- (1.)Dalip was a tenant under Jagan Nath. He applied for purchase of land which was comprised in his tenancy under Jagan Nath, under Section 18 of the Punjab Security of Land Tenures Act, 1953 (hereinafter referred to as the Act). During the proceedings Jagan Nath died. Dalip contended that Jagan Nath was a big landowner. Dalip was an old tenant. His tenancy was not included in the permissible area of Jagan Nath. The application of Dalip under Section 18 of the Act was allowed on February 18, 1972, and he was allowed to purchase 28 kanals and 6 marlas of land. Dalip died after his application was allowed. The legal heirs of Jagan Nath filed an appeal against the order of the learned Assistant Collector Ist Grade. The legal heirs of Dalip were impleaded as parties. The appeal was dismissed by the Collector. A revision petition filed by the landowner also met with the same fate. The subsequent revision petition filed by them before the Financial Commissioner was allowed vide his orders dated September 11, 1975. The learned Financial Commissioner held that Jagan Nath, the original landowner, had neither reserved his permissible area nor he had selected his permissible area. Even the authorities did not select the permissible area for him. As such, the purchase application could not be allowed without first determining the permissible area of the landowner. The learned Financial Commissioner also found that as Jagan Nath, the original landowner, had died during the pendency of the application; the land had been inherited by his heirs, and the Assistant Collector had to decide the application taking the heirs to be the landowner and that, too, after the selection of the permissible area of the land by the prescribed authority. Consequently, he set aside the orders passed by the Assistant Collector and Collector as well as of the Commissioner and remanded the case to the Assistant Collector Ist Grade for decision in the light of the observations made in the order. Dissatisfied with this order, Mrs. Norati widow of Dalip and his other legal heirs have filed the present petition.
(2.)Mr. Sarjit Singh, the learned counsel for the petitioners, has vigorously argued that the decision of the Financial Commissioner that after the death of the landowner, the Assistant Collector has to see if the heirs of the deceased landowner were themselves big landowners, is clearly against law. He has brought to my notice a Supreme Court decision in Rameshwar and others v. Jot Ram and another, 1975 PunLJ 454wherein it has been held -
"A plain reading of Section 18 of the Punjab Security of Land Tenures Act without reference to consideration of subsequent events at the appellate level, yields the easy and only conclusion that the rights of parties are determined on the date they come to Court. The subsequent event of the landowner's death at the appellate stage does not unsettle the right acquired by the tenant and the Tribunal must uphold rights which have crystallised as on the date of application under Section 18 of the Act was made."

Indeed this authority fully supports the contention of the learned counsel. The position that has to be seen is the date on which the application under Section 18 of the Act was made. On that date Jagan Nath was alive and he was a big landowner. So Dalip, the tenant, was entitled to purchase the land from the surplus area of the big landowner provided he fulfilled the other conditions prescribed by Section 18 of the Act. The death of Jagan Nath is of no consequence. Consequently, the order of the Financial Commissioner to this extent is illegal and is set aside. For the purpose of determination of the application, it is Jagan Nath whose holding has to be seen and not of his heirs, the private respondents in this petition.

(3.)The learned counsel also assailed the decision of the Financial Commissioner on another point also. The Financial Commissioner to reach his conclusion has relied upon a Division Bench decision of this Court in Jee Ram and others v. Gobind and others,1971 PunLJ 766. It has been held therein -
"When an application is made under Section 18 of the Punjab Security of Land Tenures Act for purchase and there has been no reservation, the first thing that will have to done by the Collector is to make a reservation for the landowner under Section 5-B. It is after the reservation has been made that the tenant will be entitled to purchase the land which has been declared surplus and of which he is the tenant provided he satisfies the remaining requirements of Section 18. The very language of Section 18 shows that the tenant is not entitled to purchase from the landowner the land held by him which is included in the reserved area of the landowner. Therefore, it appears that the reservation is sine qua non so far as Section 18 is concerned."

It has been clearly held by their Lordships that if the landowner has to reserved or selected his permissible area, then the Collector under section 50B(2) shall first select the permissible area of the landowner. It is only after such a selection or reservation has been made that the tenant is entitled to purchase the land which has been declared surplus and on which he is a tenant provided he satisfies the other conditions. Following this authority, the Financial Commissioner rightly came to the conclusion that since Jagan Nath had neither reserved nor selected his permissible area, it was the duty of the Collector to himself select the permissible area for Jagan Nath and thereafter the purchase application by the tenant could be decided. The learned counsel has argued that Jee Ram's case is not applicable to the facts of the present case. The learned counsel states that the Collector under Section 5-B(2) is obliged to select the permissible area only if the landowner has surplus area. According to the learned counsel, in the present case, Jagan Nath had no surplus area. His land comprised in two parcels. One was the land which was his permissible area and the second one was the parcel which was under the tenancy of Dalip, who was an old tenant, and the cultivated area formed his permissible area as a tenant, and that permissible area could not be included in the surplus area in the hands of Jagan Nath. There is no merit in this contention. The Collector has to determine the case of surplus area of a person who is accepted to be a big landowner. For that purpose, he proceeds under Section 5-B(2) of the Act. If there is no surplus area with the landowner, then the question of his declaration will not arise; but, on the other hand, if the person is a big landowner and he has not made a reservation or selection, then the Collector will select the permissible area on his behalf. The permissible area has been defined in the following terms :-

It is now well settled that permissible area or reserved area means the same thing. They are interchangeable terms. The powers of the Collector while selecting the permissible area of the landowner are unfettered. The plea of Mr. Sarjit Singh that the Collector while selecting the permissible area of a landowner cannot include in that the permissible area of a tenant, is without any force. It is not supported either by the language of Section 5-B(2) of the Act or the definition of terms "permissible area" in the Act. The present case is fully covered by the ratio of Jee Ram's case . Mr. Sarjit Singh then faintly argued that the decision in Jee Ram's case was impledly overruled by their Lordships of the Supreme Court by their decision in Rameshwar's case . This plea is also without any substance. Their Lordships have not at dealt with the provisions of Section 5-B(2) of the Act and have interpreted only Section 18 of the Act. However, I am concerned with the interpretation of Section 5-B(2) of the Act. There is another Division Bench judgment of the Court in Madho Dass and another v. Midha Singh and another, 1971 PunLJ 782, wherein also the same view as in Jee Ram's case , has been taken. The learned counsel then argued that the Collector had earlier sent a notice to Jagan Nath but he had failed to select any land. So he has forfeited the right of his permissible area being selected by the Collector under Section 5-B(2) of the Act. There is no force in this contention also. Section 5-B(2) of the Act has been enacted to deal with the cases of those landowner who failed to reserve or select their permissible area. The failure to select the permissible area despite intimation by the Collector, is of no consequence. This does not absolve the Collector of his duty under Section 5-B(2) of the Act, to select the permissible area. Section 5-B(2) of the Act, casts a duty on the Collector to select the permissible area. For that purpose the conduct of the landowner is altogether irrelevant.