- (1.) This is an appeal under clause 10 of the Letters Patent and is directed against the decision of a learned Single Judge of this Court rejecting the petition of the appellant under Articles 226 and 227 of the Constitution of India praying that the order of the Financial Commissioner, the Commissioner and the Special Collector, declaring the Banjar Qadim land of the petitioner as 'land' within the meaning of the Punjab Security of Land Tenures Act as surplus, be quashed. The learned Single Judge rejected the petition on the short ground that the question whether the land was Banjar Qadim or not had not been raised before the relevant authorities, namely, the Special Collector and the Commissioner. It is clear that the point was raised in revision before Financial Commissioner but he declined to entertain it because the point had not been canvassed before the Special Collector and Commissioner.
(2.) It is now common ground that the land in dispute is Banjar Qadim. In fact in the return filed by the State this fact is admitted. The only ground on which the judgment of the learned Single Judge is sought to be sustained by the learned Deputy Advocate-General is that the plea that the .land in dispute measuring O. 14-3/4 Standard Acre is Banjar Qadim was not raised at the relevant time, that is, before the Special Collector and the Commissioner. There is no doubt that this is so. The first time in the entire course of the proceedings, the contention was raised before the Financial Commissioner in revision. However, if a reference is made to rule 6 of the Punjab Security of Land Tenures Rules, 1956, which is in the following terms, there is no manner of doubt that the entire material, as to the nature of the land, was before the Special Collector :- "6 (1) Every patwari shall prepare, in duplicate, statements in Forms D and DD for every landowner and tenant, respectively, who owns or holds land in excess of the permissible area in his circle, and shall retain one copy of each such Form himself and forward the other to the circle kanungo. (2) The circle kanungo shall, after personal examination, attest all entries made by the patwari in Form D or Form DD and forward it to the circle revenue officer. (3) 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. (4) Where, in the case of a landowner, Forms A, C and E and in the case of a tenant, Forms B and C, have been received by the Collector from the Special Collector, under rule 4-C, the Collector shall, after holding such enquiry, as he thinks fit return them to the Special Collector, alongwith Form D, in the case of a landowner and Form DD in the case of a tenant. (5) In the case of a landowner or tenant who has furnished his Forms to the Special Collector, under rules 3 and 4, the Special Collector shall after giving the landlord or tenant an opportunity of being heard and after such enquiry as he thinks fit, assess his surplus area. In doing so, he shall hear any objections made by the landowner or tenant, and in a written order decide such objections. In case, no objections are made, or the person affected does not appear, the fact shall be stated in the order. (6) In the case of a landowner or tenant who has furnished his Forms to the Collector, under rules 3 and 4, the Collector shall, after giving the landlord or tenant an opportunity of being heard and after such enquiry as he thinks fit, assess his surplus area. In doing so, he shall hear any objections made by the landowner or tenant, and in a written order decide such objections. In case no objections are made or the person affected does not appear, the fact shall be stated in the order. (7)(i) The Collector or the Special Collector shall prepare a statement in Form F and forward immediately a copy thereof to the landowner or tenant concerned under cover of an endorsement prescribed in the Form and it shall be served upon the landowner or tenant as if it were a summons in the manner prescribed in Section 90 of the Punjab Tenancy Act, 1887. (ii) The Special Collector shall also forward a copy of Form F prepared by him to the Collector of every district in which the surplus area of the landowner or tenant is situate. x x x x x x". The Special Collector had jurisdiction only to deal with land. Banjar Qadim has been held not to be the land within the meaning of the expression 'land' as defined in the Act, in Nemi Chand Jain v. The Financial Commissioner, Punjab and another, 1964 66 PunLR 278, and in Rajinder Parshad and another v. The Punjab State and others, 1966 2 ILR(P&H) 38(F.B.). Both these decisions considered the statutory definition of 'land' in Section 2(8) of the Punjab Security of Land Tenures Act, 1953, and came to a firm conclusion that Banjar Qadim was not 'land' to which the Act pertained. Therefore, the Special Collector had no jurisdiction to treat 0.14-3/4 acre as 'land' and his decision, is wholly without jurisdiction, so far as this land is concerned. It is fundamental that unless some facts have to be determined on which the question of jurisdiction depends, the point has to be raised before the Special Collector or the authorities below, but where the facts are not in dispute and are patent on the record and on the basis of which the question of jurisdiction arises, it is the duty of the Court to determine that question irrespective of the fact whether it was not raised at the earliest stage of the proceedings. The learned Single Judge rejected the petition merely on the ground that the question whether 0.14-3/4 Standard Acre was Banjar Qadim or not was raised before the subordinate authorities. No mention was made by the learned Judge to Form 'D', where this land is specifically entered as Banjar Qadim and also to the admission of the State in return about the nature of this land. In this view of the matter, we have no option but to set aside partially the judgment of the learned Single Judge and hold that O. 141 Standard Acre could not be taken into account for determining how much land was surplus in the hands of the appellant. The area to this extent could not be declared surplus. The decision of the learned Single Judge on remaining matters will stay. In the circumstances of this case, there is no order as to costs. Appeal partially allowed.;