1. Fifteenth August, 1947, found the Indian Nation in a grateful and expansive mood towards the valiant freedom fighters whose boundless sufferings and sacrifices during the freedom struggle against the foreign rule in no small measure made it possible for the nation to breathe in freedom that day. Being a matter of recent history, one might recall the diverse ways in which their sacrifices and sufferings were accorded public recognition. Such of them who were found in indigent circumstances were given monthly pensions, money and land grant in order to, in some measure alleviate their sufferings and ameliorate their living conditions. (See paragraph 60 of the amended writ petition). It was in pursuance of such a policy, so allege the petitioners, that the erstwhile State of Punjab in the year 1955 made grants of rent free lease of 121/2 acres each of the Government land, mostly, virgin, full of wild growth and uncultivated, in Hissar 'Bir' in District Hissar (now forming part of Haryana State) to some of the political suffers including the petitioners 1 to 4 and the members of Union (Political Sufferers' Union, Hissar, Petitioner No.5) under the Colonization of Government Lands Act, 1912, (hereinafter referred to as the Colonization Act). The said lease grants, which were subject tot he conditions of the lease deeds (Annexure 'B') and the relevant provisions of the Colonization Act, were to enure only for a period of 20 years. It is noteworthy that one of the conditions of the said lease deeds required the lease-holders to bring the land so allotted to them under cultivation within a specified period and also construct houses and settle down on the land reserved for abadi for the period of the lease.
2. The breaking of the virgin land in order to make it culturable no doubt must have entailed considerable investment both of labour and money. The spectre of the expiration of their lease period must no doubt as alleged, have goaded the said leaseholders to press upon the Government to convert their lease-grant rights into proprietary ones. By 1966 more than half the period of the lease having expired, it must have increased their clamour for the grants of proprietary rights to such a volume and intensity as to bring the Government of erstwhile Punjab round to their views. At the relevant time Comrade Ram Kishan, himself a freedom fighter, headed the Punjab Ministry. His Government agreed to confer on the leaseholders the proprietary right in their respective leasehold plots without any consideration but before something concrete could be done in this respect, the Government had a second thought and decided to charge Rupees 500-/ per acre in lieu of grant of such proprietary rights. This order is Annexure 'D' and it is desirable to reproduce it in its entirety:--
'Subject:--Conferment of proprietary rights on the political sufferers in the lands leased out to them.
Will the Deputy Secretary to Government, Punjab, Forests Department (in A.H. Branch) kindly refer to the subject.
Government have decided that the political suffers who have been allotted land at the Government Livestock Farm. Hissar may be given proprietary rights in their respective allotments (subject to the maximum of 12 1/2 acres per allotment) against payment of Rs. 5,000/- for each holding of 12 1/2 acres. The price shall be recoverable in ten equal annual installments of Rs. 500/- each.
He is requested to take necessary steps for the implementation of this decision immediately in so far he is concerned.
Under Secretary, Agriculture.
It was at this juncture that the popular Ministry resigned and the State of Punjab passed under the President's rule. Mr. Dharam Vira, the then Governor of the State, is alleged to have decided to charge market price which practically nullified the benefits to the political suffers envisaged in the earlier order Annexure 'D' of the popular Government of Comrade Ram Kishen. The political sufferers rudely shaken by this mortal move must have impressed, as alleged, upon the Governor the injustice inherent in his decision of charging current market value in that whatever value the land under their possession had acquired, was all due to their efforts for at the time of the allotment of the same to them it hardly had any market value. The Governor, perhaps, finding justice on their side passed the order Annexure 'E' on October 27,1966, which order again needs to be reproduced in extenso as the fate of the case depends on the construction that ultimately be put on the language used therein:--
'Subject:--Conferment of proprietary rights on the political sufferers in the lands leased out to them.
Will the Deputy Secretary to Government, Punjab, Forests Department, Kindly refer to this Department U.O. No. 3782 FP(VI)-66/3691, dated the 30th July, 1966, on the above subject.
The President of India, is pleased to confer proprietary rights on the political sufferers holding land on lease at the Government Livestock Farm Hissar, for their respective allotments (subject to the maximum of 12 1/2 acres per allotment) against payment of Rs. 500/- per acre, 20% of which should be paid by them immediately, and the rest in 8 years equated installments with an interest of 7%. The land will be allotted to political suffers in Bir Hissar in one compact block of the area.
Further necessary action for the transfers of land to the political sufferers as indicated above may be taken by the Collector. Hissar, and the Director, Government Livestock Farm, Hissar, immediately.
K. S. Minhas,
Under Secretary, Agriculture.'
3. Before the Deputy Commissioner, Hissar, could initiate action in pursuance of this order, new State of Haryana came into being on November 1, 1966, as a result of the re-organisation of erstwhile State of Punjab.
4. The order Annexure 'E', which inter alia envisaged the allotment of the land in compact blocks, apparently by its very nature, was to result in the unsettling of some of the lease-holders from their existing holdings. The letter dated December 23, 1966, from the Deputy Commissioner, Hissar, referred to in paragraph 18 of the reply of the State to the amended writ petition shows that some of the political sufferers were reluctant to leave their present holdings and thus a hiatus came to be created which for sometime prevented the consolidation of the holdings of these political sufferers eventually, however, agreed to leave their present holdings in order to be allotted land in one compact block and so such of them as were required to shift to form a compact block were issued slips, such as, 'G', 'H' and 'I' on April 16, 1969, by the Deputy Commissioner, Hissar, wherein the area that the political sufferers in question were to get in lieu of their lease-holdings was indicated. These slips were followed by letters such as Annexure 'J' which were issued to these political sufferers, requiring them to take possession of the alternative plots, but the said political sufferers on account of resistance put up by the old tenants on the land in which alternative plots were cut, could not sift to the said plots. These political sufferers then sent identical letters of protest, a copy of which is Annexure 'K', to the Deputy Commissioner, Hissar.
5. The petitioners and such other political sufferers somehow appear to have got the impression that since most of them hailed from the area which after the re-organisation of the erstwhile State of Punjab exclusively formed part of Punjab State, so on account of a possible bias against the people of Punjabi origin, the Haryana Government and particularly the present Chief Minister delayed the implementation of order Annexure 'E' by encouraging the squatters (aforesaid tenants) to resist the political sufferers to take possession of the alternative plots carved out for them in pursuance of order Annexure 'E'. The petitioners alluded to the following extract from the issue of the 'Punjab Sentinel' of May 25, 1966 as reflecting on this point the mood of the prospective Haryana Government and its people:--
'Punjab will soon be divided into two States, the Punjabi Suba and Haryana. Haryana where the land in question is situated, will be a part of Haryana. Does any Government on the eve of decision have the right to dispose of the land in question when the grantees by and large will be people belonging to the Punjabi Suba?'
The petitioners Nos. 1 to 4 and the other political sufferers (lease-holder), apart from writing to the Prime Minister of India, waited upon her in deputation in order to bring to her notice the bias of the Haryana Government against them as reflected by the deliberate inaction of the Haryana Government in implementing the order Annexure 'E'. The receipt of letter Annexure 'O' dated December 24, 1970, from the Deputy Commissioner, Hissar, requiring them to furnish some information on oath proved the proverbial last straw to break the camel back and led to the filing of the present writ petition. Letter Annexure 'O', to which the petitioners and the other affected political sufferers took exception and even declined to send any reply thereto, is in the following terms:--
'Subject:--Regarding obtaining declaration on oath again from the political sufferers.
The Government has decided that fresh declarations on oath on the following matters may be obtained from the political sufferers.
1. What type of sufferings were undergone by the political sufferer.
2. Whether the political sufferers do cultivation themselves and whether they reside in their own plots.
3. Whether they fulfil all the conditions of the lease.
4. That they have not done anything against national interest and have not taken part in any political movement since 1947.
You are, therefore, informed through this notice to produce the requisite declaration on oath in the office of the S.D.O. (Civil) Hissar before 5 P.M. on 15th January, 1971. In case your declaration is not received by the appointed date, it will not be entertained.
for Deputy Commissioner, Hissar'.
The above decision has been sought to be struck down. The petitioners thereafter sent notice Annexure 'P' to the Secretary, Ministry of Agriculture, Haryana Government, through their counsel, which likewise remained unreplied, thus paving the way for the filing of the present writ petition wherein the petitioners have alleged mala fides and bad faith on the part of the State Chief Minister who was arrayed as respondent No. 3 to the petition.
This petition initially came up for hearing before me on May 30, 1973, on which date the petitioners' counsel, after consultation with them, withdrew the allegations against the Chief Minister as a result whereof his name was struck off by me from the array of respondents vide order dated May 30, 1973. The petitioners were also permitted by the same order to amend their petition in order to meet the new point raised by the State at the arguments stage. This order reads:--
'Mr. P.N. Lekhi, learned Counsel for the petitioners, after consultation with his clients, made a statement at the bar giving up his case regarding mala fides against Mr. Bansi Lal, Chief Minister, Haryana (respondent No.) He, however, sought permission to amend the petition in order to clarify the fact regarding the communication by the Government of the order Annexure 'C' to the petitioners, as this fact assumed importance only during the course of arguments when the learned Counsel for the State contended the Annexure 'C' did not tantamount to an order of the Government as the same had not been communicated to the petitioners or the parties affected thereby.
Since the pleadings of the parties are not very explicit on this point, so in the interest of justice I allow the petitioners to amend the petition and bring on the record any relevant material that the petitioners have in their possession evidencing communication to them of the order Annexure 'C'.
The learned Counsel for the petitioners undertakes to supply a copy of the amended petition to the respondent State when the same is filed in this Court. The State shall file reply thereto within two weeks of the receipt of the copy thereof.
In view of the fact that the allegations against Mr. Bansi Lal, Chief Minister, Haryana (respondent No. 3) have been given up, his name is struck off the array of respondents.
The case to come up on 27-8-1973.'
6. In the amended petition, the petitioners reiterated their allegations against the Chief Minister and also made an application for permission to reassert the same against him it having become necessary in order to meet the new point raised by the Haryana State at the time of last hearing which had occasioned the amendment of the petitioner as would be clear from the order of that date. In the amended petition, the petitioners also took note of order Annexure 'Q' of the Deputy Commissioner, Hissar, dated June 27, 1972, which was issued after the present writ had been filed on March 15, 1971, whereby the petitioners and other political sufferers were required to change their existing plots with the new plots in terms of condition No. 26 of the lease deed. The order Annexure 'Q', which along with Annexure 'Q' has been sought to be struck down by the petitioners, is in the following terms:--
'Order of the Collector Hissar District, Hissar (Under Condition 26 of the Lease Deed executed by the Political Sufferers).
Whereas the Government of Haryana is considering of conferring permanent rights on genuine political sufferers who are now settled as lessees in various blocks in Bir Hissar.
And whereas it is necessary to resettle the political sufferers in compact blocks.
Therefore, I Harphool Singh, I.A.S., Collector Hissar District, hereby order that...................... who is now a lessee of plot No.................... in Addl. Piranwali block should exchange his plot with.............................. who is now settled at plot No............... in................. Block. By this order the plot in which............................ is now sitting as lessee/tenant is hereby resumed and new plot No..................... which is equal in value tot he plot already held by...................... and in exchange he is given on lease the new plot No................. The new plot leased in exchange for the old one shall be deemed to be held by the tenant on same conditions, and subject to the same obligations as the resumed land.
Tehsildar, Hissar, will put both the parties in possession of new plots and will obtain the approval of the Sub-Divisional Officer (C) Hissar (who exercise the powers of A. C. 1st grade and Collector about the compensation), if any, for the standing crops/sown crops etc., at the time of exchange.
7. In their return to the amended writ petition, the respondents inter alia challenged the right of the petitioners to reassert the allegations against the Chief Minister after the same having been given up by them at the previous hearing. The allegations of mala fide against the State as also against the Chief Minister were denied. In the return filed on behalf of respondents Nos. 1 and 2, it was asserted that the order Annexure 'E' having not been communicated to the petitioners before 1-11-1966 was not binding on the Haryana State; that since the Haryana Government could not secure from the Punjab Government the records of the political sufferers in question, it was anxious to ensure, which implementing the order Annexure 'E' that only genuine political sufferers and even out of them, only those who had abided by the terms and conditions of the lease were benefited; and that for that reason it had to seek the information contained in letter Annexure 'O' from them on oath. It was also further asserted that it was open to the State of Haryana, being the owner of the land, to attach any condition while making the grant of the same as the order Annexure 'E' was not binding on the Haryana State.
8. When the petition was taken up for hearing, the learned Counsel for the petitioners again made a statement at the bar, after consultation with them, withdrawing the allegations against the Chief Minister. In view of this concession, Civil Miscellaneous Application No. 5031/C of 1973 seeking permission to reassert the allegation against the Chief Minister has become infructuous and an order to this effect is being separately passed thereon. Again, in view of the above concession of the petitioners, neither their allegations against the Chief Minister nor his reply thereto are being referred to.
9. Mr. Pran Nath Lekhi, learned Counsel for the petitioners, argued that the order Annexure 'D; dated June 10, 1966 was a decision wherein the Government envisaged that proprietary rights may be conferred and that in pursuance of the said decision it conferred property rights by order Annexure 'E' on such political sufferers as were holding land on lease in Bir Hissar (which included the petitioners also) in regard to the very area so held by them and in lieu thereof merely required them firstly to pay Rs. 5,000/- in certain equated installments as mentioned in the said order and secondly to get their holdings consolidated in one compact block; that as a result of the said order Annexure 'E', the political sufferers in question on October 27, 1966, became the proprietors of the area measuring 12 1/2 acres each which was already under lease with them; that thereafter it was neither open to the erstwhile State of Punjab nor to its successor, the State of Haryana, to abridge their proprietary rights in the said holdings by either treating as if they still had only the leasehold rights in the said plots which appeared to be the idea behind the issuing of order, Annexure 'Q' or by requiring them through order Annexure 'O' to prove to the satisfaction of the Haryana Government that they were not only the political sufferers of the requisite kind but had also abided by the conditions of the lease and consequently eligible for conferment of proprietary rights in the land of which they were already the proprietors. It was also further stressed by the learned Counsel that the grant of proprietary rights by order Annexure 'E' being in the nature of a grant under the Government Grants Act of 1895(hereinafter referred to as the Grant Act), the same became effective and binding the moment it was made and thus did not require to be communicated to the grantees in order to become binding either on the erstwhile Punjab State or later on its successor the State of Haryana; and in the alternative it was stressed that even if for the sake of arguments, it is to be held that the communication of the said order to the petitioners was necessary in order to make the same binding on the Government, then the order in question had, in fact, been communicated, though orally, to the petitioners on the very day it was passed, i.e., October 27, 1966.
10. Regarding the facts as to whether the petitioners were political sufferers or not and whether they had abided by the terms and conditions of the lease, it was urged that these two questions became irrelevant after October 27, 1966, when on that date the proprietary rights had been conferred on them by order Annexure 'E' the first question for the reason that in the order Annexure 'E' dated October 27, 1966, petitioners' status as political sufferers was in terms expressly accepted and second question for the reason that the grant of proprietary rights to them having become effective from October 27, 1966, the conditions of lease by virtue of Section 30 of the Colonization Act, too in turn became inoperative and irrelevant. Then again by virtue of provisions of Section 16 of the Colonization Act, after the expiry of a period of 3 years, the State was estopped, even from raising up the question of their being or not being political sufferers in relation to their leasehold rights--condition No. 29 in the lease deed notwithstanding.
11. Mr. Dewan, learned Counsel for the State, on the Contrary, submitted that, firstly, the order Annexure 'E: having not been communicated officially to the petitioners and the other political sufferers concerned, the same remained ineffective till the reorganisation of the Punjab State on November 1, 1966, whereafter it was open to the successor State of Haryana to ignore the said order--the same having been passed by the then disappearing Punjab State. The order being thus ineffective conferred no rights on the petitioners against the State of Haryana and accordingly they could not enforce the same against it and, secondly even if the order Annexure 'E' is held to be of a binding nature on the Haryana State, then too the same being an executive order, the legal rights flowing therefrom cannot be enforced against the State of Haryana by invoking the extraordinary writ jurisdiction of the High Court.
12. After hearing the learned Counsel for both the sides and after giving the matter my very deep and careful consideration. I find considerable merit in the contentions advanced by Mr. Lekhi, learned Counsel for the petitioners.
13. As for the maintainability of the writ petition, it is significant to note that the petitioners are not seeking enforcement of order Annexure 'E' as such. What they have complained of in the writ petition is regarding the abridgment of their fundamental rights to property under Article 19(1)(f) of the Constitution of India by the State of Haryana; firstly by requiring them to state on oath whether they are the Political Sufferers or not and, thus by implication, were or were not entitled to hold and possess in any capacity, the land given to them on lease in Bir Hissar, and secondly by still treating them as lease-holders of the land in question which fact being implicit in the letter Annexure 'Q' dated June 27, 1972, when in fact by virtue of order Annexure 'E' they had already become the proprietors of the land in question on October 27, 1966. However, in order to determine the question whether they had or had not acquired the proprietary rights on that date in the holdings in question, two other allied questions clamour for answer--(i) whether order Annexure 'E' became effective on the very date or on some other date before 1-11-66 with or without communication of the same to the petitioner and the other political sufferers concerned and (ii) whether the land in question in which the proprietary rights were granted to the Political Sufferers in question referred either expressly or impliedly, to the very land that was earlier held by the petitioners and their like on lease.
14. The answer tot he first question would partly depend on the fact whether the grant of proprietary rights envisaged in Annexure 'E' is tantamount to a grant under the Grants Act. The Colonisation Act under which the petitioners and their like were granted lease of 12 1/2 acres each itself treated the grant of such leases under the said Act as the transfer of the land within the meaning of the Grants Act and being governed by the provision of the said Act, as would be clear by the following provisions of Section 11 of the Colonization Act:
'Subject to the provision of this Act, the grant of any tenancy in accordance with any statements of conditions which have been or may hereafter be issued by the State Government under the Government Tenants (Punjab) Act, 1893, or under this Act shall be deemed to be transfer of land within the meaning of the Government Grants Act, 1895, and shall be governed by the provisions of the said Act.'
Section 30 of the Colonization Act, which is in the following terms, envisages the acquiring of proprietary rights by the lessees in the land included in their tenancy:
'Notwithstanding anything entered in any statement of conditions issued under the Government Tenants (Punjab) Act 1893, a tenant who, either in pursuance of any such condition or otherwise by agreement with or under rules issued by the State Government has acquired proprietary right in any land included in his tenancy shall in respect of such land cease to be subject to any statement of conditions issued under the above-mentioned Act:
Provided always that he shall in respect of such land be bound by the conditions set out in Sch. II of this Act and be bound by the other provision of this Act applicable to proprietors of land'.
Apparently when the granting of lease rights in the Government land were treated as transfer of land under the Government Grants Act, the granting of the proprietary rights therein a fortiori cannot but be treated by necessary implication as the grant of land under the Grant Act. The expression 'the President of India is pleased to confer proprietary rights on the political sufferers holding land on lease' used in Annexure 'E' also strengthens the above assumption and leaves no scope for any doubt that the grant of proprietary rights was in the nature of grant of land under the Grant Act. Section 2 and 3 of the Government Grants Act are in the following terms:--
'2. Nothing in the Transfer of Property Act, 1882, contained shall apply or be deemed ever to have applied to any grant or other transfer of land or of any interest therein heretofore made or hereafter to be made by or on behalf of Her Majesty the Queen-Empress, her heirs or successors, or by or on behalf of the Secretary of State for India in Council to, or in favour of any person whomsoever; but every such grant and transfer shall be construed and take effect as if the said Act had not been passed.
3. All provisions, restrictions, conditions and limitations ever contained in any such grant or transfer as aforesaid shall be valid and take effect according to their tenor, any rule of law, statue or enactment of the Legislature to the contrary notwithstanding.'
A perusal of the provision of the Grants Act extracted above would show that for an instrument of grant to become effective, it need not comply with the various formalities envisaged by the Transfer of Property Act or any other statue. The grant becomes effective the moment it is sanctioned by the competent authority and becomes binding on the Government from the date it is so made, non-communication thereof tot he grantee notwithstanding. For my above view, I receive support from the following observation of a Division Bench of Mysore High Court in V. Thammaiya v. The State of Mysore, (1967) I Mys LJ 85, with which I am in respectful agreement:--
'We do not accede to the argument maintained by Mr. Shyamsundar, the learned Government Pleader, that there was not completed grant, by that Government order, and that the position remained inchoate. We were asked to say that the word 'sanctioned' appearing in the Government order indicated that Government commenced a proceeding for the grant of the land and that that proceeding had not yet come to an end. It was suggested to us that the grant in favour of the petitioner would have become complete only on delivery of possession and on the issue of a saguvali chit.
The issue of the saguvali chit would have only completed the act of delivery of possession. It issue does not arise until the lands are delivered to the possession of the petitioner pursuant to the grant made by Government. The argument constructed overlooks the distinction between a grant of land and delivery of the land so granted. The grant becomes complete and effective the moment a sanction for the grant is made by Government, and with such sanction the grantee acquires a right to the land for the grant of which sanction is accorded by Government. It becomes then the duty of the concerned officers to implement the grant by delivering possession of the land to the grantee.'
In the present case, the Government did not have to take the trouble, even of the delivery of the possession as the land in which proprietary rights were granted tot he petitioners was already in their possession and so to make the grant operative on the very date, no further step was to be taken by the Government.
15. Even, if for the sake of argument, it is to be held that such a grant would not become complete and effective unless it was communicated to the grantee, then too I am of the view that it becomes effective on the very date of its making-it having been communicated, though orally, to the petitioners, as alleged on 27-10-66, for oral communication was all that was required in the case of a grant to make it binding and effective.
16. Firstly, the communication of the order Annexure 'E', envisaging the grant in question, can be inferred from the wording of endorsement thereon to the effect 'for information and action'. Surely, if the grant in question had not been considered complete on account of absence of communication or otherwise, then the order Annexure 'E' could not have been transmitted by the Government to its officers at the grass root for action. And secondly in the very nature of things, the petitioners and the other political sufferers, who were, anxious to secure the proprietary rights in the lands on lease with them would be present, as alleged, in Chandigarh and would not have contended without having gained the knowledge of the grant in question contained in order Annexure 'E' from the horse's mouth.
17. Mr. Dewan, learned Counsel for the State, however, contended that the allegations of the petitioners in this regard are rather vague in that they neither have specified the person who had communicated to them the order in question nor the place where the same had been communicated to them. I am of the view that the lack of the assertion in the petition regarding the person who communicated the order to the petitioners and the place in Chandigarh where such a communication was made would not make any difference to the basic fact of the communication. Admittedly the record in question was not available with the Haryana State despite their efforts to secure the same from the Punjab State and so the Haryana State even in that eventuality could not have made a positive assertion to the effect that there had been no such communication of the order Annexure 'E' to the petitioners as alleged by them and in the circumstances, as already indicated, I am of the view that the order Annexure 'E' must have been communicated tot he petitioners on the very day by the competent authority itself.
18. Mr. Dewan then urged that mere oral communication of an order cannot be treated as a legal communication in the eye of law. In support of his submission he referred to Bachhittar Singh v. State of Punjab, AIR 1963 SC 395, State of Punjab v. Khemi Ram, AIR 1970 SC 214, B.K. Talwar v. State of Haryana, 1971 Lab IC 201 = (AIR 1971 Punj 38), Shanti Pershad v. Competent Authority, AIR 1965 Punj 315, and State of Haryana v. Dev Datt Gupta, 1970 Serv LR 776(Punj). The question whether oral communication of an order could be treated as a valid communication did not come up for consideration in any of the above said cases and hence ratio thereof is not at all relevant to the point at issue in the present case. As to what shape the communication of an order must take, in my opinion, would depend on the nature of the order itself. Annexure 'E' was an order which was general in nature affecting hundreds of political suffers holding lands on lease who had formed a union which through its representatives had been admittedly pursuing their demands for the grant of the proprietary rights. In a case, like this, even an oral communication to such representatives of the political sufferers or through a press conference would be a sufficient communication.
19. Now coming to the second question as to whether the order Annexure 'E' conferred proprietary rights on the political sufferers in the land, it is significant to note in this respect that the land under their tenancy measured 12 1/2 acres and was located in Bir Hissar and so was the land regarding which the order Annexure 'E' had conferred proprietary rights on them. The persons on whom the order was Annexure 'E' conferred proprietary rights, were also identified as the political sufferers holding land on lease in Bir Hissar. The tenor of the order Annexure 'E' leaves no scope for any doubt that the President by order dated October 27, 1966(Annexure 'E') converted the petitioners' and the other political sufferers' lease-hold rights into proprietary rights. Whatever doubt one might have entertained in this regard must be set at rest, in my opinion, by the heading of the order Annexure 'E' which is to the following effect:
'Subject:--Conferment of proprietary rights on the political sufferers in the lands leased out to them.'
20. Mr. Dewan, learned counsel for the State, however, contended that the order Annexure 'E' conferred proprietary rights on the political sufferers in question in regard to the land that was to be allotted to them in Bir Hissar in one compact block area in pursuance of the said order and that too only after the whole price indicated in the said order had been paid and a conveyance deed incorporating the transfer by sale in question had been duly executed by both the parties. I am afraid such a construction of order Annexure 'E' is not warranted. According to the tenor of Annexure 'E', the conferment of proprietary rights was neither dependant upon the payment of the amount chargeable from the political sufferers in lieu of the grant of proprietary rights as indicated in the order Annexure 'E' nor upon consolidation of their plots in one compact area nor upon the execution of any formal document of conveyance in regard thereto for, in my view, the grant of proprietary rights became effective the very moment the President or the Subordinate Officer acting for him under the rules of business, put his signature under Annexure 'E'. I am strengthened in my above view by a decision of the Division Bench of this Court reported in Nathu v. Umra, ILR (1962) 1 Punj 455. In that case, the question that fell for decision was as to at what point of time the proprietary rights in terms of Section 3 of the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1953, vested in the occupancy tenants. A contention was advanced before the Bench that the occupancy rights in terms of the said provisions vested in the occupancy tenants not on the date of the commencement of the said Act but on the date on which the occupancy tenant effected the payment of the compensation as envisaged by the said Act in lieu of the vesting of proprietary rights. Negativing the said contention, it was held that the proprietary rights vested in the occupancy tenants automatically on the commencement of the said Act as the vesting of proprietary rights were not to remain in abeyance till the payment by the occupancy tenants of the compensation envisaged in the said Act.
21. Hence for the foregoing reasons, I hold that by virtue of the presidential order Annexure 'E', the petitioners Nos. 1 to 4 and their like became full-fledged proprietors on 27-10-66 of the very land measuring 12 1/2 acres each which prior to and till that date was held by them on lease and thereafter the steps that order Annexure 'E' had envisaged the Sate Government to take were not intended to effectuate their proprietary rights, but were required merely to enforce the two obligations imposed on the political sufferers in question by order Annexure 'E'-(i) of paying a sum of Rs. 5,000/- to the State Government in terms thereof and (ii) consolidation of their holdings in the one compact block. So far as the petitioners and their like are concerned, they had always been willing to effect payment in terms of the said order and had, in fact, written to the Deputy Commissioner, Hissar in this regard as alleged in the petition, but it was the governmental authorities who under the misguided assumption that the order Annexure 'E' was not binding upon them and that being the owner of the land were entitled to satisfy themselves whether the political sufferers in question were genuine political sufferers and whether they had been abiding by the conditions of the lease deed and that it being open to the Government to confer or not to confer the proprietary rights declined to accept the amount referred to in the said order before being satisfied about the fact as to who out of them was entitled to the conferment of the proprietary rights. Even with regard to the second obligation, it is the admitted case of both the parties that such of the political sufferers as were initially reluctant to part with their old holdings had changed their stand and had agreed to be allotted land in the compact block.
22. Having held that the petitioners and the other political sufferers in question acquired the proprietary rights on October 27, 1966, in the holdings, which till then they held on lease, we return to the question of maintainability of the present writ petition posed as a preliminary objection on behalf of the State. In view of the findings abovesaid, the petitioners do not have to claim enforcement of the order Annexure 'E' in order to get proprietary rights in the land in question and so the question of enforcement of any legal right flowing from an executive order like Annexure 'E' does not arise. Here, the question to be determined is whether decisions contained in the circular letters Annexures 'O' and 'Q' dated December 24, 1970 and June 27, 1972, respectively constitute an infringement of their fundamental right of property under Article 19(1)(f) of the Constitution or not. Apparently to the extent order Annexure 'O' treats the acquisition of the proprietary rights by the political sufferers in question in the land held by them on lease prior to October 27, 1966 as dependant on the fresh determination of their status as political sufferers does constitute an infringement of their fundamental rights to property in the land in question. So also is the case with regard to order dated 27-6-1972 marked Annexure 'Q' which continues to treat the petitioners and their like as lessees and not the proprietors of the land in question. The decisions contained in Annexure 'O' and 'Q' being violative of the petitioners' fundamental right to property could be challenged by the petitioners through a writ petition under Article 226 of the Constitution. Hence the petition in question is clearly maintainable.
23. Mr. Dewan, learned counsel for the State, however, urged that in case the provisions of the Colonization Act are held to be applicable to the facts of the present case, then in view of the provisions of Section 15 thereof which envisages the treatment of the grantee as a tenant under the said Act till he made payment of the purchase price with interest, if any, due thereon, the State of Haryana was well within its rights to issue orders Annexure 'O' and 'Q'. I find no merit in this contention. When viewed in its true perspective and context the provisions of Section 15 can be considered to have merely deemed the purchaser of the land from the Government to be a tenant only to enable the State to realise from him the purchase price and any interest thereon as arrears of land revenue by virtue of the provisions of Section 28 of the Act and thus save itself from entering into civil litigation for realisation thereof.
24. The other preliminary objections to the maintainability of the writ petition taken in the return filed on behalf of the respondents have not been pressed by the learned counsel for the State and thus these are treated as having been withdrawn.
25. In view of my finding regarding the nature of decisions contained I orders Annexures 'O' and 'Q'. I quash them as violative of the provisions of Article 19(1)(f) of the Constitution of India and declare that the petitioners and other political sufferers, who had been granted 12 1/2 acres of rent free land each by the erstwhile Punjab State in Bir Hissar, has become full proprietors thereof on October 27, 1966. accordingly, the respondents are directed to take no steps other than those that are intended to enforce the obligations envisaged under order dated October 27, 1966 marked Annexure 'E' regarding the consolidations of holdings of the political sufferers in question and realisation of the amount mentioned therein.
26. I may take notice of one more argument, advanced by Mr. Lekhi, learned counsel for the petitioners, regarding the acquisition of proprietary rights by the political sufferers in question in the land on lease with them by the virtue of the provisions of the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1953. This argument is merely mentioned to be rejected as, in my opinion, the acquisition of proprietary rights by virtue of grant as governed by the Government Grants Act, 1895, precludes the acquisition of such rights in any other manner. I, therefore, hold that the Vesting of Proprietary Rights Act, 1953, is not at all attracted to the facts of the present case.
27. This takes me to the allegations of legal mala fide alleged against the State of Haryana, respondent No.1 in contradistinction to personal allegation against the Chief Minister which have been withdrawn as already noticed. Mr. Lekhi in this regard has asserted that since the State acted clearly against law in refusing to accept the amount envisaged in order Annexure 'E' from political sufferers in question as also in issuing the circular letters Annexures 'O' and 'Q' so their action in this regard constitutes a fraud on their powers. I am afraid, there is no merit in this contention advanced by the learned counsel for the petitioners. The question whether the order Annexure 'E' passed by the erstwhile Punjab State was binding on the successor State of Haryana, was not at all free from doubt and so the Haryana State authorities could not binding upon them and they could rescind the same or attach any condition there to, as they like, before conferment of proprietary rights in regard to the land of which they still genuinely considered themselves to be the owners. That being the position, any action taken by them under such misapprehension of their rights and powers cannot be treated to have sprung from any mala fide intention to abuse their powers.
28. Before concluding the judgment, I must observe that the petitioners could have easily avoided the use of vituperative language against the Chief Minister without in any manner weakening the telling effect of their allegations against him as well as the State if there was any inherent merit in them.
29. In the result, I allow the writ petition with costs.
30. Petition allowed.