Gurdial Singh vs Financial Commissioner .

S.S. Kang, J.

Gurdial Singh and his brother Zora Singh petitioners have filed this writ petition under Articles 226/227 of the Constitution of India to challenge the orders of the revenue authorities rejecting their application for acquiring proprietary rights under their cultivation.

On 8th August, 1966, the petitioners filed an application before the Assistant Collector, First Grade, for acquisition of proprietary rights in 31 Kanal 16 Marlas of land comprised in Rectacle Nos. 4, 6, 7, 14, 15 of Killa No. 191 situate in village Makorar Sahib against Sadhu Singh son of Gind Singh, respondent No. 5, on the plea that Sadhu Singh was a big landlord. The petitioners were tenants under him on the land in dispute since 1956. Sadhu Singh respondent contested this application and pleaded that he was owner of only halfshare of the land in dispute and the other half was owned by his son Yashkaran Singh. Both of them were allottees to this land being refugees from Pakistan. Previously ownership of half of the land allotted to him had been transferred in favour of his mother Smt. Ganga Kaur. On her death, her estate was inherited by Yashkaran Singh. He did not own more than 45 standard acres of land which he was entitled to possess, being a refugee. The petitioners were not in continuous possession of the land in dispute since 1956. The petitioners examined village Patwari and got proved from him copies of Jamabandis for the year 196162 pertaining to the land of village Makorar Sahib and Khasra Girdawaris of this land. They also produced Jamabandis for the years 195960 and 196263 of land of village in Badsikri Kalan as also Jamabandi for the year 196162 pertaining to village Kurail. Gurdial Singh made his own statement. He admitted that Sadhu Singh was an allottee and he did not know as to whether Yashkaran Singh son of Sadhu Singh was the owner of halfshare of the land in dispute. Previously the petitioners used to cultivate land comprised in Khasra Nos. 1507/1337, 1576/1339 and 1519/1340. But they had made application for acquiring proprietary rights in Killa Nos. 191/4, 6, 7, 14, 15, only Girdawaris for the years 196162 to 196566 have been produced to show that the petitioners were tenants on these Killa numbers. However, the petitioners have not led any evidence to prove that during the proceedings for consolidation of holdings, these Killa numbers had been carved in lieu of Khasra Nos. 1507/1337, 1576/1339 and 1519/1340. So they have failed to prove that the petitioners were cultivating these Killa numbers from 1956 onwards for a minimum period of six years. Similarly they could not prove that Sadhu Singh was a big landowner and owned more than 40 standard acres of land. The rehabilitation authorities had allotted half of the land entered in the name of Sadhu Singh in the revenue record to his mother Smt. Ganga Kaur. As such, she had become the owner of half of the land. Thereby, the holding of Sadhu Singh had become less than 40 standard acres which he was entitled to hold as a refugee landowner. Later, on the death of Smt. Ganga Kaur, this land was inherited by his son Yashkaran Singh. So, the Assistant Collector held that the petitioner had failed to prove that they had been in possession of the land in dispute since Kharif 1956 and to establish that Sadhu Singh and Yashkaran Singh who had also become a party to these proceedings with the permission of the Assistant Collector were big landowners. He, therefore, dismissed the application of the petitioners. Their appeal to the Collector failed and the findings of the Assistant Collector were affirmed. He also held that the petitioners had failed to establish the identity of the land under their cultivation and also that the respondents were big landowners. Aggrieved the petitioners went up in revision before the Commissioner. There they made an application for permission to produce additional evidence. The learned Commissioner found merit in that application. He was of the view that under section 25 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (for short the Act), there was a presumption in favour of the petitioners that they had during the consolidation proceedings received the land in dispute in lieu of the land previously cultivated by them. He also came to the conclusion that Sadhu Singh had owned and possessed more than 70 standard acres of land and was prima facie a big landowner. He, therefore, made recommendation to the learned Financial Commissioner that the petition be accepted and the orders of the Collector and Assistant Collector be set aside.

The Financial Commissioner, however, did not accept this recommendation. He was of the view that the petitioners have been given ample opportunity to prove their case. The application was moved by them on 8.8.1966 and the case was decided by the Assistant Collector on 9.1.1973, after a period of nearly 62/3 years. The petitioners have themselves closed their evidence. There was, therefore, no valid reason to grant them further opportunity to produce additional evidence in revision proceedings. The evidence sought to be produced was available to them during the pendency of the proceedings before the Assistant Collector. He rejected the revision petition. Aggrieved, the petitioners have filed the present writ petition.

Shri Ashok Bhan, Senior Advocate, learned counsel for the petitioners, has raised three contentions before me : (i) that the petitioners were in cultivating possession of the land in dispute since 1956. During the consolidation proceedings new killa numbers were carved and Sadhu Singh had been allotted land in lieu of his previous holdings in the shape of killas. The petitioners were put into possession as tenants on the land mentioned in the application which was given to Sadhu Singh in lieu of the land which was previously in possession of the petitioners. Under Section 25 of the Act, there is a presumption that the land which was under the cultivation of the petitioners had been given in lieu of the land previously cultivated by them; (ii) that Sadhu Singh and Yashkaran Singh respondents 5 and 6 were big landowners owning more than 30 acres of land each; and (iii) that the learned Financial Commissioner gravely erred in declining the recommendation of the learned Commissioner for permitting the petitioners to lead additional evidence. None of these arguments has impressed me.

The petitioners did not lead any evidence to prove that in lieu of Khasra Nos.1507/1337, 1576/1339 and 1519/1340, which were under their cultivation. Killa Nos. 191/4, 6, 7, 14, 15 were allotted during the consolidation proceedings. The petitioners have only proved that these killa Nos. were in their possession from 1961 to 1966. In order to be eligible for acquisition of proprietary rights in the land in dispute the petitioners had to established that they were in cultivating possession of the same since 1956. All they have to establish is that the land in dispute had been allotted during consolidation proceedings in lieu of the land which was previously in their possession as tenants since 1956. Section 25 of the Act reads as under :

"25 Rights of landowners and tenants after consolidation same as before. A landowner or tenant shall, subject, to the provisions of (sections 16 and 16A) have the same right in the land allotted to him in pursuance of the scheme of consolidation as he had in his original holding or tenancy, as the case may be."

It is patent from the statutory provision reproduced above, that no presumption can be raised that for the land which was previously under the cultivation of the petitioners, the land now cultivated by them had been allotted to Sadhu Singh.

The petitioners have similarly failed to establish that Sadhu Singh or Yashkaran Singh was a big landowner. Admittedly, both of them are refugees. The learned Commissioner has referred to certain allotment chits available on the file and on their basis concluded that Sadhu Singh and Yashkaran Singh were big landlords. However, Sadhu Singh in para 5A of his written statement has explained that initially he had been allotted 54 standard acres 131/4 units of land but later on the Settlement Commissioner, Jullundur, vide his orders dated 7.11.1955 had cancelled an area of 16 standard acres 131/4 units of land from his allotment and he was left with 38 standard acres. He has also averred that he was allotted another piece of 23 standard acres 21/2 unit of land. But out of that 5 standard acres of land had been taken away by the Competent Officer on 24.1.1959, thus leaving behind 18 standard acres 21/2 units of land. The Rehabilitation Authorities had declared his mother Smt Ganga Kaur as owner of half of this land. So the share of Sadhu Singh came to less than 40 standard acres. The remaining half owned by his mother Smt. Ganga Kaur was inherited by Sadhu Singh''s son Yashkaran Singh because Smt. Ganga Kaur had made a Will in his favour. These assertions have been supported by the orders passed by the Rehabilitation authorities, copies of which have been appended as Annexures R. 1 to R. 3 to his written statement. The petitioners have not filed any rejoinder to contradict these assertions.

No case for allowing the petitioners to examine additional evidence was made out by them. Admittedly they were given full opportunity by the Assistant Collector to prove their case. In fact, it is evident from order dated 2.9.1970, copy Annexure R.7 (with written statement) that the Assistant Collector had given the petitioners an opportunity to examine additional evidence. Even at that stage they did not lead any evidence to prove that the land sought to be acquired was allotted in lieu of the land previously cultivated by them as tenants. The village Patwari was examined twice still this factor was not got established through his evidence. The evidence regarding consolidation proceedings was easily available to the petitioners. They have not given any explanation as to why they could not produce this evidence at the time when their application was pending decision. Same applies to the evidence regarding the land owned by Sadhu Singh and Yashkaran Singh respondents. The petitioners have not even cared to controvert the assertion of Sadhu Singh respondent that they, in fact, owned and possessed more than 200 Kanals of land and were thus not eligible to acquire proprietary rights in any land.

For the foregoing reasons. I find no merit in this petition and the same is dismissed with costs. Counsel fee Rs. 100/.