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

2. Most of the relevant facts are undisputed and m ay 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 21, 1957 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 17, 1957 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.3. 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 an d 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. T he 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.In the appeal which respondent No. 3 filed under clause 1 0 of the Letters Patent, the Division Benchaccordance 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 beafter referring to the provisions of sections 5, 5-A and 5-B of the ActCollector 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 thecoming 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 v. Punjab State and others, State of Punjab and others v. Shamsher Singh and others, and Mota Singh v. 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 v. Financial Commissioner Punjab, Smt. Kaushalya Devi v. K.L. Bansal, and Bahadur Singh v. Muni Subrat Dass, another. In the result, the Division Bench held 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 quash ed 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.

Reasoning:
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.