J.V. Gupta, J.
1. The appellant is the tenant, who filed a purchase application in form 'Q', under Section 18 of the Punjab Security of Land Tenures Act (hereinafter to be referred as 'the Act'), which was allowed by the Assistant Collector 1st Grade vide Annexure 'A' to the writ petition. However, the said order was set aside in appeal by the Collector. But then on further appeal the learned Commissioner restored the order of the Assistant Collector allowing the purchase application vide his order dated 20th March, 1968, Annexure 'C' and the same was maintained by the learned Financial Commissioner in revision petition filed by the landlord, vide his order dated 29th May, 1969, Annexure D. It has been stated therein that the land-owner's plea was that they should be allowed an opportunity to have their permissible area demarcated now by the Collector under Section 5-B(2) of the Act and though this plea was allowed by the Collector, the learned Commissioner did not agree with that view and in his opinion the Collector's view was erroneous and also unjust to the tenant. It has been further observed that it is totally wrong to permit a defaulting land-owner who omits to reserve or select his permissible area to take advantage of his default for the purposes of blocking or delaying the purchase rights of tenants under S. 18 of the Act, particularly when the default, as in this case, is without sufficient cause. Being dissatisfied the landowners filed the writ petition (C. W. P. No. 2168 of 1969) in this Court, challenging the said order of the Financial Commissioner. This writ petition has been allowed by the learned single Judge on the ground that the purchase application filed by the tenant could not be allowed in this case as the permissible area of the landowners had not been reserved by them. Reliance in this respect was placed on Jee Ram v. Gobind, 1971 Pun LJ 766; wherein it has been held :--
'When an application is made under S. 18 of the Punjab Security of Land Tenures Act for purchase and there has been no reservation, the first thing that will have to be done by the Collector is to make a reservation for the landowner under S. 5-B. It is after the reservation has been made that the tenant will be entitled to purchase the land which has been declared surplus and of which he is the tenant provided he satisfies the remaining requirements of S. 18.'
It has been further directed by the learned single Judge that the Assistant Collector will send the file first to the Collector to determine the surplus area.
This Letters Patent Appeal has been filed by the tenant against the said order of the learned single Judge. Along with the appeal, a copy of the order of the Collector dated 16th June, 1961 has been filed as Annexure R-1, whereby the surplus area of the said landowners was determined. Though no separate application has been filed to bring this additional evidence on the record, yet an oral prayer has been made in this behalf which we hereby allow after hearing both the parties.
2. The learned counsel for the appellant submitted that in view of the order of the Collector dated 16th June, 1961 (Annexure R-1), there was no question of determining the surplus area again as directed by the learned single Judge. According to the learned counsel it was the duty of the writ petitioners to place this document on the record along with the writ petition. Failure to do so on their part has resulted in obtaining the order under appeal, which apparently is not sustainable in view of this order. The argument proceeded that as a matter of fact this was not their case even before the Financial Commissioner. The only contention raised there was that they should be provided with an opportunity to have their permissible area demarcated under S. 5-B(2) of the Act. On the other hand learned counsel for the respondents argued that what they wanted was the determination of the surplus area and not the demarcation as stated by the Financial Commissioner and the said order of the Financial Commissioner has been rightly quashed in the writ petition. It was also submitted that the said order of the Collector dated 16th June, 1961 (Annexure R-1) is still under consideration by the authorities themselves and, therefore, the same cannot be treated as final.
3. After hearing learned counsel for the parties we find merit in the contention raised on behalf of the appellant. In view of the order dated 16th June, 1961, of the Collector (Annexure R-1) it could not be successfully contended that the surplus area of the landowners has not been determined. The question of demarcation is different from determining the surplus area, and when after the declaration of surplus area there does not occur any change in possession, the landowner is deemed to have selected to the extent permissible, his permissible area out of the land in his possession. Moreover, it has been rightly observed by the learned Financial Commissioner that :
'It is totally wrong to permit a defaulting landowner who omits to reserve or select his permissible area, to take advantage of his default, for purpose of blocking or delaying the purchase rights of the tenants under S. 18 of the Punjab Security of Land Tenures Act, particularly when the default, as in this case, is without sufficient cause.'
The land with the tenant-appellant was surplus and he was on the land when the application was made. In these circumstances no infirmity or illegality could be found in the said order of the learned Financial Commissioner, and the learned single Judge seems to have erred in interfering with the same in writ jurisdiction. The said order was quashed as observed earlier because the order of the Collector Annexure R-1 was not brought to the notice of the learned single Judge by either party. Once the surplus area of the landowners already stands determined no direction can be given to determine the same afresh.
4. In this view of the matter, this appeal succeeds and the order of the learned single Judge is set aside and the writ petition is dismissed, with no order as to costs.
S.S. Sandhwalia, C.J.
5. I agree.
6. Appeal allowed.