LAJPAT RAJ AND OTHERS v. STATE OF PUNJAB AND OTHERS

Citation: [1981] 3 S.C.R. 590

Court: Supreme Court of India

Bench: A.D. KOSHAL, BAHARUL ISLAM

Case summary

3 unsuccessfully challenged the order in an appeal which was dismissed by the Commissioner as time-barred. 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...

Judgment text

LAJPAT RAJ AND OTHERS v. STATE OF PUNJAB AND OTHERS April 24, 1981 [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 ofLand 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)- 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. 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 povisions of the Act but was without jurisdiction and a nullity in )ras 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 respondent 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 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 : 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 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 ofthe provision. s ofsub-section (I) ofsection 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] 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 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 eKclusive. 'Selection' 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 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 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 (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 variation. [601 F] (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, 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 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 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 po11 ', 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 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 a'rea 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 mouth 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. 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