- (1.) Ram Saran Dass and others have filed this petition under Articles 226 and 227 of the Constitution of India for the issuance of an appropriate writ, order or direction, quashing the orders of the Collector, the Commissioner and the Financial Commissioner, dated June 18, 1965, October 11, 1966, and April 23, 1968 (copies Annexures 'A', 'B' and 'C' to the petition) respectively.
(2.) Although various grounds have been taken in the petition before me the correctness and legality of the impugned orders have been challenged by Mr. S. S. Mahajan, learned counsel for the petitioners only on this ground that the land could not be deemed to have been utilized within the meaning and scope of Sections 10-A and 10-B of the Punjab Security of Land Tenures Act, 1953, till the resettled tenant takes actual possession over it. In substance, the contention of the learned counsel for the petitioners, is that Gaja Dhari, the original landowner, died on May 9, 1964, that by that time the land had not been utilized and that the petitioners having become small landowners after his death, the land could not legally be utilized for the resettlement of the tenants. In support of his contention, the learned counsel has placed reliance on a Division Bench decision to which I was a party in Financial Commissioner Haryana and others v. Shrimati Kela Devi and another, 1969 PunLJ 307, wherein it has been observed thus :- "Now the word 'utilized' or any of its variations has not been defined either in the Act or in the Rules. It is provided in Section 19-C(1) of the Act that the Collector may order a landowner to deliver possession of his surplus land to the person resettled on such land. This would indicate that not until possession has been delivered of the land allotted to a tenant, is the land utilized under clause (a) of Section 10-A of the Act. This is supported by the scheme of the Rules for resettlement of tenants ejected or liable to ejectment as in Part IV of the 1956 Rules. Under Rule 20-A, every tenant is given a certificate in the prescribed form describing clearly in it the land allotted to him. Rule 20-B then provides that after an order of allotment of any surplus area has been made, the Circle Revenue Officer is then to move the Collector for passing an order directing the landowner to deliver possession of the land in his surplus area to the Circle Revenue Officer who is deemed to be an officer empowered by the Government under Section 19-C of the Act for the purpose of delivery of possession. This is provided in sub-rule (1), and then sub-rule (2) of this rule says that every tenant resettled on the surplus area shall be bound to take possession of the land allotted to him within a period of two months of the date on which demarcation of the land is made at site in his presence or within such extended period as may, for reasons to be recorded in writing, be allowed by the Circle Revenue Officer. It is enjoined that the Circle Revenue Officer shall himself deliver the possession to the tenant. According to clause (c) of Rule 20-C, such a tenant is then required to execute qabuliyat or a Patta in the prescribed form in favour of the landowner but before he is put in possession of the land. It is Rule 20-D which deals with consequence of such a tenant not taking possession of the land, and it says that 'in case, a tenant does not take possession of the surplus area allotted to him, for resettlement within the period specified in sub-rule (1) of Rule 20-B, the allotment shall be liable to be cancelled and the area allotted to such tenant may be utilized for resettlement of another tenant. The last sentence in this rule is a complete answer to the argument on the side of the appellants. Not until possession is taken by the tenant to whom surplus area has been allotted is the land utilized. If he does not take possession, then his allotment is liable to cancellation. After the cancellation of such allotment, the area is then utilized for the resettlement of another tenant. If allotment alone meant resettlement of a tenant or utilization of the surplus land, then this part would run inconsistent with such a situation. So the approach of the learned Judge, as I have said, is correct that not until possession of the land in surplus area of a landowner is delivered to a tenant to be resettled on it, after allotment of the land to him, is the land utilized within the meaning and scope of Sections 10A and 10-B of the Act. After an area of land with a landowner is declared surplus and a tenant is selected for allotment of the same as a measure of resettlement, various steps have to be completed for the utilization of the land culminating in the delivery of possession of the land to the tenant resettled. But if he does not take possession of the land, his allotment is liable to be cancelled and the land is then to be utilised for resettlement of another tenant. So that until the resettlement is complete by the delivery of possession of the land to a tenant, the utilization of the land cannot be said to be complete."
(3.) In view of the Division Bench decision of this Court, referred to above, Mr. H.L. Sarin, learned counsel appearing for respondent No. 2 and O.P. Hoshiarpuri, learned counsel appearing for respondent No. 1, do not controvert the contentions raised by S.S. Mahajan, learned counsel for the petitioners and concede that the area would not be deemed to have been utilized as the tenant did not take possession during the life time of the landowner. However, it is contended by Mr. H.L. Sarin, learned counsel, that the matter will have to go back to the Collector for determining whether each of the petitioners is a small landowner after the death of the original landowner. This contention of the learned counsel is not contested by Mr. S.S. Mahajan, learned counsel for the petitioners. In this view of the matter, I set aside the impugned orders of the Collector, the Commissioner and the Financial Commissioner, dated June 18, 1965, October 11, 1966 and April 23, 1968 (copies Annexures 'A', 'B' and 'C' to the petition) respectively, and send back the case to the Collector for determination of the question whether each of the petitioners is a small landowner or not. In case, he comes to the conclusion that each of the petitioners is a small landowner, then as conceded by Mr. H.L. Sarin, learned counsel, respondent No. 2, would not be entitled to be resettled, on any part of the area which was declared surplus on October 3, 1960, in the hands of Gaja Dhari. In case the Collector comes to the conclusion that each of the petitioners or any one of them is a big landowner, then he would resettle respondent No. 2 on the area which is declared surplus in their hands. The parties through their learned counsel have been directed to appear before the Collector, Surplus, Gurdaspur, on December 23, 1971. In the circumstances of the case, I make no order as to costs. Petition accepted.;