Holding

The Special Collector had no jurisdiction to vary the landowner's selection under section 5‑B, making the order a nullity.

Summary

The case concerned a displaced person (Respondent No.3) who, after being allotted more than 60 acres, gifted part of his land to his wife, who subsequently sold it to the appellants. The Special Collector, relying on a rule that post‑Act sales should be included in the landowner's "select area," declared the land as part of Respondent No.3's surplus area, a decision later set aside by the High Court on the ground that the Collector lacked jurisdiction to vary the landowner's reserved area. On appeal, the Supreme Court examined whether the landowner's intimation in Form E constituted a "reservation" under section 5(1) of the Punjab Security of Land Tenures Act, 1953, or a "selection" under section 5‑B, and whether the Collector could lawfully alter that selection. The Court held that the landowner had only made a selection under section 5‑B, that reservation and selection are mutually exclusive, and that the Collector had no power to vary a lawful selection. Consequently, the Collector's order was without jurisdiction and a nullity. The appeal by the appellants was dismissed without any order as to costs.

Issues considered

Whether the landowner's intimation in Form E was a reservation under section 5(1) or a selection under section 5‑B of the Punjab Security of Land Tenures Act, 1953.
Whether the Special Collector had jurisdiction to vary the landowner's reserved or selected permissible area by including land sold to third parties.
Whether the order of the Special Collector dated 30 March 1962 was a nullity for lack of jurisdiction.

Legislation cited

Subjects

reservationselectionpermissible areasurplus areaPunjab Security of Land Tenures Actjurisdictionnullityland tenureSpecial CollectorForm EAmendment 1957

Judgment

590

A LAJPAT RAJ AND OTHERS
v.

STATE OF PUNJAB AND OTHERS

April 24, 1981
B
[A.D. KOSHAL AND BAHARUL !SLAM, JJ.]

Punjab Security of Land Tenures Act (JO of 1953) Ss. 5, 5A and 5-B and Punjab
Security of Land Tenure Rules 1956 Rule 4 and Form E-lntimation by landlord
in Form £-Whether amounts to selection of permissible area under S,. 5-B(l)-
c Prescribed authori1y whether can after the same.

Respondent No. 3, a displaced J)erson 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.

D 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
E 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 povisions of the Act but was without jurisdiction and a nullity in )r-
as much as the Act vested no power of such variation in the Collector.

Jn the appeal to this Court it was contended on behalf of the appellant,
that : (I) the admission to the effect that responden.t 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 res-
pondent No. 3 had sent an intimation in Form E to the Special Collector detailing
therein the area selected by him as his permissible ar.::a in pursuance of the pro-
visions of sub-section (1) of section 5-B of the Act, and (2) If no reservation was
G 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 respon-
dent No. 3 by way of adjustment of the equities arising in favour of the appel-
lants.

Dismissing the appeal,
H
HELD : Jn assuming that respondent No. 3 had intimated his reservation
"in pursuance of sub-s~ction (I) of section 5, the High Court was in error
LAJPAT RAl V. PUNJAB 591

and the case had to be decided on the basis of the factual position that A
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 provision.s of sub-sec-
tion (I) of section 5-B. [600 H-601A]
y
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]
B
1. (a) 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 its commencement
i.e. on or before the 15th October, 1953. [599 El

(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 C
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, D
The two terms were not only not synonymous but were mutually eKclusive. 'Selec-
tion' of permissible area was allowed only to a landlord who had not eKercised
his right of 'reservation'. [599 G-600 A]

(d) Form E was meant only for intimation of selection of permissible area
under sub-section (I) 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 E
Annexure "B" to the 1953 Rules. [600 BJ
-~
2.(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.) [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 DJ

(c) Under section 5, the landowner is entitled to reserve out of the entire
F

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 G
covered by clauses (a) to (f) of the proviso to sub-section (I) 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 H
variation. [601 F]
592 SUPREME COURT REPORTS (1981) 3 S.C.R.

A (e) If a land-owner has failed to reserve land in accordance with the pro-
visions 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, 19.i7. [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
B condition attached to the exercise of that power is that it shall b~ 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 pro-
visions 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 po11<er. of selection. [602 A-C)
c In the instant case Respondent No. 3 had made a selection of his permissible
area in accordance with the provisions of sub-section (I) of section 5-B, a selec-
tion which~the prescribed authority had no power to vary either under sub-sec-
tion (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 jurisdic-
tion and was a nullity. [602 D-E]
D
Gurucharan Singh and Ors. v. Prithi Singh and Ors. [1974] I S.C.C. 138,
distinguished.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1981-N of 1970.

From the judgment and order dated the 21st May 1970 of
E the Punjab and Haryana High Court in Letters Patent Appeal
No. 195 of 1966.

G.L. Sanghi, :s.K. Mehta, P.N. Puri and M.K. Dua for the
Appellants.
F O.P. Sharma and M.S. 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
G 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
H lands sold by him to others.
LAJPAT RAI v. PUNJAB (Kasha[, J.) 593

2. Most of the relevant facts are undisputed and may be A
briefly stated thus. Sadh Singh, respondent No. 3, who is a
displaced person from Pakistan, was allotted more than 60 standard
y acres of land in village Karyam, Tehsil Nawanshehar, District
Jullundut, in lieu of the land left by him in Pakistan. He also owned
a little more than I standard acre of land in village Surwind,
Tehsil Patti, District Amritsar. About 3 years after the Act came B
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 c
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
D
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
E
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
F
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 respon-
#dent No. 3 knocked at the door of the High Court through a petition
under article 226 of the Constitution of India which was dismissed
G
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
H
which was open to him.
594 SUPREME COURT REPORTS [1981] 3 S.C.R.

A In the appeal which respondent No. 3 filed under clause IO 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
B 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 :
c
"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
D 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
E 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, (1) State of Punjab and others v. Shamsher
Singh and others, ( 2 ) and Mota Singh v. Fina11cial Commissionfr
Punjab and if others. (3) 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,
Ne mi Chand Jain v. Financial Commissioner Punjab, (4 ) Smt.
Kaushalya Devi v. K.L. Bansal, ( 5) and Bahadur Singh v. Muni '
G Subrat Dass, another, (6 ). In the result, the Division Bench held

(1) I.L.R. [1963] I Punjab 500.
(2) [1966] P.L.J. 16.
(3) [1980] P.L.J. 338.
H (4) [1963] P.L.J. 137.
(5) [1969] 2 SCR 1048
[6] [1969] 2 SCR 432.
LAJPAT RAJ v. PUNJAB (Kasha/, J.) 595

that the order of the Special Collector dated March 30, 1962, A
directing a variation in the reservation made by respondent No. 3
without his consent was not only contrary to the provisions of the
y 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 pettion under article 226 of the Constitution of India by
respondent No. 3 with the prayer that the order of the Special B
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 c
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.

4. Mr. Sanghi, learned counsel for the appellants, has raised
the following contentions before us : D
(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. E
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 F
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 G
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 H
596 SUPREME COURT REPORTS (1981) 3 S.C.R,

A mention here that respondent No. 3 has remained up-represented
before 11s in spite of service.

5. 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
B 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 (I) and (3) of that section are relevant
and are reproduced below :

c "5. (I) 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
D 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
E 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,
F (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,
G
(e) any other area owned by him,

(f) area under a jhundimar tenant".

H "(3) A landowner shall be entitled to intimate a
reservation within six months from the date of commence-
LAJPAT RAI v. PUNJAB (Koshal, J.) 597

ment of this Act, and no reservation so intimated shall be A
varied subsequently whether by act of parties or by opera-
tion 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."
B
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 c
I 951, hereinafter referred to as the "I 950 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 D
through the addition of clause (5-a) to section 2.

On the 19th May 1953 were promulgated the Punjab Security
of Land Tenures Rules, I 953 (for short, the I 953 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 E
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, I 956 (hereinafter referred to as the 1956
Rules). It was by rule 4 thereof that Form E was for the first F
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 Patwari/Patwaris of the Circle/ G
Circles in which his lands are situated, the land/lands
selected by him for self-cultivation. This intimation shall
be in Form E."

This rule clearly indicates that a landowner was given the H
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 SUPREME COURT REPORTS [1981] 3 S.C.R,

A Sections 5-A and 5-B were added to the Act in the year 1957
with effect from I Ith December 1957 by means of Punjab Act
No. 46 of 1957. They state:

Section 5-A

B "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
c 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

D "(!) 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 :
E
"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
F area in accordance with the provisions of sub-section
(!), 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 :

G "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
H in clause (5-a) of section 2 of the Act was amended to read thus:
LAJPAT RAJ v. PUNJAB (Koshal, J.) 599

'(5-a) "Surplus Area" means the area other than A
the reserved area, and, where no area has been
reserved, the area in excess of the permissible area
y selected under section 5-B or the area which is deemed
to be surplus area under sub-section (I) of section
5-C and includes the area in excess of the permissible
area selected under section 19-B, but it will not include B
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 c
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 D
under section 5-B (I) 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 :
E
(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, i.e., on or before the 15th October 1953.
(ii) No provision was ever made in the Act or the F
rules framed thereunder for a reservation of land
by a landowner who had failed to send an intima-
tion thereof on or before the 15th October 1953.

(iii) What was provided by section 5-B was, inter alia,
that a landowner who had not exercised the right G
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 .. 0n or before !Ith May, 1958. Reserva- IJ
lion' was something different from the 'Selection'
600 SUPREME COURT REPORTS [1981] 3 s.c.R.

A 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 E was meant only for intimation of selec-
tion of permissible area under sub-section (I) of
section 5-B and not for reservation under sub-
section (I) of section 5 which could be made only
through an intimation in the Form in Annexure
"B" to the 1953 Rules.
c
7. The propositions just above enunciated bring out incong-
ruity 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 (I) of section 5-B. That
D 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
E of 50 S.A. 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
F 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
unmistakebly 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
G 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 posses- y
sion.

Jn assuming (on the basis of the admission made at the bar)
H that respondent No. 3 had intimated his reservation in pursuance of
sub-s((tion (J) o.f section 5, the High Court was thus in error and
LAJPAT RAI v. PUNJAB (Koshal, J.) 601

the case has to be decided on the basis of the factual position that A
respondent No. 3 had failed to make any reservation under that sub-
section but that he has made a selection in Form E in pursuance~of
y the provisions of sub-section (1) of section 5-B. Contention (a) raised
by Mr. Sanghi is, therefore, accepted in full.

8. We now proceed to consider contention (b) in the light of B
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 c
(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. D

(c) Under section 5, the landowner is entitled to reserve
out of the entire land held by him in the State of Pun-
jab 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 E
the estate, etc. In doing so he is legally bound to
-~ include in his reserved area such land as conform
I
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.
F
(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 ofparties or by operation of
law, except with the written consent of the tenant
affected by such variation.
G
y (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
J957) in the prescribed manner. H
602 SUPREME COURT REPORTS (1981] 3 S.C.R.

A (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
B' sub-section (I) 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 (I) 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
c 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
D 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
E March 30, 1962 must, therefore, be held to have been passed
without jurisdiction and, therefore, to be a nullity.

9. 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, (1j 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,
G 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,
H
(1) [1974) I s.c.c. 138.
LAJPAT RAI v. PUNJAB (Kasha/, J.) 603

if known. Thereafter he has to hear the parties who A
appear, and to take into consideration their representations
and then pass such order as may be just. In so exercising
y his discretion, the Collector ma>', subject to the adjus~ment
of equities on both sides, incluoe the transferred area m the
'permissible area' or the 'surplus area' of the landowner.
Thus, in the process the Collector is not to ignore altoge- B
ther 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 con- c
formity with any equities that may arise in the attendant circum-
stances. 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 a'rea
within the prescribed period, so that sub-section (2) of section 5-B
was undoubtedly attracted to his case. The observations above
D
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
E
all to the case of the appellants.

10. 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
F
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 know-
ledge 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
G
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 mouth of respondent No. 3 or his con-
duct to the contrary; they cannot now be heard to say that if res-
pondent No. 3 exercises a right of selection of his permissible area H
which the Act confers on him, that right must be modified to suit
their convenience.
604 SUPREME COURT REPORTS (1981] 3 S.C.R.
A 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
8 be deemed to have bought with the land.

11. For the reasons stated we dismiss the appeal but with no
order as to costs.

N.V.K. Appeal dismissed.

y