1963 PLP 765 (PTD)

CORNELIUS, C. J. After mature consideration, I have come to the conclusion that this appeal must be allowed. It is with some regret that I have reached this finding, for the matter lies in the field of taxation, and it is not taxation by percentages, but by multiples. The Act, namely, the Punjab Agricultural Income-tax Act, 1950, in section 2 speaks of the tax being "assessed on the basis of the total land revenue which was payable by an owner of agricultural land." The general rule all over the old Punjab Province for assessment of land revenue was that one quarter of the net assets was taken by the Government, such assets being ascertained by actual crop experiment, deducting from the total income the expenses of cultivation. When it is further mentioned that ordinarily a landlord takes no more than half of the total produce, after customary deductions for menials and for other village purposes have been made, it might be thought that the land revenue is by itself a sufficiently severe tax upon a landlord. It is upon the landlord exclusively that the payment of land revenue falls. But by the Act of 1950, a landlord may be required to pay by way of agricultural income tax, on a schedule of slabs, as much as seven times the land revenue when there is excess above Rs. 15,000 for a year. In the present case, the figures provided by the order of the Collector are that on a total assessment of land revenue of Rs. 49,749 13 6, in which is included a sum of Rs. 7,306 on account of water advantage rate or khush haisiyyati, the assessment of agricultural income tax is no less than Rs. 3,05,

811. I observe that the tax was imposed not by a statute of the Provincial Legislature but by an Act of the Governor of Punjab passed at a time when he was administering the Province under section 92 A of the Government of India Act, 1935. It can only be supposed that since this tax has continued to be imposed successfully ever since, there is, in fact, a margin left after a landlord pays his land revenue, sufficient to enable him to pay up to seven times that amount in addition without being deprived totally of the benefit of being a land owner. On the amount of khush haisiyyati, in this case viz., Rs. 7,306 I calculate that the extra levy of agricultural income tax amounts to Rs. 44,

054. That is no small sum, and constitutes a sufficient reason for examining with care the question whether in the circumstances, this amount of water advantage rate, is indeed a part of the land revenue "on the basis" of which a further and seemingly enormous burden of tax can be imposed upon the land owner under the law. The Collector and the Commissioner were clearly of the view that the demand for khush haisiyyati, could not be added to the land revenue. It should be pointed out that the canal which supplies the w4ter oil the bass of which water advantage rate is imposed is, in this case, a private canal, which is governed by the provisions of the Minor Canals Act, 1905. The Collector in a comparatively short order advanced two grounds for thinking that the khush haisiyyati was not land revenue. He thought that as there was no provision in the Punjab Land Revenue Act, 1887, for assessing water advantage rate, that rate could not be land revenue. The argument was advanced before him that a water advantage rate could be imposed under the Northern India Canal and Drainage Act 1873, but there was no similar provision in the Minor Canals Act, and therefore when charged on land watered from a canal under the latter Act, it must be by wav of land revenue, It was rejected on the ground that such an inference was not permissible, when it was a matter of taxation. The Commissioner upheld this view in a more elaborate order. He pointed out that while in Financial Commissioner's Standing Order No. 30, and in two Settlement Reports, it had been said that water advantage rate is assessed under the Land Revenue Act, yet in the Settlement Manual, it was stated that this rate was an owner's rate as defined in the Canal Act of 1873. In the Land Revenue Act, the expression "land revenue" had not been exhaustively defined, but it "certainly does not specifically include water advantage rate." In the Punjab Tenancy Act of 1887, the expression "land revenue" had been so defined for a certain purpose as to include expressly the water advantage rate levied on the land, and if the intention of the Agricultural Income tax Act of 1950 had been to include the rate, there was no difficulty in the way of the Legislature doing so in the manner of the Tenancy Act. It had been urged that the rate was of earlier application, in point of date, than the Canal Act of 1873, but equally, it was earlier than the Land Revenue Act of 1887. Admittedly, where land is irrigated from a Government owned canal, governed by the Canal Act of 1873, the owner's rate is imposed under the latter Act. Since the acquisition of all private canals by the Government, the practice has been to impose the rate under that Act. The mere fact that the water advantage rate is assessed by a Settlement Officer in the course of settlement proceedings was not in the view of the Commissioner sufficient to convert the rate into land revenue, for there were a number of other impositions also assessed by the same officer and recoverable as arrears of land revenue, which satisfied this particular condition. Thus, the Commissioner distinguished the rate from land revenue, and it may be mentioned that the argument could have been fortified by reference to the Record of Rights where the rate has always been shown as an addition to the land revenue. Having failed before the Commissioner, the Punjab Province took the matter in revision before the Board of Revenue, where a learned Single Member, reversed the decisions of the officers below. Certain of the grounds advanced in support in the order of the Board rest on a priori reasoning or in analogy. Thus, it is said : (1) that water advantage rate is the extra payment of land revenue on account of the irrigation of the land ; (2) that the rate is imposed on the recommendation of the Settlement Officer who is appointed under the Land Revenue Act, and his proposals are made and orders passed by Government thereon under that Act ; (3) that the rate is analogous to the owner's rate under the Canal Act 1873, but since that Act is not applicable, it cannot be assumed that the rate is owner's rate under the Canal Act ; (4) that in the Lyallpur District the assessment is integral, that is land revenue and the owner's rate under the Canal Act 1873 are applied as one levy, and the whole of this levy is taken into account for the imposition of agricultural income-tax, but if the Government had split up the levy into land revenue and owner's rate, then the assessee of agricultural income tax would be the gainer; and (5) that because the rate is levied on account of the extra benefit through irrigation, therefore the rate possesses the same character as "the fixed land revenue levied on the field in its dry aspect." But the learned Member added an argument which had not been considered by the Subordinate Revenue Officers, namely, that the case should be considered as one where the land revenue was composed of a fixed charge, plus a fluctuating charge, the latter being water advantage rate at Re. 1 per acre. Against the decision of the Board of Revenue, the assessee took the matter before the High Court by means of a writ petition, and succeeded in obtaining a direction to the Government to refrain from levying agricultural income tax on the khush haisiyyati which he paid. The reasons given in the judgment of the Division Bench have been enumerated with care in the judgment of my learned brother S. A. Rahman. J., and I do not need to repeat them here in detail. The learned Judges distinguished khush haisiyyati from land revenue (a) because it is always shown as a separate charge (b) because it is not levied on the ownership of the land, but upon the advantage derived from land, (c) because where the revenue law, as in the Punjab Tenancy Act and in section 29 of the Land Revenue Act, intended that the rate should be assimilated to the land revenue for the purpose of enhancing a levy, there was an express inclusion, and among other reasons, one which is of special importance is their finding that by section 48 of the Land Revenue Act, it is provided that land revenue may be imposed either as a fixed annual charge or as a fluctuating rate per acre, but not by both methods. We have heard elaborate arguments in the case from Mr. M. B. Zaman, Assistant Advocate General for the Province, and from Mr. Saleem on behalf of the assessee. In support of the appeal, in the main the same arguments have been advanced as found favour with the Board of Revenue, and in particular, it was stressed (a) that there was no legal authority for imposing the levy other than the general power of assessment of land revenue under the Act of 1887, and (b) that there was no illegality in imposing upon the same piece of land, a fixed land revenue in its dry aspect and a water advantage rate by the acre actually irrigated, so as to cover the full share of the State as suzerain authority in the produce of the land. To the latter contention, Mr. Saleem was not able to develop an argument in opposition, and in my opinion, there is no good reply possible unless the particular subsection in section 48 of the Land Revenue Act is read as providing for two modes of assessing the charge which are mutually exclusive of each other. Nothing in the wording of the section can, in my opinion, serve to sustain so rigid a view. Further, it is only too plain that the levy of the State's share is not less equally and justly applied, if the charge of water advantage rate is confined to land actually irrigated and as for the main charge of land revenue, that falls equally on such land as it does on unirrigated land. The Settlement and Revenue Officers are required to deal with a great variety of cases, and there can be no doubt that in many of these cases, the application of a fixed as well as a fluctuating assessment to a particular area, was not only the most just, but perhaps also the only practical method of adjusting the State levy to the actual estimated produce of the land. The treatment of this particular point in the judgment of the High Court is somewhat brief. The learned Judges contented themselves with saying with respect to the argument that "it is not possible to say that in respect of the same land there can be two assessments, one fixed, the other fluctuating." They went on to observe that under section 61 of the Land Revenue Act the entire estate and the landowners jointly and severally are liable for the land revenue for the time being assessed on the estate, and if land revenue were to include the water advantage rate, this liability would fall even on those who are not liable for such a payment. The section appears to be intended to impose a communal responsibility upon all the owners in the estate for the default of any one of them, and that default may be in respect of fixed land revenue as easily as it might be in relation to the fluctuating charge. With respect, it seems to me that the conclusion of the learned Judges on this point is not easy to support. Reference was made to the provision in the Agricultural Income tax Act that where land is not assessed to land revenue, it should be deemed to be subject to "the land revenue assessed on similar land in the same estate" and it was argued that there can be a case where the analogy may lead to the imposition of the water advantage rate upon land which had never been irrigated. The case is a remote one and certainly does not arise out of the present facts. Should the analogy have to be drawn, no doubt the responsible authorities could be trusted to interpret the expression "similarly" in a factual sense; so as to avoid the kind of injustice contemplated by the learned Judges. The argument that since the canal in question fell under the Minor Canals Act 1905, which had not provided for imposition of an owner's rate, therefore, the khush haisiyyati in the present case must be deemed to have been imposed under the general power to levy land revenue, was met by Mr. Saleem in the following manner. He argued that the Minor Canals Act 1905 does not define the expression "canal" exhaustively, but against this it is to he pointed out that the Act specifies in the Schedule the canals to which it applies. He then pointed out that in the Settlement Report of 1897, the Settlement Officer spoke of applying a water advantage rats in relation to both Government as well as private canals, and at that time, there was no Minor Canals Act in force, consequently, it should be inferred that for applying the water advantage rate, the Settlement Officer was deriving power from section 37 of the Canals Act, 1873. The latter Act is excluded by expression in application to minor canals of the present nature, but it was urged that this exclusion was not for all purposes, but only of these lesser canals as operating enterprizes. Mr. Saleem referred to the definition of "water rate" in section 4(17) of the Minor Canals Act, and suggested that this meant that water advantage rate was distinguishable and separately exigible. The water rate in the Minor Canals Act is merely the charge for water which the canal owner may levy upon persons using the water, and no advantage for the purposes of the present case can be derived by reference to that definition. As for the argument that water advantage rate can be applied as an owner's rate under section 37 of the Canals Act, 1873, in respect of lands irrigated from a minor canal, it must be said, speaking with) respect to the learned counsel, that the argument is clearly over-stretched. Some of the confusion that has crept into the examination of the essential questions in this case is due to looseness of expression in a number of Settlement Reports and their authoritative publications of the Revenue Department, and merely because one Settlement Officer applied a water advantage rate in relation to both Government as well as private canals, it does not necessarily follow that he was deriving his power to do so from the same source in respect of the two different categories of lands. Nor is an answer provided for the contention that the only legal power for imposing a water advantage rate, as here, is the power of imposing land revenue, under the Act of 1887. Mr. Saleem referred to the fact that water advantage rate is collected only once a year although there are two harvests, but mere choice of one mode of collection rather than another does not serve to create the differentiation for which he contends. He stressed the obvious inequality of treatment between lands irrigated from Government canals, and those irrigated from private canals, but it is clear that this is a thing of the past, as the private canals have all been acquired by the Government, and, in any case, the factor of inequality cannot determine the question before us. In my judgment, the principle that nothing should be taxed under a statute which does not fall fairly within the words of the statute, excludes in the present case the importation of arguments, in favour of taxability, such as : (1) that the water advantage rate possesses the same character as land revenue ; or (2) that it is imposed by the same person who assessed the land revenue; or (3) that it is recoverable in the same manner as the land revenue. But a fair construction of the words of the statute in their application to the present case cannot be based wholly on contrast with the definitions relied upon in section 29 of the Land Revenue Act, and under the Punjab Tenancy Act, which by expression include the water advantage rate in "land revenue"? when laying down the measure for imposition of certain other dues. The decisive consideration in the case, in my opinion, is that it being possible for a Settlement Officer to assess the lands revenue upon any given piece of land in two forms, namely, a fixed land revenue plus a supplement by way of fluctuating land revenue, and in the present case, the Settlement Officer having done this in relation to the lands here in question, and there being no power in him to assess the fluctuating portion of the land revenue otherwise than in his general power of assessment of land for the purpose of land revenue derived from the Land Revenue Act, it must follow that, however this supplementary imposition might be shown in the land records, it is in fact a part of the land revenue. The practice of showing the khush haisiyyati separately is probably necessitated by the fact that it applies by the acre to land which has been actually cultivated,' with the aid of irrigation and thus rests on proof of irrigation from year to year, whereas the fixed portion of the land revenue is payable irrespective of cultivation, and, except where specially remitted, is leviable from year to year until the next Settlement It is in this light that the statements found passim in the reports of Settlement Officers describing how and why they had imposed the water advantage rate, and that this rate was a part of the land revenue, must be understood.' Where there is no source of authority other than the Land Revenue Act to support the action of the Settlement Officers for the imposition of the water advantage rate, as in this case, it seems to me that there is no escape from the conclusion that mere variation of description, even in official documents or disparity in the manner of exhibition of the two charges in the land records, is not in itself a sufficient circumstance to support a distinction of category between the fixed land revenue on the one side and the khush haisiyyati on the other. In fact and in law, both these items put together constitute the land revenue assessed upon the land in question in this case. I would accordingly allow this appeal and recall the direction issued by the High Court. In the circumstances I consider that it would be just to leave the parties to bear their own costs. S. A. RAHMAN, J. This appeal which comes before the Court on a certificate of fitness granted by the High Court of West Pakistan, raises the question whether for the purposes of the Punjab Agricultural Income tax Act, 1950, (hereinafter referred to as the Act), the term "land revenue" as it occurs in subsection (2) of section 2 of that Act, includes water advantage rate (khush haisiyyati) or not. The question has arisen in the following circumstances. While assessing agricultural income tax under the Act on the income of Malik Khizar Hayat Khan Tiwana, on the basis of "total land revenue" payable by him during the years 1948 49, 1950 51 and 1951 52, the Collector Shahpur at Sargodha excluded the water advantage rate, called "khush haisiyyati" as being no part of "land revenue". The Punjab Province feeling aggrieved by this decision, appealed to the Commissioner under the Act, who however affirmed the decision of the Collector. A revision petition was taken to the Board of Revenue, which reversed the decision and held that "khush haisiyyati" ought to be included in land revenue for the purpose of the Act. The assessee then moved the High Court of West Pakistan for a writ of certiorari in order to have the proceedings of the Board of Revenue quashed and for a writ of mandamus directing the Province of West Pakistan, the successor of the Punjab Province, to refrain from assessing or collecting any agricultural income tax on the basis approved by the Board of Revenue. The petition was allowed and directions were issued as prayed. The soundness of the view taken by the High Court is challenged on behalf of the Province of West Pakistan, by means of this appeal. The Agricultural Income tax Acts are annual Acts passed by the Provincial Legislature. The language of the provision to be construed, however, except for the difference of years, is identical for all the three assessment years and may be reproduced from the Act of 1950 : "

2. Levy of tax. (1) A tax (to be called the Agricultural Income tax) shall be levied, and collected in respect of income from agricultural land for the year 1950 51 (comprising Rabi 1950 and Kharif 1950) at the rates specified in the Schedule r and in accordance with and subject to the provisions of this Act. (2) The tax in respect of the year 1950-51 (comprising Rabi 1950 and Kharif 1950) shall be assessed on the basis of the total land revenue which was payable by an owner of agricultural land in respect of the year 1949 50 (comprising Rabi 1949 and Kharif 1949) Provided that the Government may, by notification in the Official Gazette, exempt any owners or class of owners of land wholly or in part from payment of the tax". By subsection (3) of section 11 of the Act, ?land revenue" is defined to mean "land revenue assessed on any land under the Punjab Land Revenue Act, 1887, and where any land is not so assessed, the land revenue assessed on similar land in the same estate or assessment circle". The learned Judges of the High Court were influenced by the following considerations in recording the finding that "khush haisiyyati" was not included in the term "land revenue" for the purposes of the Act. (1) "Land revenue" and "khush haisiyyati" are shown as separate charges in the record of rights. (2) "Khush Haisiyyati" is not properly speaking "land revenue", that is to say, "revenue on the ownership of land". It is levied by reason of the advantage that the owner derives from the use of water. For this opinion reliance was placed on para. 445 of Douie's Settlement Manual. (3) The definition of land revenue in section 4(10) of the Punjab Tenancy Act, 1887, expressly includes "water advantage rate" but not so, the definition of that term in the Land Revenue Act. (4) Where the intention was to include water advantage rate, express provision had been made therefor, e.g., in defining "annual value" in section 29 of the Land Revenue Act. Annual value in that section is defined as meaning double the land revenue for the time being assessed on any land "provided that in any tract in which under the Settlement for the time being in force, the improvement of the land due to canal irrigation has been excluded from account in assessing the land revenue and a rate has been imposed in respect of such improvement, that rate shall be added to the land revenue for the purpose of computing the annual value. (5) Subsection (4) of section 48 of the Punjab Land Revenue Act provides that lard revenue may be assessed either (a) as a fixed annual charge payable under a lump sum or by instalments, or (b) in the form of prescribed rate per acre or other unit of acre applicable to the area regarded as sown, matured or cultivated during any harvest or during any year. The two methods of assessment cannot be combined in respect of any estate. In (6) If "khush haisiyyati" is deemed to be included within "land revenue", then by virtue of subsection (1) of section 61 of the Land Revenue Act, even those land owners in the estate, who were not liable for water advantage rate because they had not used canal water for their lands, would be jointly liable for its payment along with those who had used such water. (7) Under clause (3) of section 11 of the Act, where any land has not been assessed to land revenue, the basis of assessment will be the land revenue assessed on similar land in the same estate or assessment circle. Now if land revenue included the water advantage rate and similar land in the same estate was liable not only to land revenue proper but also to water advantage rate, then while determining the assessment in respect of any land which has not been assessed to land revenue, we would be including water advantage rate although no such rate was payable by the land owner by reason of the fact that he had not used water. (8) Mr. Wilson, in his Settlement Report, para. 35, has stated that the actual collection of land revenue embraced other items besides those which appeared on the fixed revenue roll including, inter alia, water advantage revenue and sums realised for grazing and sale of Sajji on State lands. If this paragraph is pressed into service for supporting the contention raised on behalf of the Provincial Government, then the sums realised for the??? sale of Sajji would also have to by accepted as land revenue. (9) The Board of Revenue has misdirected itself in assuming that because "khush haisiyyati" was assessed under the Punjab Land Revenue Act, it must have been imposed as "land revenue". Under that Act, certain other dues like fees, fines, costs, village officer's cess etc., were imposable vide section 98 (a) and they were all recoverable as arrears of "land revenue". This does not however mean that they can all be included in "land revenue". (10) Even if two interpretations were possible of a provision in a taxing statute, the one favourable to the subject should be adopted. The real question that calls for determination in this case is whether "water advantage rate" (khush haisiyyati) is in its nature "land revenue", and secondly whether it is imposed as such, under the Punjab Land Revenue Act, 1887. if these twin conditions are satisfied, the provisions of subsection (2) of section 2 of the Act would come into play and "khush haisiyyati" would be included in the "total land revenue" of the assessee, for the purpose of levying agricultural income tax. The word "total" in this context, may have been designed to comprehend not only the "land revenue" assessed on the lands of an owner, wherever situate in the Province, but also whatever is in fact "land revenue levied under the Punjab Land Revenue Act 1887" though described in certain revenue papers, under another distinctive name. Mr. M. B. Zaman who appeared for the appellant, invited our attention to the fact that before the enactment of the Punjab Lend Revenue Act, 1887, there existed the Land Revenue Act of 1871, which was repealed by the 1887 Act. Prior to 1871, apparently, the Government exercised its right as the sovereign, to take a part of the produce of the land owner and this was later regulated by Land Revenue Acts. The Act of 1887 was, as the Preamble to that Act declares, an Act to amend and declare the Land Revenue Law of the Punjab. The ancient right of the State to exact a part of the agricultural produce, may have received more precise definition and may have been subjected to several restrictions in the subsequent Acts but its nature remained the same and land revenue really represented that part of the agricultural produce which the State took from the owner. This appears to be undisputed history and undoubtedly provides the background for the resolution of the question posed in this case. Subsection (4) of section 48 of the Act of 1887 was inserted in the Act in 1928 and could have no relevancy in determining the position as it prevailed before that year unless it embodied practice then obtaining. It is urged that this subsection was misconstrued by the learned Judges of the High Court, in so far as they thought that the two methods of assessment, namely, "fixed land revenue" and "fluctuating land revenue" per acre, could not be combined in respect of the same estate. This criticism has considerable force and the erroneous assumption made by the learned Judges in this respect seems to have vitiated heir whole approach to the case. There is nothing in the language of subsection (4) of section 48 to warrant the conclusion to which the learned Judges committed themselves. The disjunctive "or" does not exist between the two clauses, in the section. In fact, the practice of the Settlement Officers started long before 1873, to split up the "land revenue" into two parts one representing the imposition on the unirrigated aspect of the land, which was a fixed annual charge and the other, a fluctuating rate per acre, namely, the "khush haisiyyati" imposed only on those lands which used canal water and thus improved their crop's. Both were relatable to the net assets of the land which under the Act of 1887, forms the basis of assessment of "land revenue" under section 48 A. This also explains why there is no separate specific provision in the Land Revenue Act for assessment of "khush haisiyyati" or water advantage rate. Provision only, exists for levy of land revenue and "khush haisiyyati" is only 'a part of it. The observations of Mr. Douie, in paragraph 445 of the Settlement Manual, are illuminating in this respect and are reproduced below :- "The State, as Supreme landlord, has a right to a share of any increase of rent due to the introduction of canal irrigation by its own agency or by that of private individuals . . . . The enhanced assessment claimable on account of the introduction of canal irrigation may be determined in two ways. The land may simply be rated as irrigated, no attempt being made to discriminate the portion of the assessment which is due to irrigation. This is the method by which the lands watered by perennial canals were assessed in our earliest settlements, and the assessments of lands dependant on some of the inundation canals are still of this description. Mr. Prinsep initiated the plan of dividing the assessment into two parts, the first representing the revenue claimable from the land in its unirrigated aspect, and the second that arising from the land owner's increased profits due to irrigation. The latter is described as `water advantage revenue' or `canal advantage revenue' (vernacular "khush haisiyyati"). This revenue Mr. Prinsep took by means of a water advantage rate levied on the area irrigated at each harvest. The owner's rate defined in paragraphs 37 39, Act VIII of 1873, (The Northern India Canal and Drainage Act), was the water advantage rate under another name." I confess, it is not clear to me how the learned Judges of the High Court pressed this passage into service for expressing the view that "properly speaking "khush haisiyyati" is not land revenue, that is, revenue on the ownership of land". It seems to me, with all respect, that the opposite conclusion should flow from the language employed by Mr. Douie. The policy of the Land Revenue Law appears to be to have a graduated scale of land revenue varying with the productivity of the land and as irrigated lands could obviously grow better and more valuable crops in comparison with barani lands there was clear equity in favour of assessing irrigated lands at a higher rate. Chapter V of the Punjab Land Revenue Act, 1887, is headed "assessment". Section 49 of that Chapter provides, inter alia, that a general re-assessment of the land revenue of any area shall not be undertaken without the previous sanction of the Provincial Government and notification of that sanction. Section 50 enacts that a general assessment shall be made by a Revenue Officer but before making such assessment, the Revenue Officer shall report through the Commissioner for the sanction of the Board of Revenue his proposals with regard thereto. Section 51 lays down that after consideration of the proposals submitted by the Revenue Officer under the provisions of section 50, the Board of Revenue shall pass such orders as it may deem fit, subject to the provisions of subsections (3) and (4) of that section, which place certain restrictions on imposition of land revenue in respect of certain kinds of lands. On the receipt of Government orders, the Revenue Officer is then required to make an order determining the assessment proper for each estate concerned and to announce it in such manner as the Provincial Government may by rule prescribe. He is also to declare the date from which the assessment is to take effect. The Board of Revenue has to fix, under section 53 A of the Land Revenue Act a period of time for which the assessment shall remain in force. Notwithstanding the expiration of this period, however, in accordance with section 54 of that Act, the assessment would continue in force till a new assessment takes effect. This scheme of the Land Revenue Act is substantially the same as had been followed earlier, except that instead of the Board of Revenue the relevant authority was probably the Financial Commissioner or the Government itself. Evidence for it may be found in several Settlement Reports prepared by high Revenue Officers in the past. It is thus clear that any proposals made by a Settlement Officer in respect of imposition of land revenue, whether the proposals include a consolidated fixed rate to be paid annually by irrigated lands, or whether the charge is split up into two items, one fixed in respect of the unirrigated aspect of the land and the other fluctuating and having reference to the irrigated aspect of it, the authority for them is to be found in the relevant provisions of the Land Revenue Act. The last settlement in the district of Shahpur certainly took place under this Act in the years 1887 94 and the position with regard to irrigated lands would be clear from paragraphs 55, 74 and 107 of Mr. Wilson's Report, which may be reproduced to extenso : "

55. Assessment of lands irrigated from canals. One point of general importance which came up for discussion was the mode of assessment to be adopted in assessing land irrigated by canals. As regards land irrigated by State canals the assessment instructions directed me to assess them as nearly as may be at the same rates as land of similar quality and advantages in the same tract which is not irrigated, leaving the advantage derived by the land owner from canal irrigation to be realized by canal owner's rates. As regards land irrigated by private canals pointed out that there was even more reason than in the case of State canals for adopting a similar rule, because they are generally not so well managed as State canals and where, as is often the case, they irrigate land belonging both to the owner of the canal and to other persons, the canal owner irrigates his own land first and gives only surplus water to the land of others, so that the area irrigated fluctuates greatly from year to year. It would thus be very difficult to fix a fair irrigated assessment on such lands, and if the attempt were made it would probably be necessary to give frequent remissions, was accordingly decided that all lands irrigated by canals, whether owned by the State or by private persons, should be assessed at the same rates as similar unirrigated land in the circle, and that a canal owner's rate, here called water advantage rate, should be realised separately from the fixed land revenue on al: land actually irrigated by canals from year to year. This water advantage rate has been fixed at eight annas per acre irrigated throughout the district, except on the small canals from the Chenab river where it is four annas per acre irrigated.

74. Future enhancements. During the currency of the settlement period recently expired, a very large increase of cultivation had taken place owing to the construction of inundation canals partly at the cost of the State, and the land thus broken up for cultivation had for years escaped payment of any land revenue assessment other than the nominal sum which had been imposed upon it in a state of waste. In order to avoid a similar loss to the State in future, it has been made a condition of this settlement that all land irrigated from canals, whether State or private, shall pay, in addition to the assessment which has now been imposed upon it in its unirrigated aspect, a water advantage or owner's rate at a uniform rate of eight annas per acre (except on the Chenab, where the rate is four annas per acre), to be taken only once in the year, and to be remitted in proportion to any remission that may be granted of water rates (occupier's rate) for failure of crop. This water advantage revenue is credited as fluctuating land revenue, and a book credit is given to the irrigation Department for the share due to State Canals, Lambardars', Patwar's' and local rates are also charged on it.

107. Water advantage rate. I have already in paragraph 5555 given an account of the water advantage rate, which corresponds to owner's rate and is levied on all land irrigated by canals, whether State or private, at the uniform rate of eight annas per acre on the Jhelum and four annas per acre on the Chenab Canals; the land revenue on such lands having been fixed and announced at unirrigated rates. On canal irrigated lands on the Jhelum the average net value of the total divisible produce is about Rs. 10 per acre actually harvested, and after deduction of the Rs. 2-8-0 paid as water rate on State Canals, or the fourth of the gross produce paid on private canals, the landlord gets as rent 22 per cent. of this, so that half his rent comes to Rs. 1-1?-0 per acre actually harvested, or to Re. 1 per acre returned as nahri. The fixed land revenue has been assessed on such lands at from 6 to 8 annas per acre, so that the eight annas per acre fixed as water advantage rate, which is really fluctuating land revenue, is fairly due from the landlords of canal irrigated lands, whether those lands pay the water rate at Rs. 2-8-0 in cash, or at a fourth of the gross produce. Were the water advantage rate not taken as a fluctuating land revenue, the fixed land revenue on canal irrigated lands ought to be raised to 12 or 14 annas per acre. This water advantage rate is to be realised on the same land only once in the year, although the land may have borne two crops, and it is to be reduced in proportion to any remission of the water rate granted for poorness of crop or other reason. On grass land and lift irrigated assessed at the half rate of Rs. 1 4 0 per acre only half water advantage rate or 4 annas per acre should be realised". There seems to have been a revision of the settlement by Mr. Leigh in 1911-1916. Para. 48 of Mr. Leigh's report is also instructive on the problem under consideration and is expressed in these words :- "

48. Water advantage rate. The difference between the total demand sanctioned and these fixed demands is to be taken in the form of a rate in nahri and Chahi nahri lands fluctuating with the area of matured crops and grass. This rate which is a land revenue rate, is known as "water advantage rote" or khush haisiyyati ; and represents the difference in the assessable value of nahri lands, which have, for purposes of the fixed assessment, been treated in their unirrigated aspect. The inundation canals of the district are so erratic, and their future has been so involved in doubt by the construction of the Upper Jhelum Canal, that it was decided to maintain a very low 'barani' fixed rate, and take the bulk of the increase by means of doubling this fluctuating rate, thereby ensuring a high degree of elasticity. It is, however, worthy of remark that if, in accordance with a recent notification, the Canal Department adopt the same methods of computing failed areas on these canals as on the perennial canal, this elasticity will be largely sacrificed ; I have represented this matter in a separate reference." From the above extracts, the conclusion is irresistible that "khush haisiyyati" was imposed as part of the "land revenue" on irrigated lands and that the imposition derived its authority from the Punjab Land Revenue Act, 1887. It appears to have been conceded on behalf of the Provincial Government in the High Court that if "water advantage rate" or what is another name for it, "owner's rate" had been imposed under section 37 of the Northern India Canal and Drainage, Act 1873, it could not be treated as part of the "land revenue for the purposes of the Act and that position is obviously unassailable. Section 37 of that Act however declares that "in addition to the occupier's rate, a rate to be called the "owner's rate" may be imposed, according to rules to be made by the Provincial Government, on the owners of canal irrigated lands, in respect of the benefit which they derive from such irrigation". Through the learned counsel for the appellant we called for information from the Board of Revenue, as to whether any rules had been framed by Government, pertaining to section 37 of that Act. The information has been received to the effect that no rules bearing on this provision, have so far been framed and that no "owner's rate" as contemplated in that section, has been levied in any part of the former Punjab up to this day. The argument therefore that an anomaly is introduced by the fact that in places where the "water advantage rate" which corresponds to the owner's rate" mentioned in section 37 of that Act, has been imposed with reference to that enactment, the land owner will be assessed to agricultural income tax on the basis of "land revenue" excluding "the water advantage rate", whereas in districts to which this Act is not applied, they will have to pay higher tax, as land revenue in their case would include "water advantage rate", loses its force. Section 75 of the Northern India Canal and Drainage Act, 1873, empowers the Provincial Government to make rules to regulate, inter alia, the amount of any charge made under that Act and generally to carry out the provisions of the Act. No such rules pertaining to the owner's rate having so far been framed, the question of the application of this Act does not arise. If and when that Act is applied to any canals and the owner's rate is charged under section 37 of that Act, to that extent, of course, the assessees of agricultural income tax may be the gainers. Till that contingency materialises, however, the question of any discriminatory treatment would be just academic. The statement made by Mr. O. Herbert, a Superintendent in the Punjab Irrigation Secretariat, Lahore, before the Collector to the effect that provision for the levy of water advantage rate (owner's rate) existed in the Final Forecast of the Shahpur Project Estimate of 1951 and that when the rate is imposed, it would be done under section 37 of the Northern India Canal and Drainage Act, 1873 and not under the Punjab Land Revenue Act 1887, does not carry the matter any further The future may well take care of that aspect of the case. For the assessment years under consideration the position is that the canals from which the respondent's lands are watered, are not within the ambit of the Northern India Canal and Drainage Act 1873 which governs only "canals constructed, maintained or controlled by the Provincial Government for the supply or storage of water". The respondent's lands receive irrigation water from privately owned canals which fall within the controlling provisions of the Punjab Minor Canals Act III of 1905, and the application of the former Act is expressly excluded by section 2 (3) of the latter Act. Much seems to have been made in the High Court of the fact that in the Punjab Land Revenue Act 1887, the definition of "land revenue" does not expressly include "khush haisiyyati" or water advantage rate. "Land revenue" is defined in that Act in clause (6) of section 3 in these terms " 'Land revenue' includes assigned land reveuue and any sum payable in respect; of land, by way of quit rent or of commutation for service, to the (Crown) or to a person whom the (Crown) has assigned then right to receive the payment". To argue from this definition which is obviously not intended to be exhaustive but merely extends the meaning of "land revenue" so as to embrace within it certain specified payments, appears to me to beg the question. The fact that clause (10) of section 4 of the Punjab Tenancy Act 1887, defines "land revenue" as meaning "land revenue assessed under any law for the time being in force or assessable under the Punjab Land Revenue Act, 1887, and includes (a) any rate imposed in respect of the increased value of land due to irrigation and (b) any sum payable in respect of land by way of quit rent or of commutation for service, to the Government or to a person to whom the Government has assigned the right to receive the payment" seems to have no special significance. The Legislature may have thought it fit to insert an exhaustive self contained definition of "land revenue" in that Act and this full definition has relevancy to several sections thereof. For enhancement of cash rents paid by occupancy tenants certain formulae have been laid down in that Act, which involve determination of the amount of "land revenue" assessed on the land. To take but one instance, in clause (c) of subsection (1) of section 22 of that Act, the case of an occupancy tenancy is dealt with and it is provided that enhancement of rent would be legitimate, if after deducting therefrom the "land revenue" and the rates and cesses chargeable on the land, the rent payable is less than 10 annas per rupee of the amount of "land revenue". Obviously for such calculations, the whole of the land revenue including the water advantage rate would have to be taken into account to give a fair return to the landlord and the wisdom of the exhaustive definition in the Act becomes apparent. In the Land Revenue Act, it seems to be assumed that what is assessed as "land revenue" under that Act, would be "land revenue" and by a familiar device, it is clarified that the term also comprehends some other payments which might otherwise be considered to be outside its scope. The fact further that "khush haisiyyati" is separately shown in the record of rights from the item called "land revenue" cannot mean that "khush haisiyyati" is not "land revenue imposed under the Land Revenue Act". The distinction appears to have been made for facility of collection from the relevant owners, in comparison with those who are not liable to pay this charge. The difference of nomenclature cannot destroy the essence and source of authority of the imposition in question. It would, in my opinion, be wrong to base any argument on the language employed in section 29 of the Land Revenue Act, in support of the view that "khush haisiyyati" is not "land revenue". The section seems designed to make it clear that though as a matter of form, "khuah haisiyyati" may have been shown in Settlement records as distinct from "land revenue", it has to be taken account of, as "land revenue" for the purpose of this section. It does not necessarily follow that the nature of "khush haisiyyati" changes for other purposes. It is also not possible, in my opinion, to draw any strength for the contention raised on behalf of the assessee, from the principle of joint liability embodied in section 61 of the Land Revenue Act. That joint liability is enforceable in cases even where irrigated lands are assessed to a fixed higher rate as compared with unirrigated lands and there is a default in payment of the land revenue on the part of the owner of irrigated lands. The category of owners of unirrigated lands would incur liability under this section although their own lands have not benefited from irrigation water. There is no real injustice involved in this provision as it seems that under section 71 of the Land Revenue Act, 1887, any person, being a land owner of the estate in which the defaulting holding is situate and not being himself a defaulter in respect of his own holding, may, on his request, be transferred the holding of the defaulter, on condition of his paying the arrear due and on such further conditions as the Collector may see fit to prescribe. It would seem, therefore, that the person against whom the joint liability is enforced, has this method of reimbursing himself for the imposition. The High Court's dictum that under clause (3) of section 11 of the Act, if similar land forms the basis of assessment of land revenue in respect of land not hitherto assessed, then there is a danger of including water advantage rate in the assessment, although no such rate was payable by the land owner by reason of the fact that he had not used irrigation water, may next be considered. With all respect, it seems to me that this reasoning is fallacious. If "similar land" in the same estate is to be the basis of such assessment, why should irrigated land be taken as the basis for assessing land which is not irrigated ? The extent of similarity between the two lands, would not be complete. The reference in Mr. Wilson's Settlement Report, paragraph 35, to water advantage rate along with certain other dues and cesses, to my mind, is not helpful to either side. The paragraph appears to me to be of a neutral character, so far as the question raised in this case is concerned. It makes mention of the various charges realisable from land owners, whether they fall within the definition of "land revenue" or not. The learned Judges of the High Court have criticised the order passed by the Board of Revenue on the ostensible ground that the Board had omitted to consider that water advantage rate, in order to be included in "land revenue" for the purposes of the Act, should not only be imposed under that Act but also be exacted as "land revenue". It is true that the Board's order does not make this explicit, but the implication of that order clearly was that this charge was in its essence "land revenue" and could only have been imposed under the Land Revenue Act. If the view contended for the respondent were to prevail, it would lead to curious results. People in the position of the respondent who raise rich crops with the help of irrigation water, would be assessed to agricultural income tax on the same basis as their less favoured brethren who depend on unirrigated lands alone. This consequence would contravene the spirit and letter of the Act which by the Schedule appended to it with reference to section 2 thereof, prescribes a graduated scale of taxation on the slab system based on the "total land revenue" payable. Those land owners who pay up to Rs. 250 as "total land revenue" are entirely exempted from taxation whereas for those paying higher sums, there is a progressively increasing scale of taxation prescribed, reaching the maximum at seven times the land revenue for those who pay more than Rs. 15,000 per annum as "total land revenue". The assessees in the respondent's position ought on no just construction of the Act to be placed on the same footing as those who pay a lower fate of land revenue on irrigated lands. No doubt, the principle has been universally approved that if two interpretations of a taxing statute are possible, the one that favours the subject must be adopted. It is, however, well recognised that if the language of the statute is fairly susceptible of a construction which brings a person or a property within some specific charging provisions thereof, then such person or property should not be allowed to escape. After discussing the whole matter from all aspects, I have reached the conclusion that the decision of the Board of Revenue was correct and that for the purposes of the Act, "khush haisiyyati" must be included in "land revenue" for assessment of agricultural income tax. I would, therefore, allow the appeal and recall the directions issued by the High Court, but in view of the difficult nature of the questions raised in the case, would leave the parties to bear their own costs throughout. FAZLE AKBAR, J. I have had the advantage of reading the judgment of my learned brother S. A. Rahman, J. and I fully concur in his reasons and conclusions and have nothing to add. B. Z. KAIKAUS, J. This is an appeal by the Province of West Pakistan against an order of the High Court of West Pakistan prohibiting the collection of agricultural income tax assessed against the respondent in so far as it was based on the amount called "khush haisiyyati". By the Agricultural Income-tax Act of 1950 which is an annual Act, a provision was made that a tax was to be "levied and collected in respect of the income of agricultural land for the year 1950 51". Although the assessment was in respect of the agricultural year 1950 51 the basis of the tax was to be "total land revenue" which the proprietor had to pay in the agricultural year 1949 50. "Land Revenue" had been defined as land revenue assessed on any land under the Punjab Land Revenue Act, 1887. The respondent had to pay as land revenue in 1949 50 a total sum of Rs. 49,749 13 6 which included a sum of Rs. 7,306 as khush haisiyyati. The contention of the respondent before the Collector of Shahpur District in which the land is situate was that khush haisiyyati was not part of land revenue and, therefore, while computing agricultural income tax this sum had to be excluded. This contention was accepted by the Collector and on an appeal by the Provincial Government the Commissioner agreed with the Collector. The Board of Revenue, however, on further appeal set aside the decision of the Commissioner and held that this sum of Rs. 7,306 was part of land revenue. Against the order of the Board of Revenue the respondent approached the West Pakistan High Court in the exercise of its writ jurisdiction. The only question for decision before the High Court was whether the sum payable as khush haisiyyati was "land revenue" assessed under the Punjab Land Revenue Act, 1887. The High Court found that it had been assessed under the Land Revenue Act, 1887, but that it was not land revenue. The first question to be considered is what is meant by "land revenue". The question is not at all difficult to answer and in fact Mr. Salem who appears for the respondent has not contended before us that this sum of Rs. 7,306 is not land revenue. His contention on the other hand is that it is land revenue imposed not under the Punjab Land Revenue Act, 1887, but under the Northern India Canal and Drainage Act, 1873. The argument before us has proceeded on lines different from those in the High Court a matter which will be noticed in greater detail later. As regards the connotation of "land revenue", I do not, however, intend to rely on the concession of Mr. Saleem and will refer to material on the basis of which there can be little doubt left as to its meaning. The British Government had claimed, like its predecessors, with respect to its Indian territories, that it was entitled to a share of the produce of all land within these territories. The opening words of Regulation 19 of 1793 are : "

1. By the ancient law of the country the ruling power is entitled to a certain proportion of the produce of every bigha of land (demandable in money or kind, according to local custom), unless it transfers its right thereto for a term or in perpetuity, or limits the public demand upon the whole of the lands belonging to an individual, leaving him to appropriate to his own use the difference between the value of such proportion of the produce and the sum payable to the public, whilst he continues to discharge the latter. As a necessary consequence of this law, if a Zamindar made a grant of any part of his lands to be held exempt from the payment of revenue, it was considered void, from being an alienation of the dues of Government without its sanction." The Preamble of the Punjab Land Revenue Act, 1871, runs thus : Whereas the Government of India is by law entitled to a proportion of the produce of the land of the Punjab to be from time to time fixed by itself : and whereas it is expedient to consolidate and define the law relating to the settlement and collection thereof, and to the duties of Revenue Officers in the Punjab ; It is enacted as follows : " In Douie's Settlement Manual there is a reference to the nature of "land revenue" in the following paragraphs : "(2) Ownership of land in India. Land revenue not a land tax. Broadly speaking, individuals exercising a permanent right of the kind described above subject only to payment of the dues of the State have been recognized as "owners" or "proprietors," but it would be a mistake to assume that these words, imply all that they do in England. The share of the State, which we call the land revenue, is not a land tax. It is more analogous to rent, and in early settlement literature it was so described, the Government being represented as surrendering to the land owners a small portion of the rent. The land revenue is, therefore, "the first charge upon the rents, profit, or produce" of an estate or holding, and, until it has been paid, they cannot, without the previous consent of the Collector, be taken in execution of 4 decree obtained by any private creditor. (Land Revenue Act XVII of 1887, section 62). (3) Rent under our system of assessing land revenue. The rulers sometimes took their share in kind, dividing the crops with the cultivator on the threshing flour (batai). For certain crops, known as zabti, which it was inconvenient to divide, e.g., cane and poppies, fixed money rates were charged per bigha or kanal. At other times the State officials restored to appraisement (kan or kankut), estimating the amount of the Government share of the crops, and usually taking its value in money. Numerous cesses (abwab) were levied in addition to the land revenue proper (mal). A prudent or humane ruler forbore to make the burden too heavy to be borne, and it is obvious that the collections were roughly adjusted to the character of the seasons, and pressed much less heavily than a fixed cash demand equal to the average of the fluctuating amounts realized would have done. Rent in the usual sense of the word hardly existed in the districts included in the Former North Western Provinces or in the east of the former Punjab. The small landholder was content to win a bare subsistance from the soil which he tilled with his own hands ; the large number landholder was at most able to obtain from the cultivator some trifling fraction of the crop, say one seer in the maund, as an acknowledgement of his superior title. As Mr. Thompson remarked in the valuable sketch of the system of land revenue administration prevalent in the then North-Western Provinces(now united provinces) prefixed to his "Directions for Settlement Officers :" "Undoubtedly traces are often to be found of the existence and exercise of a proprietary right in the land on the part of individuals. But so long as the sovereign was entitled to a portion of the produce of all land and there was no fixed limit to that portion, practically the sovereign was so far owner of the land as to be able to exclude all other persons from enjoying any portion of the net produce. The first step, therefore, towards the creation of a private proprietary right in the land was to place such a limit on the demand of the Government as would leave to the proprietors a profit, which would constitute a valuable property. Native Governments seldom recognize proprietary right as constituting a claim on the part of proprietors to engage for the village at a fixed sum. Ordinarily the collections are made direct from the actual cultivators either by the officers of Government or by some farmer or assignee of the Government share of the produce. These statements are not fully applicable to the state of things which existed in many parts of the Punjab proper under Sikh rule. There the leading men or maliks were often strong enough to maintain a real proprietary right in the soil, to exact considerable grain dues besides services of value from the cultivators, and to engage exclusively for the revenue whenever a cash assessment was introduced." In Aiyar's Law Lexicon "land revenue" is thus explained : "Land revenue. The revenue derived by the State by taxation of lands and of profits on land." It should be clear that land revenue means anything which it payable to the State because of its right to a share of the produce of land. No other definition of land revenue has been put forward before us. The Punjab (we are concerned with the area which was the Punjab before the integration of West Pakistan), was annexed by the British Government in 1846, but the Land Revenue Act came into force only in 1871. Land revenue was being realised by the Government before the Land Revenue Act came into force and it was just a share of the produce taken in whatever form the Government thought proper. When the Punjab Land Revenue Act was passed the need of explaining what was meant by "land revenue" was not felt at all and although a definition of "land revenue" has been provided in the Land Revenue Act it is truly speaking not a definition and its object is only to include sums with respect to the nature of which there may have been some doubt. This definition runs : "3 (6) "Land Revenue" includes assigned land revenue and any sum payable in respect of land, by way quit rent or of commutation for service, to the (Crown) or to a person whom the (Crown) has assigned the right to receive the payment." Evidently land revenue was regarded as being any revenue imposed on land and its imposition had been sufficiently explained in what is now section 48, according to which all land to whatever purpose applied was subject to payment of land revenue. In some other Provincial Acts relating to land revenue, however, the term was better explained. In section 3 of the Bombay Revenue Jurisdiction Act, 1876, for instance "land revenue" was defined as follows : "land revenue" means all sums and payments, in money or in kind, received or claimable by or on behalf of Government from any person on account of any land held by or vested in him, and any cess or rate authorized by Government under the provisions of any law for the time being in force : In the Bombay City Land Revenue Act it was defined thus : (2) the words "land revenue" signify any sum of money legally claimable by Government from any person on account of any land, or interest in or right exerciseable over, land held by or vested in him, under whatever designation such sum may be payable; I proceed now to explain what khush haisiyyati means. Land revenue which the Government claims is to be in proportion to the income from land. This is clear from section 48 A of the Punjab Land Revenue Act which runs : "48 A. The assessment of land revenue shall be based on an estimate of the average money value of the net assets of the estate or group of estates in which the land concerned is situated." Section 48 A was introduced in 1928 but even before this amendment the position was the same. This will be clear from the instructions issued from time to time. I reproduce below the instructions issued in 1873 -- "The following instructions under section 9 of the first Punjab Land Revenue Act (XXXIII of 1871) issued in 1873 to the Settlement Officers of Delhi, Karnal and Gurgaon were also adopted in the case of the other settlements made under that Act : (i) The general principle of assessment to be followed is that the Government demand for land revenue shall not exceed the estimated value of half the net produce of an estate, or in other words one half of the share of the produce of an estate ordinarily receivable by the landlord either in money or in kind. (ii) In applying this principle in the case of the portion of the district where produce rents prevail, special attention should be given by the Settlement Officers to produce estimates. (iii) In estimating the land revenue the Settlement Officer will take into consideration all circumstances directly or indirectly bearing upon the assessment such as rent, rates where money rates exist, the habits and character of the people, the proximity of marts for the disposal of produce, facilities of communications, the incidence of past assessment, the existence of profits from grazing, and the like. These and other considerations must be allowed their weight. (iv) The gross assessments for each assessment circle having been framed by the Settlement Officer on the principle above indicated, revenue rates on soils may be deducted therefrom. and the proposed gross assessment, together with the proposed revenue rates, must be reported to the Financial Commissioner for preliminary sanction, and will, when sanction by the Financial Commissioner, form the basis of assessment of particular estate in the circle ; but in the assessment to be ultimately adopted full consideration must be given to the special circumstances of each estate. The principle laid down in rule 1 is to be observed in the assessment in each case." If land revenue was to be in proportion to income the rate per unit would have to vary with the capacity of the land for yielding income. Land would have to be classified in order that land revenue may be imposed in accordance with the varying degrees of income. Land was in fact classified into chahi barani, sailab, nehri etc. and the ordinary method of imposition of land revenue was to fix varying rates for the different classes of land. Mr. Princep one of the Settlement Officers who worked in the Punjab before 1871, however, suggested another method of assessment. He divided the income from land into two parts the first part being income which would arise from land without the use of any means of irrigation and the second part being the additional income which was due to some means of irrigation. He assessed land in the first instance in its unirrigated aspect which means that he determined its income assuming it to be unirrigated, and he then found out the additional income which was due to means of irrigation. He assessed one part of land revenue on the unirrigated aspect and the other part on the income which was due to means of irrigation. The name which was given to the part of land revenue which was due to the means of irrigation was called "abiana" in the case of wells and "khush haisiyyati" in the case of canals. The proposals of Mr. Princep were in fact ultimately not accepted by the Government but they were allowed to continue in the way in which they had already acted upon, as will appear from para. 64 of Douie's Settlement Manual : "

64. Well abiana system condemned. His proposals were reported to Government, but for years no orders were passed and, when the system was finally condemned, it was too late to prevent its application to the districts settled under Mr. Princep's supervision. But a resolution issued in 1872 (Department of Agriculture, Revenue and Commerce, No. 818 dated 14th June 1872) forbade its adoption in future settlements." In other districts the method of assessment remained as it was before i e., land being divided into classes, the classes were differently assessed in accordance with their income Paragraphs 60, 61, 63, 64, 72, 445 and 465 of the Settlement Manual may be read with advantage in this connection but it will be sufficient to reproduce here only para. 445 which fully explains what is "khush haisiyyati". "

445. Canal Advantage rate, owner's rate and nehri patta The State, as supreme landlord, has a right to a share of any increase of rent due to the introduction of canal irrigation by its own agency or by that of private individuals. As a canal owners it might have piched the occupier rates so high as to prevent any such rise of rent, but it has not been the policy of Government to exclude land owners from participation in the profits arising from improvements effected at its expense. It is reasonable that in the case of canals owned by private individuals the State should have power to limit the amount that may be levied as water rate, otherwise no margin of profit might be left on which to base a claim to assess the land in its irrigated aspect. [Section 8 of the Punjab Minor Canals Act 111 of 1905.] The enhanced assessment claimable on account of the introduction of canal irrigation may be determined in two ways. The land may simply be rated as irrigated, no attempt being made to discriminate the portion of the assessment which is due to irrigation. This is the method by which the lands watered by perennial canals were assessed in our earliest settlements (paragraph 51), and the assessments of land dependent on some of the inundation canals are still of this description. Mr. Princep initiated the plan of dividing the assessment into two parts, the first representing the revenue claimable from the land in its unirrigated aspect, and the second that arising from the land owner's increased profits due to irrigation. The latter is described as "water advantage revenue" or canal advantage revenue (vernacular koush haisiyyati). This revenue Mr. Princep took by means of a water advantage rate levied on the area irrigated at each harvest (paragraphs 59 to 62). The owner's rate defined in paragraphs 37 39, Act VIII of 1873. (The Northern India Canal and Drainage Act) was the water advantage rate under another name (paragraph 72). The owner's rate is now no longer imposed in the Punjab, its place having been taken on the Agra and Western Jumna Canals by a fixed canal-advantage revenue assessed on the area classed as nahri i.e., the area commanded. The latter system was introduced on the Upper Bari Doab Canal in the districts of Gurdaspur, Amritsar and Lahore when between 1887 and 1892 they came under settlement after the great extension of canal irrigation which had occurred in the previous 20 years. It cannot be a proper contention that the additional income which the land owner gets on account of the use of water is not subject to land revenue. The State is entitled to a share of the whole of the produce of the land whether the land be irrigated or non irrigated and in fact in all those districts where the proposals of Mr. Princep have not been accepted abiana or khush haisiyyati imposed separately by Mr. Princep is included in land revenue. It was only a matter of convenience that the land revenue was split up into that which is leviable in the unirrigated aspect of the land and that which is leviable on account of the additional advantage from water. This part of the land revenue which was due to water had to be given a separate name. The name given to it by Mr. Princep in respect of canal irrigation was "water advantage rate" which was translated as "khush haisiyyati". In the revenue records the Patwari has to make an entry as to the amount of land revenue and the procedure adopted was that the Patwari showed the revenue imposed in the unirrigated aspect of land as mal which means revenue and made a further entry as to abiana in the case of wells and khush haisiyyati in the case of canals. A precise method of stating the land revenue would have been to show within mal the two sums which were included in it but in that case the sum that was due on account of the unirrigated aspect would have to be described as "land revenue in the unirrigated aspect of the land." It is difficult to say how this expression could have been translated and whether such a lengthy expression could have been used at all in the revenue records. In any case the matter of precision in the statement was of no effect. It was a convenient way of describing the land revenue. After having explained the meaning of "land revenue and "khush haisiyyati" I now proceed to consider the sole point that arises in this case i. e., whether this khush haisiyyati is part of land revenue and is assessed under the Land Revenue Act. I have said enough to show that there cannot be the slightest doubt about khush haisyyati being a part of land revenue. Whatever is taken by the Government as a share of the produce of land is "land revenue". At the same time it should be clear that it was being imposed under the Punjab Land Revenue Act. We are concerned in the present case with its imposition in the Shahpur District. The last settlement in this district was in 1916 and it was in this settlement that khush haisyyati was imposed. A settlement is made in accordance with the provisions of the Land Revenue Act. It is in fact an assessment as provided in the Land Revenue Act. It will be convenient to produce here para. 5 of Douie's Settlement Manual which explains the twofold object of a settlement. It runs : "

5. Twofold object of a settlement. To assess the land revenue is the primary object of a settlement. It is necessary at the same time to decide who shall pay the sums assessed, or, in technical language, with whom the settlement shall be made. To permit an individual to contract to pay the land revenue is usually an acknowledgment that he possesses a proprietary right in the soil, and the drawing up of lists (khewats) showing the land owners in every estate, the extent of each man's right, and the amount of revenue for which he was primarily responsible, involved in early settlements a determination for the first time of the ownership of every parcel of land in the country. It soon became evident that there were other persons who had rights in the soil besides those who claim the offer of a settlement, and the advisability of making a complete record of all rights and liabilities connected with the land, including even those of tenants from year to year, was recognised. A settlement, therefore, consists of two main branches -- (a) the assessment ; and (b) the framing of record of rights." The objects of a settlement are assessment and preparation of record of rights and both are done under the Punjab Land Revenue Act. Following are the provisions of the Punjab Land Revenue Act which relate to the procedure to be adopted for making assessment : "50 (1) A general assessment shall be made by a Revenue Officer. (2) Before making such assessment the Revenue Officer shall report through the Commissioner for the sanction of the Board of Revenue his proposals with regard thereto ; and 51 (1) After consideration of the proposals submitted by the Revenue Officer under the provisions of section 50 the Board of Revenue shall pass such orders as it may deem fit, subject to the provisions of subsections (3) and (4) and on the receipt of such orders the Revenue Officer shall make an order determining the assessment proper for each estate concerned and shall announce it in such manner as the (provincial Government may by rule prescribe. (2) At the time of announcing the assessment the Revenue Officer shall also declare the date from which it is to take effect, and, subject to the other provisions of this Act, it shall take effect accordingly. (3) Subject to the provisions of subsection (4) the average rate of incidence on the cultivated area of the land revenue imposed under the provisions of subsection (1) on any assessment circle forming part of any area in respect of which a notification has been issued under subsection (1) of section 49 shall not exceed the rate of incidence of the land revenue imposed at the last previous assessment by more than one fourth provided that the rate of incidence of the assessment imposed on any estate shall not exceed the rate of incidence of the last previous assessment on the estate by more than two thirds. (4) The provisions of subsection (3) shall not be applicable in the case of land which has not been previously assessed to land revenue or in which canal irrigation has been introduced after the date of the orders passed under the provisions of subsection (1) at the last previous assessment, or in the case of land of which the last previous assessment was made under the provisions of clause (b) of subsection (1) of section 59 or in the case of an area which has been declared by notification to be an urban assessment circle and for the purpose of calculating the increase in the incidence of the land revenue for the purpose of subsection (3), all such land shall be excluded from calculation Provided that no area shall be declared to be an urban assessment circle unless it is included within the limits of a municipality or of an area in respect of which a notification has been issued under section 241 of the Punjab Municipal Act, 1911, or of an area declared to be a small town under the provisions of the Punjab Small Towns Act, 1921." The Government appoints a Settlement Officer to carry out assessments. He makes proposals which are sent to the Provincial Government under section 50 and after the Government approves of those proposals the Settlement Officer proceeds to make assessments of separate estates in accordance with the proposals which has been accepted by Government. The khush haisiyyati which is new payable in the Shahpur District was imposed in the settlement of 1916. The Settlement Report of 1916 contains the proposal made by the Settlement Officer with respect to the assessment of land revenue including the proposals relating to khush haisiyyati. These proposals were in fact assented to by the Government and then land revenue was assessed in accordance with these proposals. The following paragraphs of this report relate to the imposition of land revenue and khush haisiyyati : "

48. The difference between the total demand sanctioned and those fixed demands is to be taken in the form of a rate in nahri and chahi nahri lands fluctuating with the area of matured crops and grass. This rate which is a land revenue rate, is known as "water advantage rate" or "khush haisiyyati", and represents the difference in the assessable value of nahri lands, which have, for purposes of the fixed assessment, been treated in their unirrigated aspect. The inundation canals of the district are so erratic, and their future has been so involved in doubt by the construction of the Upper Jhelum Canal, that it was decided to maintain a very low `barani' fixed rate, and take the bulk of the increase by means of doubling this fluctuating rate, thereby ensuring a high degree of elasticity. In the previous settlement of this district, that is, the settlement of 1887 also khush haisiyyati had been imposed. The following extracts will show the nature of this demand: "

55. One point of general importance which came up for discussion was the mode of assessment to be adopted in assessing land irrigated by canals. As regards land irrigated by State canals the assessment instructions directed me to assess them as nearly as may be at the same rates as land of similar quality and advantages in the same tract which is not irrigated, leaving the advantage derived by the land owner from canal irrigation to be realized by canal owner's rates. As regards land irrigated by private canals I pointed out that there was even more reason than in the case of State canals for adopting a similar rule, because they are generally not so well managed as State canals and where, as is often the case, they irrigate land belonging both to the owner of the canal and to other persons, the canal owner irrigates his own land first and gives only surplus water to the land of others, so that the area irrigated fluctuates greatly from year to year. It would thus be very difficult to fix a fair irrigated assessment on such lands, and if the attempt were made it would probably be necessary to give frequent remissions. It was accordingly decided that all lands irrigated by canals, whether owned by the State or by private persons, should be assessed at the same rates as similar unirrigated land in the circle, and that a canal owner's rate, here called water advantage rate, should be realised separately from the fixed land revenue on all land actually irrigated by canals from year to year. This water advantage rate has been fixed at eight annas per acre irrigated throughout the district, except on the small canals from the Chenab river where it is four annas per acre irrigated. 74???????????????????????????????. This water advantage revenue is credited as fluctuating land revenue, and a book credit is given to the Irrigation Department for the share due to State Canals, Lambardars' Patwaris, and local rates are also charged on it." 107. ???????????????????????????????. The fixed land revenue has been assessed on such lands at from 6 to 8 annas per acre, so that the eight annas per acre fixed as water advantage rate, which is really fluctuating land revenue, whether those lands pay the water rate at Rs. 2 8 0 in cash, or at a fourth of the gross produce. Were the water-advantage rate pot taken as a fluctuating land revenue, the fixed land revenue on canal irrigated lands out to be raised to 12 or 14 annas per acre." The learned Judges of the High Court had themselves accepted that the khush haisiyyati had been imposed under the Land Revenue Act. They decided the case in favour of the respondent because they did not regard it as part of land revenue. Mr. Saleem who appears for the respondent admits that it is part of land revenue and does not contest that the settlement operations were under the Land Revenue Act. His contention, however, is that while the Settlement Officer was acting under the Punjab Land Revenue Act he at the same time found out the amount which should be imposed as khush haisiyati under the Northern India Canal and Drainage Act. This plea of Mr. Saleem is, however, which he did not take when he argued the case before the High Court is a counsel of despair and there are a number of reasons why it cannot be accepted. In the first place it is clear from the Settlement Report that the khush haisiyyati was being imposed as a part of land revenue. The proceedings were under the Land Revenue Act. Khush haisiyyati could be imposed under the Land Revenue Act and there is no reference whatsoever in the Settlement Report to the Northern India Canal and Drainage Act. This khush haisiyyati as appears from Douie's Settlement Manual was being imposed before 103 and the Northern India Canal and Drainage Act was enacted in the year, 1873. If before 1873 it was being imposed under the Land Revenue Act there is no reason for assuming that after 1873 it was being imposed under the Northern India Canal and Drainage Act. But this is not all. Section 37 of the Northern India Canal and Drainage Act under which this water advantage rate can be imposed runs as below : "

37. In addition to the occupier's rate, a rate to be called the "owner's rate" may be imposed, according to rules to be made by the (Provincial Government), on the owners of canal? irrigated land, in respect of the benefit which they derive from such irrigation." It would be observed that in accordance with this section water advantage rate or khush haisiyyati can be imposed only by the' rules made by the Provincial Government, section 75 provides that these rules have the force of law when they are published in the Official Gazette. It is admitted that this khush haisiyyati has not been imposed under any rule framed by the Provincial Government under the Northern India Canal and Drainage Act. In fact inquiry made from the Board of Revenue in this respect shows that no rules have yet been framed under section

37. This is a matter to which there is a fuller reference later in this judgment. There are still other reasons and fundamental ones for rejecting the application of section 37 of the Northern India Canal and Drainage Act. The definition of "canal" in the Northern India Canal and Drainage Act read with the various provisions of that Act shows that it was to be applicable to Government canals. Following is the definition, "

3. In this Act, unless there be something repugnant in the subject or context (1) "Canal" includes (a) all canals, channels and reservoirs constructed, maintained or controlled by (the Provincial Government) for the supply or storage of water ; (b) all works, embankments, structures, supply and escape-channels connected with such canals, channels or reservoirs ; (c) all water courses as defined in the second clause of this section ; (d) all parts of a river, stream, lake or natural collection of water or natural drainage channel, to which the (Provincial Government) has applied the provisions of Part II of this Act". The word `includes' is used but a consideration of the different provisions of this Act would support the inference that it was not intended to apply to private canals. In 1905 was enacted the Punjab Minor Canals Act. This Act is applicable to canals mentioned in the Schedules and the Provincial Government is empowered to include in the Schedules more canals. A reference to Schedule 11 to this Act would show that the canal with which we are now concerned i.e., the canal on account of which khush haisiyyati is being paid by the respondent is one of the canals included in that Schedule. Section 2(3) of the Punjab Minor Canals Act provides that the Northern India Canal and Drainage Act does not apply to any canal mentioned in the schedules to the Punjab Minor Canals Act. Section 37 of the Northern India Canal and Drainage Act applies to "canal irrigated lands" and the word "canal" in this section cannot refer to a canal which is mentioned in one of the schedules to the Punjab Minor Canals Act. I will next consider the various arguments on which the High Court relied in support of its conclusions. I have already stated that in accordance with the findings of the High Court khush haisiyyati had been imposed under the Land Revenue Act but was not part of land revenue. In support of the conclusion that it was not part of land revenue the learned Judges relied upon the following eight arguments : (i) As in the record of rights khush haisiyyati is not included at all but is shown separately, the presumption is that it is not a part of Mal. (ii) "Land Revenue" is revenue on the ownership of land but khush haisiyyati is revenue levied by reason of the advantage derived from water. (iii) The wording of section 29 supports the inference that water advantage rate is separate from land revenue. (iv) In accordance with section 48 (4) assessment can be either fixed or fluctuating. It cannot both. Therefore, it should be held that only the fixed part in a case of lands subject to khush haisiyyati is land revenue. (v) The conception of khush haisiyyati being land revenue is in conflict with a joint responsibility of land owners for land revenue. (vi) The reference in section 11 clause 3 of the Punjab Agricultural Income tax Act to similar lands in the same estate would be inconsistent with khush haisiyyati being part of land revenue. (vii) The definition of land revenue in the Punjab Tenancy Act which expressly refers to water advantage rate supports the inference that the expression is used in the two enactments not in the same sense but in different senses. (viii) Under the Punjab Land Revenue Act rates, cesses, and other charges can in addition to land revenue be imposed and khush haisiyyati may have been imposed as such a charge and not as land revenue. If the learned Judges had considered the meaning of the expression "land revenue" and if they had reached a conclusion as I have that it meant any sum payable to the State on account of income from land none of the arguments on which they have relied would have appealed to them. As regards the first of these arguments I have explained why in the record of rights this sum was not shown as included in mal. The entries in the record of rights are presumed to be correct with reference to the facts stated therein and not with respect to any expressions of opinion on a question of law. The entry in the record of rights represents at the most the opinion of the Naib Tahsildar or the Tahsildar who attested the record of rights and as I have stated above in fact the entry was made by the Patwari and as a matter of convenience. In any case the presumption is a rebuttable one and stands rebutted. As regards the second argument it is a matter of some surprise that the learned Judges relied upon para. 445 of Douies Settlement Manual reproduced above in support of their inference that income from the additional advantage of water was not liable to be assessed as land revenue. To me that paragraph points to the opposite conclusion. The learned Judges did not say under what head the imposition of this revenue would fall, if it was not land revenue and how it could be assessed under the Land Revenue Act for they accepted that the assessment was under the Land Revenue Act. The third and the eighth argument may be taken up together. The learned Judges appear to have assumed on account of section 98 (a) of the Punjab Land Revenue Act that any fee or rate could be imposed under this Act by the Revenue Officer or the Provincial Government. Section 98 (a) runs : "

98. In addition to any sums recoverable as arrears of land revenue under this Act or any other enactment for the time being in force, the following sums may be so recovered, namely ; (a) fees, fines, costs and other charges, including the village-officer's cess payable under this Act ; From the fact that in this section there is a provision for recovery of "fees, fines, costs and other charges" it does not follow that it is open to the Revenue Officer or the Government to impose any "fees; fines, costs or other charges." Legal justification for the kind of charge imposed is first to be found in the Land Revenue Act. A study of the Land Revenue Act would disclose that there is no provision in the Act for the imposition of khush haisiyyati as a rate. The assumption that rates and cesses could be imposed without any specific provision in the Act has affected the whole argument of the learned Judges. There can be little doubt that the assumption is unwarranted. Had it been kept in view that there was no power in the Land Revenue Act to impose this rate except as a part of land revenue the argument before the learned Judges may have taken an entirely different turn. Section 29 gives the definition of annual value. The relevant portion of section 29 runs as under : "29 (1) The Board of Revenue may, by notification, impose on all or any estates in the territories for the time being, administered by it a cess, to be called the village officers' cess, at such rate or rates not exceeding half an anna for every rupee of the annual value as it may think fit, for remunerating headmen and chief headmen in those territories and for defraying other expenditure directly connected with the supervision of those officers or with the performance of their duties. (2) "Annual value" in sub-section (1) has the meaning assigned to that expression in the Punjab District Boards Act, 1883 ; that is to say -- (a) double the land revenue for the time being assessed on any land whether the assessment is leviable or not ; or, (b) where the land revenue has been permanently assessed, or has been wholly or in part compounded for or redeemed, double the amount which, but for such permanent, assessment composition or redemption, would have been leviable ; or, (c) where no land revenue has been assessed, double the amount which would have been assessed if the average village-rate bad been applied Provided that, in any tract in which, under the settlement for the time being in force, the improvement of the land due to canal irrigation has been excluded from account in assessing the land revenue and a rate has been imposed in respect of such improvement, that rate shall be added to the land revenue for the purpose of computing the annual value." The rate mentioned in the proviso to this section could very well have referred to the "owner's rate" imposed under the Northern India Canal and Drainage Act or to some similar rate. The owner's rate imposed by the Northern India Canal and Drainage Act was not land revenue under the Punjab Land Revenue Act. The necessity, therefore, may have been felt of making in section 29 a provision that when it was imposed as a rate under some other law it should be added to the land revenue. Unless this was done the annual value would not be correctly assessed in accordance with the principle adopted in section

29. I do not find any difficulty in not basing any argument on the proviso to subsection 29 (2). Section 48 may be reproduced for considering the fourth argument. It runs : "48 (1) All land, to whatever purpose applied and wherever situate, is liable to the payment of land revenue to the Government, except such land as has been wholly exempted from that liability by special contract with the Government, or by the provisions of any law for the time being in force and such land as is included in the village site. (2) Land revenue shall be assessed in cash. (3) Land may be assessed to land revenue notwithstanding that that revenue, by reason of its having been assigned, released, compounded for or redeemed, is not payable to the Government. (4) Land revenue may be assessed (a) as a fixed annual charge payable in a lump sum or by instalments, (b) in the form of prescribed rates per acre or other unit of area applicable to the area recorded as sown, matured or cultivated during any harvest or during any year." From subsection (4) of this section the learned Judges have made an inference that there could be either a fixed or a fluctuating assessment and the two could not be combined. In the first place the learned Judges did not consider that this subsection was introduced by an amendment of 1928 and the khush haisiyyati with which we are concerned was imposed in 1916 so that for the purpose of determining the legality of khush haisiyyati as land revenue this subsection is irrelevant but in any case the fact that two methods of assessment are mentioned in section 48 (4) does not mean that the use of both methods is excluded. As is clear from the opening words of section 48 all land of whatever kind and to whatever purpose applied is subject to the payment of land revenue. Even buildings can be subject to land revenue and as far as I know they are so subject in Lahore. In an estate there may be buildings as well as lands of all classes In chahi, nahri, barani and sailab and it may be difficult to adopt a single method of assessment for the whole estate. In any case as a general rule the mere fact that two methods are mentioned an inference that both cannot be used does not follow. There does not appear to be any good ground why the Legislature should have placed such a strong limitation on the power of the Government to realise its share of the produce. This argument if accepted would lead to the conclusion that the imposition of khush haisiyyati is altogether illegal and this revenue cannot be realised at all. If the two methods could not legally be combined in fact the whole khush haisiyyati and not only the agricultural income tax imposed on it would be illegal. At no stage has the respondent took up the position that he was entitled to a refund of the khush haisiyyati. The argument with respect to joint liability is that if khush halsiyyati was included in land revenue then those owners of an estate who are not using canal water would be liable for the amount which is payable on account of the water advantage for the liability of all the owners in an estate is join. This argument; fails to take notice of the fact that in a particular estate where there is no khush haisiyyati all the owners may not be using water, and those that use water may have different means of irrigation. The owners of the lands which do not use water would in such a case be liable to pay the whole amount of land' revenue although part of the land revenue is due to the water advantage. Similarly owners of chahi lands whose advantage from water may be much less than the advantage enjoyed by owners of canal irrigated lands would be liable to pay the land revenue payable by owners of canal irrigated lands. The fact that a part of land revenue is imposed as khush haisiyyati makes no difference to the joint liability. The sixth argument is based on a part of the definition of land revenue in the Punjab Agricultural Income tax Act. That definition runs :- "Land Revenue assessed on any land under the Punjab Land Revenue Act and where any land is not so assessed the land revenue assessed on similar lands in the same estate or assessment circle." The argument is that if land revenue included the water advantage rate then where a land which was not assessed to land revenue was not using any water, the revenue which would be the basis of calculation for this land would be the revenue (including khush haisiyyati) payable on land which had used canal water, if in that particular estate or circle ordinarily canal water was being used for irrigation. A simple reply to this argument is that similar land means land with similar means of irrigation there will be no difference in the assessment of annual value whether khush haisiyyati is imposed or not. There remains the seventh argument. In accordance with section 4 clause (10) of the Punjab Tenancy Act land revenue means land revenue assessed under any law for the time being in force or assessable under the Punjab Land Revenue Act and includes "any rate imposed in respect of the increased value of the land due to irrigation." From the fact that the rate imposed in respect of increased value of land due to irrigation is specifically mentioned in the definition of land revenue under the Punjab Tenancy Act and is not expressly mentioned in the definition of land revenue in the Punjab Land Revenue Act; it was inferred that this rate was not included in the definition of land revenue under the Punjab Land Revenue Act. Before proceeding further it will be proper to reproduce the definition of land revenue in the Land Revenue Act. It runs : "3 (6) "Land Revenue" includes assigned land revenue and any sum payable in respect of laud, by way of quit rent or of commutation for service, to the (Crown) or to a person whom the (Crown) has assigned the right to receive the payment." As I have already observed this is not a definition and the Intention was to clarify the position with respect to sums of doubtful nature. The words "any rate imposed" used in the Punjab Tenancy Act do not in my opinion refer to any rate imposed under the Punjab Land Revenue Act. While discussing arguments three and eight I have already stated that there is no provision for imposition of any rate like khush haisiyyati for under the Punjab Land Revenue Act. Of course there is no legal objection to a part of land revenue being called a rate but under the Punjab Land Revenue Act it is only land revenue which could be imposed to give effect to the right of the State to a part of the produce of land. The word "rate" as used here in my opinion refers to any rate imposed under the Northern India Canal and Drainage Act or some similar rate. if a rate had been imposed under section 37 of the Northern India Canal and Drainage Act then it would be quite proper to add the amount of this rate to the land revenue for the purposes of the Punjab Tenancy Act, because rent payable by the tenant has in a number of cases to be calculated or adjusted on the basis of land revenue. I should, however, add that even if the intention was to refer to khush haisiyyati imposed under the Land Revenue Act a specific reference to it in the definition under the Punjab Tenancy Act is not a sufficient basis for coming to a conclusion in the face of all that has been stated above that khush haisiyyati is not part of land revenue. Before us Mr. Saleem has laid stress on the inequity or anamoly which according to him would result if agricultural income tax was based on a sum which included khush haisiyyati. He argued that the owner's rate imposed by the Government under the Northern India Canal and Drainage Act which could not be the basis of calculation of agricultural income tax was also land revenue payable on account of additional income due to canal irrigation and if owner's rate was not made the basis of calculation of agricultural income tax and khush haisiyyati was made such basis there would be an invidious distinction between those owners of land who were using water from Government owned canals and those who were using water from private canals. The apprehensions of Mr. Saleem are in fact wholly unfounded. At our instance Mr. M. B. Zaman who appeared for the State made inquiries from the Board of Revenue as to the imposition of a? y rate under section 37 of the Northern India Canal and Drainage Act and the following is the rely he received : "No rules under section 37 of the Canal and Drainage Act have been framed. No owner's rate is at present levied in any part of the former Punjab," Mr. Saleem put forward before us another contention which he had not put forward before the High Court. He contended that although khush haisiyyati may in fact be part of land revenue the expression land revenue as used in the Punjab Agricultural Income tax Act refers not to what is in fact land revenue but to what was being described as such in the revenue records. According to him the Legislature when it enacted the Punjab Agricultural Income tax Act was fully aware of the fact that in respect of a part of the land revenue the expression khush haislyyati was being used. If the intention of the Legislature was to include khush haisiyyati there would be specific mention of it in the definition of land revenue in the Punjab Agricultural Income tax Act. Mr. Saleem is asking us to read into the Punjab Agricultural Income tax Act "what is described as land revenue in the revenue records" in place of land revenue. There can be no justification for reading into the Act any such words. If that was the intention there is no reason why words to that effect should not have been used. If as Mr. Saleem says the Legislature was fully aware of the use of the words "khush haisiyyati" then the Legislature was also aware of this that there was not the slightest doubt about khush haisiyyati being a part of land revenue for what is khush haisiyyati had been fully explained at least in the following five documents : (i) Douie's Settlement Manual -- Paragraphs 60, 61, 62, 63, 445 and 465 out of which I have already reproduced

445. I do not feel the need of reproducing other paras. They contain ample material to the effect that khush haisiyyati is part of land revenue. (ii) Wilson's Report of the Settlement of 1887 of the Shahpur District, from which I have already reproduced an extract. It may be stated here that water advantage rate and khush haisiyyati are equivalent and if there be a reference in any document to the water advantage rate showing that it is land revenue that is sufficient for showing that khush haisiyyati is land revenue. (iii) The Settlement Report of the year 1916 of the Shahpur District extracts from which have already been produced. (iv) Paragraph 21 of Standing Order No. 30 of the Financial Commissioners which runs : "

21. Water advantage rate is assessed under the Land Revenue Act and not under the Canal Act, and the ordinary instructions for the suspension and remission of fluctuating land revenue, given in paragraphs 17 29, apply." (v) The Minor Canals Act. Section 3 (xiv) which runs : "3 (xiv) "Water rate" means the charge made for canal water, other than a water due or canal advantage land revenue rate." The nature of this rate was not a matter for doubt. At the same time it is to be borne in mind that Mr. Saleem is by the interpretation he wants us to accept asking us to achieve an unjust result. Ordinarily land revenue on the additional income which is due to means of irrigation is included in the land revenue imposed there being no separate rate in respect of the water advantage. If khush haisiyyati or water advantage rate which is separately imposed was to be excluded from calculation when assessing agricultural income tax the result would be an unjustifiable distinction between cases where the land revenue on income derived from the water advantage is assessed separately and cases where it is not so assessed. The land owner whose land is not assessed to khush haisiyyati would have to pay agricultural income tax on the basis of the whole land revenue including that which is due to the water advantage whereas the land owner who pays khush haisiyyati would pay this tax only on the amount of land revenue which is payable on the unirrigated aspect of land. There is no reason why we should try to read into the definition of land revenue in the Punjab Agricultural Income tax Act words which are not there and which would lead to unjust results. I would accept this appeal and dismiss the writ petition but would leave the parties to bear their own costs throughout. HAMOODUR RAHMAN, J. I have had the advantage of reading the judgments proposed to be delivered by my Lord the Chief Justice, and my learned brothers S. A. Rahman, J. and Kaikaus, J., who are all agreed that the appeal should be allowed and the directions issued by the High Court recalled. I am generally in agreement with the views expressed by S. A. Rahman, J. and have nothing further to add. I also concur with the order proposed to be made. ORDER OF THE COURT We allow this appeal and recall the direction issued by the High Court. We leave the parties to bear their own costs. A. H.??? Appeal accepted.