R.S Sarkaria, J.:— This is writ petition, under Articles 226 and 227 of the Constitution of India, for the issuance of a writ of Certiorari, quashing the orders passed by Respondent No. 2 (The Financial Commissioner), Respondent No. 3 (The Additional Commissioner, Ambala), Respondent No. 4 (The Special Collector, Haryana), and Respondent No. 5 (Circle Kevenue Officer (Surplus Area) Tehsil and District Karnal. It arises out of the following facts:—
2. Shrimati Lakshmi Bai is a displaced person. She was allotted 22 Bighas and 6B is was equivalent to 3 Standard Acres and 1½ Units, in village Nagla Roran, Tehsil Karnal, in lieu of the land left behind by her in Pakistan. Out of this allotment, 12 Bighas and 5 Biswas were under a mortgage with Madan Gopal and Sham Dass who also were displaced persons from Pakistan. Consolidation operations took place in this village in 1954–1955, and on re-partition, in those proceedings, Page: 816she was allotted 40 Kanals and 18 Marlas of land which included 26 Kanals and 6 Marlas, equivalent to 2 Standard Acres and 7 Units in which mortagagee rights were allotted to Midan Gopal and Sham Das?. These mortagees were big allottees and the Special Collector declared 107 Standard Acres and 3½ Units, in their hands as their surplus area by an order, dated the 11th April, 1961.
3. The petitioner's area, under mortgage, was also included in the ‘surplus area’ with the mortgagees (Madan Gopal and Sham Dass) The older, dated the 11th April, 1961, was passed without giving any prior notice to Shritnati Lakshmi Bai. Petitioner, however, instituted a suit for redemption and obtained a decree on the 4th October, 1961 from the Civil Court in her favour and against Madan Gopal and Sham Dass. She acquired knowledge of the Special Collector's order dated the 11th April, 1961, only in July, 1962. Thereupon, she made an application to the Special Collector for review of the Collector's order dated the 11th April, 1961. The Special Collector rejected that review application by an order, dated the 4th October, 1962. She then filed an appeal against the original order of the 11th April, 1961, before the Commissioner on the 25th October, 1962, who, on the 30th January, 1964, dismissed it as time-barred. She moved the Financial Commissioner in revision against the Commissioner's order. The Financial Commissioner while holding that her appeal before the Commissioner was within time, dismissed it by order dated the 30th March, 1965 on the ground that the redemption decree obtained by her is to be treated as a transfer by Madan Gopal and Sham pass, which was hit by Section 10-A of the Punjab Security of Land Dass Act, 1953, and has to be ignored. During this period, when Laksmi Bai was contesting the order, dated the 11th April, 1961 of the Collector, in review, appeal or revision, the Surplus Area Collector allotted some of the area included in the surplus area of the mortgagees, to Jaimal and Chauhal, Respondents 6 and 7, respectively. Possession of that area was given to Jaimal, respondent, on the 28th October, 1963, and to Chauhal respondent No. 7, on the 8th April, 1965. Lakshmi Bai earlier also had moved the High Court by a writ petition, under Articles 226 and 227 of the Constitution, for impugning the Financial Commissioner's order, dated the 30th March, 1965. On the 11th November, 1968, at the time of final arguments, it was discovered that the petitioner for want of knowledge had not impleaded Jaimal and Chauhal, nor had assailed further allotment of the surplus area in their favour. The petitioner explained that she did not know of the settlement of Jaimal and Chauhal, before October 1968. The petitioner, therefore, sought permission to withdraw the writ petition with liberty to file a fresh one. The writ petition was accordingly dismissed on the 11th November, 1968, with permission to file another writ petition. It is, in these circumstances, that the second writ petition has been preferred by Shrimati Lakshmi Bai, and Jaimal and Chauhal, also have been impleaded and the settlement made in their favour has been assailed Despite service of a notice for actual date, Jaimal and Chauhal have not put in appearance, either in person or through some authorised agent. The writ petition is therefore, being disposed of only after hearing the arguments of Shri M.S Jain, the learned counsel for the petitioner.
4. The Financial Commissioner's finding that the redemption has to be treated as a ‘transfer’ within the contemplation of Section 10-A Page: 817of the Punjab Security of Land Tenures Act, 1953 (hereinafter referred to as the Act), is manifestly erroneous in law.
5. This Court has repeatedly held that the transfers which are hit by Section 10-A of the Act are those which are involuntary transfers. Since the redemption of the mortgage is an act of the mortgagor and as such is not a volutary transfer on the part of the mortgagee it cannot be hit by Section 10-A for the purpose of computing the surplus area of the mortgagees. In Bhajan Lal v. The State of Punjab (1968) 70 P.L.R 664 R.S Narula J. laid down that the two expressions ‘transfer’ or other disposition, occurring in clause (b) of section 10 of the Act, do not include involuntary transfers or dispositions. It refers to voluntary transfers or dispositions only. The rule in Bhajan Lal's case, followed by D.K Mahajan, J. in Bishan Singh v. The State of Punjab (1968) 47 L.L.T 281, and it was held that whenever land is redeemed by a mortgagor, there is no transfer by a landlord. Only a voluntary transfer is covered by the Act and not an involuntary transfer. Though Bishan Singh's case, was one under the Pepsu Tenancy and Agricultural Lands Act, 1955, but the principle enunciated therein applies to the interpretation of Section 10-A of the Act also, the provision in the latter being in pari materia with Section 32-FF of the Pepsu Tenancy and Agricultural Lands Act, 1955. Since the petitioner was, admittedly a small land-owner and the redemption of her land did not amount to a transfer of that land by the mortgagees within the meaning of Section 10-A of the Act, it could not be ignored by the Special Collector while assessing the surplus area in the hands of Madan Gopal and Sham Dass, mortgagees. Once it is held that the impugned order dated the 11th April, 1961, of the Special Collector in so far as it included the petitioner's area in the surplus area of the mortgagees Madan Gopal and Sham Dass, was bad in law, further settlement of that area in favour of Respondents Nos. 6 and 7, will automatically fall to the ground particularly, because that settlement took place when proceedings initiated by the petitioner to impeach the order, dated the 11th April, 1961, of the Special Collector were pending. Such a situation was visualised by the Financial Commissioner in Surjit Kaur v. State of Haryana 1970 P.L.J 103. In Surjit Kaur's case, the landowner's appeal against the declaration of surplus area was accepted, the order was set aside and the case was remanded to the Collector for a fresh decision During the proceedings the landlord died and her heirs were made parties. When it was found that the land earlier declared surplus had already been utilised before the death of the land-owner it was contender on behalf of the State that the heirs could not take benefit of the inheritance as the surplus area had already been utilised since the order by which the surplus area of the deceased was declared had been set aside, the settlement of the tenants was also automatically set aside. The Financial Commissioner relied upon the Division Bench ruling of the Punjab High Court in Babu Ram v. State of Punjab (1966) 45 L.L.T 88.
6. For the foregoing reasons, I would strike down the impugned order, dated the 11th April, 1961, of the Special Collector and quash the impugned order, dated the 30th March, 1965, of the Financial Commissioner in so far as these two orders include the surplus area of Madan Gopal and Sham Dass and ignore the redemption decree obtained by the petitioner against them. Since none of the respondents has appeared to Page: 818oppose the writ petition, I would leave the parties to bear their own costs.
7. Petition accepted.