Case: Lajpat Rai and Others Vs. State of Punjab and Others

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.(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.16. 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 v. 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 defaulters 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, 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 Singhs case (supra), the landowner had made neither a reservation nor a selection of his permissible area within the prescribed period, so that sub-sec tion (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 are a 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 Singhs case, therefore, is of no assistance at all to the case of the appellants.17. 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 con sequences 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 transferors 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.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.18.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]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 thatSurplus 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 sectionWhere 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 reserve d 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.(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.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 con sequences 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 transferors 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.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.