ORDER
V.K. Bali, J.
1. Challenge in this Letters Patent Appeal filed under Clause X of the Letters Patent is to order dated 9.3.1998 passed by the learned Single Judge in Civil Writ Petition No. 4881 of 1982 vide which, writ petition filed under Article 226 of the Constitution of India on behalf of the appellants, who were petitioner therein, was dismissed. The appellants (hereinafter referred to as petitioners) had challenged order dated 14.9.1982, Annexure P-8, passed by the Financial Commissioner, Punjab and notice dated 5.11.1982, Annexure P-9, passed by respondent No. 3, Collector, Agrarian and sought a further writ in the nature of mandamus directing respondent No. 3 to re-process the surplus area case of late Smt. Devki in the hands of her heirs.
2. The facts, on which there is hardly any dispute, reveal that an area measuring 21 standard acres 14-3/4 units in the hands of Devki widow of Mansukhari was declared surplus on 27.6.1960 under the provisions of Punjab Security of Land Tenure Act, 1953. Prior to this, Devki had already sold some part or the surplus area on 17.3.1958 to some other persons, including Sudesh Kumar, who challenged order dated 27.6.1960 by way of appeal which was allowed vide order dated 1.9.1961 and the matter was remitted to the Collector, Agrarian who re-processed the surplus area case of Devki once over again and still assessed 21 standard acres 14-3/4 units as surplus area.
3. Aggrieved by the order of aforesaid Devki filed an appeal, which was dismissed by the learned Financial Commissioner on 20.9.1962. It may not be relevant but for completing the chain of events, it may be mentioned that Devki, vide registered will dated 9.5.1969, had bequeathed her property to her daughter, namely, Nikki and her three grand sons. Meanwhile, the Punjab Land Reforms Act, 1972 (for short “the Act of 1972”) came into force with effect from 2.4.1973. Devki died on 1.9.1973. It is when notice dated 5.11.1982 was issued to the heirs of Devki for taking possession of land declared surplus that the writ petition was filed asking for the reliefs, as indicated above.
4. During the course of arguments, it remained undisputed that if the land, declared surplus, till the year 1973 when the Act of 1972 came into being, may not have been utilised either before the Provisions of Act came into being or till such time Devki died, the authorities constituted under the Act had no option but for to re-assess the surplus area in the hands of legal heirs of Devki. Reference in this connection be made to Full Judgment of this Court in Ranjit Singh v. Financial Commissioner, Punjab 1981 P.L.J. 259, which has since been confirmed by the Hon’ble Supreme Court in Ujjagar Singh (dead) by LRs. v. The Collector, Bathinda and Anr., 1996 P.L.J. 505. Thus, the judgments of the Full Bench and Hon’ble Supreme Court cover the situation when the Act of 1972 came into force and the land was not utilised. The order proposition as settled, as mentioned above, is that when death of a land owner occurs and the land has not been utilised, it has to be reassessed in the hands of legal heirs. It has been so held by the Full Bench of this Court in Ajit Kumar v. State of Punjab and Ors., 1980 P.L.J. 354.
5. In view of the above discussion, it is apparent that the finding with regard to utilisation of land pursuant to orders dated 27.6.1960 and 28.12.1961 when the Act of 1972 came into being or when Devki died was a crucial question. This appears to have been decided by the learned. Single Judge on the basis of the written statement alone as the learned Single Judge while giving narration of facts has mentioned as under:-
“In the written statement filed by the respondents, it is contended that after the surplus area was declared in 1962 under the Punjab Security of Land Tenures Act, 1953 the surplus land was utilised and allotted to landless persons and the possession was delivered to the allottees”.
6. It appears that the findings in the later part of the judgment to the effect that “the surplus area which has been determined in 1961 has already been utilised by allotment to various eligible tenants”, were recorded only on the basis of written statement dealt with by learned Single Judge, as extracted above. At this stage, however, learned Additional Advocate General, Punjab, points out that in the last four lines of the judgment of learned Single Judge it has also been mentioned that the Financial Commissioner, on the basis of material on record, held that the surplus area as determined in the year 1961 has since been utilised by allotment to various eligible tenants.
7. We have heard learned Counsel for the parties and, with their assistance, examined the records of the case. It could not be disputed during the course of arguments that insofar as the written statement filed by the respondents is concerned, not a word has been mentioned that the area declared surplus either by order dated 27.6.1960 or order dated 28.12.1961, was allotted and possession thereof had been given to eligible tenants. The findings of learned Single Judge, recorded on the basis of the written statement, is against the record of the case. Insofar as the above mentioned finding, stated to be based upon the observations made by the Financial Commissioner, is concerned, we may only mention that in the order, Annexure P-8, referred to by leaned Additional A.G., all that has been mentioned is that “surplus area as determined in the year 1961 has been utilised by allotment to various eligible tenants” and even if it is presumed that there was an order of allotment, the same would not amount to utilisation. Reference in this connection may be made to the judgment of Hon’ble Supreme Court in Financial Commissioner, Haryana v. Smt. Kela Devi and Anr., 1980 P.L.J. 121.
8. In view of the discussion made above, we find that the finding recorded by the learned Single Judge that “the surplus area which has been determined in 1961 has already been utilised by allotment to various eligible tenants” is not correct. Ms. Nirmaljit Kaur, learned Additional Advocate General, Punjab, however, contends that other documents on record may justify the said finding. She, however, admits that even if such a finding may be justified on the basis of records, the same have certainly not been referred to by learned Single Judge. It is then urged by learned Additional A.G. that inasmuch as the tenants, to whom the land was allotted, were not even party-respondents in these proceedings, the State may not have been in a position to effectively controvert the assertions made by the petitioners that land had not been utilised. This part of the case of petitioners could be more effectively controverted by the tenants, further contends the learned Additional A.G.
9. Be that as it may, the finding recorded by the learned Single Judge regarding utilisation of the land, which, as mentioned above, is based upon the averments in the written statement and at the most, order of the Financial Commissioner, is not justified at all. This aspect of the case, in our considered view, needs to be determined afresh, which is possible only by setting aside order of learned Single Judge and remitting the matter for determination of the question, as referred to above. In the proceedings before the learned Single Judge, on remand, the petitioners may choose to implead the tenants, to whom the land was allotted, as party-respondents. The State may also supplement the records in its endeavor to show that the land had since been utilised, if it be a fact, before the Act of 1972 came into being or Devki died.
10. In totality of the facts and circumstances of this case, as fully detailed above, we remand this case for determination of the crucial question pertaining to utilisation of land before the advent of the Act of 1972 or death of Devki.
11. At this stage, this Court has been informed that the Letters Patent Bench, while admitting the L.P.A. had granted status-quo. The same shall enure during the pendency of the writ petition as well. The parties are, however, left to bear their own costs.