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Kahna Ram and ors. Vs. Latha Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ No. 3712 of 1971
Judge
Reported inAIR1976P& H255
ActsEast Punjab Utilization of Lands Act, 1949 - Sections 6, 7 and 14
AppellantKahna Ram and ors.
RespondentLatha Singh and ors.
Appellant Advocate N.L. Dhingra, Adv.
Respondent Advocate M.M. Punchhi,; Suresh Amba, Advs. and; C.D. Dewan, A
Cases ReferredEbrahim Aboobakar v. Custodian General of Evacuee Property
Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the.....b.r. tuli, j.1. these writ petitions nos. 3712 of 1968 (kahna ram and others v. latha singh and others), 3757 of 1968 (kishan singh and others v. pritam singh and others), 3758 of 1968 {sant singh and others v. gurbakhsh singh alias gurbachan singh and others), 425 of1969 (waryam singh and another v. bharpur singh and others), 427 of 1969 (smt. iswari and others v. chuhar singh and others) and 428 of 1969 (dewa singh and another v. chand singh and others) have been placed before us for deciding the question of law as to the interpretation of the provisions of sections 6 and 1 of the east punjab utilization of lands act, 1949, as amended from tune to time (hereinafter called the 'act') touching upon the competency of a landowner to make an application under section 6 and in the event of.....
Judgment:

B.R. Tuli, J.

1. These writ petitions Nos. 3712 of 1968 (Kahna Ram and others v. Latha Singh and others), 3757 of 1968 (Kishan Singh and others v. Pritam Singh and others), 3758 of 1968 {Sant Singh and others v. Gurbakhsh Singh alias Gurbachan Singh and others), 425 of1969 (Waryam Singh and another v. Bharpur Singh and others), 427 of 1969 (Smt. Iswari and others v. Chuhar Singh and others) and 428 of 1969 (Dewa Singh and another v. Chand Singh and others) have been placed before us for deciding the question of law as to the interpretation of the provisions of Sections 6 and 1 of the East Punjab Utilization of Lands Act, 1949, as amended from tune to time (hereinafter called the 'Act') touching upon the competency of a landowner to make an application under Section 6 and in the event of result going against him, to prefer an appeal under Section 14 and the jurisdiction of the Collector and the Commissioner for deciding such an application and appeal, in pursuance of the order of reference made by a learned Single Judge on February 17, 1971. In order to decide the point, the facts of C. W. No. 3712 of 1968 may be stated.

2. The land measuring 105 acres, which was lying Banjar Qadim and uncultivated, belonging to respondents 1, 2 and 3 was acquired by the State of Punjab through the Collector, Hissar, under the Act in the revenue estate of Shekhu Khera, Tehsil Sirsa, Distt. Hissar, in 1958, and was leased out to the petitioners for a period of 20 years on August 4, 1958. The lease-deed between the Collector and the petitioners was drawn up in which the rent fixed was Rs. 2.50 paise per acre per year. Under the terms of the lease, the lessees were required to reclaim half of the land within a period of six months and the remaining half within a period of one year from the date of the lease. The land used to be flooded by the Ghaggar river, and on February 15, 1959, the petitioners made an application to the Collector that the land, being under water, could not be reclaimed and consequently, some other land may be given to them. On that application, the Tehsildar informed the petitioners that the Government was undertaking the construction of Ghaggar Barrage and Bundhs on both sides of the river with a view to tame it. The work for the taming the river was completed in 1963 and thereafter the petitioners reclaimed the land and sowed it with Rabi Crop in October and November, 1963. This crop was to mature in April, 1964, and on December 16, 1963, the landowners, that is, respondents 1, 2 and 3, made applications to the Collector stating that the petitioners, as lessees, had failed to cultivate the land within the stipulated period and in consequence their leases were liable to be terminated. A prayer was made for the termination of those leases. The Collector forwarded those applications to the Tehsildar, Sirsa, to obtain a report from the Patwari. The latter, without issuing any notice to the petitioners, made an ex parte report to the effect that the land was still banjar qadim and had not been broken till then. On receipt of the report from the Tehsildar, the Collector, without complying with Rule 5 of the Punjab Utilisation of Lands Rules, 1950, put up the following note to the Collector, Hissar, for orders:--

'Placed below are six applications (details given in the margin) from the landowners of village Shekhu Khera, Tehsil Sirsa, for the release of their land on the grounds that the lessees who were allotted lands on lease for 20 years under the East Punjab Utilization of Lands Act have neither settled in the village nor brought the land under cultivation. AH these applications are of similar nature, and their facts are the same.

Enquiries made through the Tahsildar, Sirsa, in the matter revealed that the facts contained in the applications are correct. The copies of Khasra Girdawari placed on the file also clearly lead to show that the land is lying Banjar at the spot. It is clear that the lessees have violated the conditions of lease by not reclaiming the land for a period of more than six years and for these reasons their leases are likely to be cancelled.

The Sub-Divisional Officer, Sirsa, has also been delegated the powers of the Collector, under the East Punjab Utilization of Lands Act, and we may, therefore, request him to utilise this land lor allotment on lease to some other genuine landless Harijans provided the same is lying Banjar at the spot, but in case it has been brought under cultivation by the landowners, it may be released in their favour.'

The Collector, Hissar, passed the following orders on February 22, 1964, on the above office note:--

'I agree to the action proposed. The Sub-Divisional Officer should be further clearly advised to satisfy himself thoroughly before releasing the land because the experience shows that generally the owners get wrong report made in such cases to get undue advantage.'

3. The papers were then sent to Shri G.L. Nagpal, Sub-Divisional Officer, Sirsa, for necessary action in accordance with the order of the Collector. Shri Nagpal visited the village on March 15, 1964, and after hearing the petitioners, reported that the land had been reclaimed. It was then that the petitioners came to know that some proceedings were going on against them and they made review applications on March 24, 1964, for the cancellation of the order of the Collector dated February 22, 1964. The Collector felt that he could not review his previous order without obtaining the permission of the Commissioner. The necessary permission was granted on June 7, 1966, and then the case was examined by Shri Ram S. Verma, I. A. S., Sub-Divisional Officer with powers of Collector, Sirsa, who passed a detailed order on April 17, 1967, after recording the evidence of the parties. He came to the conclusion that the land had not been brought under cultivation before Rabi, 1964, but it was not obligatory on him to determine the lease as the petitioners had satisfactorily proved that the land could not be reclaimed before 1963 on account of the floods in Ghaggar Bundh and the moment the State Government built the Ghaggar Bundh, reclamation of the land was taken in hand. The applications of respondents 1 to 3 were then rejected. Against the order of rejection, the said respondents filed an appeal under Section 14 of the Act which was accepted by the Commissioner, Ambala Division, by order dated October 17, 1968. The revision filed by the petitioners against that order was dismissed by the Financial Commissioner by order dated November 28, 1968. The petitioners then filed the present petition.

4. The scheme of the Act may now be considered. Under Section 3 of the Act, the Collector can take possession of any land which has not been cultivated for six or more harvests after issuing notices to the landowners. The payment of compensation has to be made to the landowners under Section 4 of the Act and under Section 5 of the Act, the Collector can lease out that land for a term of not less than 7 years or more than 20 years. Section 6 gives the Collector power to determine the lease where the lessee commits a breach of its terms and under Section 7 the possession of the land has to be restored to the landowners after the expiry of the lease. It was held by a Division Bench of this Court in Lilu v. Karam Chand, ILR (1965) 1 Punj 1, that:--

'x x x the Collector can retain the possession of the land for 20 years and during this period there is no restriction on his power to effect leases of the land provided that the period of no lease is less than 7 years and no lease goes beyond 20 years from the date of the original taking possession of the land. This power can be exercised either during the currency of the original lease or on its expiry provided, of course, that the maximum period of 20 years from the date of taking of possession of the land is not exceeded.' (as per the head-note).

5. Another Division Bench of this Court in Karnal Co-operative Farmers Society Ltd. v. State of Haryana, 1972 Pun LJ 172, held:--

'From the bare reading of Sections 6 and 7, it is clear that Section 6 deals with those types of cases where the lease is determined by the Collector before the expiry of the period of lease while Section 7 envisages those cases where proceedings are initiated by the Collector on the expiry of the term of the lease. Section 7, as is clear from its plain reading, provides a method to deliver possession to the owners of that property of which they were deprived under Section 3 of the Act. After the expiry of the term of the lease, no right is left in the lessee who obtains the same under Section 5 of the Act. The question of proceedings against the lessee in the ordinary Court of law hardly arises. After the expiry of the period of lease, on the asking of the Collector, the lessee is legally bound to return possession of the leased land. In order to achieve the object of the Act, the legislature in its wisdom provided this summary method of ejectment. If the contention of the learned counsel for the petitioner is accepted to be correct, then the entire object of the Act would be frustrated. Sub-section (1) of Section 7 only says that if the land of which possession has been taken by the Collector under Sub-section (3) and has to be returned to the owner on the expiry of the lease, the Collector may after making such enquiry, as he considers necessary, specify by order in writing the person to whom possession of the land has to be given. The enquiry, that is conducted by the Collector, is only to find out the persons to whom possession of the land is to be given under Section 7. The scheme of the Act is such that the ejectment has to take place automatically in the cases falling under Section 7 of the Act and the lessee has no right to object to his ejectment and is left with no option but to vacate the land. When proceedings under Section 7 start, the only objection available to the lessee is that the lease period has not come to en end.'

6. That judgment was affirmed by the Supreme Court in Dasaudha Singh v. State of Haryana, 1973 Pun LJ 1 = (AIR 1973 SC 710), wherein it was pointed out that the Collector was entitled tc take possession of the land from the owner only for the maximum period of 20 years for which he could lease it to a tenant. After the expiry of the lease, the possession of the land has to be restored to the owner thereof. In order to determine the person to whom the possession is to be restored, procedure is prescribed in Section 7. From the perusal of the provisions of the Act, in the light of the judgments referred to above, it is quite clear that the landowners have no legal right to ask for the restoration of the land to them before the expiry of ?0 years, but there is no bar to the Collector restoring the possession to the landowners even before the expiry of that period, if he considers advisable, in the circumstances of the case, that is, if the lessee abandons the land or his lease is terminated by the Collector on account of the defaults committed by him in carrying out the terms of the lease or for any other reason the land ceases to be under the tenancy of any lessee. It is, therefore, open to a landowner to bring it to the notice of the Collector that a certain lessee has committed default in carrying out the terms of the lease, which entitles the Collector to determine that lease. It is for the Collector then to investigate the matter and to determine the lease or not to determine the lease on the facts of each case. To this proposition, even Shri N.L. Dhingra, the learned counsel for the petitioners, has agreed. Therefore, it is held that a landowner has the locus standi to make an application to the Collector bringing to his notice the facts that a lessee of his land, to whom a lease was granted under the Act by the Collector, has committed a default in carrying out the conditions, of his lease as a result of which the lease can be determined. In fact, any person having any interest in the land can move such an application to the Collector for necessary action. The applications to the Collector made by the landowners in these cases were, therefore, competent.

7. The other question that arises for determination is whether a landowner, whose request for determining the lease, on the ground that the lessee had committed a default in carrying out the terms of the lease has been rejected by the Collector, can be said to be a person aggrieved, who can file an appeal under Section 14 of the Act. The words 'person aggrieved' have been variously denned in judicial decisions. James, L. J., in case Re. Sidebotham, (1880), 14 Ch D 458, said:--

'But the words 'person aggrieved' do not really mean a man who is disappointed of a benefit which he might have received if some other order had been made. A 'person aggrieved' must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of somethng, or wrongfully refused him something, or wrongfully affected his title to something.'

8. This definition by James, L. J., was characterised as the best definition by Lord Goddard, C.J., in R.V. London Sessions Appeal Committee, Ex parte Westminster Corporation, (1951) 1 All EK 1032.

9. In Robinson v. Currey, (1881) 7 QBD 465, C. A. 470, Bramwell, L. J., said:--

'The expression 'person aggrieved' is nowhere defined and must be construed by reference to the context of the enactment in which it appears and all the circumstances: the words are ordinary English words, which are to have the ordinary meaning put upon them.'

10. In Attorney General of the Gambia v. N'Jie, (1961) 2 All ER 504, it was said that the definition of 'person aggrieved' by James, L. J., was not to be regarded as exhaustive. The facts of that case were that the respondent was a member of the English Bar, who was admitted to practise as a barrister and solicitor of the Supreme Court of Gambia. In June, 1958, in the course of giving judgment in a civil suit, the Chief Justice of the Gambia criticised severely certain conduct of the respondent, ns a result of which, the appellant, the Attorney General of Gambia, served a notice of motion on the respondent asking for an enquiry to be made by the Chief Justice into allegations of professional misconduct against him and for striking his name off the roll of that Court. The enquiry was held by a Deputy Judge who made an order on September 22, 1958, striking the name of the respondent of the roll of the Court and directing that it should be reported to the Masters of the Bench of his Inn. On June 5, 1959. the appeal filed by the respondent was accepted by the West African Court of Appeal on the ground that the Deputy Judge had no jurisdiction in the matter. The Attorney General then sought leave to appeal to Her Majesty in Council which was refused. Thereupon, the Attorney General made a petition to Her Majesty for special leave to appeal which was granted, but liberty was expressly reserved to the respondent to raise the preliminary point that no appeal lay at the instance of the Attorney General because he could not be described to be a person aggrieved. In support of that point, reliance was placed on the definition of 'person aggrieved' stated by James, LJ. in Be. Sidebotham's case (1880) 14 Ch D 458 (supra). Lord Denning, speaking for the Privy Council, observed:--

'If this definition were to be regarded as exhaustive, it would mean that the only person who could be aggrieved would be a person who was a party to a lis, a controversy inter partes and had had a decision given against him. The Attorney-General does not come within this definition, because, as their Lordships have already pointed out, in these disciplinary proceedings there is no suit between parties, but only action taken by the Judge, Ex mero motu or at the instance of the Attorney General or someone else, against a delinquent practitioner.

But the definition of James, L.J., is not to be regarded as exhaustive. Lord Esher, M.R., pointed that out in Re Reed, Bowen and Co., Ex. P. Official Receiver, (1887) 19 QBD 174 at p. 178. The words 'person aggrieved' are of wide import and should not be subjected to a restrictive interpretation. They do not include, of course, a mere busybody who is interfering in things which do not concern him; but they do include a person who has genuine firiovance because an order has been made which prejudicially affects his interests. Tins the appellant a sufficient interest ior this purpose? Their Lordships think that he has. The Attorney General in a colony represents the Crown as the guardian of the public interest. It is his duty to bring before the judge any misconduct of a Barrister or solicitor which is of sufficient gravity to warrant disciplinary action. True it is that, if the judge acquits the practitioner of misconduct no appeal is open to the Attorney-General. He has done his duty and is not aggrieved. But if the judge finds the practitioner guilty of professional misconduct, and a Court of Appeal reverses the decision on ground which goes to the jurisdiction of the judge or is otherwise a point in which the public interest is concerned, the Attorney-General is a 'person aggrieved' by the decision and can properly petition Her Majesty for special leave to appeal. It was for these reasons that their Lordships rejected the preliminary objection and held that, the appellant was a 'person aggrived' by the decision of the West African Court of Appeal.'

11. In Thiruverigadam v. Muthu Chettiar, AIR 1970 Mad 34, it was said: --

'A person can be said to be aggrieved, if apart from the general interest such a person, as a member of the public, may have, he has a particular or special interest in the subject-matter supposed to be wrongly decided.'

12. In Corpus Juris Secundum, Volume III, at page 351, the following statement appears with regard to aggrieved party or person:--

'It has been said that the expression is not a technical one and that the words are to be given their natural meaning, of one who has suffered an injury to a person or property, one who is afflicted oppressed, injured, vexed or harassed, or one to whom pain or sorrow is given. In legal acceptation, or in a legal sense, and when used with reference to legal remedies the words have been construed as having a sufficiently definite meaning which must be determined with reference to the context and subject matter. They may be and have been used as meaning or having reference to any one who is injured in a legal sense, or who suffers from the aggressions of others.

The phrases 'party aggrieved' and 'person aggrieved' have been equivalent, identical, or synonymous with adverse party'.'

13. 'Aggrieved person' thus has a number of meanings and the matter has to be decided in each case whether a person, who claims to file an appeal, is an 'aggrieved person' or not.

14. The Supreme Court in Ebrahim Aboobakar v. Custodian General of Evacuee Property, 1952 SCR 696 = (AIR 1952 SC 319), elaborately dealt with this point. In that case, Tek Chand Dolwani supplied information to the Additional Custodian of Evacuee Property that Aboobakar Abdul Rahman was possessed of considerable moveable as well as immovable properties including a cinema theatre, known as the Imperial Cinema, situate at Bombay, and that he had gone to Pakistan soon after the partition of India and settled at Karachi in the month of September, 1947, where ho purchased certain properties in that month. An enquiry was held into the matter and it was held on February 8, 1950, that the said Aboobakar was not an evacuee. The additional Custodian issued another notice to Aboobakar on the came day calling upon him to show cause why he should not be declared an intending evacuee under Section 19 of the Administration of Evacuee Property (Amendment) Ordinance No. 27 of 1949, and on February 9, 1950, adjudicated him as an intending evacuee. On March 31, 1950, Tek Chand Dolwani filed an appeal against the order dated February 9, 1950, to the Custodian General of India praying for an order declaring the said Aboobakar an evacuee and that he being the first informant, should be allotted the said cinema. A preliminary objection was raised that Tek Chand Dolwani had no locus standi to prefer the appeal as he was not a person aggrieved from the order appealed against. The Custodian General of India held that the appeal purporting to be from the order passed by the Additional Custodian on February 9, 1950, declaring the said Aboobakar an intending evacuee in effect and in substance was directed against the order made on February 8, 1950, declining to declare the property of Aboobakar an evacuee property. He further held that Tek Chand Dolwani was interested in the appeal and had locus standi to prefer it. When this point was raised before the Supreme Court, it was repelled with the following observations at p. 705 (of SCR) = (at p. 323 of AIR):--

'For a proper appraisal of the contention that Tek Chand Dolwani is not a 'person aggrieved' within the meaning of those words in Sec. 24 of the Ordinance, it is necessary to refer to the rules made under the Ordinance. It is provided in R. 5 (5), that any person or persons claiming to be interested in the enquiry or in the property being declared as evacuee property, may file a written statement in reply to the written statement filed by the persons interested in the property claiming that the property should not be declared evacuee property; the Custodian shall then either on the same day or on any subsequent day to which the hearing may be adjourned, proceed to hear evidence, if any, which the party appearing to show cause may produce and also evidence which the party claiming to be interested as mentioned above may adduce. In the proceedings before the Additional Custodian, Tek Chand Dolwani filed a reply to the written statement of Aboobakar and adduced evidence in support of the stand taken by him that the property of Aboobakar was evacuee property. Further Tek Chand Dolwani was the first informant who brought to the notice of the Custodian concerned that the property of Aboobakar was evacuee property and in view of the order of the Ministry of Rehabilitation he was, as a first informant entitled to first consideration in the allotment of this property, the Additional Custodian was bound to hear him on the truth and validity of the information given by him. When a person is given a right to raise a contest in a certain matter and his contention is negatived, then to say that he is not a person aggrieved by the order does not seem to us to be at all right or proper. He is certainly aggrieved by the order disallowing his contention Section 24 allows a right of appeal to any person aggrieved by an order made under Section 7. The conclusion reached by the Additional Custodian on the 8th February, 1950, that Aboobakar was not an evacuee amounted to an order under Section 7 and Tek Chand, therefore, was a person aggrieved by that order.'

15. On the parity of reasoning, it can be said that the landowners had the right to inform the Collector that the lessees had committed a default or defaults in carrying out the terms of the lease as a result of which the lease in their favour should be determined. When that contention of the landowners was disallowed, they naturally felt aggrieved against the disallowance of their contention and can be termed as persons aggrieved, in view of the dictum of the Supreme Court. They had, therefore, the right to appeal to the Commissioner against the order of the Collector (S. D. O.) (C), Sirsa, refusing to terminate the leases in favour of the petitioners, although a finding was given that they had committed a default of the terms of the lease. If the leases in favour of the petitioners were cancelled, the landowners could request the Collector no1 to further lease out the lands to any other person for any period, but to restore the same to them. The Collector might or might not have accepted their request, but they had sufficient interes1 in making that request to the Collector as owners of the land. Their proprietary rights in the land subsisted and only the right to possess the land temporarily had been taken over by the Collector by acquisition.

16. Shri N.L. Dhingra has then contended that the landowners had no right to have the land restored to them before the expiry of 20 years which is the maximum period of the lease and he has tried to support his contention from the fact that in Section 7, as originally enacted, the words were:--

'Where any land taken possession of by the Collector under Section 3 is on the expiry of the lease or its earlier termination, to be returned to the owner .....'

and that the words 'or its earlier termination' were omitted by the East Punjab Utilisation of Lands (Amendment) Act, 1951, (Punjab Act No. 11 of 1951), from which the intention of the legislature was clear that the landowner should get back the land only after the expiry of 20 years and not earlier. I regret my inability to agree to this submission. The words 'or its earlier termination' were omitted from Section 7 because of the omission of Section 6 from the Act by the same Amending Act. As a result of the omission of Section 6, the words 'or its earlier termination' became redundant. Section 6 in a modified form was again inserted in the Act by the Punjab Utilisation of Lands (Amendment) Act (Punjab Act No. 24 of 1957), as under:--

'6. Power of Collector to determine lease in certain cases.-

(1) If a person to whom land has been leased under Section 5 commits a breach of any of the terms and conditions thereof, the Collector, shall without prejudice to any other right or remedy against him, have the power to determine the lease and take possession of the land.

(2) Where lease has been determined by the Collector, the lessee shall not be entitled to any compensation.'

17. This section was substituted by the East Punjab Utilization of Lands (Haryana Amendment and Validation) Act No. 35 of 1971 and the substitution was to have effect from July 29, 1975, that is, the date on which Section 6 was inserted by Punjab Act No. 24 of 1957. This section is to be read, with effect from July 29, 1957 as under:--

'6. Power of Collector to determine lease in certain cases;--

(1) If a tenant commits a breach of any of the terms and conditions of his tenancy, the collector shall have the power to determine the lease and take possession of the land after affording a reasonable opportunity to the tenant to show cause why his lease should not be determined and the possession of the land taken.

(2) Where lease has been determined by the Collector under Sub-section (1) the tenant shall not be entitled to any compensation.

(3) The principles embodied in the various provisions of the Transfer of Property Act, 1882, shall not apply to any proceedings under this Act.

(4) No civil or revenue court shall have jurisdiction to entertain any suit or proceedings in respect of the determination of lease or eviction of a tenant.'

18. The words 'on the expiry of the lease' in Section 7 of the Act really denote the stage when the land ceases to be under the tenancy of any person, whether by termination of the lease or by abandonment by the lessee or in any other manner. When the lease of a lessee is determined earlier than the expiry of the full term because of the default committed, the lease expires and comes to an end. After the termination of his lease, it cannot be said to be continuing. Thereafter, another lease in favour of somebody else may be created by the Collector, if he is so minded or he may restore the land to the landowner in case he is satisfied that he is in a position to cultivate the same. Therefore, the mere omission of the words 'or its earlier termination' from Section 7 does not mean that the landowner has no right to pray to the Collector for the restoration of his land before the expiry of the period of 20 years even when the lease in favour of lessee is determined by the Collector because of the defaults committed by him. The landowners in these cases had interest in the land as owners thereof and there was no bar in their way to inform the Collector that the grounds existed for the determination of the lease and if their contention was accepted and leases determined, an order for restoration of the land in their favour may be passed. Since their contention for determination of the leases of the petitioners, even on commission of default by them, had been disallowed, they were clearly persons aggrieved who could file the appeals. The appeals filed by the landowners in these cases before the Commissioner were, therefore, competent. The cases will now be fixed for decision on merits before a learned Single Judge.


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