Civil Appeal No 2522 of 1969
From the Judgment and Order dated 12 5 1969 of the Punjab and Haryana High Court in LP No 869
Ravindra Bana and M N Shroff for the Appellant
T section Arora and M L Lahoty for the Respondent
The Judgment of the Court was delivered by SHINGHAL J
One Nathi held 36 standard acres and 8 standard units of land in village Bhanguri and as the permissible area within the meaning of clause 3 of section 2 of the Punjab Security of Land Tenures Act 1953 hereafter referred to as the Act in his case was 30 standard acres Collector Surplus Nuh declared 6 standard acres and 8 standard units of land as surplus area by his order dated November 25 1959
Nathi died on July 14 1965 leaving his widow Smt
Kela Devi respondent No 1 and his mother Smt
Mando respondent No 2 as heirs
The two heirs made an application under sections 10 Ab and 10B of the Act stating that as the land of Nathi had been inherited by them in equal shares and the holding with each one of them was much below the permissible area of 30 standard acres there was no surplus area within the meaning of clause 5 a of section 2 of the Act and no part of it could therefore be utilized for allotment to other tenants
That application was however dismissed by Collector Surplus on March 13 1967 on the ground that the surplus area declared in Nathi s life time had already been allotted to other tenants and could not be excluded from the holding in the hands of his widow and mother
An appeal was taken to the Commissioner of Ambala but it was dismissed on January 30 1968 as he took the view that the order of allotment of the surplus area of Nathi s holding amounted to utilisation of that land under section 10 Aa
A revision was taken to the Financial Commissioner but it was rejected on May 8 1968 for the same reason
Kela Devi and Smt
Mando then approached the High Court of Punjab and Haryana by a writ petition under articles 226 and 227 of the Constitution
It was opposed by the present appellants on the ground 1122 that as the surplus area had been declared and allotted to various tenants during the life time of Nathi except for an area of 8 kanals in village Ghelab the writ petitioners were not entitled to succeed as the surplus area had already been utilized
It was also pleaded that possession of eight pieces of land had already been delivered to the tenants before the death of Nathi
The controversy before us does not relate to those pieces of land which had been allotted to various tenants and of which possession was given to them during the life time of Nathi
The learned Single Judge of the High Court who initially heard the writ petition allowed it by his judgment dated October 29 1968 in so far as it related to the portion of land of which possession had not been given to other tenants and to that extent he set aside the above mentioned orders of the Collector the Commissioner and the Financial Commissioner by which the application of Smt
Kela Devi and Smt
Mando was rejected
An appeal was taken to a Division Bench of the High Court but it was dismissed on May 12 1969
That is why the present appeal has been filed on the basis of the High Court s certificate under Article 133 1c of the Constitution
The only question which therefore arises for consideration is whether the High Court was right in taking the view that mere allotment of land to other tenants under section 10 Aa of the Act did not amount to utilisation of the surplus area when the resettled tenants had not taken possession under the allotment orders
It is not in controversy that it had been finally decided that the surplus area in the case of Nathi was 6 standard acres and 8 standard units and a decision to that effect was taken in his life time on November 25 1959
It is also not in dispute that orders were made for the allotment of the surplus area to other tenants under section 10 Aa of the Act which reads as follows 10 Aa The State Government of any officer empowered by it in this behalf shall be competent to utilize any surplus area for the resettlement of tenants ejected or to be ejected under clause i of sub section 1 of section 9
 While therefore the section empowers the State Government or its authorised officer to utilise any surplus area for the resettlement of tenants the Act does not define what is meant by an order of utilisation under the section
A clue to what is actually meant by that expression is however to be found in clause b of section 10 A which provides as follows 1123 10 Ab Notwithstanding anything contained in any other law for the time being in force and save in the case of land acquired by the State Government under any law for the time being in force or by an heir by inheritance no transfer or other disposition of land which is comprised in surplus area at the commencement of this Act shall affect the utilization thereof in clause a
 The clause therefore has the effect of saving the land comprised in the surplus area if it has been acquired by an heir by inheritance
So where an heir succeeds by inheritance as in this case that basic fact would affect the utilisation of the surplus area even if only an order has been made under clause a of section 10 A for its utilisation for the resettlement of other tenants but that order has not been implemented
In order to understand the full meaning and effect to the provisions of section 10 A it is necessary to make a cross reference to rules 18 20 A 20 B and 20 C of the Punjab Security of Land Tenures Rules 1956 hereafter referred to as the Rules
Rule 18 deals with the procedure for allotment of surplus area to other resettled tenants
Rule 20 A provides for the issue of certificates of allotment of lands to them and rule 20 B provides for delivery of possession and makes it obligatory for the resettled tenant to take possession of the land allotted to him within a period of two months or such extended period as may be allowed by the officer concerned
Rule 20 C provides inter alia for the execution of a qabuliyat or patta by a resettled tenant
It would thus appear that while allotment of land is an initial stage in the process of utilisation of the surplus area it does not complete that process as it is necessary for the allottee to obtain a certificate of allotment take possession of the land within the period specified for the purpose and to execute a qabuliyat or patta in respect thereof
The process of utilisation contemplated by section 10 A of the Act is therefore complete in respect of any surplus area only when possession thereof has been taken by the allottee or the allottees and the other formalities have been completed and there is no force in the argument that a mere order of allotment has the effect of completing that process
Reference in this connection may also be made to rule 20 D of the Rules which provides that in case a tenant does not take possession of the surplus area allotted to him for resettlement within the period specified therefor the allotment shall be liable to be cancelled and the area allotted to him may be utilized for the resettlement of 1124 another tenant
It cannot therefore be dobted that a completed title does not pass to the allottee on a mere order of allotment and that order is defeasible if the other conditions prescribed by law are not fulfilled
So when the process of utilisation of Nathi s surplus area had not been completed by the time his heirs by inheritance made the aforesaid application to the authorities concerned it was permissible for those authorities to re examine the question whether there was any surplus area at all after Nathi s holding had been inherited by his two heirs in equal shares so as to reduce the area of the holding of each one of them below the permissible area
The High Court therefore rightly allowed the writ petition of the respondents
As there is no force in this appeal it is dismissed but in the circumstances we do not make any order as to the costs
PBR Appeal dismissed


Summary:
Out of 46 odd acres of land held by the original owner husband of respondent No 1 and son of respondent No 2 the Collector declared six odd acres as surplus area under section 23 of the Punjab Security of Land Tenures Act 1953 and allotted them to two other tenants
On the death of the original owner the two heirs respondents 1 and 2 made an application stating that since the land inherited by each of them in equal shares was below the permissible area of 30 standard acres there was no surplus area with them and that therefore no part of the land could be utilized for allotment to other tenants
The Collector rejected their application on the ground that the surplus area having been declared during the life time of the original owner it could not be excluded from the holding in the hands of the two respondents
The respondents failed in appeal and revision before the Commissioner and the Financial Commissioner
A single Judge of the High Court allowed their petition under Articles 226 and 227 of the Constitution in so far as it related to the application of the land of which possession had not been given to the other tenants
A Division Bench rejected the appellants appeal
On the question whether mere allotment of land to other tenants amounted to utilization of the surplus area when the re settled tenant had not taken possession
Dismissing the appeal  HELD 1
While section 10Aa of the Act empowers the State Government to utilize any surplus area for re settlement of tenants the Act does not define what is meant by order of utilization under the section
Clause b of the section however has the effect of saving the land comprised in the surplus area if it has been acquired by an heir by inheritance
Therefore when an heir succeeds by inheritance that basic fact would affect the utilization of the surplus area even if an order had been made under section 10Aa for its utilization for the resettlement of other tenants but that order had not been implemented
1122H 1123A B 2
A conspectus of the rules made under the Act also shows that while allotment of land is an initial stage in the process of utilization of the surplus area it does not complete that process as it is necessary for the allottee to obtain a certificate of allotment take possession of the land within the specified period and execute necessary documents thereafter
A mere order of allotment does not have effect of completing that process
Rule 20D also points to the con 1121 clusion that a completed title does not pass to the allottee on a mere order of allotment and that order is defeasible if the other conditions prescribed by law are not fulfilled
1123 F G In the instant case since the process of utilization of surplus area had not been completed by the time the heirs made the application it was permissible for the authorities to re examine the question whether there was any surplus area at all after the heirs had inherited the land in equal shares so as to reduce the area of the holding of each one of them below the permissible area
1124 B G