Gurbux Singh vs The Financial Commissiner, Taxation, Punjab at Chandigarh and others

S.C. Mittal, J.—Gurbux Singh, a tenant filed an application u/s 18 of the Punjab Security of Land Tenures Act. 1953, for purchasing the land comprised in his tenancy situate in village Malout, Tehsil Muktsar, District Ferozepoore (now in Faridkot). The application was opposed by his landlord Saudagar Chand successfully. Gurbux Singh finally filed revision petition before the learned Financial Commissioner Punjab, who dismissed the same by his order Annexure "E". The present petition under Articles 226 and 227 of The Constitution of India has been filed by Gurbux Singh for quashing the orders of the learned Financial Commissioner and the authorities subordinate to him. Saudagar Chand filed return in this Court strongly opposing the writ petition.

2 it may be said at the outset that that Gurbux Singh had been a tenant on the land in question uad;r Saudagar Chand is not in dispute. The sole ground for dismissing the purchase application of Gurbux Singh is that the land comprised in his tenancy had been include a by Saudagar Chard in his reserved area.

Learned Counsel for Gurbux Singh vehemently urged that the reservation relied on by Saudagar Chand was wholly illegal therefore, the revenue authorities committed an error of law apparent on record by passing the impugned orders. In support of his arguments, reference was nude to the following facts and circumstances.

The Punjab Security of Land Tenures Act, 1953, came into force on 15th April, 1953. As required by Section 2(3), it was imperative for Saudagar Chand to intimate in form "B" the authorithy concerned of reservation of his permissible area within six months from the date of the commencement of the Act. Furthermore, the said section lays down that reservation so intimated shall not be varied subsequently except, inter alia, with the consent in writing of the tenant affected by such variation. Accordingly, Saudagar Chand exercised his right of reservation through his brother Bool Chand whose khara was joint with Saudagar Chand Reference in this respect was made to Annexure -''A", copy of the entry dated 12th October 1953, of the daily diary report of the patwari to the effect that Bool Chand presented two "B" forms relating to lands of Saudagar Chand in three villages viz.. Malout, Bhagwanpura and Karamgarh Having presented the requisite forms, Sardagar Chand was detarred from making any chance in bis reservation except as showed by Sub-section (3) of Section 5.

Learned Counsel for Gurbux Singh ther pointed out that on 12th December, 1957, came into force the Punjab Security of land Tenures (Amendment) Act, 1957, introducing Sections 5-A, 5-B. and 5C. Sub-section (1) of Section 5-B laid down that a landlord who had not exercised the right of reservation under the Act may select his permissible area and intimate the selection to the prescribed authority within the specified period. Notwithstanding that Saudagar Chand had earlier exercised his right of resesvation, he made the second reservation, by putting in form "E". Therein be included the area comprised in the tenancy of Gurbux Singh, who acquired knowledge of the latter reservation when his application u/s 18 of the Act for purchasing the area held by him as tenant was opposed by Saudagar Chand. The objection of Saudagar Chand prevailed before the Assistant Collector 1st Grade and he dismissed the application of Gurbux Singh on 11th May, 1966 (Annexure "B").

Not satisfied, Gurbux Singh filed an appeal to the Collector, Ferozepore. A perusal of the Collector''s order (Annexure "C") dated 17th August, 1966(sic), shows that Gurbux Singh drew the attention of the Collector to the earlier reservation made by Saudagar Chand on 12fh October. 1953. Strength was sought from the aforesaid report registered by the patwari in his daily diary. Reference was then made to the order Annexure "E" wherein the learned Financial Commissioner observed:-

I have also been referred to a statement made by Shri Sudar-shan Chand son of Saudagar Chand as his general attorney dated 6th October, 1964 according to which he admits that his father bad reserved permissible area in 1953 and later in the year 1958 he selected the same area in form "E"

On the force of it, urged the Learned Counsel for Gurbux Singh that if there were no change in the reserved selected area, where was the necessity of violating the mandatory provisions of law by making another reservation in the year 1858 by means of form "E". Upon these established facts, argued the Learned Counsel that Saudagar Chand was guilty of concealing the true fact that in 1953, he had not reserved the area under the tenancy of Gurbux Singh. The other aspect of the matter put forward was that assuming for the sake of argument that Shri Sudarshan Chand trade a correct statement that the area reserved in 1958 was the seme as in 1953, then also the 1958 reservation stood automatically vitiated by the provisions of law referred to above. It was reiterated that Section 5-B of the amended Act under which the reservation was made in 1958 by filing form "E" emphatically laid down that such a reservation could be made by a landlord who had not exercised his right under the Act. if the right had been exercised in 1953 by filing form "B" through Bool Cnand, the second reservation was wholly illegal. In this view of the matter, onus clearly lay on Saudagar Chand to prove that the reservation made by him in 1956 was valid. The onus became all the more heavy by the circumstance that as admitted by his son he had exercised his right of reservation earlier in 1953. The contention of the Learned Counsel for Saudagar Chand to the contrary has not impressed me, in as much as it is elementary that the onus of proving the existence of a fact lies on the person who asserts it. Referring to the basic principles of onus of proof, the learned Judges of this Court in a Full Bench decision in M/S Sadhu Ram Bali Ram v. M/S Ghansham Dass Madan Lal I.L.R, (1975) Punj. & Hary. 363, expressed the view that when a party alleges the existence of certain facts on which it bases its claim, an obligation is cast on it to prove the existence of those facts and it would be for that party to lead evidence to prove those facts. Similarly, in the instant case once it has been proved by the copy of the entry in the daily diary of of the the Patwari and by the admission of Sudarshan Chand son of Saudagar Chand that in 1953 reservation was made by filing form "B" by Bool Chand on behalf of Saudagar Chand the onus lay heavily on Saudagar Chand to prove that his second reservation of 1958 was valid Throwing of this burden on the tenant Gurbux Singh by the authorities has led to manifest injustice.

Faced with this situation, Learned Counsel for Saudagar Chand laid emphasis on two facts: (1) As held by the Respondents Bool Chand had no authority to file form ''B" on behalf of his brother Saudagar Chand, the matter was concluded by the finding of fact, and (2) there was nothing on record to suggest that as required by the statutory rule, reservation was valid, for the particulars contained in form "B" had been verified by the patwari.

Dealing with the first point, Learned Counsel for Saudagar Chand pointed out that Bool Chand did appear as a witness in these proceedings, but he was not questioned by Gurbax Singh with regard to this aspect of the case. In the statement of Bool Chand read before me in the course of the arguments by the Learned Counsel for Saudagar Chand and the other surrounding circumstances referred to above, it was evident that the examination of Bool Chand who admittedly bad joint khata with Saudagar Chand, was with the object of seeking certain clarifications with regard to the lands held by them jointly, before the consolidation of holdings. It having been held that the onus was on Saudagar Chand to prove that Bool Chand had no authority, it was for Saudagar Chand to question Bool Chand in this regard. Gurbux Singh cannot be made to suffer for the fault of Saudagar Chand. The statement of Bool Chand being bereft of the fact under consideration, bow can it be said either that Saudagar Chand had discharged the onus on him or that the alleged finding of fact is based on some evidence. For the foregoing reasons, I find merit in the contention of the Learned Counsel for Gurbux Singh that error of law apparent on the record committed by the revenue authorities has resulted in manifest injustice to Gurbux Singh. Hence this Court has ample authority to interfere in the exercise of its writ jurisdiction vide Swaran Singh and Anr. v. State of Punjab AIR 1976 SC 23.

Coming now to the second point that in the absence of verification by the patwari of the particulars furnished in form "B" in 1953, no valid reservation could be assumed, Learned Counsel for Saudagar Chand urged that even the patwari came in the witness-box but he was not questioned in this regard by Gurbux Singh. The argument suffers from the same fallacy as was in respect of the examination of Bool Chand. It deserves notice that the patwari and Bool Chand were examined with a different object aforesaid. Besides, it having been held that onus lay on Saudagar Chand to prove the invalidity of the 1953. reservation, it is he who should have questioned the patwari in this regard. All the same, his Learned Counsel laid great stress on a Supreme Court decision in Gurbux Singh v. The State of Punjab,(1967)69 PLR 173 head-note(e) of which reads :

A valid reservatton can only be made by the landowner u/s 5(1) of the Punjab Security of Land Tenures Act, read with the rules made thereunder, when the particulars contained in the application sent by him to the Patwari were verified by the latter. Where there was no report by the Patwari verifying the particulars given by the landowner, held, really there is no proper reservation as required u/s 5 of the Act.

Before proceeding further, it is wothwhile mentioning that their Lordships of the Supreme Court in State of Orissa v. Sudhansu Sekhat Misra A.I.L. (1968) S.C. 647 enunciated the principle that a decision is only an authority for what it actually decided What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observarions made in it. It is not a profitable task to extract a sentence here and there from a judgment and to build upon it.

In view of the above, a Bench of this Court, of which I was a member, considered the aforesaid Supreme Court decision in Gurbux Singh''s case (supra) while deciding the case of Gordhan v. Financial Commissioner, Haryana 1990 P.L.J. 311. In the case decided by their Lordships of the Supreme Court, some sort of application was given u/s 5. Subsequently permissible area was retained u/s 5-B which applies only to cases where no reservation is made u/s 5 of the Act. The Supreme Court held that selection made u/s 5-B was in order because there was no reservation earlier. In Gordhan''s case (supra) we interpretted Rule 5 of the Punjab Security of ) and Tenures Rules, 1953 and arrived at the conclusion that on basic principles and on mere reading of the rule, one thing is clear that once a landlord has done his part by submitting the proper form of reservation u/s 5 of the Act, the mere fact that the revenue authorities do not do their duties cannot possibly affect the rights of the landlord. Applying this ratio to the facts of the present case, it will be seen that if Saudagar Chand wanted to take advantage of reservation in form " filed by his brother Bool Chand in 1953, nothing could stand in his way. Above all, it may be noticed again that when the onus lay on Saudagar Chand to prove the validity of his second reservation made in 1958, it was for him to show that the verification was not done by the authorities. Learned Counsel for Gurbux Singh was at pains to further point out that on both the occasions, i.e., in 1953 and 1958, reservations were made by Saudagar Chand behind the back of Gurbux Singh and this conduct of Saudagar Chand was in violation of the statutory rules.

While interpreting the provisions of the Punjab Security of Land Tenures Act, 1953, and the other relevent provisions of law applicable to a case under the Act, it is to be borne in mind that as evident from the preamble of the Act, this legislation is intended to provide for not only the Sucurity of land tenures but also other incidental matters. In the scheme of things, the Act confers on the actual tiller, i.e., the tenant, the right to purchase land comprised in his tenancy if he satisfies the requirements of the Act. That being so, the approach to the matter under consideration should be such as to defeat the objects with which the law has been enacted.

In the result, I allow the writ petition, set aside the impugned order of the learned Financial Commissioner and remit the case to him for further proceedings according to law. He may, if he deems fit, give opportunity to the parties to bring material on record relevant to the reservations in question. The parteis are left to bear their own costs.