K.KANNAN, J. - (1.) THE writ petition is a challenge to the order passed by the Financial Commissioner exercising the powers under the Punjab Security of Land Tenures Act. The petitioner was a category 'A' tenant who had exercised his right of reservation in respect of the properties held by him as a tenant of 31 bighas of land. In the consolidation, the properties of value and quality equivalent to the properties that were permitted to be retained by him were 197 kanals 10 marlas of land. However in the actual allotment brought through records, he was purported to have been allotted only 155 kanals. The private respondents had been allotted the remaining extent of properties which the petitioner claimed as the property that should be allowed to him. This appeal to the Collector for allotment which fell deficient to him came to be made nearly 5 years after the allotment. The Collector had called for a report from the Naib Tehsildar about the petitioner's entitlement and brought to his file his report that stated that the properties in Khasra Nos.22//21, 44//1, 12/1, 20; 42//16, 24 measuring 42 kanals and 10 marlas had not actually been allotted to him though he was entitled to the same. The Collector passed an order on 10.08.1982 directing the matter to be considered again and remitted the matter to the allotment authority. This order was challenged before the Commissioner by the private respondents, aggrieved, as they were, by the possibility of the allotting authority cancelling the allotment made to them and allow the same to the petitioners. They also pointed out to the fact that they had themselves been not made parties and the appeal filed by the petitioner before the Collector was also belated, far beyond the period of limitation, which was permissible under the relevant rules. The objections of the private respondents prevailed before the Commissioner and he quashed the order of the Collector. This order of the Commissioner is in challenge before this court.
(2.) IT must be noticed immediately that the Commissioner has not at any place stated that the report of the Naib Tehsildar was erroneous or that the petitioner could not have been allotted the properties which were identified in the report as properties that should have been allotted to the petitioner. On the other hand, the issue taken up for an adjudication before the Commissioner was only on the point of limitation that the petitioner had not preferred the appeal within the prescribed time and that too, the private respondents, who had been favoured with allotment of the properties claimed by the petitioner had not been made as parties. The petitioner's contention would be that he had moved an application for condonation of delay with an affidavit and this is stoutly contested by the respondents. I am not prepared to go into a factual issue of whether indeed the petitioner had filed an application for condonation of delay or not. When the Collector was passing an order after securing a report from the Naib Tehsildar and making a remand, it should be taken that he had exercised the mind to condone the delay. If it were to be assumed that such a contention had not been expressly granted, I am of the view that it was eminently a situation where the delay ought to have been condoned, for, we are examining the rights of a category 'A' tenant, who was entitled to set out his permissible area for retention of property under the Punjab Security of Land Tenures Act of 1953. He was admittedly a tenant of the property much before coming into force of the 1953 Act in respect of 31 bighas of land. It is this extent of 31 bighas that is now taken as justifying the State to make an allotment of only 155 kanals. In the statement filed by the State, it is contended that 31 bighas would be equivalent to 155 kanals and the allotment made therefore cannot be assailed. If there had been no consolidation intervening between the permissible extent identified for the category 'A' tenant and the allotment, then it would be possible to accept a calculation of 31 bighas as referring to 155 kanals. On the other hand, in this case, the property which was held by him under tenancy in respect of 31 bighas was not the same property that came to him after consolidation. It is commonplace knowledge that there cannot at all times be congruity in extent before and after consolidation. Several issues like assessment of quality, location and value go into reckoning at the time of consolidation. It is in that context that the report of the Naib Tehsildar assumes significance. In his report, it is brought out that the property of specified khasra numbers of an extent of 42 kanals 10 marlas were also to be required to be allotted to the petitioner. There was no case made by the Commissioner that there was an error in the report of the Tehsildar. There is not even a plea by the State that the properties after consolidation were not properties which were identified by the Tehsildar. On the other hand, a simplistic approach had been adopted that 31 bighas of land which the petitioner was entitled to must be taken as fully satisfied by the allotment of 155 kanals of land subsequently when the allotment authority passed the order and made the allotment to the petitioner. Such an approach was clearly erroneous. For the reasons stated that there was an intervening consolidation proceeding and a reassessment of the properties that the petitioner was entitled to.
(3.) IT may seem in the ultimate bargain that the private respondents had done no wrong but they are being made to lose the properties which were originally allotted. Their own rights cannot be better than what the State had. If the State could not have denied to the petitioner his entitlement in his capacity as an erstwhile tenant, who had a right to exercise his option declaring his permissible area, then the benefit to the respondents cannot be at the expense of the petitioner. The petitioner shall have what he was legally entitled to. The Collector's order did not actually conclude the issue of what exactly the property shall be. The Collector's order only directed the allotment authority to consider his pleas and pass appropriate orders after giving notice to all the parties. The Collector's order was perfectly justified and the intervention made by the Commissioner was not proper.;