Koshal, J. - (1.) 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 landowner by including therein the lands sold by him to others.
(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 Jullundar, 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 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 landowner 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 timebarred. 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 extraordinary 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 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 Govind Singh v. Punjab State, ILR (1963) 1 Punj 500, the State of Punjab v., Shamsher Singh, 1966 Pun LJ 16 and Mota Singh v. Financial Commissioner, Punjab, 1968 Pun LJ 338. 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 Commr., Punjab, 1963 Pun LJ 137 (SC) Smt. Kaushalya Devi v. K. L. Bansal, (1969) 2 SCR 1048 and Bahadur Singh v. Muni Subrat Dass, (1969) 2 SCR 432. 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 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.;