- (1.) The facts are simple and straight. Petitioner is the widow of Kesar Singh. Vide order December 19, 1960, the Special Collector found 53 standard acres and 9 units of land as surplus in the hands of Kesar Singh under the provisions if the Punjab Security of Land Tenures Act, 1953 (hereinafter referred to as 'the Act'). Subsequent thereto the petitioner obtained a decree on November 11, 1965 (copy Annexure P.1) against Kesar Singh for the possession of 21 standard acres and 11-7/8 units of land on the plea that the sale consideration of that land had been paid by Kesar Singh out of the Istri Dhan of the petitioner and he wrongly got the entire land registered in his name. The petitioner also acquired 17 standard acres and 3-3/8 units of land of way of succession from a pre-deceased son. By the time Kesar Singh died on June 25, 1969, 7 standard acres and 12-3/4 units of land out of the land found surplus with him were utilised under the provisions of Act. Thus by the time the present proceedings for the determination of the surplus area in the hands of the petitioner were initiated, she was found to be the owner of 40 standard acres and 11-5/6 units of land and the Collector vide his order dt. April 27, 1976, declared 2 standard acres and 15-1/2 units as surplus with her. Copy of this order is Annexure P.3. However, on appeal, this order was set aside by the Additional Commissioner, Jullundur, and the case was sent back to the Collector for decision afresh. The appeal preferred by the petitioner against this order was dismissed by the Financial Commissioner vide his order dated May 31, 1979. Accordingly, the entire area in the hands of the petitioner has been redetermined under the provisions of the Act. The Collector vide his order dated May 14, 1981 (Annexure P.4) held that the entire land which she got from Kesar Singh through P.2 continue to be surplus in her hands. He only allowed 17 standard acres and 3-3/8 units, which she had inherited from a pre-deceased son, as her permissible area. The petitioner remained unsuccessful in impugning this order before the Commissioner and the Financial Commissioner. The latter vide his order dated December 10, 1984 (Annexure P.9) though, in the light of the Full Bench Decision of this Court in Smt. Ajit Kaur and others V. The Punjab State and others, 1980 PunLJ 354, held that "where the surplus area and the permissible area in the hands of landowner were determined under the Punjab Security of Land Tenures Act, 1953 and thereafter the landowner died resulting in acquisition of the holding by his heirs, the protection to the heirs in the matter of determination of surplus areas in their hands, as embodied in section (5) of section 11 of the Punjab Land Reforms Act , will be fully available", yet declined to grant of benefit of section 10-A(b) of the Act to the petitioner on account of the fact that she had not inherited the area from her husband and had rather got it by way of gift vide decree dated November 11, 1965 (Annexure (P.2). For this conclusion of his, he firmly relied on the observations made by a learned Single Judge of this Court, A.S. Bains, J., in Shri Hari Singh and others V. State of Haryana and others, 1978 PunLJ 365. Though this judgment does support the conclusion of the Financial Commissioner, yet it deserves to be noticed that the same learned Judge while dealing with a similar situation in Lorind Chand V. The Financial Commissioner, Haryana and others,1979 PunLJ 922, in the context of the question whether 24 standard acres and 11 units of land sold by the petitioner Lorind Chand on May 4, 1957, which land of course had not been utilised by the time he, i.e., the petitioner died on August 19, 1968 was available for utilisation after his death, observed as follows :- "It is well settled, that if the surplus land is not utilised and in the meantime the landlord died, then the order declaring the land as surplus cannot be implemented and has to be set aside, because then the surplus land is to be determined qua the heirs of the deceased landlord. In the present case, one son, a widow and three daughters are left as the heirs of the deceased landlord. This assertion is not contested by the respondent and so each one of the legal heirs is entitled to succeed in equal shares and thus they are now small landowners. Similar matter came up before a Division Bench of this Court, reported as Ram Singh V. Inderjit and others,1971 PunLJ 391. In the latter case it was held by Sarkaria, J. (as his lordship then was) as under :- 'Reading section 10-A(b) of the Punjab Security of Land Tenures Act with Section 10-B, it is clear that if the landowner, in whose hands an area is declared surplus, dies and the land is inherited before utilisation thereof and the heirs are small landowners, the order declaring the area surplus in the hands of the deceased becomes inoperative'." It is, therefore, patent that the learned Judge did not stick to his earlier expression of opinion as recorded in Hari Singh's case , and no land in the hands of the transferees from Lorind Chand was declared as surplus. Besides this we are also of the opinion that the view expressed in the latter mentioned case is not tenable in the light of a number of judgments of this Court (a reference to some of these has been made by A.S. Bains, J. himself in Lorind Chand's case ), including the Full Bench judgment in Smt. Ajit Kaur's case . The relevant observations made in this judgment occur in paragraph 7 of the report and the same reads as follows :- "Before the commencement of the Act of 1972, if the total holding of a landowner was taken into consideration for the purpose of determination of permissible limit under the Pb. or the PEPSU law and the surplus area was finally declared but before the same could be utilised by the Government he died, under section 10-A and 10-B of the Punjab Law the said holding would cease to be the holding of the said landowner and will stand devolved and distributed between his heirs by operation of law as a of result of succession and the authorities were required to re-determine the surplus area in the hands of each of the heirs. Legally and for all practical purposes the order regarding surplus area in the hands of the original landowner was rendered non-existent. It this situation, either of the two contingencies could exist at the time of the enforcement of the Act of 1973, i.e., either the surplus area keeping in view to the holding in the ownership of each heir separately was determined, or if no such decision had not taken the question of determination of surplus area in the hands of the original landowner after his death could not be considered to be still in existence at the time of the enforcement of the Act of 1973. Thus, the surplus area, which under section 8 of the Act of 1973 is to vest in the Government for the purpose of utilisation has a reference to the original landowner if he had not died or to his heirs in case of his death. In case of death of the original landowner unless surplus area in the hands of the each heir is declared or determined afresh, there can be no area as such to be vested in the Government under this provision. The position of law is made clear beyond any possibility of controversy under sub-section (5) of section 11, by providing that for the purpose of utilisation of surplus area declared under the Punjab or the PEPSU Law, the acquisition of land by the heirs after death of the original landowner will be given due consideration in order to determine the area which may be available for the purpose of utilisation." In the light of this authoritative pronouncement it appears wholly unnecessary to examine the matter any further and it can safely be ruled that after the death of a landowner in whose hands some area has been found to be surplus under the provisions of the Act and remained un-utilised till the date of his death or the enforcement of the Land Reforms Act (No. 10 of 1973) it has to be re-determined in the hands of this heirs. This re-determination has to be made not only when the land of the deceased landowner has actually been inherited by his natural heirs by way of succession but also on the notional basis that it has been so inherited. Further in the instant case the State authorities cannot have it both ways, i.e., to ignore the decree Annexure P.2 in the light of section 10-A(c) during the life time of Kesar Singh and give effect to it after his death. This decree having been ignored in the light of the above noted provision, had continued to be ignored while assessing the permissible limits of the heirs of the Kesar Singh. On account of his death, the order of the Collector dated December 19, 1960 determining his permissible limit had become inoperative as opined in Ram Singh's case and his land had ceased to be this holding as ruled in Smt. Ajit Kaur's case . Therefore, any land declared as surplus with Kesar Singh vide order dated December 19, 1960 could neither be treated as his land while in the hands of the petitioner nor can it so taken away by the State authorities for purposes of utilisation under the Act.
(2.) We are, therefore, satisfied that the impugned orders of the authorities under the Act, i.e., the Collector, the Commissioner and the Financial Commissioner, Annexures P.3, P.7 and P.9 respectively, are wholly unsustainable and deserve to be set aside. We order accordingly. The necessary outcome of this conclusion of ours is that the case goes back to the Collector for going into the matter afresh in accordance with law and the observations made above. We, however, pass no order as to costs. Order accordingly.;