Bal Raj Tuli, J.
1. Ajit Singh and Smt. Mohinder Kaur are landowners in villages Tungpain and Sultanwind, Tahsil and District Amritsar (hereinafter called the 'landowners'). They owned 106 standard acres 10 3/4 units of land at the commencement of the Punjab Security of Land Tenures Act. 1953, (hereinafter called the 'Act'), out of which land measuring 43 standard acres 14 1/2 units was under an orchard. They sold away 31 standard acres 10 3/4 units of land to different vendees between 1955 and 1958, which sales were ignored by the Collector while determining their surplus area. A part of that land had been sold in favour of Gurbux Singh and Harbans Singh sons of Ch. Hari Singh (hereinafter called the 'appellants') on April 24, 1958. On June 16. 1958, the landowners submitted forms'A' and 'E' to the Collector, Surplus Area, selecting their permissible area. They did not include the land sold in favour of the appellants in their reserved area but showed it as surplus. On March 14, 1961, the Collector, Surplus Area, decided the case by ignoring the alienations made by the landowners and declared 25 standard acies 11 1/4 units of land as surplus. Against that order, the appellants filed an appeal which was accepted by the Additional Commissioner, Jullundur Division, on March 6, 1964, on the ground that the landowners had played a fraud on the appellants who had paid full price for the area purchased by them bona fide. He was of the opinion that the landowners should not have allowed the area purchased by the appellants to go to the surplus area and that the fact of sale of that area was not brought to the notice of the Collector. Consequently, he held that the area purchased by the appellants formed part of the permissible area of the landowners and directed that necessary adjustments should be made. The landowners filed a revision petition before the Financial Commissioner which was rejected. The landowners then filed C. W. No. 1008 of 1965 in this Court which was allowed by a learned Single Judge on September 15, 1972, and the orders of the Additional Commissioner and the Financial Commissioner dated March 6, 1964, and November 24, 1964, respectively were quashed. The present appeal under Clause 10 of the Letters Patent is directed against that order of the learned Single judge.
2. The learned counsel for the appellants has vehemently argued that the landowners should not have been allowed to play a fraud on the appellants and the land sold in their favour should have been included in the reserved area of the landowners. There is no provision in the 'Act empowering the Collector to change the selection of area made by a land-owner as his permissible or reserved area. There is also no jurisdiction in the Collector, dealing with the case, to determine whether any fraud had been committed by the landowner with any person by selling his land. The matter has been put beyond any dispute by a Division Bench of this Court in Mota Singh v. Financial Commr., Punjab. 1968 Punj LJ 338, wherein it was held:--
'(1) The proposition that a landowner, who held land beyond the limit of 30 standard acres is, after the coming into force of the Act under a duty to disclose to the would-be vendee that some of his land is likely to be declared surplus under the Act, is not warranted in law.
(2) Where a landowner in the Punjab had sold some land from his holding to third parties and the question for determination and utilisation of his surplus area came up before the authorities set up under the Act, the land which had been transferred to the vendees would be included in surplus area and can be utilised for the resettlement of tenants but the permissible area selected by the landowner under Section 5B(1) of the Act cannot be included in surplus area.'
3. A similar view was taken by another Division Bench in Darshan Singh v. State of Punjab. 1970 Pun LJ 622, wherein it was held:--
'(1) Where the landowner has either reserved his permissible area under Section 5 or selected his permissible area under Sub-section (1) of Section 5-B, and then he makes a transfer of the area which he has not reserved, there is no power in any authority under the Act to bring such transferred area within his reserved or selected area. If in such a case there is any allegation of deceit or mala fide or fraud on the part of such a landowner so far as the transfer to such a third party is concerned, then it may be that such a third parry has other remedy under the law against such a landowner, but no such consideration can give power to the authorities under the statute to bring the transferred area within the reserved or selected permissible area of a landowner.
(2) There is nothing in the Act which prohibits transfer of land with a landowner, and all that Section 10-A provides is that certain transfers made after the coming into force of the Act, that is to say after April 15, 1953, shall be ignored for the purpose of utilisation of the surplus area of such an owner. So that if a landowner has more than his permissible area, there is nothing in the Act which bars him from transferring any part of his area. The validity of the transfer is not touched by any provision of the Act. All that Section lO-A of the Act provides is that the transferred area will also be available for utilisation if found surplus with such a landowner.'
4. The learned counsel for the appellants has relied on a judgment of a learned Single Judge of this Court in Abnashi Lal v. Smt Joginder Kaur. (1974) 76 Pun LR 670, wherein the following propositions have been laid down at page 674:--
'(i) that in a case where a landowner made reservation or selection of his permissible area and sold land out of the surplus area the alienation is not invalid and that this land could not be included in the reserved area by the Collector or the authorities under the Act;
(ii) that if a case of deceit, fraud or misrepresentation is alleged and proved, the area transferred may be included inthe reserved area of the. landowner, but in other cases this area does not cease to be available for utilisation under Section 10-A of the Act and it is of no consequence that the reservation or selection was made either before or after the alienation; and
(iii) that where the landowner has failed to reserve or select his permissible area within the prescribed period, it is for the Collector to select his permissible area in exercise of his powers under Section 5-B of the Act.'
5. The learned counsel submits that his case squarely falls within proposition (ii), set out above, as the Commissioner and the Financial Commissioner found that a fraud had been committed on the appellants by the landowners. I am, however, of the view and I say so with respect that proposition (ii) laid down by the learned Single Judge and on which reliance is placed by the appellants is not sound. There is no provision in the Act giving power to the Collector or any other officer under the Act to change the selection made by a landowner under Section 5-B (1) of the Act. In fact, the Collector has to ignore the alienations made after April 15, 1953, and has to determine the surplus area with the landowner as on that date. This proposition is contrary to what has been stated in the two Division Bench judgments referred to above. This proposition may be applicable to the cases falling under Section 5-B (2) of the Act wherein the Collector has to make a selection for the landowner in the light of the equities in favour of or against the parties to the proceedings. Such a course is not open when the selection has been made by the landowner under Section 5-B (1) of the Act. Accordingly, I hold that no case of fraud could be said to have been Proved merely because two months prior to their filing form 'E', the landowners had sold a part of the land which they did not include in their permissible area. The alienation in favour of the vendees was perfectly valid and if they are deprived of their land because it has been declared surplus, they may seek such remedy as may be available to them against the landowners, but their selection of the permissible area cannot be changed by the Collector or the Commissioner or the Financial Commissioner. The argument that fraud vitiates every transaction does not apply in this case for the reason that no fraud was played on the Collector who had to decide the matter. Under Rule 6 of the Punjab Security of Land Tenures Rules, the Patwari has to prepare. In duplicate, a statement in form 'D' for every landowner who owns or holds land in excess of the permissible area in his circle and has to forward the same to the CircleKanungo, who has to examine the form and attest all the entries made by the Patwari in that form. That form has then to be forwarded to the Circle Revenue Officer who has to hold such enquiry as he thinks fit in order to find out the correctness of the entries in the form after giving the person concerned an opportunity of being heard and thereafter forward his report to the Collector. The Collector decides the matter after taking that form into consideration. In the case before us, it is clear from the order of the Collector that form 'D' was prepared and forwarded to the Circle Revenue Officer showing the sale made by the landowners in favour of the appellants. The Collector has stated in his order --'thereafter he sold away 31 standard acres 10 1/4 units of land in the years 1955 and 1958 to different vendees, which have been ignored while assessing the surplus area as required under Section 10 of the Act'. The learned Commissioner was. therefore, wrong in stating that the sale of the land was not disclosed to the Collector. Merely because the land was sold by the landowners in favour of the appellants a couple of months before filing their form 'E' selecting their permissible area, does not lead to the conclusion that a fraud was committed by the landowners on the appellants. Even if it is conceded that it amounted to a fraud, it vitiated the transaction of sale which could be avoided by the appellants, but they could not insist that the land sold in their favour should have been included in the reserved area of the landowners. There is thus no substance in the plea of the appellants that the Collector should have included the area sold in their favour by the landowners in their permissible area instead of the surplus area. The decisions of the learned Commissioner and the Financial Commissioner were rightly set aside by the learned Single Judge.
6. The learned counesl for the appellants has then urged that the notice of the proceeding? For determining the reserved area and the surplus area of the landowners should have been given to the appellants as they had become the proprietors of the land sold in their favour and it was necessary to issue notice to them. Rule 6 of the Punjab Security of Land Tenures Rules does not make any such provision that a notice should be issued to the purchaser of the land, but only makes obligatory the issuance of notices to the landowner and the tenant. Even if any such notice was necessary to be issued and was not issued, the order passed by the Collector may be said to be voidable at the instance of the appellants, as has been held by a Full Bench of this Court in Dhaunkal v- Man Kauri, ILR (1970) 2 Punj and Har 220 = (AIR1970 Punj 431) (FB). That order could be avoided or got rid of by the appellants by filing an appeal which remedy they did avail of and, succeeded. It cannot. therefore, be said that the order of the Collector was a nullity and should be quashed. The various judgments relied upon by the learned counsel on this point are of no assistance in view of the Full Bench judgment referred to above. Those judgments may be briefly noticed.
7. The decision in Harnek Singh v. State of Punjab, ILR (1972) 1 Puni and Har 451 = (AIR 1972 Puni 232) (FB), is a judgment of Full Bench of five Judges, but has no application to the case before us as it was under Pepsu Tenancy and Agricultural Lands Act (XIII of 1955). In that Act. proviso to Section 32-FF put a statutory obligation on the transferor to restore the advantage he received under the transfer he made in favour of the transferee out of the land, which formed part of the surplus area and of which the transferee lost possession because of the provisions of that Act vesting the surplus area in the Government. From the language of that proviso, it was inferred that a notice to the transferee was necessary to be issued because the transferee had no cause of action for claiming restoration of such advantage from the transferor till the land transferred to him was declared as part of the surplus area of the transferor and it was necessary to decide that matter in his presence.
8. State of Haryana v. Hari Singh, 1973 Pun LJ 811, is a Single Bench judgment wherein it was held that in case no notices were served on persons whose names appeared as owners in the jamabandi. the order passed by the Collector declaring their lands as surplus area was to be treated as void and non est. With great respect to the learned Judge, the decision goes against the ratio of the Full Bench decision in Dhaunkal's case (supra) and affords no assistance to the appellants.
9. A Division Bench of this Court held in Shri Babu Ram v. State of Punjab, 1974 Pun LJ 158. that where several years prior to the date on which proceedings for declaring the surplus area of the landowner were started, he had gifted most of his land and the donees were recorded as owners in possession of the land, such donees were 'persons interested' within the meaning of Rule 6 (3) of the Punjab Security of Land Tenures Rules, 1956. and the Circle Revenue Officer should have issued notices and heard them before the area was declared surplus, and as no notice was Riven to them, the orders declaring surplus area were invalid and illegal and were Quashed in a petition under Article 226 of the Constitution. Those orders could also be got rid of by resort to the legal remedies provided in the Act, as has been held in Dhaunkal's case (supra). In the case before us. the appellants availed of such a remedy by filing an appeal against the order of the Collector in which they succeeded, but they lost in this Court on the ground that the Collector, the Commissioner and the Financial Commissioner had no power to change the selection made by the landowners under Section 5-B (1) of the Act.
10. Lastly, reliance is placed on the judgment of a learned Single Judge in Raghbar Dayal v. State of Haryana, 1974 Rev LR 412, wherein it was held that when no notice of the revenue proceedings for declaring surplus area was given to the writ petitioners, their association in the subsequent appeal or revisional proceedings could not possibly be a substitute for absence of notice at the material stage of trial and leading of evidence. No such question arises in the present case because under Rule 6 of the said Rules, no notice was required to be issued to the appellants as purchasers of the land and even if it was desirable to issue any notice to them but was not issued, they could have got rid of the order by taking proceedings under the Act which they did. Merely because no notice was issued to them of the proceedings taken by the Collector for declaration of the permissible area of the landowners and the surplus area, the order could not be said to be non est or void It was merely a voidable order, as held by a Full Bench of this Court in Dhaunkal's case (supra) and had to be avoided by taking proceedings under the Act, namely, by flung an appeal to the Commissioner. As pointed out above, that remedy was availed of by the appellants and no grievance can be made of that omission at this stage- The service of notice on the appellants would have served no useful purpose as the Collector had no power to change the reservation of the permissible area made by the landowners under Section 5-B (1) of the Act or to compel the landowners to include the area sold to the appellants in their reserved area, as has been discussed in an earlier part of this judgment.
11. No other point has been argued.
12. Accordingly, we find no merit in this appeal which is dismissed, but the parties are left to bear their own costs. C. M. No. 3636 of 1974 is also dismissed with no order as to costs.
A.S. Bains, J.
13. I agree.