Hemant Gupta, J. - (1.) THE present Letters Patent Appeal is directed against an order passed by the learned Single Bench of this Court on 06.08.2013 whereby the writ petition challenging the vesting of land with the State was set aside for the reason that the prescribed Authority has passed the order declaring the land in the hands of Imrati Devi after her death without taking into consideration the fact that the succession has opened.
(2.) A perusal of the record shows that Imrati Devi died somewhere in the year 1978 whereas the prescribed Authority passed an order on 18.02.1982 declaring the land surplus in the hands of Imrati Devi. Since Imrati Devi had died prior to passing of the order by the prescribed Authority, therefore, the surplus area of the land has to be determined in the hands of the legal heirs and not in the hands of the deceased. Such is the view taken by this Court in LPA No. 18 of 1993, titled as Mahabir Parshad & another Versus Financial Commissioner, Haryana & others, decided on 29.01.2014: Admittedly, no order was passed by the Collector declaring the land of Suraj Mal as surplus during his lifetime even though he has not furnished any declaration even in the extended period in terms of Section 5 -A of the Act. Section 5 -C of the Act contemplates that the prescribed authority may by order direct whole or part of land of any such landowner in excess of ten standard acres shall be deemed to be the surplus area of such land owner and shall be utilized by the State Government for the purpose mentioned in Section 10 -A. Thus the failure of the landowner to submit declaration require an order of the Collector for the purpose of utilizing ten additional standard acres as mentioned in Section 10 -A i.e. for resettlement of ejected tenants. The state is competent to utilize surplus land for the resettlement of tenant ejected or to be ejected in terms of Section 10 -A(a) of the Act. But clause (b) of the said provision excludes the land acquired or where succession has opened for the purpose of resettlement of tenants. No other disposition of land is permitted to be excluded while considering the case of land surplus in the hands of landowner. In terms of clause (b) of Section 10 -A of the Act, the transfer or other disposition of land by an heir by inheritance is protected from the provisions of the Act except in case the land stands utilized in terms of clause (a) of Section 10 -A of the Act. Section 10 -B contemplates that the utilization of land either in terms of clause (a) or clause (b) is not affected by the inheritance being opened. Conversely, if inheritance opens before utilization, the issue whether any land is surplus or not, is required to be re -determined in the hands of legal heirs. The utilization of surplus land is a condition precedent for finality of the order of land being declared surplus, but if land has not been declared surplus, then the question whether the land is surplus in the hands of legal heirs is required to be re -determined. In fact, Section 5 -C imposes penalty of ten standard acres only for the purpose of utilization in terms of Section 10 -A of the Act. The disposition of land by inheritance is protected in terms of Section 10 -A of the Act, therefore, the said protection would be available even in respect of Section 5 -C of the Act before the utilization of the land. In Bhagwanti Devi's case (supra), the land was declared surplus under the Act, but the same was not utilized when the Ceiling Act came into force. The Supreme Court held that by operation of sub -section (3) of Section 12 of the Ceiling Act, the surplus land stood vested in the State. Therefore, the argument that land cannot be declared surplus under the Act was negated. In the present case, there is no order of declaring the land surplus neither on the date when an application for purchase was filed by the tenant nor on the appointed day i.e. 24.01.1971 in terms of Ceiling Act. The land would vest in terms of Section 12(3) of the Ceiling Act only if the same is declared surplus. Since the land was not declared surplus, the same is required to be determined in terms of provisions of the Act in view of Section 33 of the Ceiling Act. Therefore, in terms of Section 10 -A(b) of the Act, the inheritance having opened, the surplus area has to be re -determined in the hands of the legal heirs. In view of the above, We do not find any illegality in the order passed, which may warrant interference of this Court.
(3.) DISMISSED .;