BISHAN SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) This is a petition under Article 226 of the Constitution of India and has been filed to give effect to the orders of the Collector and the Commissioner directing that the proprietary holding of the petitioner should only be declared surplus after making good the permissible area to him. In spite of these orders, the Collector is trying to dispossess the petitioner from the proprietary holding to the extent of seven standard acres of land.

(2.) The petitioner was a proprietor of a certain area of land and another area of land was mortgaged with him and he had only mortgagee rights in the same. The total area including the mortgagee rights was taken into consideration for the purpose of determining the surplus area and on that basis eleven standard acres and seven and a half units was taken as surplus area. The petitioner raised an objection that the mortgagee rights had been redeemed and, therefore, in counting his permissible area, the mortgagee rights so redeemed should not be taken into account. This plea prevailed with the Collector and he directed that the permissible area should be allowed to the petitioner from his proprietary area excluding the mortgagee area. An order to the same effect was passed by the Commissioner. Instead of that, the petitioner is being deprived of his proprietary area. This will be clear from his allegations in paragraph 9 which is quoted below :-

(3.) It is not denied by the State that the petitioner's proprietary area is being taken as surplus area. This cannot be done. Whenever land is redeemed by a mortgagor there is no transfer by a landlord. In somewhat similar circumstances, Narula, J. in Bhajan Lal and others v. State of Punjab and others, 1968 CurLJ 472, observed that only a voluntary transfer is covered by the Act and not an involuntary transfer. I entirely agree with the observations of Narula, J. and accordingly allow this petition and direct that only that part of the proprietary area of the petitioner should be deemed to be surplus which is over and above the permissible area. There will be no order as to costs.