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PETITIONER: LAJPAT RAI AND OTHERS

       Vs.

RESPONDENT: STATE OF PUNJAB AND OTHERS

DATE OF JUDGMENT24/04/1981

BENCH: KOSHAL, A.D. BENCH: KOSHAL, A.D. ISLAM, BAHARUL (J)

CITATION:  1981 AIR 1401            1981 SCR  (3) 590  1981 SCC  (3)  94        1981 SCALE  (1)930

ACT:      Punjab Security of Land Tenures Act (10 of 1953) Ss. 5, 5A and  5-B and  Punjab Security  of Land  Tenure Rules 1956 Rule 4  and Form  E-Intimation by landlord in Form E-Whether amounts to  selection of  permissible area  under S,. 5-B(1) Prescribed authority whether can alter the same.

HEADNOTE:      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

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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 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 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]      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 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. [601 F] 592      (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

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(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.  v.  Prithi  Singh  and  Ors. [1974] 1 S.C.C. 138, distinguished.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: 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.      G.L. Sanghi, S.K. Metha, P.N. Puri and M.K. Dua for the Appellants.      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 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 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.

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    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  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 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

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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.      4. 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.      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 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

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    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 Patwari/Patwaris      of the Circle/ 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 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

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    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, i.e., 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.           (iii)What 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

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              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’ 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.      7. 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 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 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.      8. 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

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         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.      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,  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

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    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.      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 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.      11. For  the reasons  stated we  dismiss the appeal but with no order as to costs. N.V.K.                                     Appeal dismissed. 605

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