B.R.Tuli, J. - (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. The next argument advanced by the learned Counsel for the Petitioner is that the learned Financial Commissioner could not suo motu set aside the order of the Commissioner when no appeal had been filed against that order by the State. I do not find any force in this submission. The learned Counsel has referred to Section 84, of the Punjab Tenancy Act, Sub -sections (1) and (5) of which read as under: 84(1). The Financial Commissioner may at any time call for the record of any case pending before, or disposed of by, any Revenue Officer or Revenue Court subordinate to him. (5) If, after examining the record, the Financial Commissioner is of opinion that it is expedient to interfere with the proceedings or the order or decree on any ground on which the High Court in the exercise of its revisional jurisdiction may, under the law for the time being in force, interfere with proceedings or an order or decree of a Civil Court, he shall fix a day of hearing the case, and may, on that or any subsequent day to which he may adjourn the hearing or which he may appoint in this behalf, pass such order as he thinks fit in the case.
(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 - (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity. The condition "in which no appeal lies thereto" does not apply to the revisions before the Financial Commissioner. The Financial Commissioner was, therefore, within his rights to revise the order of the Commissioner suo motu but he had to do so after notice to the Petitioner. It is not clear from his order whether he gave any notice to the Petitioner or his counsel. It is submitted by the learned Counsel for the Petitioner that at the time of hearing the appeal, the learned Financial Commissioner dismissed it but told the learned Counsel that in case he decided to set aside the order of the Commissioner suo motu, he would issue a notice to him. The learned Counsel informed the Petitioner in these terms by letter dated February 3, 1964, a copy of which is annexure 'D' to the writ petition. According to the order, the decision was made by the learned Financial Commissioner on January 23, 1964, on which date the appeal of the Petitioner came up for hearing before him. This is a good ground for requiring the learned Financial Commissioner to decide afresh the suo motu revision setting aside the order of the learned Commissioner but in the circumstances of this case, I do not think it proper to direct the Financial Commissioner to decide it afresh because the learned Counsel for the Petitioner has not been able to satisfy me that the Commissioner had the power to allow any area to the Petitioner in excess of the permissible area on account of the maintenance charge of his wife on the entire land. No provision of the Act has been brought to my notice authorising the authorities under the Act to do so. The learned Counsel has argued that under Section 6 of the Act, transfers of land, made after the 15th August, 1947, and before February 2, 1955, are not to affect the rights of the tenants on such land under the Act except a bona fide sale or mortgage with possession or a transfer resulting from inheritance. His further submission is that the transfers made prior to 15th August, 1947, were immune from attack and the charge in favour of the wife amounted to such a transfer. I regret my inability to agree to this submission. Merely because a charge in favour of the wife was accorded by a decree of the Court did not take away the ownership of the husband, the Petitioner in this case, and the land continued to be owned by him. On the appointed day, that is, April 15, 1953, he was the owner of 56 Standard Acres and 8(1/4) Units and his wife was not the owner of any parcel of that land. The charge of the wife shall continue on the land which has been allowed to the Petitioner as a permissible area and the land declared surplus even when it is utilised by the Government for the resettlement of the ejected tenants under Section 10 -A of the Act. Those tenants will have the rights of tenancy and not ownership unless they purchase it under Section 18 of the ,Act in case they are entitled to its purchase. It has not been stated that the permissible area left with the Petitioner is insufficient to provide the maintenance of Rs. 43/ - per mensem to the Petitioner's wife. Under the circumstances, I consider that the order passed by the learned Collector was the correct and legal order which was illegally interfered with by the learned Commissioner. The Financial Commissioner has taken a legally correct view of the matter and has rightly set aside the order of the learned Commissioner and the Petitioner has suffered no injustice thereby.;