- (1.) Civil Writ Petition Nos. 5686 and 5688 of 1976 will be disposed of by this judgment as common questions of facts and law are involved. To determine the controversy between the parties, the facts in Civil Writ Petition No. 5686 of 1976 are given.
(2.) Surja is a tenant under Hardeva. He filed an application under Section 18 of the Punjab Security of Land Tenures Act (hereinafter called the Act) for the purchase of land comprised in his tenancy. The same was allowed by the Assistant Collector Ist Grade on 31st March, 1959. Hardeva filed an appeal against this order to the Collector. It was dismissed on 20th of July, 1960. Dissatisfied with these orders, Hardeva, petitioner, filed a revision petition before the Commissioner and pleaded that he had selected this land sought to be purchased and had included the same within his permissible area and as such the same could not be purchased under Section 18 of the Act. This plea had not been raised before the Assistant Collector Ist Grade or the Collector. However, the Commissioner allowed the same to be raised. He summoned the records and came to the conclusion that the petitioner had put in Form "E" prescribed by the Punjab Security of Land Tenures Rules (hereinafter called the Rules) for selection of his permissible area and had also submitted an affidavit along with that before the Collector on 19th of June, 1957. He, therefore, came to the conclusion that the land had been included in the permissible area of the petitioner and the same could not be purchased. He himself could not set aside the order. So, he made a recommendation to the Financial Commissioner. The Financial Commissioner did not agree with the recommendation of the Commissioner. He held that the Commissioner in revision could not entertain a fresh plea on facts in the face of a concurrent findings by two officers. So, he did not accept the recommendation and dismissed the same. Hardeva filed a writ petition in this Court, which was allowed on 12th of March, 1965 and the case is Hardeva v. State of Punjab etc., 1965 67 PunLR 631. This Court held that the Financial Commissioner had erred in not accepting the recommendation of the Commissioner who had come to a conclusion on facts that the land in dispute was included in the permissible area of the land-owner. A Letters Patent appeal against this was dismissed. Surja, the tenant, went to the Supreme Court. His appeal was allowed. The orders passed by the High Court and the Financial Commissioner were set aside and the case was remitted to the Financial Commissioner to dispose of the revision filed before him in accordance with law. It will be useful to reproduce the relevant portions of the judgment of their Lordships of the Supreme Court in Surja v. Hardeva and others, 1970 AIR(SC) 1193 "In our opinion the Financial Commissioner should have gone into the question whether the Commissioner's report was acceptable or not on merits. It is urged by the learned counsel for Surja that the High Court did not decide the question whether the selection had been properly made within time, but it merely accepted the report of the Commissioner. He, therefore, still disputes the fact that the selection was made within time. He also says that it is not a genuine and valid selection. These points should be gone into by the Financial Commissioner. Under these circumstances we allow the appeal, set aside the orders passed by the High Court and the Financial Commissioner and remit the case to the Financial Commissioner to dispose of the revision filed before him in accordance with law." After the receipt of the case on remand the Financial Commissioner sent the case to the Collector, Sirsa, for making investigations and report on two points namely, "whether the selection had been properly made within time and whether it was a genuine and valid selection." After hearing the parties and perusing the record, the Collector, Sirsa, sent a report on August 9, 1973. He reported that Forms "E" and "A" pertaining to the selection were not available on the records of the case and the enquiries from the Sub-Divisional Officer (Civil), Hissar and the Naib Tehsildar (Surplus Area) revealed that these forms could not be located and even in the relevant register of the office of Collector, no entry was made showing the receipt of these forms. After the receipt of this report, the Financial Commissioner took up the case. He heard the parties and perused the record. He came to the conclusion that Hardeva, petitioner-land-owner, had not made a valid and genuine selection of his permissible area within time. He also concluded that he could not decide the case simply on the observation of the Commissioner regarding the existence of these forms. He wanted himself to see to these forms and decide the case on that basis. He did not find any evidence whatsoever on the record that the petitioner land-owner had made a genuine and valid selection within time. He, therefore dismissed the revision petition. The facts in Civil Writ Petition No. 5688 of 1976 are identical.
(3.) Mr. H.S. Wasu, Senior Advocate, the learned counsel for the petitioner, has argued that under Section 18 of the Act, the onus is on the tenant to prove that the land sought to be purchased is not included in the reserved area. To appreciate the contention the relevant extracts of the statutory provisions are reproduced below :- [Section 18 not printed - Ed.] Item '1' in Form 'Q' reads as under :-;