AMIR CHAND Vs. THE PUNJAB STATE AND ANOTHER

JUDGEMENT

(1.) THE Petitioner is in an owner of 56.8(1/4) S. A. of land in village Dharampura, District Ferozepore. The Collector, Ferozepore, by his order dated March 23, 1961, allowed the Petitioner 30.00 S. A. as permissible area under the Punjab Security of Land Tenures Act, 1953 (hereinafter called the Act) and declared 26 Standard Acres and 8(1/4). Units as Surplus Area. The Petitioner filed an appeal against that order and it was urged before the learned Commissioner that the Petitioner's wife had obtained a charge on the entire land for the payment of her maintenance at the rate of Rs. 43/ - per mensem and for this reason no area should be declared as surplus. The learned Commissioner increased the permissible area by 10 Standard Acres on the ground that the income from that area would suffice for the maintenance of the Petitioner's wife. This order was passed on February 25, 1963, a copy of which is annexure 'B' to the writ petition. The Petitioner filed an appeal against the order of the Commissioner before the Financial Commissioner who held by order dated January 23, 1964. that the appeal was not competent and the Petitioner's counsel was not interested in getting it treated as a revision. He, however, suo motu set aside the order of the learned Commissioner dated February 25, 1963 and restored that of the Collector on the ground that there was no provision under the Act authorising the increase in the permissible area on the ground that there was a charge for maintenance of the wife. Feeling aggrieved from that order the Petitioner has filed the present writ petition in this Court. The return has been filed by the Under Secretary to Government, Punjab, Revenue Department, on behalf of the Respondent.

(2.) THE learned Counsel for the Petitioner has submitted, to begin with, that the learned Financial Commissioner was not correct in holding that the appeal before him was not competent and I find force in this submission of the learned Counsel. Section 24 of the Act provides that the provisions in regard to appeal, review and revision under this Act shall, so far as may be, the same as provided in Sections 80, 81, 82, 83 and 84 of the Punjab Tenancy Act, 1887 (Act XVI of 1887). Section 80 of the Punjab Tenancy Act provides for an appeal to the Financial Commissioner against the order or decree made by a Commissioner with the limitation that if the original order or decree is confirmed on first appeal, a further appeal shall not lie. The learned Financial Commissioner has observed that the order of the Collector was modified by the Commissioner in favour of the Petitioner and, therefore, no further appeal to him was competent. This view is, in my opinion, erroneous. The Commissioner did not confirm the order passed by the Collector. He modified it even though the modification Was in favour of the Petitioner. The Petitioner was not satisfied with the modification made as. in his view, the entire land should have been left with him. Even the modification in favour of the Petitioner entitled him to file an appeal before the Financial Commissioner. I. therefore, hold that the learned Financial Commissioner was wrong in holding that the appeal before him was not competent.

(3.) IT is submitted that the provisions of Section 115 of the Code of Civil Procedure have been made applicable to the revisions before the Financial Commissioner and a revision under Section 115 of the Code of Civil Procedure is competent to the High Court only if no appeal lies to it from the decision of the Subordinate Court. In the instant case it is submitted that an appeal lay from the order of the Commissioner to the Financial Commissioner by the State because the order of the Collector had been varied to the prejudice of the State by the Commissioner. The State did not feel aggrieved and, therefore, did not file an appeal. In my opinion, the parts of Section 115 of the Code of Civil Procedure which have been made applicable to a revision before the Financial Commissioner are, only those which are contained in Clauses (a), (b) and (c), that is, if the Subordinate Court appears -