V.P. Gupta, J.
1. Aggrieved from the judgment dt. 26-7-1971 passed in C.W.P. No. 17 of 1969, the appellant has filed the present appeal.
The appellant is a landowner in the State of Himachal Pradesh. The Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953 (hereinafter called the Act) was enforced in Himachal Pradesh from 26-1-1955. Under Section 27 of the Act certain landowners were to be divested of their ownership rights and the right, title and interest of these owners in the land was to vest in the State Government free from all encumbrances provided the landowner was holding land with an annual land revenue which exceeded Rs. 125/- per year. Mutations regarding the transfer of ownership rights were to be sanctioned under Section 27 of the Act read with the rules framed under Section 18 of the Act. Two mutations Nos. 1789 and 1790 were attested with respect to the land of the appellant by Tehsildar, Sunder Nagar on 27-6-1963 and 28-6-1963 respectively with the result that the land of the appellant measuring 348 bighas and 8 biswas vested in the State Government.
2. The appellant preferred appeals against the orders of the Tehsildar to the Collector and the Collector vide his order dt. 4-1-1964 quashed the orders of the Tehsildar and remanded the cases for further enquiry. After remand the Tehsildar sanctioned the mutations with respect to 33 bighas 6 biswas of land of the appellant in favour of the State and allowed the remaining land to remain in the ownership of the appellant.
3. Aggrieved from the orders of the Tehsildar the appellant again filed appeals before the Collector and the Collector Mandi vide his order dt. 28-7-1964, set aside all the previous orders and restored the original orders of the Tehsildar dt. 27-6-1963 and 28-6-1963 with the result that the land measuring 348 bighas and 8 biswas of the appellant vested in the State Government. Aggrieved from the orders of the Collector, the appellant filed revision petitions before the Financial Commissioner, Himachal Pradesh and the Financial Commissioner vide his orders dt. 21-3-1965 quashed the orders of the Collector and remanded the cases to the Collector for afresh decision. After this remand the Collector Mandi vide his orders dt. 1-8-1966 accepted the appeals of the appellant and quashed the orders passed on 3-4-1964 by the Tehsildar. By virtue of the order of the Collector dt. 1-8-1966 the appellant remained tne landowner of the land and no land of the appellant vested in the State Government.
4. The Compensation Officer, Mandi started proceedings under Section 27(3) of the Act for the lands of the appellant and file No. 66 of 1965 was prepared for awarding compensation to the appellant. The Compensation Officer vide his order dt. 9-7-1968 allowed the appellant a compensation of Rs. 3434.50 regarding the land measuring 1071-2-0 bighas situate in village Sunder Nagar on the ground that this land vested in the State Government under Section 27 of the Act.
5. The appellant being dissatisfied by the orders of the Compensation Officer, Mandi dt. 9-7-1968 preferred a civil writ petition with a prayer that the orders of the Compensation Officer dt. 9-7-1968 be quashed and it be declared that the lands of the appellant did not vest in the State Government.
6. The appellant alleged that he was aRuling Chief of the State of Suket, which on15-4-1948 merged into the Union of India andcame to be integrated with the ChiefCommissioner's Province, of HimachalPradesh. Certain lands were declared to bethe personal property of the appellant and theappellant continued to hold these lands as afull owner. Most of the lands did not fallwithin the definition of 'land' as defined in theAct. The Compensation Officer had noauthority to assess the compensation beforethe sanctioning of a mutation in favour of theState. It was also alleged that certain lands ofthe appellant were mutated in favour of theState Governemnt vide mutation Nos. 1789and 1790 but finally the appeals of the appellantwere accepted and the appellant was notdivested on the ownership of these lands. Theproceedings of the Compensation Officer wereillegal, ultra vires, without jurisdiction andwere liable to be quashed. It was alleged thatthe land revenue of the ownership land of theappellant other than the land under his selfcultivation was not in excess of Rs. 125/- peryear.
7. The petition was contested by the respondents. It was alleged that the orders of the Compensation Officer were legal and valid and the writ petition of the appellant should be dismissed.
8. A learned single Judge of this Court held that the Compensation Officer was competent to determine the compensation without sanctioning of a mutation because the vesting of the ownership rights in the State Government on 26-1-1955 was automatic. It was also held that the rules made under the Act were directory and of procedural nature and the question as to whether the lands of the appellant fell within the definition of 'land' as defined in the Act required a detailed enquiry. A detailed enquiry about the area under self cultivation was not permissible under the writ jurisdiction. With these observations the writ petition was dismissed on 26-7-1971 as being not maintainable.
9. Before us the learned counsel for the appellant contended that the appellant was not a landowner who held land, the annual land revenue of which exceeded Rs. 125/- per year, because the land under the personal cultivation of the landowner was not to be taken into consideration. It was contended that the Financial Commissioner while deciding the revision petitions against the orders passed on mutation Nos. 1789 and 1790 had held that the land under the personal cultivation of the landowners was not to be considered for determination of the land revenue. The final orders on mutation Nos. 1789 and 1790 were passed by the Collector on 1-8-1966 and it was admitted before the Collector by the State that the appellant was not a landowner who held land (except the land under personal cultivation) the annual land revenue of which exceeded Rs. 125/- per year. The Compensation Officer in these circumstances could not pass the impugned orders because Section 27(3) could only apply after the lands had vested in the State Government and mutations to that effect were sanctioned.
10. The learned Advocate General contended that the vesting of the lands in the State was automatic under the provisions of Section 27( 1) of the Act and the sanctioning or non-sanctioning of a mutation was a mere formality for the purposes of collecting the land revenue.
The appellant was a landowner who held land (except the land under personal cultivation), the land revenue of which exceeded Rs. 125/-per year and as such the Compensation Officer was justified in passing the impugned orders. He further contended that to enter into the question as to whether the disputed land fell within the definition of 'land' as defined in the Act or whether the appellant was a landowner who held land (except the land under personal cultivation), the land revenue of which was less than Rs. 125/- peryear, was to enter into a detailed enquiry on a question of fact which was not permissible in the writ jurisdiction.
11. We have considered the contentions of the learned counsel for the parties.
12. The Act came into force on 26-1-1955 in the territories of Himachal Pradesh to provide for the abolition of big landed estates and to reform the law relating to tenancy and to make provisions for matters connected therewith. Chapter III, that is Sections 9 to 27 of the Act deals with the acquisition of proprietary rights by tenants. Under Section 9, the State Government is to appoint Compensation Officers to carry out the purposes of the Act including partition, operation in holding, assessment of compensation and settlement of disputes between the landowners and their tenants. Under Section 27 of the Act certain rights of ownership of the landowners are vested in the State Government. This section reads as follows : --
'27. (1) Notwithstanding anything contained in the foregoing provisions of this Chapter, a landowner who holds land, the annual land revenue of which exceeds Rs. 125/- per year, the right, title and interest of such owner in such land shall be deemed to have been transferred and vested in the State Government free from all encumbrances.
(2) Nothing contained in Sub-section (1) shall apply in respect of such land which is under the personal cultivation of the landowner.
(3) The landowner whose rights are acquired under Sub-section (1) by the State Government shall be entitled to receive compensation which shall be determined by the Compensation Officer having regard to Sections 17 and 18 of this Act, in accordance with the provisions of Sch. II, but in the case of such occupancy tenant who is liable to pay rent in terms ofland revenue or the multiple of land revenue, the compensation payable to his landowner shall be computed in accordance with Sch. I.
(4) The right, title and interest of the landowner acquired under Sub-section (1) or (2) shall be transferred by the State Government on the payment of compensation in accordance with Sch. I to such tenant who cultivates such land.
(5) The State Government shall give rehabilitation grant according to the rules framed under this Act, to such small landowner whose right, title and 'interest have been extinguished and who does not have any other means of livelihood.'
13. Section 27(1) is not to apply in respect of such land :
(i) which is under personal cultivation of the landowner; and
(ii) the annual land revenue of which does not exceed Rs. 125/-.
For the purposes of calculating the annual land revenue under Section 27(1), the annual land revenue payable in respect of such land which is under personal cultivation of landowners is to be excluded. In other words, in case a landowner holds land which is not under his personal cultivation and the land revenue of which exceeds Rs. 125/- per year, the right, title and interest of such landowner in such land shall be deemed to have been transferred and vested in the State Government free from all encumbrances. Although the transfer and vesting under such circumstances is by operation of law, unless an enquiry is held to determine whether these twin conditions are established by associating the landowner therewith, the applicability of the relevant provision in a given case cannot possibly be determined. The rules framed under the Act set up a machinery in that regard as would be apparent from the provisions to be referred to hereinafter.
14. Under Section 26 of the Act the State Government is competent to make rules to carry out the purposes of this Chapter (Chapter III). Rules were framed under Section 26 of the Act. These rules are Himachal Pradesh Abolition of Big Landed Estates and Land Reforms (Mode of Payment of Compensation and Grant of Proprietary Rights) Rules, 1963 (hereinafter the Rules). Rule 3 of the Rules reads as follows : --
'3. Determination of Compensation (Section 27(3)).-- As soon as the mutations of right, title and interest on the lands of a landowner vested in the State Government, under Section 27 of the Act, have finally been attested by a Revenue Officer and entered in the record of rights, the Revenue Officer with the help of the revenue staff will start a file for each landowner for the purposes of assessment and payment of compensation, giving therein on first page, the particulars and details of the lands in form 'A'. Relevant excerpts/copies from the jamabandi pertaining to the vesting date should be placed on each file : Provided that in case the land, on which right, title and interest of a landowner vested in the State Government is situated in the jurisdiction under different Revenue Officers, the Revenue Officer who would initiate the preparation and submission of the file to the Compensation Officer of his area, shall be the Revenue Officer having jurisdiction in the area in which the landowner concerned ordinarily resides or major portion of his such land is situated, as may be practicable.'
15. According to Rule 3, a mutation is to be entered and attested with respect to the land of a landowner which vests in the State Government under Section 27 of the Act. Such a mutation can be entered and attested only after the landowner is given an opportunity to contest the proceedings and to satisfy the revenue officer in the course of such proceedings that the condition(s) prescribed in Section 27 for the transfer and vesting of the right, title and interest in respect of the whole or part of the land held by him are not satisfied. Only after the final attestation of the mutation by a revenue officer, and entry having been made in the record of rights, the revenue officer has to start a file for the purposes of assessment and payment of compensation. In case the land of the landowner which vests in the State Government is situated in the jurisdiction under different revenue officers, then the revenue officer having the jurisdiction in the area in which the landowner concerned presently resides or major portion of his such land is situate, as may be practicable, has to initiate the preparation and submission of the file to the Compensation Officer of his area. Under Rule 4 of the Rules, the file duly completed in all respects is to be passed on to the Compensation Officer for assessing anddetermining the amount of compensation in accordance with the provisions contained in Sub-section (3) of Section 27 of the Act Under Rule 5, the Compensation Officer is to enter the various particulars in a register maintained by him and to assess and determine the amount of compensation and is to serve a notice to the concerned parties so as to enable them to prefer their objections, if any, within 15 days. In case no objections are received or if the objections are received, then after having disposed of the objections, the Compensation Officer shall finally determine the amount of compensation payable to the landowner concerned and give his decision. Thereafter the compensation etc. is to be paid to the rightful claimants in accordance with the rules.
16. The word landowner under the Act has the same meaning which is assigned to it in the Punjab Land Revenue Act, 1887. In the Punjab Land Revenue Act, the definition reads as follows: --
' 'landowner' does not include a tenant or an assignee of land revenue, but does include a person to whom a holding has been transferred or an estate or holding has been let in farm, under this Act for the recovery of an arrear of land revenue or of a sum recoverable as such an arrear, and every other person not hereinbefore in this clause mentioned who is in possession of an estate or any share or portion thereof, or in the enjoyment of any part of the profits of an estate.'
The word 'holding' as used in the Act has also the same definition as in the Punjab Land Revenue Act, 1887, wherein it is defined as 'a share or portion of an estate held by the landowner or jointly by two or more landowners.'
17. The Act is applicable in the territories of Himachal Pradesh and the lands of the landowners who held lands in the territories of Himachal Pradesh are to be accounted for the purposes of Section 27(1) of the Act.
18. The appellant was holding land in the territories of Himachal Pradesh and it was considered that he held land with an annual land revenue which exceeded Rs. 125/- per year. Two mutations Nos. 1789 and 1790 for Mauza Sunder Nagar were entered under Section 27of the Act read with Rule 3 of the Rules for the Jands held by the appellant. By these mutations the appellant was to be divested of his ownership rights which were to vest in the State. These mutations were attested by a Revenue Officer (Tehsildar) in favour of the State in June 1963. The appellant feeling aggrieved against the orders of Tehsildar, filed appeals before the Collector. The appeals were accepted on 4-1-1964 and the case was remanded to the Revenue Officer (Tehsildar) for fresh enquiry and disposal. After remand, the Revenue Officer (Tehsildar) sanctioned the mutations in favour of the State for 33 bighas and 6 biswas only but the remaining ownership of land remained with the appellant. The appellant was still dissatisfied and he again filed appeals to the Collector. The Collector by his order dt. 28-7-1964 restored the original order of the Tehsildar of June 1963, thereby ordering that the land of the appellant measuring 348 bighas and 8 biswas vested in the State Government. The appellant approached the Financial Commissioner in revision who accepted the revision petitions and remanded the cases to the Collector. After this remand, the Collector vide orders dt. 1-8-1966 allowed the appeals of the appellant and quashed the orders of the Tehsildar. The Collector has observed as follows : --
'The report of the Tehsildar states that the land in possession of the tenants belonging to the appellant is only 33 bighas and the land revenue of 33 bighas of land comes to Rs. 41.05. In these circumstances, the land under appeal does not vest in the government and the status quo ante be restored. The advocate for thegovernment does not contest the appeal inview of the fact that the land in possession ofthe tenant is only 33 bighas after taking outthe land under personal cultivation of theappellant.'
In these circumstances, the mutations of the land of the appellant were not finally attested by the revenue officr in favour of the State Government as is required under Rule 3 of the Rules. The mutations which had initially been attested by the Tehsildar in favour of the State Government were set aside. The appellant was thus not divested of his right, title and interest in this land.
19. In spite of the position that the mutations had not been finally attested in the name of the State Government and the landof the appellant had not vested in the State Government, the file for the assessment and payment of compensation was prepared. The Compensation Officer took proceedings in this file (file No. 66 instituted on 1-1-1965) and allowed compensation of Rs. 3434.50 to the appellant vide his order dt. 9-7-1968 for the land of the appellant measuring 1491 bighas and 3 biswas.
20. The Compensation Officer could only start proceedings for assessment and payment of compensation after the final attestation of mutations by the revenue officer and he was not competent to adjudicate as to whether the appellant was holding land the annual land revenue of which exceeded Rs. 125/- per year.
21. The Collector by his order dt. 1-8-1966 (reproduced above) has clearly held that the holding with the appellant was not in excess of the land revenue of Rs. 125/- per year and the lands of the appellant under personal cultivation cannot be considered under Section 27(2) of the Act for calculation of land revenue. Although the transfer and vesting of the right, title and interest of the landowner in the land in the State Government is an automatic process, yet, in the present case, the revenue officers themselves having found in the course of the mutation proceedings that the appellant was not holding land, which was not under his personal cultivation and the land revenue of which exceeded Rs. 125A per year, there was no question of the transfer and vesting of the right, title and interest of the appellant in any of such land in the State Government and of preparing any file for the assessment and payment of compensation under Rule 5 of the Rules.
22. The determination of the present dispute does not require any elaborate enquiry because in the order dt. 1-8-1966 of the Collector there is a clear finding that the land revenue for the holding of the appellant (except the land under personal cultivation of the appellant) was not exceeding Rs. 125/- per year.
23. In view of the above circumstances, the order dt. 9-7-1968 of the Compensation Officer is liable to be quashed and it has to be held that the land of the appellant, which was the subject matter of the inquiry, did not vest in the State Government.
24. As a result of the above discussion, the present appeal is accepted and the order of the learned single Judge dt. 26-7-1971, dismissing the writ petition is set aside. The prayer of the appellant is allowed and the order dt. 9-7-1968 passed by the Compensation Officer, Mandi, in ease No. 66 of 1965 is quashed. It is also declared that the lands of the appellant, which were the subject matter of the inquiry in the said case, did not vest in the State Government by virtue of Section 27(1) of the Act.
P. D. Desai, C.J.
I agree.