P.D. Sharma, JJ. - (1.) THIS is a writ petition and the facts relevant for the disposal thereof are these: Harchand Singh Petitioner owned 200 standard acres and 2 units of land situate in the revenue estates of Babain and Haripura, district Karnal. The Collector, Karnal on receipt of form D duly completed by the Patwari, Qanungo and the Circle Revenue Officer in regard to the above land issued a notice for 13th December, 1960, to the Petitioner -owner to show cause against its correctness but before the Petitioner could appear in his Court on that day he passed on order (annexure 'A') declaring the entire land excepting 30 standard acres as surplus area. The Petitioner when he appeared before him was advised to file a review application against the said order which he did in due course. The Collector on this review application (annexure 'B') in his order dated 1st February, 1961 (annexure 'C') observed: From the Patwari of the Halqa, I have got prepared out a list of the persons who have been tenants since the year 1953. Out of them, most of the tenants had been cultivating the land from Kharif 1953 to 1956 -57. Tulsi, son of Raman and Chambel Singh, son of Telu are the only such persons who have been tenants continuously from the year 1953 till now. Area measuring 24 kanals is entered, in name of Shri Tulsi, son of Raman and area measuring 16 kanals is entered in the name of Shri Chambel Singh in the khasra girdawari papers. Hence, this review application is accepted to the extent that his area will of course be declared as surplus area but it will remain as non -resumable. The rights of the other tenants, who took up their residence after the year 1953, shall be kept in view at the time of the resettlement of tenants. According to the list of the surplus area attached the following area is declared as surplus: Form 'F' be issued accordingly.
(2.) HARCHAND Singh Petitioner, in this petition under Article 226 of the Constitution has prayed for quashing of the aforesaid order on the grounds as below: (i) It proceeds on a complete mis -understanding of the expression "surplus area" as defined by Section 2(5 -a) of the Punjab security of Land Tenures Act, 1953; (ii) It ignores the fact that areas under the cultivation of tenants not exceeding the tenants' permissible area cannot be included in the surplus area; (iii) There is no warrant for distinguishing between tenants settled before or after a particular date; (iv) It ignores the fact that these tenants are not new tenants but they are old tenants from generation to generation, a fact which is patent on the revenue records of the village; (v) It ignores the fact that the area of Haripura is a part of the joint holding and, therefore, in considering the question of the history of possession of the various tenants the entire area in the ownership of all the three brothers could be considered. Thus some of the tenants who are now under the Petitioner's brothers were tenants under the Petitioner previously and others who were previously tenants under the Petitioner are now tenants under his brothers; and (vi) No opportunity was given to the Petitioner before passing of the original order by Respondent No. 2. According to nun none of his tenants on the date of the order was in cultivation of area more than the permissible limits.
(3.) THE Punjab State and the Collector, the two Respondents, in their written statement admitted that 200 standard acres and 2 units of land stood in the Petitioner's name as landowner in the revenue records on 15th April, 1953, when the Punjab Security of Land Tenures Act, 1953 (hereinafter referred to as the Act) came into force, that position of the land as stood on that date was to be taken into account while declaring the surplus area of the landowner, and that there were only two tenants who continuously had been shown in cultivating possession of 40 kanah of land which also was declared as surplus but classified as non -resum -able.;