Civil Appeal No 1981 N of 1970
From the judgment and order dated the 21st May 1970 of the Punjab and Haryana High Court in Letters Patent Appeal No 195 of 1966
GL Sanghi SK Metha PN Puri and MK Dua for the Appellants
OP Sharma and MS Dhillon for the Respondents
The Judgment of the Court was delivered by KOSHAL J
This appeal by certificate is directed against the judgment dated May 21 1970 of a Division Bench of the High Court of Punjab and Haryana accepting a Letters Patent Appeal and holding that in view of the provisions of sections 5 5 A and 5 B of the Punjab Security of Land Tenures Act 1953 hereinafter referred to as the Act the concerned Collector had no jurisdiction to vary the reserved area of a land owner by including therein the lands sold by him to others
593 2
Most of the relevant facts are undisputed and may be briefly stated thus
Sadh Singh respondent No 3 who is a displaced person from Pakistan was allotted more than 60 standard acres of land in village Karyam Tehsil Nawanshehar District Jullundur in lieu of the land left by him in Pakistan
He also owned a little more than 1 standard acre of land in village Surwind Tehsil Patti District Amritsar
About 3 years after the Act came into force i e on March 9 1956 respondent No 3 made an oral gift of some of his land in lieu of maintenance to his wife Nirmal Kaur respondent No 4 who entered into an agreement dated January 211957 with the three appellants for sale to them of the land gifted to her
against a consideration of Rs 4200
The land covered by the gift was mutated in favour of respondent No 4 on April 171957 and she conveyed the same to the three appellants by a registered sale deed dated August 8 1957
The agreement mentioned above as well as the sale deed following it were attested by respondent No 3 as a marginal witness
The proceedings for declaration of the surplus area out of the land owned by respondent No 3 were initiated by the Collector on June 20 1958
They passed through various stages before the Collector and in appeal before the Commissioner
Ultimately the Special Collector Punjab declared the surplus area of respondent No 3 after hearing him and the appellants through an order dated March 30 1962 and while doing so he included the land sold to the appellants by respondent No 4 in the select area of respondent No 3 as prayed for by the appellants
The order was based on some rulings of the Financial Commissioner Punjab to the effect that all sales for valuable consideration effected by a land owner after the enforcement of the Act should be included in his select area
Respondent No 3 unsuccessfully challenged the order in an appeal which was dismissed by the Commissioner as time barred
The order of the Commissioner was upheld in revision by the Financial Commissioner
It was then that respondent No 3 knocked at the door of the High Court through a petition under article 226 of the Constitution of India which was dismissed by a learned Single Judge on the ground that the order of the Special Collector had become final by reason of the appeal taken against it being time barred
The learned Judge observed that respondent No 3 was not entitled to any relief in exercise of the extra ordinary jurisdiction of the High Court under the said article in view of the fact that he had failed to pursue diligently the remedy of appeal which was open to him
594 In the appeal which respondent No 3 filed under clause 10 of the Letters Patent the Division Bench observed In accordance with section 5 of the Punjab Security of Land Tenures Act 1953 the appellant intimated his reserved area in form E to the Collector before making the gift in favour of his wife
This fact is not so stated in the pleadings but the counsel of both the parties admit this fact to be so
and after referring to the provisions of sections 5 5 A and 5 B of the Act concluded The Collector has no jurisdiction to vary the reserved area of a landowner by including the land sold by him to others in his reserved area
Under section 5 of the Act the only jurisdiction with the Collector is to find out whether the reservation has been made in accordance with the directions contained in that section but the Collector has no jurisdiction to include an area in the reserved area of a landowner which is not covered by any of the clauses a to f of the proviso to section 5 of the Act In coming to this conclusion
the Division Bench relied upon three decisions of the High Court of Punjab and Haryana rendered by other Division Benches and reported as Bhagat Gobind Singh vs Punjab State and others State of Punjab and others vs Shamsher Singh and others and Mota Singh vs Financial Commissioner Punjab and if others
An argument raised before it on behalf of the present appellants that the order of the Collector made in contravention of section 5 of the Act could at best be treated as an illegal order and not one passed without jurisdiction and therefore a nullity was repelled
In this connection reliance was placed by the Division Bench on three judgments of this Court namely Nemi Chand Jain vs Financial Commissioner Punjab Smt
Kaushalya Devi vs KL Bansal and Bahadur Singh vs Muni Subrat Dass another
In the result the Division Bench held 595 that the order of the Special Collector dated March 30 1962 directing a variation in the reservation made by respondent No 3 without his consent was not only contrary to the provisions of the Act but was without jurisdiction and a nullity in as much as the Act vested no power of such variation in the Collector
It further held that a petition under article 226 of the Constitution of India by respondent No 3 with the prayer that the order of the Special Collector dated March 30 1962 be quashed was competent even though he had not exhausted his remedies of appeal and revision
In the above premises the Division Bench accepted the Letters Patent Appeal and set aside the order of the Special Collector dated March 30 1962 as also those orders which followed and confirmed it and directed the Collector to declare the surplus area of respondent No 3 after excluding therefrom the area reserved by him as his Permissible area
Mr Sanghi learned counsel for the appellants has raised the following contentions before us a The admission to the effect that respondent No 3 had intimated his reserved area in Form E to the Collector before gifting the land to his wife was made before the High Court on behalf of the appellants on the basis of some misconception on the part of their counsel
Actually no such reservation was ever made and the admission could at best be interpreted to mean that respondent No 3 had sent an intimation in Form E to the Special Collector detailing therein the area selected by him as his permissible area in pursuance of the provisions of sub section 1 of section 5 B of the Act
b If no reservation was made by respondent No 3 the whole basis of the impugned judgment falls and the Collector would have jurisdiction to amend the permissible area of respondent No 3 by way of adjustment of the equities arising in favour of the appellants
After hearing Mr Sanghi we find force in contention a but none in contention b as we shall presently show
We may 596 mention here that respondent No 3 has remained up represented before us in spite of service
For a proper consideration of the two contentions it is necessary to refer to certain provisions of the Act as they originally stood the amendments made thereto in the year 1957 and the rules framed thereunder from time to time
The Act was enforced on the 15th April 1953
On that date section 5 thereof comprised 5 sub sections of which sub sections 4 and 5 were omitted in the year 1953 itself
Sub sections 1 and 3 of that section are relevant and are reproduced below 5
1 Any reservation before the commencement of this Act shall cease to have effect and subject to the provisions of sections 3 and 4 any landowner who owns land in excess of the permissible area may reserve out of the entire land held by him in the State of Punjab as landowner any parcel or parcels not exceeding the permissible area by intimating his selection in the prescribed form and manner to the patwari of the estate in which the land reserved is situate or to such other authority as may be prescribed Provided that in making this reservation he shall include his areas owned in the following order a area held in a Co operative Garden Colony b area under self cultivation at the commencement of this Act other than the reserved area c reserved area excluding the area under a jhundimar tenant or a tenant who has been in continuous occupation for 20 years or more immediately before such reservation d area or share in a Co operative Farming Society e any other area owned by him f area under a jhundimar tenant
3 A landowner shall be entitled to intimate a reservation within six months from the date of commence 597 ment of this Act and no reservation so intimated shall be varied subsequently whether by act of parties or by operation of law save with the consent in writing of the tenant affected by such variation or until such time as the right to eject such tenant otherwise accrues under the provisions of this Act
 The term reserved area  was defined in clause 4 of section 2 thus 4 Reserved area means the area lawfully reserved under the Punjab Tenants Security of Tenure Act 1950 Act XXII of 1950 as amended by President s Act V of 1951 hereinafter referred to as the 1950 Act or under this Act  The Act as originally framed did not contain any provision for the determination of what is now known as surplus area a term which was introduced into the Act for the first time in 1955 through the addition of clause 5 a to section 2
On the 19th May 1953 were promulgated the Punjab Security of Land Tenures Rules 1953 for short the 1953 Rules under rule 3 of which a landowner had to notify his reservation to the Patwari of the concerned estate in pursuance of the provisions of sub section 1 of section 5 of the Act in the Form designated as Annexure B to those Rules
On the 27th April 1956 were promulgated the Punjab Security of Land Tenures Rules 1956 hereinafter referred to as the 1956 Rules
It was by rule 4 thereof that Form E was for the first time prescribed
That rule stated 4
Where a landowner has not reserved the area permitted for self cultivation he will at the same time as he submits the declarations prescribed in rule 3 above intimate in writing to the PatwariPatwaris of the Circle Circles in which his lands are situated the landlands selected by him for self cultivation
This intimation shall be in Form E This rule clearly indicates that a landowner was given the right to select an area for self cultivation only in case he had not reserved such area on or before the 15th October 1953
598 Sections 5 A and 5 B were added to the Act in the year 1957 with effect from 11th December 1957 by means of Punjab Act No 46 of 1957
They state Section 5 A Every land owner or tenant
who owns or holds land in excess of the permissible area and where land is situated in more than one Patwar Circle shall furnish within a period of six months from the commencement of the Punjab Security of Land Tenures Amendment Act 1957 a declaration supported by an affidavit in respect of the land owned or held by him in such form and manner and to such authority as may be prescribed Section 5 B 1 A land owner who has not exercised his right of reservation under this Act may select his permissible area and intimate the selection to the prescribed authority within the period specified in section 5 A and in such form and manner as may be prescribed Provided that a land owner who is required to furnish a declaration under section 5 A shall intimate his selection along with that declaration 2 If a land owner fails to select his permissible area in accordance with the provisions of sub section 1 the prescribed authority may subject to the provisions of section 5 C select the parcel or parcels of lands which such person is entitled to retain under the provisions of this Act Provided that the prescribed authority shall not make the selection without giving the land owner concerned an opportunity of being heard
Simultaneously the definition of surplus area  contained in clause 5 a of section 2 of the Act was amended to read thus 599 5 a Surplus Area means the area other than the reserved area and where no area has been reserved the area in excess of the permissible area selected under section 5 B or the area which is deemed to be surplus area under sub section 1 of section 5 C and includes the area in excess of the permissible area selected under section 19 B but it will not include a tenant s permissible area Provided that it will include the reserved area or part thereof where such area or part has not been brought under self cultivation within six months of reserving the same or getting possession thereof after ejecting a tenant from it whichever is later or if the landowner admits a new tenant within three years of the expiry of the said six months  In consequence of these additions rule 4 of the 1956 Rules was also amended so as to contain a provision that an intimation under section 5 B 1 of the Act shall be furnished by a landowner in Form E 6
In relation to contention a the following propositions emerge from the various provisions of law just above set out i Reservation of land was envisaged only in section 5 1 of the Act and had to be intimated within six months from the date of commencement of that Act ie on or before the 15th October 1953
ii No provision was ever made in the Act or the rules framed thereunder fora reservation of land by a landowner who had failed to send an intimation thereof on or before the 15th October 1953
iiiWhat was provided by section 5 B was inter alia that a landowner who had not exercised the right of reservation under the Act could select his permissible area and send intimation thereof in Form E to the prescribed authority within a period of six months from the 11th December 1957 ie on or before 11th May 1958
Reservation  was something different from the Selection  600 of permissible area
The two terms were not only not synonymous but were mutually exclusive Selection  of permissible area was allowed only to a landlord who had not exercised his right of reservation  iv Form was meant only for intimation of selection of permissible area under sub section 1 of section 5 B and not for reservation under sub section 1 of section 5 which could be made only through an intimation in the Form in Annexure B to the 1953 Rules
The propositions just above enunciated bring out incongruity from which the admission made before the High Court suffers
There could be no reservation in Form E by respondent No 3
If he send an intimation in that Form it could only be about a selection of his permissible area under sub section 1 of section 5 B That this was really so clearly appears from the following observation made in the order of the Special Collector dated 2nd March 1961 The counsel for the owner argued that area sold was not included in Form E filed before the Special Collector and that he was not prepared to include it in the select area of 50 SA to which he is entitled
The order from which this observation has been extracted was set aside by the Commissioner Jullundur Division on the 8th January 1962 when the case was remanded to the Special Collector for a fresh decision after hearing the three appellants as well as respondents Nos 3  4
The Special Collector then heard all these parties and passed his order dated the 30th March 1962 which also unmistakably indicates that the intimation given by respondent No 3 to the Special Collector was not in respect of any reservation but covered only a selection of the permissible area
Reference in this connection may be made to the fact that twice in that order the Special Collector used the term select area in relation to the lands which respondent No 3 could be allowed to retain in his possession 
In assuming on the basis of the admission made at the bar that respondent No 3 had intimated his reservation in pursuance of sub section 1 of section 5 the High Court was thus in error and 601 the case has to be decided on the basis of the factual position that respondent No 3 had failed to make any reservation under that subsection but that he has made a selection in Form E in pursuance of the provisions of sub section 1 of section 5 B Contention a raised by Mr Sanghi is therefore accepted in full
We now proceed to consider contention b in the light of the provisions above extracted a bare reading of which leads to the following conclusions in relation to that contention a Surplus area  is arrived at by excluding the reserved area from the total area of a land owner in case a reservation has been made by him lawfully
Clauses 4 and 5 a of section 2 b Where no area has been lawfully reserved by the land owner surplus area is worked out under section 5 B or 5 C c Under section 5 the landowner is entitled to reserve out of the entire land held by him in the State of Punjab as landowner any parcel or parcels not exceeding the permissible area by intimating his selection in the prescribed form and manner to the patwari of the estate etc
In doing so he is legally bound to include in his reserved area such land as conform to the description of any of the 6 categories covered by clauses a to f of the proviso to sub section 1 of section 5
d Once a reservation has been intimated within 6 months from the date of commencement of the Act it cannot be varied either by act of parties or by operation of law except with the written consent of the tenant affected by such variation
e If a land owner has failed to reserve land in accordance with the provisions of section 5 he has another chance to select his permissible area within six months from the commencement of the Punjab Security of Land Tenures Amendment Act Punjab Act No 46 of 1957 in the prescribed manner
602 f The prescribed authority is given the power to select the permissible area of a landowner under sub section 2 of section 5 B but the mandatory condition attached to the exercise of that power is that it shall be resorted to only if the landowner has failed to select his permissible area in accordance with the provisions of sub section 1 of that section
In other words if the concerned land owner has already selected his permissible area in accordance with the provisions of sub section 1 of section 5 B sub section 2 of that section does not come into play at all and there is no occasion for the exercise by the prescribed authority of the power of selection
These conclusions further lead to the inference that if the prescribed authority in this case the Special Collector exercises the power of selection in a situation to which sub section 5 B is not attracted his order would be without jurisdiction and a nullity and that is precisely what has happened in this case
As held by us earlier respondent No 3 had made a selection of his permissible area in accordance with the provisions of sub section 1 of section 5 B a selection which the prescribed authority had no power to vary either under sub section 2 of section 5 B or under any other provisions of the Act
The order of the Special Collector dated March 30 1962 must therefore be held to have been passed without jurisdiction and therefore to be a nullity
In support of the proposition that the order of the Special Collector did not suffer from lack of jurisdiction learned counsel for the appellants has relied upon the following observations in Gurcharan Singh and Others vs Prithi Singh and Others wherein this Court defined the scope of powers of the Collector while acting under sub section 2 of section 5 B of the Act While it is true that a landowner who fails to reserve or select his permissible area within the prescribed period cannot exercise that right subsequently and thereafter it is for the Collector to determine the defaulter s permissible and surplus areas in exercising this power under section 5 B the Collector has to act judicially
He is bound to give notice to the landowner and the transferees from him 603 if known
Thereafter he has to hear the parties who appear and to take into consideration their representations and then pass such order as may be just
In so exercising his discretion the Collector may subject to the adjustment of equities on both sides include the transferred area in the permissible area  or the surplus area  of the landowner
Thus in the process the Collector is not to ignore altogether the wishes of the landowner
He may accept them to the extent they are consistent with the equities of the case
It is urged on the authority of these observations that the Collector has in all cases the power to alter the particulars of an area reserved or selected by a landowner so as to bring it in conformity with any equities that may arise in the attendant circumstances
This proposition is wholly unacceptable to us for the simple reason that in Gurcharan Singh s case supra the landowner had made neither a reservation nor a selection of his permissible area within the prescribed period so that sub section 2 of section 5 B was undoubtedly attracted to his case
The observations above extracted were obviously confined to a case of that type and have nothing to do with a situation where the landowner concerned has selected his permissible area in accordance with the provisions of sub section 1 of section 5 B so that there is no occasion for the prescribed authority to exercise his powers under sub section 2 of that section
Gurcharn Singh s case therefore is of no assistance at all to the case of the appellants
Nor do we see how any equities arise in favour of the appellants such as would entitle them to have the land in question included in the permissible area of respondent No 3
It is not their case that any representation to the effect that land would be so included was made to them by either respondent No 3 or respondent No 4
Furthermore they must be credited with full knowledge of the extent of the land owned by respondent No 3 and of the consequences flowing therefrom in view of the provisions of the Act
Thus they acquired the land with their eyes open and subject to all the liabilities and defects from which it suffered in the hands of their transferor and also their transferor s transferor
In the absence of word of month of respondent No 3 or his conduct to the contrary they cannot now be heard to say that if respondent No 3 exercises a right of selection of his permissible area which the Act confers on him that right must be modified to suit their convenience
604 In this connection we may also mention that the inclusion of the land in question in the surplus area of respondent No 3 does not affect the right of ownership of the appellants
Of course the result of such inclusion would certainly be that the concerned authorities would be enabled to settle tenants on the land as permitted by the Act and that is a risk which the appellants must be deemed to have bought with the land
For the reasons stated we dismiss the appeal but with no order as to costs
NVK Appeal dismissed


Summary:
Respondent No 3 a displaced person from Pakistan was allotted more than 60 standard acres of land
Out of this land he made an oral gift of some land in lieu of maintenance to his wife respondent No 4 who sold that land to the appellants
In the proceedings for declaration of the surplus area of the land owned by respondent No 3 the Special Collector included the land sold to the appellants in the select area of Respondent No 3
The appeal of Respondent No 3 to the Commissioner was dismissed as time barred and this order was upheld in revision by the Financial Commissioner
A single Judge dismissed his petition under Article 226
In appeal a Division Bench held that the order of the Special Collector directing a variation in the reservation made by respondent No 3 without his consent was not only contrary to the provisions of the Act but was without jurisdiction and a nullity in as much as the Act vested no power of such variation in the Collector
In the appeal to this Court it was contended on behalf of the appellant that 1 the admission to the effect that respondent No 3 had intimated his reserved area in Form E to the Collector before gifting the land to his wife was made before the High Court on behalf of the appellants on the basis of some misconception on the part of their counsel that actually no such reservation was ever made and that the admission could at best be interpreted to mean that respondent No 3 had sent an intimation in Form E to the Special Collector detailing therein the area selected by him as his permissible area in pursuance of the provisions of sub section 1 of section 5 B of the Act and 2 If no reservation was made by respondent No 3 the whole basis of the impugned judgment falls and the Collector would have jurisdiction to amend the permissible area of respondent No 3 by way of adjustment of the equities arising in favour of the appellants
Dismissing the appeal  HELD In assuming that respondent No 3 had intimated his reservation in pursuance of sub section 1 of section 5 the High Court was in error 591 and the case had to be decided on the basis of the factual position that respondent No 3 had failed to make any reservation under that sub section but that he had made a selection in Form E in pursuance of the provisions of sub section 1 of section 5 B 600 H 601A The inclusion of the land in question in the surplus area of respondent No 3 does not effect the right of ownership of the appellants
604 A 1
a Reservation of land was envisaged only in section 51 of the Act and had to be intimated within six months from the date of its commencement ie on or before the 15th October 1953
599 E b No provision was ever made in the Act or the rules framed thereunder for a reservation of land by a land owner who had failed to send an intimation thereof on or before the 15th October 1953
599 F c What was provided by section 5 B was that a landowner who had not exercised the right of reservation under the Act could select his permissible area and send intimation thereof in Form E to the prescribed authority within a period of six months from the 11th December 1957 i e on or before 11th May 1958 Reservation  was something different from the Selection  of permissible area
The two terms were not only not synonymous but were mutually exclusive Selection  of permissible area was allowed only to a landlord who had not exercised his right of reservation 
599 G 600 A d Form E was meant only for intimation of selection of permissible area under sub section 1 of section 5B and not for reservation under sub section 1 of section 5 which could be made only through an intimation in the Form in Annexure B to the 1953 Rules
600 B 2a Surplus area  is arrived at by excluding the reserved area from the total area of a land owner in case a reservation has been made by him lawfully
Clauses 4 and 5 a of section 2 601 C b Where no area has been lawfully reserved by the land owner surplus area is worked out under section 5B or 5C 601 D c Under section 5 the landowner is entitled to reserve out of the entire land held by him in the State as landowner any parcel or parcels not exceeding the permissible area by intimating his selection in the prescribed form to the Patwari of the estates etc
In doing so he is legally bound to include in his reserved area such land as conforms to the description of any of the 6 categories covered by clauses a to f of the proviso to sub section 1 of section 5
601E d Once a reservation has been intimated within 6 months from the date of commencement of the Act it cannot be varied either by act of parties or by operation of law except with the written consent of tenant affected by such variation
e If a land owner has failed to reserve land in accordance with the provisions of section 5 he has another chance to select his permissible area within 6 months from the commencement of the Punjab Security of Land Tenures Amendment Act 1937
601 G f The prescribed authority is given the power to select the permissible area of a landowner under sub section 2 of section 5 B but the mandatory condition attached to the exercise of that power is that it shall be resorted to only if the landowner has failed to select his permissible area in accordance with the provisions of sub section 1 of that section
In other words if the concerned land owner has already selected his permissible area in accordance with the provision of sub section 1 of section 5 B sub section 2 of that section does not come into play at all and there is no occasion for the exercise by the prescribed authority or the power of selection
602 A C  In the instant case Respondent No 3 had made a selection of his permissible area in accordance with the provisions of sub section 1 of section 5 B a selection which the prescribed authority had no power to vary either under sub section 2 of section 5 B or under any other provisions of the Act
The order of the Special Collector dated March 30 1962 was therefore passed without jurisdiction and was a nullity
602 D E Gurucharan Sing and Ors
vs Prithi Singh and Ors  distinguished