JUDGMENT

SHINGHAL, J. :—One Nathi held 36 standard acres and 8 standard unit 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. Kala Devi respondent No.1,and his mother Smt. Mando respondent No. 2, as heirs. The two heirs made an application under Ss. 10-A (b) 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 utilised 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 Nathis lifetime 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 Jan. 30, 1968, as he took the view that the order of allotment of the "surplus area" of Nathis holding amounted to "utilisation" of that land under Section 10-A (a). A revision was taken to the Financial Commissioner, but it was rejected on May 8, 1968, for the same reason. Smt. Kala 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 that as the "surplus area" had been declared and allotted to various tenants during the lifetime 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 utilised. 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.

2. 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 the extent, he set aside the above- mentioned orders of the Collector, the Commissioner, and the Financial Commissioner by which the application of Smt. Kala 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 High Courts certificate under Article 133 (1) (c) of the constitution.

3. 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-A (a) of the Act did not amount to utilisation of the "surplus area" when the resettled tenants had not taken possession under the allotment orders.

4. 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 8standard units, and a decision to that effect was taken in his lifetime 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-A (a) of the Act which reads as follows, -

"10-A (a). The State Government or 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." Whil