1986 PLP 651 (SCMR)

13. The learned counsel has also referred to decisions in Yaqub Khan v. Settlement Commissioner (Lands), Lahore and another 1971 SCMR 679, for contending that jurisdiction under section 21 of the Act was confined to a question of law and did not extend to controverted questions of fact. He has also relied upon Nafeesa Bano and others v . Chief Settlement Commissioner West Pakistan, Lahore P L D 1969 Lah. 480, which has been approved in Syed Shaukat Hussain Rizvi v. K.B. Dr. Yar Huhammad Khan P L D 1974 S C 276, that classification of soil was a question of fact and it had to be decided by the Settlement Authorities. He has then referred to Muhammad Ayub Khan v. Chief Settlement Commissioner and others P L D 1968 Lah. 495, to show that the question whether a Sailabi land was to be treated as un-irrigated land was considered to be a question of fact and liable to interference in the Constitutional jurisdiction of the High Court. The learned counsel for the appellant pointed out to an instruction of the Rehabilitation Commissioner in which this specific question of the Produce Index Units of Nali land was dealt with in 1958.

14. The learned counsel for the respondents on the other hand heavily relied on the assessment report of the Tibi Pargana of Hanumangarh Tehsil of the year 1945 which was made the basis of determination by the High Court and extensively relied upon and quoted in the judgment. The learned counsel has also relied upon para. 23, Part‑I and para. 29, Part‑II of the Rehabilitation Scheme whereby the classification of soil as in existence at the time of Independence had to be accepted and reflected in the Special Jamabandies and on the instruction of the Rehabilitation Commissioner, dated 5‑3‑1953 whereby the land shown as Sailabi had to be treated as irrigated land and allocated Produce Index Units accordingly.

15. Section 21 of the Act provides that any person aggrieved by' any order of the Chief Settlement Commissioner involving a question of law may within sixty days of the order filed a petition for revision to the High Court. The question whether the land is irrigated or not by reference to Special Jamabandis prepared for exchange at the borders was essentially a question of fact. However, if there is misreading of certain documents and where documents having presumption of correctness have not been given that presumption or an inference has been drawn which is manifestly against the record then of course there' may be a question of law involved. The very elaborated order of the High Court now impugned before us gives us the clear impression that it was not a case of misreading of record or of drawing an incorrect inference from admitted facts which was dealt with but in fact a substi tutive finding of fact was recorded as would appear from the following conclusions recorded by the High Court:‑ "Thus, the adjoining Tehsil of Sirsa (of which Tibi Pargana was a part at one time) in Nali Circle the land described as (Sailab) is treated at par with Chahi and Nahir Ghaggar, etc., and gives the produce index units. It is an admitted fact that the condition in this part of Sirsa Tehsil are more or less the same, i.e., the same river Ghaggar passes through that area and the two canals northern and southern also irrigate that area. The same river and the same canals pass through the Nali Circle of this Pargana. In addition, there is a (Jhil) near village Talware known as Talwara Jhil. In these circumstances, it can safely be inferred that the Sailab land in this area should also be treated at par with other irrigated land like Nehri."

16. The report which has been made the basis for reversing the qualitative classification of the soils and their equivalence to Produce Index Units has two portions; one the descriptive portion which forms the report of the assessment officer and the other portion consists of the order of the Government of Bikaneer on that assessment report. The background to the entire material is provided in the imperial Gazetteer of India Volume II of 1885 in the following words:‑ "The Bikaner country contains no rivers or streams. In the rainy season, a Nala sometimes flows from Shaikhawati over the eastern border, but it soon lost in the sands. The Ghagar, called also the Satra or Hakra in the Punjab, once flowed through the northern part of the present Bikaner territory; but it is now dry, and wells are dug in its bed, where it is said the only sweet water in that region is to be found. During the rains, however, it sometimes contains water for a few miles of'` its course; and the Tibi Pargana is greatly benefited by it. Some water from the Western Jumna Canal occasionally enters that State West of Hissar. Two little fresh water lakelets, formed by the drainage of the rocky country southwest of Bikaner, lie on the route from Bikaner to Jaisalmir. The first Ganjer, about 20 miles from the capital, has clear water and wooded margin; its place and garden and fields are a pleasing contrast to the surrounding wilds; the other, 12 miles further on the route, is a sacred spot, numerous bathing Ghats having been built on the banks. The lake of Chaper in the Shujangarh District is the principal source of the salt supply of Bikaner; it is about 6 miles long by 2 miles wide but it is very shallow, and almost dries up before the hot weather begins. There is another salt lake about 40 miles north‑east of Bikaneer. The salt produced from these lakes is of inferior quality, valued at about half the price of Sambhar salt. It is only consumed by the poor, or used for curing skins and other antiseptic purposes."

17. The classification of soils adopted by the assessment officer in 1945 was the same as existed in the previous assessment which took place in 1917 and is as follows duly taken note of by the High Court:‑ "The official classification of soil for assessment purposes adopted in that last Settlement has been maintained now. It is based on the means of irrigation and quality of land. The definitions approved by the Government vide Revenue Minister's letter No. 895/1034‑RG, dated 2‑7‑1945 are the following:‑ (a) Cultivated land (i) Chahi‑‑Lard which gets irrigation from wells. (ii) Nali‑‑Barani area of the Ghaggar bed which is occasionally in undated by the Nab, when in flood. (iii) Barani (Rohi)‑Land dependent on rainfall. (b) Uncultivated land (iv) Barani Jadid‑‑Cultivated land which has remained unsown for four successive harvests. (v) Barani Kadim‑‑Cultivated land which has remained unsown for eight successive harvests. (vi) Ghair Mumkin‑‑Land which has for any reason become un-cultur able, such as, land under roads, railways, buildings, canals, tanks and the like. The divisions in classification of cultivated soil was recognised in the last Settlement and these sub‑divisions are shown in the Record of‑rights uptil now. Government have ordered that these sub‑divisions should be shown in the Patwari's records in future also. The sub divisions are the following:‑ (i) Nali‑Sailab (rez)‑‑Nali area subject to inundation from floods. (ii) Nali‑Nahri‑‑Nali area having also the advantage of canal irrigation. (iii) Nali Barani‑‑Nali area dependent on rainfall. (iv) Barani‑‑Area solely dependent on rainfall. (v) Barani‑Nahri‑‑Land dependent on rainfall, but also having the advantage of canal irrigation. (vi) Barani‑Sailab (rez)‑‑Land dependent on rainfall but having the advantage of flood inundation."

18. The Government's orders on the assessment report were as follows: ‑ "For assessment purposes the tract has been divided into three circles namely, Northern, Nali and Southern. Circles Nos. I and III solely depend upon rainfall, which has averaged during the last years to 11.55 inches, whereas the Nali circle receives irrigation from two non‑perennial channels of the Ghaggar canal. In years of good rainfall. the area is also inundated by Nali water. Well irrigation is appreciably small owing to paucity of sweet water (in Rohi area). During the currency of the last Settlement the Nali has flown 25 times over an annual average area of 4,148 Bighas, the peak being 17,477 Bighas in 1942‑43."

19. It is clear from this narration of events that the classification of soil and its equivalence in terms of Produce Index Units had a historical background and required understanding of the soil of each assessment area and the nature and the degree of the aviailability of resources for exploiting it for cultivation, its cost and its return. A substitutive order in the matter could not be passed by the High Court while exercising revisional jurisdiction under section 21 of the Act.

20. In the Produce Index Book published by Mansoor Book House the division of land in Bikaner and its equivalence in terms of P.I. Units is shown at page

70. The three categories recognised are Abpash Chahi Abpash Nehri and Barani. There is an amendment found at page 73 whereby land classified as Parat was to be treated as Barani.

21. A letter of the Rehabilitation Commissioner, dated 5‑3‑1953 reproduced in pare. 9 of the High Court's judgment clarifies that in the case of Bikaner State where the area is shown cultivated it should be treated as irrigated. The learned counsel for the appellant has drawn our attention to another letter of the Rehabilitation Commissioner, dated 7‑2‑1963 which makes a mention of instructions issued on 28‑11‑1958 on the subject. It is as follows:‑ "Instructions already exist, vide memo. No. 8445‑58/4462‑R(P), dated 28‑11‑1958 addressed to your officer that Nali class land of Bikaner State is to be treated as unirrigated and as such 19 Produce Index Units per acre to be assigned to this class of land. The C.R. Officer is not competent to issue any instructions regarding fixation of produce index units for various classes of soil and the endorsement in question seems to have been fraudulently issued. It is, therefore, requested that all the allotments made against Nali class of land pertaining to Bikaner State as irrigated at 66 Produced Index Units per acre may be checked and suitable action taken to reduce the excess allotment according to law wherever necessary. It is further suggested that in case of other applications similarly endorsed from C.R. Office may have been received in the district. These may kindly be arranged to be collected and sent to me."

22. These instructions leave no manner of doubt that the land under consideration, namely, Nali Rez was to be treated as unirrigated and allocated 19 P.I. Units. This supersedes the earlier instructions referred to and relied upon by the High Court.

23. Finally, there is a mention in the judgment of the High Court as to how the verified claims received from Bikaner were treated in Multan District. It is in the following words:‑ "During the course of arguments the petitioners also placed on record a copy of register R.L. II of village Kirpalpur. Tehsil and District Multan of one Muhammad Sadiq Hussain who originally belonged to Village Talwara Kalan in Bikaner State. In this register R.L. II the kinds of soil mentioned under the heading Mazrua are Nehri Nali, Nali Rez Barani and Barani Nehri. All these three soils are treated at par and given the same produce index units namely

55. From this document also it is clear that all these soils have been treated as irrigated land."

24. It is nobody's case and not even the High Court has allowed 55 Per Index Units for irrigated land which was allowed in the case referred to. As a matter of fact, by the impugned judgment, the High Court has allowed 66 P. I. Units and the example cited could not be determinative particularly so when the Rehabilitation Commissioner had taken note of such deviations and had provided for their correction.

25. In the circumstances, we find that the judgment of the High Court in the Settlement Revision cannot be maintained and must be set aside. As regards the two other Constitutional petitioner whose main grievance is directed against the transfer of settled verified claim of the sons of Abdul Hakim, we find that this had happened under the order of the Chief Settlement Commissioner. They had been deprived of the land already settled against their verified claim in Sahiwal and Multan Districts under order of the Chief Settlement Commissioner. They could go back to that land. They could not be left in the lurch either. The order passed by the Chief Settlement Commissioner which was impugned by the writ petitioners was eminently a just and fair order as it provided for the adjustment of the verified claim of the sons received on transfer and requiring settlement. The interest of the writ petitioners did not in any manner prejudicially suffer to any material extent as their claims were also ordered to be settled against the area which would still be available on resumption from Abdul Hakim even after settling the verified claim of his sons. For these reasons, while accepting all the appeals, the judgment of the High Court in the Settlement Revision is set aside but the dismissal of the two Constitutional petitions is maintained. No order as to costs. M.I. Order accordingly.