Shri Lakshbir Singh vs Shri Anant Ram and Others

Harbans Singh, J.—This writ petition has been filed by the land-owner Lakshbir challenging an order of the Financial Commissioner allowing the application of tenants Anant Ram and Sant Ram to acquire proprietary rights, under Chapter IV of the Pepsu Tenancy and Agricultural Lands Act, 1955 (hereinafter referred to as the Act of 1955), in the lands they were cultivating. The litigation between the parties or then predecessors-in-interest started as far back as 1953 and it is. therefore, necessary to briefly state the facts relevant and necessary for the disposal of this writ petition.

Hari Ram, father of respondents Anant Ram and Sant Ram, cultivated the land in dispute, which was situated in two pattis at Bhatinda, namely, Patti Jhuti and Patti Mehna, for a number of years up to Kharif 2000 Bk. (corresponding to Kharif 1944). From rabi 2001, Sant Ram son of Hari Ram is mentioned as in cultivating possession. From kharif 1954, the revenue records indicate that both Sant Rain and Anant Ram, sons of Hari Ram were in cultivating possession as chakautadars for Rs. 1,700/- so far as the land in Patti Jhuti is concerned One of the khasra Nos., namely 5209/1799, from kharif 1953 onwards till rabi 1957, was also in the cultivating possession of both of them.

On 2nd of March, 1953, Jahangir Chand, grandson of the original owner, mortgaged the property in dispute in favour of Banarsi Das etc. for a consideration of Rs. 22,000/-. A notice issued by the mortgagees for the ejectment of these two tenants was duly served on Sant Ram and Anant Ram and on 10th of November, 1953, the Assistant Collector dealing with this matter recorded the fact that the service had been effected (see annexure ''C''). As no further action was to be taken u/s 45(5) of the Punjab Tenancy Act (which also applied to the erstwhile Pepsu area), the papers were directed to be filed. No suit was filed by the tenants challenging the notice. On 16th of April, 1954, the mortgagees made an application to the Revenue Assistant for "ordering the ejectment of the tenants". In this application", the possession was sought of the four khasra Nos. 5209/1799, 5029/1824, 5031/1825 and 1826. Inter alia, it was stated in this application as follows:-

(1) That notice was duly served,

(2) That no suit was filed.

(3) That the owners or the mortgagees have no other land and want the aforesaid land for self-cultivation.

Notice of this application was not given to the tenants as that was hardly necessary and orders were issued to the Kanungo to deliver possession to the applicant mortgagees. The Kanungo reported on 1st of May, 1954, that on going to the spot, Anant Ram was found in possession of the land, one-third of which was under crop and two-thirds was vacant and that there was obstruction and danger of breach of the peace A request was consequently made for police assistance. On 8th of May, 1954, however Anant Ram filed a suit for cancellation of the notice of ejectment said to have been served on him. He took up the plea that no notice was served on him and that he came to know of this on 1st of May when warrants were sought to be executed and that he had taken a lease for a period of three years from the owner Jahangir Chand which lease expired on 15th of June, 1955. This suit was resisted by the mortgagees. Inter alia, they urged that the suit not having been filed within two months of the service of the notice, the same was barred by time and that he was not a chakautadar under the owner. Jahangir Chand, however, admitted the fact that he had given the land on chakauta for three years from 18th of June, 1952, to 15th of June, l953. He further stated that this fact was made absolutely clear to the mortgagees and that they were told that they would be entitled to get actual possession of the land only on the expiry of the lease period. Inter alia, the following three issues were settled in that suit.

(1) Whether the suit is within limitation?

(2) Whether Anant Ram was holding as a lessee till J.5th of June, 1955?

(3) Whether relationship of landlord and tenant did not exist between the parties.

During the pendency of this suit, Pepsu Ordinance No. 6 of 1954 was promulgated and on 1st of February, 1955, an application was made by Anant Ram that, in view of section 5 of the aforesaid Ordinance, no one can be ejected for a period of one year with effect from the date of the Ordinance which came into force on 4th of October, 1954, and, therefore, the notice had become bad and should be cancelled. This was resisted and by an order dated 17th of May, 1955, it was held that neither section 5 of the Ordinance nor section 7 of the Pepsu Tenancy and Agricultural Lands Act, 1955, concluded the matter and that the case shall have to be decided on merits. Subsequently, on 21st of September, 1955, another application was given by Anant Ram to the effect that Banarsi Das mortgagee had received before the Collector in another appeal, a sum of Rs. 400 towards the balance of the lease money for the year 1954-55 and Rs. 950 towards one-half of the lease money for the year 1955-50 by way of advance and that, therefore, he had become chakautadar up to 15th of June, 1956, and that the notice should be cancelled. In the reply filed by Banarsi Dass on 13th of October, 1955, it was admitted that a sum of Rs. 1,350 had beer, received but it was stated that chakauta for three of the khasra numbers was Rs. 2,200 per year and full payment had not been made for the years 1952-53, 1953-54 and 1964-55 and that the tenant was also in possession of khasra No. 5209/ 1799 for which also he had not given the batai for the above mentioned years. In view Of the above, an issue was settled to the effect whether the parties have compromised before the Collector regarding this suit and whether the plaintiffs had paid Rs. 950/- towards advance lease money. An application by Anant Ram that this issue should be decided first was rejected and a revision taken against that order was also rejected by the Commissioner. The parties were directed to appear before the Assistant Collector on 25th of April, 1950, in this suit. On that day, however, Anant Ram and his counsel were absent and the suit was dismissed in default.

Thereafter on 3rd of May, 1956, application was made by Banarsi Dass for issue of the warrants of ejectment. In this application it was mentioned that notice was given in 1953. that no suit was filed by the tenants within two months of the said notice and that the land was required for self cultivation. Order for delivery of possession with police help was passed on 11th of May, 1956, and warrants were executed on 13th of May, 1956, and, according to the report of the Kanungo annexure E., Sant Ram and Anant Ram were found present at the spot, possession of the vacant plots was given by thadabandi (demarcation) and of the area which Was under crops, only symbolical possession was given. Banarsi Das gave a receipt for having obtained the possession on 14th of May, 1956 (copy annexure F). On 14th of May, 1956, an application (copy annexure ''G'') was made by Anant Ram to the effect that the proceedings for possession were only paper transaction and that he was not actually dispossessed because his land was under crops, that a good deal of crops had been destroyed, that the other party should be prevented from causing further destruction and that he should be put back into possession of the land. It appears that, while this application was pending, fresh chakauta was granted in favour of Anant Ram in respect of all the four khasra numbers, leaving out an area of 1 bigha and 14 biswas which was under the kothi for a period of one year. The fruit of the garden was also reserved for the landlord and it was provided that he should not keep any sub-tenants. In view of this, the application for restoration of possession had become infructuous and was dismissed.

On 10th of January, 1957, the property in dispute was purchased from the owners by the minor son of Charanji Lal who was the counsel for the landlord in the proceedings mentioned above for a sum of Rs. 28,000, out of which Rs. 22.000 was kept in trust with the purchaser for redeeming the mortgage. After paying off the mortgagees, application was made on 12th of December, 1957, by the minor vendee to the Tehsildar (copy annexure K), u/s 7 of the Act of 1955, to the effect that 47 bighas 16 biswas of land less 1 bigha 16 biswas, which was excluded, i.e., 46 bighas in all, was on chakauta with Anant Ram. Ejectment of the tenant was sought on the ground that the applicant had no other land and he needed the same for personal cultivation, that the tenant had not executed the kabuliatnama and that he had sublet the land to his brother Sant Ram. This application was presented to the Prescribed Authority, but was returned to be presented to the Revenue Officer who again returned it to be presented to the Prescribed Authority. Subsequently on 16th of March, 1959, another application was filed by the vendee who had by then become a major on the same grounds as the previous one for the ejectment of Anant Ram and with this application the previous application, which had been returned by the authorities, was also attached. It is common ground that that application is still pending.

It appears that in 1959, both the brothers, namely, Anant Ram and Sant Ram, made an application u/s 20 of the Act of 1955, seeking to acquire proprietary rights in the land which was the subject-matter of the lease with them. The original application is not forthcoming on the record. It, however, appears from the orders etc. that this was probably presented on 11th of February, 1959. The Assistant Collector by his order dated 5th of September, 1961, (annexure S) came to the conclusion that the proceedings by which Anant Ram had been ejected were merely paper transaction and these proceedings did not in any way interrupt the continuous possession of the tenants and, therefore, granted the application for acquisition of the proprietary rights. On appeal, filed by the vendee, the Revenue Assistant, exercising the powers of the Collector, by his order dated 30th of November, 1961, set aside the order of the Naib Tehsildar and gave the finding that there had been actual dispossession even if it be for a short period of a few days between 13th of May, 1956, and 3rd of June, 1956, and that this amounted to interruption of possession. He was further of the view that even if the possession given was symbolical, that in law, would result in discon continuity. On the matter going to the Financial Commissioner, in revision, he held that after the enactment of the Pepsu Tenancy and Agricultural Lands Act, 1953, (and, therefore, of the Act of 1955 also), landlords can evict the tenant-at-will only on satisfying the conditions laid down in section 7 of the 1953 Act. He further held that mere dismissal of the suit or. 25th of April, 1958, does not by itself include an order directing the ejectment of the tenants in terms of section 48(6) of the Punjab Tenancy Act and that there is no indication either that any of the grounds of ejectment set out in section 7 of the 1956 Act, which is a mandatory provision, was proved. With regard to the second point raised on behalf of the landlord that only one of the two petitioners, namely, Sant Ram was shown as the tenant under the respondent in the khasra girdawaris between the years 1951 and 1954, it was held that "apart from the fact that the respondent did not think it fit to raise this point, before either of the lower authorities, the entries prior to this period as well as thereafter are in favour of both the petitioners and there is no explanation why the change took place between 1951 and 1954 without ostensible reason or justification. These stray entries, which are inconsistent with the preceding and the succeeding entries over a large number of years, must therefore, be disregarded as erroneous". He, therefore, set aside the order of the Revenue Assistant and restored that of the Prescribed Authority (Naib Tehsildar). It may be stated here that khasra No. 5209/1749 is no longer in dispute because it had been held that there was a kothi in that khasra number and the tenants were not entitled to acquire the same because they could not prove their possession in respect of the said number for a period of 12 years or more.

The case has been argued at length before me. As the facts were not quite clear from the documents filed with the writ petition and with the return, I sent for the original records and went through the relevant documents with the counsel for the parties.,

The first point that requires consideration is as to the effect of the enforcement of section 7 of the Act of 1953 on the propriety or otherwise of the ejectment. If the ejectment effected in the year 1956 in pursuance of the notice served in 1953 is bad, no other question arises as to whether there was actual dispossession or merely symbolical dispossession or the effect thereof.

In the notice of ejectment u/s 45 of the Punjab Tenancy Act. which was served on some date prior to 10th of November, 1953, no reasons had to be given and it is not the case of either party that any reasons for ejectment were, in fact, given. Assuming for the time being that this notice was properly served (though Anant Ram pleaded in the suit that it was not), no suit was filed within a period of two months under sub-section (5) of section 45. Thus if no legislation had intervened, the application made by Banarsi Das on 16th of April, 1954, for getting an order for possession, on which an order was issued to the Kanungo to deliver possession to Banarsi Das, would have been perfectly valid. It was argued that after the execution of this order was stayed due to the suit subsequently filed, which was ultimately dismissed, the mere fact that some period has elapsed would not make the order of ejectment invalid. It is not necessary for me to go into this question which, will arise only, if in view of the law that intervened, the landlord would have been justified in getting the ejectment of the tenant even in the year 1954. Bishan Narain J. in General Shivdev Singh and others v. Badan Singh (Civil Miscellaneous No. 58 of 1956 decided on 24th of April, 1957) now also reported in 1957 P. L. J. 79, at page 82 (paragraph 7) held that there are-

Two alternative modes for evicting tenants, i. e., by suit or by adopting procedure laid down in sections 43 and 45. * * *

Section 7 of the 1953 Act relates to rights and liabilities of landlords and tenants so far as they relate to letter''s ejectment. Sections 43 and 45 of the 1887 Act, on the other hand, relate to procedure for securing eviction of the tenants. * * *

It may be that after the enactment of section 7 it would be more convenient and appropriate for a landlord to file a suit for ejectment but that by itself does not mean that the alternative mode has been abrogated or impliedly repealed. * * *

Under section 45(1) of the 1887 Act the revenue officer shall cause ejectment notice to be served on the tenant if it is not open to objection on the face of it. It follows, therefore, that since the enactment of section 7 of the 1953 Act an application u/s 43 of the 1887 Act must satisfy and comply with this later section and must give grounds on which the applicant wishes to evict his tenants. * * *

Under sub-clause (3) of section 45 of the 1887 Act, the tenant who intends to contest his liability to ejectment, must file a suit within the prescribed time of two months. If he files the suit, then the landlord will have to prove the grounds on which he seeks eviction, otherwise the suit would be decreed and the tenant will not be ordered to be evicted. If the landlord succeeds in proving his allegations u/s 7 of the 1953 Act in the suit then the tenant''s suit will be dismissed and decree for ejectment will be passed as provided in sub-clause (6) of section 45 of the 1887 Act.

* * *

If no suit is filed by a tenant then sub-clause (5) of section 45 of

the 1887 Act comes into operation and the revenue officer shall order the ejectment of the tenant.

* * *

This sub-clause, however, does not prevent expressly or by necessary implication the revenue officer from deciding whether the grounds specified in section 7 of the 1953 Act exist or not. It is true that there is no mention of such an enquiry in this sub-clause but, in my opinion, that is implicit. After all the revenue officer under this sub-clause is acting as a judicial Court and his procedure should be so moulded as to further and advance the object and purpose of the enactment rather than to retard it. In the absence of any provision, which expressly excludes such an enquiry, it should be held that this enquiry is implicit in the sub-clause.

This case and the above-mentioned passage was specifically cited on behalf of the petitioner before me. After giving considerable thought to the point, I am of the opinion that this in no way helps the petitioner. Prior to the enforcement of the Act of 1953, as I have already indicated, the notice of ejectment had not to mention any ground whatever. The tenant was a tenant-at-will and if the landlord did not desire to continue him, he was only to give him a notice some six months before the end of the rabi harvest and the tenant has given two months within which to raise any legal objections that he may have by filing a suit. If he did not file the suit or his suit failed, he became liable to be ejected between the period 1st of May and 15th of June, i.e., immediately after the harvesting of rabi harvest and before the operations for kharif normally begin. In the present case, no suit was filed. Taking the notice as having been properly served, the landlord was entitled u/s 45(5) to file an application. and on that application the Revenue Assistant was to issue an order of ejectment. Such an application was made on 16th of April, 1954, but by that time section 7 of the Act of 1953 had come into force. The relevant portion of this section was as follows:

7(1). No tenancy shall be terminated except in accordance with the provision of this Act or except on any of the following grounds, namely:

(a) that the land comprising the tenancy has been reserved by the landowner for his personal cultivation in accordance with the provisions of Chapter II :

(2) Notwithstanding anything contained in clause (a) of sub-section (1), a landowner holding 30 standard acres or less of land may, within a period of five years from the commencement of this Act, eject any tenant from such land within the permissible limit if he requires such land for personal cultivation.

* * * *

The case of the petitioner is that he was a landowner, or, to be exact, his predecessor in interest was a landowner, holding less than 30 standard acres and, therefore, under sub-section (2), he could have ejected the tenant if he required the land for personal cultivation. Now, the procedure by which the landlord could eject his tenant under this sub-section (2) must necessarily be either by a suit or by proceeding u/s 45 as has been held by Bishan Narain J. in the case noted above. No suit for ejectment was filed. For proceedings u/s 45, as the first step is to give a notice. This was given, as indicated above. This notice must, in view of the provisions of section 7 of the Act of 1953, give reasons, which are provided in sub-section (2). Apparently no such reasons were given in the notice The contention of the learned counsel for the petitioner, however, is that in the application dated 16th of April, 1954, mention was made that the land was required for self-cultivation. However, copy of this application was nor served on the other party and so this application cannot be treated as a notice. According to the provisions of section 45, the notice has to be served before 15th of November of the year preceding the one in which he is sought to be ejected. Therefore, there was no compliance with the provisions of section 7. The learned counsel, however, contended that in as much as section 5 of the Pepsu Ordinance No 6 of 1954, related only to ejectment applications rending on the ground of personal requirement of the landlord, the application made by the tenant on 1st of February, 1955, seeking adjournment of the case by a year under that provision of law should be a indication that he knew of the fact that the ejectment is sought on the ground of personal requirement and that should be sufficient notice. I am afraid, I am cannot agree with this. The mere fact that the tenant rightly or wrongly claimed some benefit u/s 5 of the Ordinance in question, would not mean that the provisions of section 45 or those of section 7 of the Act of 1953 can be given a go-by. In any case, the Revenue Assistant did not accept this application and proceeded to try the three issues which were settled in the case, no of which related to the question whether the land was or was not required for personal cultivation. The dismissal of the suit cannot, therefore, be taken to be a decision on issues other than those which were settled in that suit. There is, therefore, no decision given by the Revenue Assistant either on his own enquiry or in the suit as to whether the condition precedent mentioned in sub-section (2) for getting the ejetment of the tenant was satisfied or not. It is further clear that subsequently in the Act of 1955, section 7 was amended and u/s 7 certain grounds of ejectment were laid down and section 7-A was added giving additional grounds for termination of tenancy of small land holders.

In view of the above, therefore, I am inclined to take the view that the Financial Commissioner was right in holding that the ejectment effected in the year 1956 was without any legal authority and was not in conformity with the provisions of section 7 of the Act of 1953 and section 7 or 7-A of the Act of 1955.

Apart from this, I feel that the order of ejectment was bad for the simple reason that there was ample material on the record to show that there was a lease deed given by Jahangir Chand in favour of Anant Ram for a period of three years with effect from 16th of June, 1952, and, consequently, no notice of ejectment could have been served and no order of ejectment could have been passed (which was to take effect prior to June, 1955). As I have already indicated Jahangir Chand admitted in so many words the factum of having granted the above mentioned lease, and the reply of the mortgagees dated 13th of October, 1955, in which they admitted impliedly, if not directly, that Anant Ram was the lessee for these three years for which he owned some arrears towards which he paid a sum of Rs. 1,350, is also on the record.

This now brings us to the second question, namely, if there was no interruption of the tenancy of Anant Ram, is he entitled to make an application u/s 20? Section 20 runs as follows:

In this Chapter, the expression ''tenant'' means a tenant as defined in clause (k) of section 2, who is not liable to be ejected-

(a) under clauses (a) and (b) of sub-section (1) of section 7-A, or (b) under clauses (a) and (b) of sub-section (2) of section 7-A :

* * * * *

A tenant, before he can apply under this Chapter, has to satisfy two conditions : first, that he is a tenant as defined in clause (k) of section 2 and, secondly, that he is not liable to be ejected under either of the sub-sections of section 7-A. Turning to section 2(k), the ''tenant'' is defined as follows:

''tenant'' has the meaning assigned to it in the Punjab Tenancy Act, 1887 * * * but does not include a person- (i) who holds a right of occupancy, or

who is relative of the tenant within the meaning of sub-clause (2) of clause (g).

Clause (g) gives the definition of the expression "to cultivate personally" and by sub-clause (2) it includes cultivation by one''s relatives, as may be prescribed. The relatives are prescribed by rule 4 and, inter alia, include father and brother. Therefore, reading clause (k) with clause (g); a person would be a tenant if he is a tenant within the definition of ''tenant'' as given in the Punjab Tenancy Act but would not include any one of his relatives as given in rule 4. Let us take the case of Anant Ram. Admittedly Anant Ram, on the date of the application, was a tenant, if for no other reason, on the ground that he got a lease deed in his favour on 3rd of June, 1956 for one year and he has continued in possession so far. If he is to be treated as the tenant of the land, his brother Sant Ram cannot be held to be a tenant simply because he is a brother. The question now arises whether he answers the second qualification of being a tenant who cannot be ejected under sub-section (2) of section 7-A (which will be the only one applicable to him). Under sub-section (2) of section 7-A, no tenant, who immediately preceding the commencement of the President''s Act has held any land continuously for a period of twelve years or more under the same landowner or his predecessor-in-title, shall be ejected on the grounds specified in sub-section (1) from an area of 15 standard acres. Then follows the explanation-

In computing the period of twelve years, the period during which any land has been held under the same landowner or his predecessor-in-title by the father, brother * * of the tenant shall be included.

Leaving out the explanation, the tenant must answer two qualifications : He must be a tenant on the enforcement of the President''s Act, i.e., on 3rd of December, 1953, and, secondly, he must have continuously held the land for a period of 12 years. Admittedly neither Sant Ram nor Anant Ram, even if both of them be considered to have been in possession after the demise of their father in the year 1944, can be said to have held the land continuously for a period of 12 years because by 3rd of December, 1953, they would not be in possession for more than nine years or so. However, according to the explanation, he can tag on, for the purposes of this sub-section, the period during which his father or his brother had been in possession. In other words, wherever his father or his brother is shown to be in possession of the land as tenant, his name shall be deemed to be substituted. If this be taken as the correct interpretation, it is conceded that Anant Kara at least would be treated to be in possession for a period of 12 years on 3rd of December, 1953, and if Sant Ram is also held to be in possession on that date, he shall also similarly be treated to be in possession for the prescribed period. Anant Ram, therefore, answers both the qualifications. He is a tenant as defined in section 3(k) on the date of the application and he also is a tenant who cannot be ejected under sub section (2) of S. 7-A. The argument of the learned counsel for the petitioner, however was that for the purposes of S. 20, a tenant is entitled to apply only if he himself, in view of section 2(k) (ii), satisfies the requirement of being a tenant for a continuous period of 12 years and that the explanation, which allows him to tag on the period during which father and brother had been in possession, is available only for the purposes of sub-section (2) of section 7-A but for finding out whether he is tenant within the definition of section 2(k), u/s 20, he must have held the land for 12 years himself. With great respect, I have not been able to follow this argument. Section 20 makes it quite clear that he must be a tenant u/s 2(k) which means that he, in his own right, must be a tenant before he can apply under that Chapter. In other words, it means that he must be a tenant on the date of the application. The other qualification is that he should not be liable to ejectment under sub-section (2) of section 7-A and for this, we have to go to this sub-section and there the explanation also exists. The question whether he is liable to be ejected must be determined after taking into consideration the period during which his father and brother had been in possession.

In view of the above, therefore, I feel that Anant Ram at least fully answers the qualifications of the tenant as given in section 20 of the Act.

The question now arises whether the order of the learned Financial Commissioner requires interference merely on the ground that he has held that both Bant Ram and Anant Ram are so entitled. Apart from other things, I feel that even if Anant Ram is entitled, he can acquire the land and thereafter he can give it to his brother. There can be no objection to that. No grave injustice can be said to have resulted if the final order is that both the brothers can acquire the property. It can further be argued that although, as stated above, chakauta for the three years between 1952 and 1955 was given only to Anant Ram yet in the relevant revenue records, namely, khasra girdawari, both Anant Ram and Sant Ram are mentioned as the joint lessees. For example, in Exhibit P. 12, relating to khasra No. 5209, for kharif 1953 to rabi 1957, which will include the period from 3rd of December, 1953, the entry is as follows:

Sant Ram and Anant Ram-chakauta Rs. 1,200/- together a year in Patti Jhuti,

After kharif also the same entry is repeated for kharif 1958 to rabi 1959 (vide Exhibits P. 11 and P. 10). It may be that although the chakauta was in favour of Anant Ram yet both the brothers cultivated the land and were treated as co-tenants. The application for ejectment filed by Banarsi Das in the year 1953 was also against both of them. In any case, as stated above, it is not necessary for me to decide this question as I am of the view that admittedly Anant Ram is entitled to purchase and it will not be necessary or proper for me to interfere in the order of the Financial Commissioner on the ground, that Sant Ram, his brother, was not so entitled.

In addition to the above points, the learned counsel for the appellants also urged the following matters:

(1) There is no application on the present record for acquiring proprietary rights by the tenants.

(2) Question of small landowner was not decided by the Financial Commissioner or by the Collector.

(3) The kothi which is situated in khasra No. 5209/1799 is more or less in the centre of the entire land in dispute and consequently the orchard, garden and, the land surrounding the kothi should be treated to be part of the kothi in which proprietary rights cannot be acquired.

(4) Section 7-A of the Pepsu Tenancy Act is ultra vires the Constitution being discriminatory.

(5) According to section 43 of the Pepsu Tenancy Act, the Financial Commissioner had no jurisdiction in revision to set aside the order of the Collector because the powers of the Financial Commissioner are the same as are enjoyed by the High Court u/s 115 of the Civil Procedure Code.

I find no force in any of these contentions. No doubt the application for acquiring proprietary rights is not traceable on the record. That, however, is not the same thing as saying that no application was made. It is obvious that the proceedings were initiated on an application made by the tenants.

The question of small landowner was not material because section 7-A is applicable to a person who is a small landowner. The whole discussion of the case is on the presumption that the petitioner is a smalll and owner.

With regard to the third point, it was conceded that the orchard or the garden as such is not exempt from the provisions of section 20 and it is too tall a claim to be accepted that this entire area of nearly 10 standard acres must be treated to be a part of the kothi which is actually constructed on a portion of khasra No. 5209/1799 which by itself, measures 11 bighas 14 biswas, the whole of which has been excluded as already stated. I feel that the authorities have taken a very liberal view in favour of the landowner by excluding the entire khasra number in which the kothi was situated.

No cogent arguments were addressed as to how section 7-A was ultra vires the Constitution. No doubt it gives certain rights to tenants who have been there on the land for more than 12 years but the treatment of such tenants as a separate category does appear to be based on a rational hypothesis. One cannot understand how this can be treated as unconstitutional.

So far as the revisional powers of the Financial Commissioner are concerned, they are at par with the powers of the High Court to interfere in revision u/s 115 of the Civil Procedure Code. It cannot, however, be said that in the present case there was no illegality or irregularity in the exercise of the jurisdiction so as to prevent the Financial Commissioner from interfering in the order of the Collector. As already discussed, the question before the authorities was whether the ejectment of the tenants was in accordance with law and procedure. If it was not in accordance with law and procedure, then obviously the Collector failed to exercise the jurisdiction vested in him by not granting the proprietary rights to the tenants. In that view of the matter, the Financial Commissioner was fully justified in passing the impugned order. Furthermore, the present is a writ petition and unless it can be shown that grave injustice has taken place, no interference, is called for.

For the reasons given above, therefore, this petition is dismissed but as the points were not free from difficulties, I leave the parties to bear their own costs.