P L D 1991 Supreme Court 1114 (PLP)

MUHAMMAD AFZAL ZULLAH, C.J.‑‑‑These appeals through leave of this Court are directed against a judgment of the Lahore High Court, whereby a Constitutional (Writ) Petition filed by Sohna and others (appellants in CA 312/88) relating to a case purporting to have been dealt under the Land Reforms Regulation, was dismissed. Both the Punjab Land Commission as well as said Sohna and others felt aggrieved and their petitions for leave to appeal were allowed to examine the question: whether, the agricultural land which is irrigated through tubewell is to A be treated as Chahi Nehri or Nul Chahi for purpose of computing the Produce Index value thereof . Learned counsel for Sohna and others has stated that the parcel of land which is now in dispute for purpose of determining the aforestated evaluation was at the relevant time being irrigated exclusively through tubewell and not by canal irrigation or irrigation through ordinary well; namely, Rahat. The High Court while determining the controversy observed as follows:‑‑ "After going through the record and hearing the learned counsel for the parties I have come to the conclusion that no illegality has been committed by the respondents in evaluating the various categories of land as stated above. The precise objection that tube‑well irrigated land should be treated as Nehri, however, cannot be accepted. A tubewell can be equated with well as in both the cases the water has to be lifted from the well. In one case it is a mechanical force whereas, in the other case it is not. However, the category remains the same and, therefore, a tubewell irrigated land can only be equated with well and not Nehri." While the learned counsel for Sohna and others has contended that the tubewell produces water with such flow and quantity that it would have been proper to equate the same with canal irrigation, the learned counsel for the Commission has contended that tubewell irrigation not having been mentioned in the booklet officially recognized, for computing the produce index value units in cases dealt by the Punjab Land Commission, the instructions given in the said booklet in its introduction part should be followed‑‑the instructions in question require that: "

6. In cases where:‑ (a) No Produce Indices are found prescribed for any particular class of irrigated or unirrigated land, the Produce Indices of the highest class of the irrigated or unirrigated soil, as the case may be, shall be taken for the purpose of evaluating the area concerned." ?(b)

.? The argument in this behalf is that tubewell irrigation not having been provided in the booklet, the land should be evaluated as Chahi Nehri because in the irrigated classes of land it is the highest class. The relevant chart for the village in question as contained in booklet is reproduced below:‑‑ ?????????????????? ??????????????????????????????????????????? LAHORE Tehsil ??????? Assessment Circle????????????????????????????? soil ?????????????????????????????????? Produce Index Chunian?????? Hithar??????????????????????????????????????????? Chahi???????????????????????? ?????????????????68 ?????????????????????????????????????????????????????????????????????? Chahi Nahri????????????????????????????????? 84 ?????????????????????????????????????????????????????????????????????? Sailab??????????????????????????????????????? ???44 ????????????????????????????????????????????????????????????????????? Abi????????????????? ????????????????????????????? 72 ????????????????????????????????????????????????????????????????????? Barani???????????? ????????????????????????????? 27 The private appellants are to be benefited in the evaluation of the land for purpose of the land. reforms if the lower value from amongst the above reproduced chart be adopted as the correct for evaluating their land. Obviously if the tubewell irrigated land is treated as Nehri the units would be 56 but if it is treated as Chahi the units would be 68 and if as claimed by the Federal Land Commission it is treated as Chahi Nehri the number of units would be

84. Learned counsel for Sohna and others has argued that according to Land Records Manual tubewell irrigation, in its paragraph 7.49, is treated as Nul Chahi and because Nul Chahi is more near the mode of canal irrigation; therefore, the evaluation should be on the basis of canal irrigation. On the other hand the argument from the opposite side is that Nul Chahi not having been treated as an independent class amongst the irrigated classes of land, the highest units; namely, of Chahi Nehri should be adopted. Neither of the two arguments advanced by the learned counsel is valid. The Nul Chahi irrigation no doubt is a separate classification under the Land Records Manual, the same classification in so far as the present case is concerned has not been adopted in the booklet. Nor we accept the argument of the learned counsel that Nul Chahi or tubewell irrigation is more near the canal irrigation than the well (Chahi) irrigation‑‑ as held by the High Court. We also do not agree with the learned Additional Advocate‑General that the tubewell irrigation; namely, Nul Chahi not having been provided in the ' booklet, the same should be evaluated as Chahi Nehri. According to us there are several species of Chahi irrigation. The Chahi in this context will be genus. This assumption is borne out from the fact that whether tubewell irrigation or ordinary well irrigation, it remains irrigation through a well one is operated by animal force and the other by electrical or other motor force. There can be other forms and species of wells some of which can be seen on the irrigated lands near the banks of rivers and rivulets. Thus there are various forms of Chahi irrigation and tubewell is only one of them. And if it is in vernacular described in the Land Records Manual as Nul Chahi it will not make any difference because the other well‑known Chahi irrigation is through a contrivance which is known as Rahat. There might be some other names for other types of Chahi irrigation. Accordingly, we hold that the tubewell irrigation has been provided in the booklet in the form of Chahi irrigation and therefore, the equation by the High Court in the impugned judgment is unexceptionable. According, both the appeals are dismissed with no order as to costs. M.BA./S‑641/S?????????????????????????????????????????????????????????????????????????????????? Appeals dismissed.