The second fact which is to be noticed is that when the original relevant record of this case was produced before me today in pursuance of the order passed by me on the 25th February, 1960, on the application of the petitioner (C.M. 776 of 1969, dated the 21st February, 1969), it was shown by the petitioner :-