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PETITIONER: FINANCIAL COMMISSIONER, HARYANA AND OTHERS

       Vs.

RESPONDENT: KELA DEVI AND ANOTHER

DATE OF JUDGMENT31/10/1979

BENCH: SHINGAL, P.N. BENCH: SHINGAL, P.N. UNTWALIA, N.L. KOSHAL, A.D.

CITATION:  1980 AIR  309            1980 SCR  (1)1120  1980 SCC  (1)  77

ACT:      Punjab Security  of  Land  Tenures  Act,  1953  Section 10(a)-Scope of-Allotment  of surplus  land  to  tenants-When completed.

HEADNOTE:      Out of  46-odd acres of land held by the original owner (husband of  respondent No.  1 and son of respondent No. 2), the Collector  declared six  odd acres as surplus area under section 2(3)  of the  Punjab Security  of Land  Tenures Act, 1953 and allotted them to two other tenants. On the death of the original  owner the two heirs (respondents 1 and 2) made an application stating that since the land inherited by each of them in equal shares was below the permissible area of 30 standard acres,  there was  no surplus  area with  them  and that, therefore,  no part  of the land could be utilized for allotment to  other tenants.  The Collector  rejected  their application on  the ground that the surplus area having been declared during  the life  time of  the original  owner,  it could not  be excluded  from the holding in the hands of the two  respondents.  The  respondents  failed  in  appeal  and revision  before   the  Commissioner   and   the   Financial Commissioner.      A single Judge of the High Court allowed their petition under Articles  226 and 227 of the Constitution in so far as it  related   to  the  application  of  the  land  of  which possession had  not been  given  to  the  other  tenants.  A Division Bench rejected the appellants appeal.      On the question whether mere allotment of land to other tenants amounted to utilization of the surplus area when the re-settled tenant had not taken possession.      Dismissing the appeal, ^      HELD: 1.  While section  10A(a) of the Act empowers the State  Government  to  utilize  any  surplus  area  for  re- settlement of tenants, the Act does not define what is meant by order of utilization under the section. Clause (b) of the section,  however,   has  the  effect  of  saving  the  land comprised in  the surplus area if it has been acquired by an heir by  inheritance. Therefore,  when an  heir succeeds  by inheritance that  basic fact would affect the utilization of

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the surplus  area, even  if an  order had  been  made  under section 10A(a)  for its  utilization for the resettlement of other tenants  but that  order  had  not  been  implemented. [1122H, 1123A-B]      2. A  conspectus of  the rules  made under the Act also shows that  while allotment  of land  is an initial stage in the process  of utilization of the surplus area, it does not complete that process as it is necessary for the allottee to obtain a  certificate of  allotment, take  possession of the land within  the  specified  period  and  execute  necessary documents thereafter.  A mere  order of  allotment does  not have effect of completing that process. Rule 20D also points to the con- 1121 clusion that a completed title does not pass to the allottee on a mere order of allotment and that order is defeasible if the other  conditions prescribed  by law  are not fulfilled. [1123 F-G]      In the instant case since the process of utilization of surplus area  had not  been completed  by the time the heirs made the  application it was permissible for the authorities to re-examine  the question  whether there  was any  surplus area at  all after the heirs had inherited the land in equal shares so  as to  reduce the area of the holding of each one of them below the permissible area. [1124 B-G]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 2522 of 1969.      From the  Judgment and  Order dated  12-5-1969  of  the Punjab and Haryana High Court in L.P. No. 8/69.      Ravindra Bana and M. N. Shroff for the Appellant.      T. S. Arora and M. L. Lahoty for the Respondent.      The Judgment of the Court was delivered by      SHINGHAL, J.  One Nathi  held 36  standard acres  and 8 standard units  of land  in village  Bhanguri,  and  as  the "permissible area"  within the  meaning  of  clause  (3)  of section 2  of the Punjab Security of Land Tenures Act, 1953, (hereafter referred  to as  the Act)  in  his  case  was  30 standard acres, Collector (Surplus) Nuh, declared 6 standard acres and 8 standard units of land as "surplus area", by his order dated  November 25, 1959. Nathi died on July 14, 1965, leaving his  widow Smt.  Kela Devi respondent No. 1, and his mother Smt.  Mando respondent No. 2, as heirs. The two heirs made an  application under  sections 10-A(b)  and 10B of the Act stating  that as the land of Nathi had been inherited by them in  equal shares, and the holding with each one of them was much  below the "permissible area" of 30 standard acres, there was no "surplus area" within the meaning of clause (5- a) of section 2 of the Act and no part of it could therefore be utilized for allotment to other tenants. That application was however  dismissed by  Collector (Surplus)  on March 13, 1967, on  the ground  that the  "surplus area"  declared  in Nathi’s life time had already been allotted to other tenants and could  not be  excluded from the holding in the hands of his  widow   and  mother.   An  appeal   was  taken  to  the Commissioner of  Ambala, but it was dismissed on January 30, 1968, as he took the view that the order of allotment of the "surplus area"  of Nathi’s holding amounted to "utilisation" of that  land under section 10-A(a). A revision was taken to the Financial  Commissioner, but  it was  rejected on May 8, 1968, for  the same  reason. Smt.  Kela Devi  and Smt. Mando then approached  the High  Court of  Punjab and Haryana by a

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writ  petition   under  articles   226  and   227   of   the Constitution. It  was opposed  by the  present appellants on the ground 1122 that as the "surplus area" had been declared and allotted to various tenants during the life time of Nathi (except for an area of  8 kanals  in village  Ghelab) the  writ petitioners were not  entitled to  succeed, as  the "surplus  area"  had already been  utilized. It  was also pleaded that possession of eight  pieces of  land had  already been delivered to the tenants before the death of Nathi. The controversy before us does not  relate to  those pieces  of land  which  had  been allotted to  various tenants  and of  which  possession  was given to them during the life time of Nathi.      The  learned   Single  Judge  of  the  High  Court  who initially heard the writ petition allowed it by his judgment dated October  29, 1968,  in so  far as  it related  to  the portion of  land of  which possession  had not been given to other tenants  and, to  that extent,  he set aside the above mentioned orders of the Collector, the Commissioner, and the Financial Commissioner by which the application of Smt. Kela Devi and  Smt. Mando  was rejected. An appeal was taken to a Division Bench  of the  High Court,  but it was dismissed on May 12,  1969. That is why the present appeal has been filed on the  basis of  the High Court’s certificate under Article 133 (1)(c) of the Constitution.      The  only   question   which   therefore   arises   for consideration is  whether the High Court was right in taking the view  that mere allotment of land to other tenants under section 10-A(a)  of the Act did not amount to utilisation of the "surplus  area" when the resettled tenants had not taken possession under the allotment orders.      It is  not in  controversy that  it  had  been  finally decided that  the "surplus  area" in the case of Nathi was 6 standard acres  and 8 standard units, and a decision to that effect was  taken in  his life time on November 25, 1959. It is also  not in  dispute  that  orders  were  made  for  the allotment of  the "surplus  area"  to  other  tenants  under section 10-A(a) of the Act which reads as follows-           "10-A(a)  The  State  Government  of  any  officer      empowered by  it in  this behalf  shall be competent to      utilize  any  surplus  area  for  the  resettlement  of      tenants ejected,  or to be ejected, under clause (i) of      sub-section (1) of section 9." While therefore the section empowers the State Government or its authorised  officer to  "utilise" any "surplus area" for the resettlement of tenants, the Act does not define what is meant by  an order  of utilisation under the section. A clue to what  is actually meant by that expression, is however to be found  in clause  (b) of  section 10-A  which provides as follows,- 1123           "10-A(b) Notwithstanding anything contained in any      other law  for the  time being in force and save in the      case of land acquired by the State Government under any      law for  the time  being in  force or  by  an  heir  by      inheritance no  transfer or  other disposition  of land      which is  comprised in surplus area at the commencement      of this  Act, shall  affect the  utilization thereof in      clause (a)." The clause  therefore has  the effect  of  saving  the  land comprised in  the "surplus area", if it has been acquired by an heir  by  inheritance.  So  where  an  heir  succeeds  by inheritance, as  in this  case, that basic fact would affect the utilisation  of the  surplus area  even if only an order

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has been  made under  clause (a)  of section  10-A  for  its utilisation for  the resettlement  of other tenants but that order has not been implemented.      In order  to understand  the full meaning and effect to the provisions  of section  10-A, it  is necessary to make a cross-reference to  rules 18,  20-A, 20-B  and 20-C  of  the Punjab Security  of  Land  Tenures  Rules,  1956  (hereafter referred to  as the Rules). Rule 18 deals with the procedure for allotment  of "surplus area" to other resettled tenants. Rule  20-A   provides  for  the  issue  of  certificates  of allotment of  lands to  them, and  rule  20-B  provides  for delivery of  possession and  makes  it  obligatory  for  the resettled tenant  to take possession of the land allotted to him within a period of two months or such extended period as may be allowed by the officer concerned. Rule 20-C provides, inter alia, for the execution of a "qabuliyat" or "patta" by a  resettled   tenant.  It  would  thus  appear  that  while allotment of  land is  an initial  stage in  the process  of utilisation of the "surplus area", it does not complete that process as  it is  necessary for  the allottee  to obtain  a certificate of allotment, take possession of the land within the period  specified for  the purpose,  and  to  execute  a "qabuliyat" or  "patta" in  respect thereof.  The process of utilisation contemplated  by section  10-A  of  the  Act  is therefore complete,  in respect  of any "surplus area", only when possession  thereof has  been taken  by the allottee or the allottees and the other formalities have been completed, and there  is no  force in the argument that a mere order of allotment has the effect of completing that process.      Reference in  this connection  may also be made to rule 20-D of  the Rules which provides that in case a tenant does not take  possession of  the "surplus  area" allotted to him for resettlement  within the  period specified therefor, the allotment shall  be liable  to be  cancelled  and  the  area allotted to him may be utilized for the resettlement of 1124 another  tenant.  It  cannot  therefore  be  dobted  that  a completed title  does not  pass to  the allottee  on a  mere order of  allotment, and  that order  is defeasible  if  the other conditions prescribed by law are not fulfilled.      So when  the process of utilisation of Nathi’s "surplus area" had  not been  completed by  the  time  his  heirs  by inheritance  made   the   aforesaid   application   to   the authorities  concerned,   it  was   permissible  for   those authorities to re-examine the question whether there was any "surplus  area"  at  all  after  Nathi’s  holding  had  been inherited by  his two  heirs in equal shares so as to reduce the area  of the  holding of  each one  of  them  below  the permissible area.  The High  Court therefore rightly allowed the writ petition of the respondents.      As there  is no  force in  this appeal, it is dismissed but, in  the circumstances,  we do  not make any order as to the costs. P.B.R.                                     Appeal dismissed. 1125