- (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 : "The learned counsel for the appellant has further argued that the land mortgaged with the appellant by Arjan Singh (Khasra Nos. 517 and 518) should not have been included in the appellant's holding. This land was under mortgage with the appellant. The redemption of this land took place in October, 1962. This redemption is a disposition which is hit by provisions of Section 32-FF of the Act (Pepsu Tenancy and Agricultural Lands Act, 1955) and cannot be taken into account." The objection of the petitioner regarding the alleged erroneous evaluation of the land on account of its wrong classification was turned down on the solitary ground that the class of land had been taken as it was entered in the latest Jamabandi of 1954-55 which was conclusive. The Commissioner also held that rule 5 did not in any manner outstep the definition of "Standard Acre" contained in Section 2 of the Pepsu Tenancy and Agricultural Lands Act (13 of 1955) (hereinafter called the Act), and was, therefore, not ultra vires. The Commissioner went to the length of refusing to the petitioner even his prayer for being allowed to exercise his choice in selecting his permissible area. Not satisfied with the order of the Commissioner, the petitioner filed an application for revision, dated the 12th July, 1963 (Annexure 'C'), before the Financial Commissioner. When the matter came up before the Financial Commissioner on the 19th November, 1963, it was adjourned to see the judgment of Mahajan, J. in Waryam Singh V. The Collector (Agrarian Reforms) Sangrur, 1964 CurLJ 1, as counsel for the petitioner had stated before the Financial Commissioner that a recent judgment had held Schedule 'A' to the Rules being ultra vires, but could not at that time show the judgment. At the adjourned hearing of the revision petition on the 21st January, 1964, the Financial Commissioner held (Annexure 'D'), that the judgment of Mahajan, J. in Waryam Singh V. The Collector (Agrarian Reforms) Sangrur was confined to the facts of that case where two types of Chahi land had been involved, and that had no impact on the present case. The proceedings were adjourned to the next day for deciding the question of giving the petitioner an opportunity to select his permissible area. By his order, dated the 25th February, 1964 (Annexure 'D-1'), the Financial Commissioner accepted the prayer of the petitioner for an opportunity being given to him to select the permissible area, and directed that he should be allowed to do so before the Special Collector, Punjab, subject to the condition that any action already taken for the resettlement of tenants on any part of his surplus area would not be affected by his selection.
(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 : "As regards paragraph 13 of the petition, it is submitted that the petitioner did not raise this objection before the Special Collector. However, according to the Special Collector, Punjab, no such area has been included in the petitioner's holding."
(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 :- "(a) that according to the undisputed testimony of Anup Singh Patwari, dated January 22, 1962, before the Collector, Agrarian, Malerkotla, the total holding of the petitioner in standard acreage according to the Jamabandi of 1950-51, was 27 Standard Acres and 3 Units (the holding in ordinary acres being 200 Bighas and 14 Biswas); and the petitioner had not acquired any additional land in any manner after 1951-52, and the holding had been calculated by the consolidation authorities during the consolidation proceedings in the Jamabandi prepared in 1954-55, at 34 Standard Acres 5 Units, and further that the 1950-51 Jamabandi did show separately the Bhud area of the petitioner; and (b) that according to the admittedly correct statement of Kishan Chand, Sub-Inspector Consolidation, recorded by the Collector, Agrarian, Malerkotla, on the 21st February, 1962, consolidation proceedings were taken in the village in question in 1953 during which proceedings the separate entry of Bhud land was ignored, and the same had been included in the Barani area. The Sub-Inspector Consolidation stated unequivocally that the actual quality of the land at the site was not at all taken into consideration for evaluation in the consolidation proceedings.";