- (1.) Amar Nath & Others through present petition filed by them under Article 226 of the Constitution of India, seek setting aside of orders, (Annexures P-9) dated May 27, 1980, passed by the Financial Commissioner exercising the power of the Central Government under Section 33 of the Displaced Persons (Compensation & Rehabilitation) Act, 1954, vide which order passed by the Chief Settlement Commissioner (Annexure P-7) dated August 26, 1974 was modified. Brief facts of the case need a necessary mention.
(2.) Petitioner Nos. 1 and 2 and deceased father of petitioner No. 3 alongwith one Tirath Ram, brother of petitioner Nos. 1 and 2, were allotted evacuee land in lieu of land left by them in village Rao Bag Mal, Tehsil Chhiniot, District Jhang (area now forming part of Pakistan). It is pleaded that the allottees aforesaid had left two categories of sub-urban land in village Rao Bag Mal, one consisting of area which irrigated by their old wells Chah and Ghuguwala etc. (with Persian wheels) and that area was shown as Chahi in the jamabandi. The other category was of the area comprised in Khewat Nos. 27, 28, 29, 30 and 57. Further, petitioner had set up two double set tubewells for irrigation purposes under the State Government Scheme contained in para Nos. 504, 504-A and 505 of the Land Resettlement Manual, according to which any person who reclaimed and brought under cultivation any Banjar and unirrigated area by providing means of irrigation at his own costs, was entitled to remission of land revenue for a period extending upto 40 years. Relevant para 504-A read thus:- "Principles governing the protection of improvements from assessment of land revenue - The principles underlying the temporary protection of certain classes of agricultural improvements from any charge on account of land revenue is that the additional net assets derived from land in consequence of such improvement shall not be reduced by any enhancement of land revenue in respect of such assets, or in other words by the assessment of such assets to land revenue until the capital costs of the improvement, with current interest thereto, has been recouped to the improver out of those additional net assets. The theoretical period of protection depends therefore on:- (i) the amount of capital expenditures; (ii) the rate of interest assumed; and (iii) the average annual value of the additional net assets due to the improvement. The Punjab Government has accordingly directed that the period of protection for a new irrigation well should be fixed with reference to the above consideration, but subject to a minimum of thirty and a maximum of forty years and that it shall depend not on the amount of land revenue to be annually remitted, but on the amount of the additional net assets due to such well. It has been further decided that the total sum inclusive of interest to be recouped for the extra net assets shall be reckoned in all cases at twice the capital costs of the well. This general standard proportion will save a good deal of intricate and uncertain calculations. It may be observed that recoupment of twice the capital in a period of 30 years is equivalent to recoupments of the capital itself in that period together with interest 5-1/4 per cent per annum on the balance outstanding from year to year. If the period were 40 years, the corresponding rate of interest would be very nearly 4 per cent." It is pleaded that petitioners had set up two double set tubewells one knows as 'Krishanwala' and the other known as 'Bandrinathwala' sometimes in the year 1938-39 for irrigating the area of the aforesaid Khasra numbers and in lieu thereof the Government had exempted land revenue for 30 years. This fact was duly reflected in the remarks column of the jamabandi. At the time of original allotment, petitioners were given land only on the basis of land irrigated by old wells and the remaining area which was being irrigated by tubewells, was wrongly treated as Banjar and no area was allotted in lieu thereof. The allottees on this basis were given quasi-permanent rights of the land situated in village Rohtak which is detailed as below:- "Amar Nath 186 6-1/2 Std. acres Badri Nath 8-3-3/4 Std. acres Sunder Dass 12-10 Std. acres Tirath Ram 2.7 Std. acres." Petitioners being dissatisfied with the inadequate allotment of land, as it was not commensurate to the land left in the area now forming part of Pakistan made representation to the Rehabilitation Department and the Rehabilitation Minister, after going through the case directed the department vide order dated October 9, 1953 to give temporary allotment to allottees in lieu of the area which was being irrigated by tubewells. In pursuance of the orders aforesaid, the following additional allotment on temporary basis was given to petitioners by the Rehabilitation Department in villages Rana Kheri and Gohana District Rohtak:- "Amar Nath 13-6-1/2 std. acres Badri Nath 13-5-1/2 std. acres Sunder Dass 5-1-3/4 std. acres Tirath Dass 11-3 std. acres." Petitioners who were then satisfied as they were given their due by giving them additional area as mentioned above, were in for a big shock when after about twenty years on receipt of some complaint, the Chief Settlement Commissioner endeavoured to reopen the proceedings of allotment of land to them. Notice of the complaint received by Chief Settlement Commissioner was given to petitioners and after hearing them vide order dated January 3, 1974 (Annexure P-3) additional area granted to them way back in 1953 was cancalled. It was further said in the order aforesaid that petitioners would, however, continue to have temporary rights over the additional area till such time the State was able to prove it otherwise. In 1974 itself when petitioners came into possession of some relevant documents conclusively showing that the entire land in their possession in Pakistan was Chahi, they filed an application for reviewing the order dated January 3, 1974 before the Chief Settlement Commissioner. On August 26, 1974 the contention of petitioners project in their review application was accepted by the Chief Settlement Commissioner. Thereafter, the Deputy Secretary Rehabilitation referred this matter to the Financial Commissioner exercising the powers of Central Government under Section 33 of the 1954 Act for re-examining the matter as according to him there was some ambiguity in the matter. In pursuance of the reference aforesaid the Financial Commissioner modified the orders of the Chief Settlement Commissioner vide Annexure P-9 dated May 27, 1980. It is this order, as has been indicated in the earlier part of the judgment, that has been challenged in the present petition.
(3.) Perusal of order, Annexure P-7 accepting the review application of the petitioners would reveal that the Chief Settlement Commissioner had relied upon a copy of letter sent by the Welfare Director of Army in 1945 which was addressed to the Deputy Commissioner, Jhang wherein it was mentioned that agricultural land situated in village Rao Bag Mal was being irrigated through Krishanwala well. He also relied upon an order of the Industrial Claims Officers wherein it was certified that the petitioners had electric connection for irrigation purposes and not for industrial purposes in Pakistan. He also relied upon a copy of letter received from M/s Burmah Shell in Pakistan wherein it was certified that the company was supplying regular quota of oil to Amar Nath who was the eldest brother and the same was being used for the purpose of irrigating the land. Not only that the Chief Settlement Commissioner also relied upon revenue records and in particular, the entry which reads 'SALIM JAMA CHAHI MAAF'. The land revenue was exempted as under the scheme, relevant paragraph of which has been reproduced above; those who had put their entire land into irrigation, were not required to pay the land revenue for the period between 30 to 40 years. There was a mortgage deed available which was produced by Amar Nath after redeeming the land from mortgage which in clear terms shows that the land mortgaged was Chahi. There was, thus, ample evidence available before the Chief Settlement Commissioner to hold that the entire land was Chahi and on account of this fact alone even earlier the petitioners were given the additional land, as has been mentioned above. The learned Financial Commissioner on mere conjectures and surmises came to the conclusion that only fifty acres of land of petitioners could be irrigated. While dealing with the matter, this is how he proceeded:- "But there is no other relevant factor which must be taken into account and it is in favour of the respondents. As per record and indisputably the respondents had set up two tubewells to irrigate the lands compromised in the aforesaid four khewats. There is nothing on record to indicate what was the size of the delivery pipes of these two tubewells but it would not be unreasonable to presume that the respondents intended to convert around 25 acres of Barani or uncultivated land to Chahi land by means of each tubewell. It is possible that they were not able to achieve this aim quickly enough apparently because of shortage of funds. The fact that respondent Amar Nath mortgaged with possession on 31.1.1938 to an apparent stranger his entire share (241 kanals plus) in the four khewats for a mere sum of Rs. 1500/- attests to the respondents shortage of funds. There is nothing on record to show when respondent Amar Nath actually redeemed his share of the land through before the CSC on 26.8.1974 he had stated that he had redeemed it only sometime back. Before me, therefore, respondent Amar Nath has claimed that he redeemed the land a couple of years later in Pakistan itself. Anyhow the position as per jamabandi entries with regard to the description of land in the four khewats is that despite the tubewells sunk by the respondents on the land, an area of only around 78 kanals out of an area of 964 kanals in the said four khewats was Chahi in 1946-47. But no one sets up even a three inch or four inch delivery pipe tubewell merely for irrigating half of slightly less than 10 acres of land. It can, therefore, reasonably be presumed that each tubewell had been installed to convert at least 25 acres into chahi land and, therefore, a total of 50 acres of land composed in the four khewats must be deemed to be potentially irrigateable land and for purpose of compensation Chahi land. Therefore, a just equitable and reasonable solution of this case is that apart from reasonable solution of this case is that apart from the around 78 kanals of land comprised in the four khewats which are already described as Chahi in the special 1946-47 Jamabandi such additional land in the four khewats should for the purpose of allotment of each of the respondent be also deemed as Chahi as would take the total of the Chahi land in the four khewats to 50 acres. For this purpose this difference (between 50 acres and around 78 kanals) should be made up first by treating the remaining barani land as Chahi and then, if necessary by treating the remaining Banjar Jadid land as such." The perusal of the relevant part of the order passed by the Financial Commissioner would thus show that the evidence relied upon by the Chief Settlement Commissioner was not taken into consideration and instead estimates were made and which estimates were not based upon any expert opinion. It was according to the thinking of the Financial Commissioner alone that two tubewells could irrigate only fifty acres of land. Once there was documentary proof available on the records of the case that the entire land belonging to petitioners was Chahi there was no scope for the Financial Commissioner to have made his own estimates to reach to the conclusion that only fifty acres of land was being irrigated.;