P L D 1963 Supreme Court 423 (PLP)

"3 (6) "Land Revenue" includes assigned land‑revenue 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 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: 3. . . . . . "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 exercise-able 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 hat 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 communication, 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 sanctioned 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 tile 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 be 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

64. Welt 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 settle‑ments. 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 nahri parta.‑--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 pitched 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‑owner; from participation in the profits arising from improve ments 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. The enhanced assessment claimable on account of the intro duction 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 depen dent 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 khush 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 Graspers, 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 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 huisiyyati ". 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 includes 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. 1n 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 haisiyyati being a part of land revenue. Whatever is taken by the Government as a share of the produce of land x 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 m 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 haisiyyati 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 reproduce 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 Mat 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 b 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 a 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 (2) 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 noification 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 now 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 Depart ment 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 not 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 haisiyyati 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 anti 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 1873 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 lands, 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, main tained 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 no 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 g empowered to include in the Schedules more canals. A reference to Schedule II 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 con clusion 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 `gland 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 argu ments 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 r 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 (t) 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 remune rating 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 subsection (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 had 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 and‑ 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 i.e. 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 com bined in fact the whole khush haisiyyati and not only the agri cultural income‑tax imposed on it would be illegal. At no stage has the respondent took up the position that be was entitled to refund of the khush haisiyyati. The argument with respect to joint liability is that if khush haisiyyati 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 ay 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 here 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 land, 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 any 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 tire l4nd revenue the expression Mush haisiyyati 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 m 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 us, 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. 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.