R.S. Narula, J.
1. I propose to dispose of by this judgment 97 writ petitions which were heard together along with Letters Patent Appeal No. 762 of 1970. These writ petitions have to be divided into four groups in order to facilitate reference to the separate set of arguments advanced in respect of each group. The prayer in all these petitions is to quash the orders of the Collector, Kaithal, district Karnal, determining the leases of the respective parcels of land of which possession had been taken by the Collector under Section 3 of the East Punjab Utilization of Lands Act (38 of 1949) (hereinafter called the Act), and which land had therefore been leased out to different persons for a period of twenty years. The first group is comprised of 57 petitions (Civil Writs Nos. 1376, 1377, 1383 to 1386, 1395, 1416, 1432, 1433, 1459, 1471, 1482, 1491, 1521, 1549, 1550, 1559, 1573, 1604, 1607, 1651 to 1654, 1669, 1670, 1672, 1694, 1713, 1752, 1784, 1785, 1786, 1791, 1817, 1836, 1944, 2000, 2001, 2438, 2720, 2749, 2820 to 2822, 3168, 3704, 3705, 3786, 3887, 3899, 3942, 3943, 3990 to 3992 of 1970) in which it is admitted that leases had been granted to the respective writ-petitioners under Section 5 of the Act and were cancelled by the impugned orders of the Collector in writing passed under Section 6 of the Act. In some of these cased the lessees went up in appeal to the Commissioner has been impugned. In the second group I will take up seven cases (Civil Writs 1346, 1347, 1351, 1381, 1396, 1469 and 2439 of 1970) in which land had been taken over by the Collector under Section 3 and leased out under Section 5, but without executing any written lease-deed. In all the cases falling in this group, written orders have been passed by the Collector determining 'the lease-deeds'. The third group is of 29 petitions, i.e. Civil Writs 1483, 1490, 1496 to 1504, 1522 to 1526, 1560, 1634 to 1639, 1991, 2185, 2362, 2649, 2689 and 2836 of 1970. In all the cases falling in this group, the land was taken over by the Collector under Section 3, but had been leased out under Section 5 to persons other than the writ-petitioners though it is claimed by most of the petitioners that they are in actual possession of the land. According to the respondents, these petitioners have come into unauthorised possession or been inducted by the original lessees as sub-tenants in violation of the terms of the respective leases. In the fourth group fall the remaining four petitions (Civil Writs 1394, 1643, 1883 and 2245 of 1970) which have certain special distinctive features of their own.
2. So far as the cases in the first group are concerned, following points were urged by the learned counsel for the respective petitioners :--
(i) The orders are wholly void, in-executable and non est as Section 6 of the Act under which the Collector purports to have passed those orders is unconstitutional as it is hit by Art. 13(2) of the Constitution on account of its being violative of the guarantee of equal protection of laws contained in Art. 14 of the Constitution;
(ii) Even if it is assumed that Section 6 of the Act is valid, the leases of the petitioners could not be terminated under that provision before the expiry of the fixed period of twenty years for which the leases had been granted before the enactment of Section 6 in 1957;
(iii) Even on the facts alleged by the respondents, no order under Section 6 of the Act could be passed determining the leases of the petitioners as they had not incurred forfeiture of the leases, three being such default as would justify the determination of the leases. Inasmuch as there was no contravention of any of the terms of the leases, there could be no question of any action being taken under Section 6. In any case, a single default in payment of rent could not amount to contravention of the terms of the leases;
(iv) In case it was found that any lessee had failed to pay lease-money within the prescribed time, it was the duty of the Collector to consider the question of relieving the lessee of the forfeiture on account of non-payment of rent on the equitable principles contained in Section 114 of the Transfer of Property Act, and to actually relieve the lessees of the forfeiture in the circumstances of these cases;
(v) The condition for payment of rent by the 15th of January in each year had been waived by the Collector during the long period of the leases and the Collector was now estopped by his conduct from enforcing the said term in the lease-deeds which had become a dead letter on account of such waiver. As an ancillary ground, it was urged that the Collector having accepted the lease-money for the whole of the year 1970, after determining the leases in the beginning of that year and the Collector having further accepted the rent for the whole of the year 1971, no action could be taken against the petitioners for dispossessing them from the land in question under Section 6 of the Act;
(vi) It was the Collector of the district alone who could pass orders under Section 6 of the Act. Shri Ram Narain Singh, Sub-Divisional Officer, Kaithal, who passed the impugned orders had, therefore, no jurisdiction or authority to pass such orders under the Act;
(vii) In accordance with the principles of natural justice the Collector could not act as a judge in his own cause, and could not combine in himself the dual capacity of a landlords and a judge;
(viii) On a proper construction of Section 6 and Rule 5 of the rules framed under the Act, two independent actions are provided for in those provisions viz. (a) determination of the lease, and (b) taking possession of the lease-hold land. Inasmuch as notices served on the petitioners as well as the impugned orders passed against the petitioners were only in respect of and confined to the first matter, the petitioners could not possibly be dispossessed in pursuance of those orders without fresh notices being given in respect of the second matter, and fresh orders being passed, if necessary in respect of that matter;
(ix) The notices issued to the petitioners of which copies have in most of the cases been produced by the respondents, do not fulfil the requirements of Rule 5 of the rules framed under the Act;
(x) Even if the entire action taken by the respondents against the petitioners is found to be strictly in accordance with law, the same is still liable to be struck down as the impugned orders have not been passed in bona fide exercise of the legal powers, but the said action was actuated by malice and based on extraneous reasons;;
(xi) Substantial amounts had been deposited by the lessees with the Collector as earnest-money. So long as the amounts of such deposits exceeded the maximum claim for arrears of lease-money, the lessees could not be said to have committed any default; and
(xii) In cases in which the leases have been determined (not for non-payment of lease-money) on account of the lessees having sown commercial crops instead of food or fodder in the land in question no order under Section 6 of the Act determining the leases could be passed, as violation of the said special condition (contained in Section 5 of the Act) results only in the special penalty provided by Section 8 being imposed, and in case of which the only remedy available to the Collector is the special one provided by Section 10.
3. The only additional argument advanced in the second group of cases was that in the admitted absence of any written lease-deed, orders of the Collector purporting to cancel 'the lease-deed' were meaningless and were, therefore, unenforceable. Now I will take up all the abovementioned points raised in the first and the second group of cases one by one.
4. So far as the first point is concerned, it has already been decided in out judgment of date in Letters Patent Appeal No. 762 of 1970 (Punj), Ram Chand v. The State of Haryana that Section 6 of the Act is ultra vires Art. 13(2) of the Constitution as infringing the fundamental right of the petitioners guaranteed to them under Art. 14 of the Constitution. Following that judgment, I will hold the Section 6 is unconstitutional, and, therefore, the impugned orders which purport to have been passed by the Collector under that provision, are wholly void and non est. and unenforceable.
5. The arguments of Shri Madan Lal Sethi, learned counsel for the petitioners in Civil Writs 1346, 1347 and 1387 of 1970, under the second heading, was in as much as Section 2 of Punjab Act 24 of 1957 did not even purport to give retrospective effect to Section 6, no action under that provision could be taken in respect of leases which had been granted before 1957. Counsel submitted that all the leases in the cases before us having been granted before the passing of Punjab Act 24 of 1957, whereby Section 6 was introduced into the principal Act, the said leases have to be governed by the law in force at the time of their grant, and no action could, therefore, be taken for determining these leases under the provision introduced by the 1957 Amending Act, as permitting such a course being adopted, would amount to giving retrospective effect to Section 6 which was not given by the Legislature either expressly or by necessary intendment. Reference was made by learned counsel in this connection to the well-known principles of interpretation of statutes wherein it is laid down that statutes affecting substantive or vested rights are not retrospective unless expressed to be so though statutes affecting procedure may properly have retrospective effect attributed to them unless that construction be textually inadmissible. Counsel referred in this connection to the following passage at page 4 of Mulla's Transfer of Property Act (fifth edition) :--
'The principles affecting the retrospective operation of statutes have been stated as follows :--
1. Legislative enactments have no restrospective effect, unless explicitly stated to be so in the enactments themselves.
2. Amending statutes should not be construed as having retrospective effect, if they affect vested rights.
3. Statutes which are declaratory or explanatory are to be construed as having retrospective effect as they give an authoritative explanation of the words, phrases or clauses used in a statute, and whenever the statute has to be applied the explanation also should be applied.
4. No recital in a declaratory or amending statute can render void that which has been declared by the Courts to have been rightly done under the law.
5. Statutes which affect a mere procedure are retrospective in their nature.'
6. Similarly it was submitted that Rule 5 was framed under the Act for the first time on September 23, 1957, and, therefore, no notice under that rule could be issued to the petitioners whose leases dated back to several years prior to the coming into force of the impugned provision. Rule 5 states as follows :--
'Lessee to be afforded an opportunity before determination of lease--The Collector shall before making an order determining a lease and taking possession of the land under Section 6 of the Act afford a reasonable opportunity to the lessee to show cause why his lease of land should not be determined and possession of land should not be taken.'
Mr. Sethi invited our attention in connection with this point to the judgment of a Full Bench of the Patna High Court in Tika Sao v. Hari Lal, AIR 1940 Pat 385. In that case it was laid down that the general rule is that any new law that is made should ordinarily affect future transactions, not past ones. On that basis it was held that unless there be something in the language, context or object of an Act showing a contrary intention the duty and practice of Courts of justice is to presume that the Legislature enacts prospectively and not retrospectively. In Venugopala Reddiar v. Krishnaswami Reddiar, AIR 1943 FC 24, it was held that a right to continue a duly instituted suit is in the nature of a vested right and it cannot be taken away except by a clear indication of intention to that effect.
Two questions call for determination in order to dispose of these arguments advanced by the counsel for the petitioners. Firstly, it has to be determined whether the right to be proceeded against to an ordinary civil or revenue Court and not to be dealt with under the special provision of Section 6 is a vested right or a mere procedural right. I am inclined to think that the procedure and the form by which a lease is liable to be determined according to different laws cannot be treated as a vested right, but a mere procedural right. The second leg of the argument in this behalf relates to the provisions of Section 6 being merely prospective or by necessary intendment retrospective. The history of the relevant legislation has been given by me in detail in the course of my judgment in L. P. A. No. 762 of 1970 (Punj). According to the official statement of the objects and reasons for introducing the new Section 6 into the Act the intention was to provide for a summary remedy to the Collector to determine leases granted under Section 5. Prior to that it had been held by a Division Bench of this Court in Ladli Persha Jaiswal v. The Collector, Karnal, 1956-58 Pun LR 548, that the Collector could only proceed under the ordinary law in a competent civil or revenue Court. The historical background, therefore, shows that Section 6 was made applicable to existing leases. Moreover, no retrospective effect can, in my opinion, be said to have been given to Section 6 in the present cases. The section was invoked and action taken thereunder when it was admittedly in force. There is nothing in the impugned provision or in any other part of the Act to show that leases already granted before the coming into force of Section 6 were exempt from the operation of that provision. The existence of authority of the Collector to proceed under the impugned provision has to be judged as on the date on which the Collector purported to proceed under that section. It is also significant that Clause 15 in all the lease deeds shown to us provides that the lease shall be subject to all the provisions of the Act as amended from time to time. The covenants for determining leases on account of contravention of any of its terms admittedly existed in Clause 11 of the respective lease-deeds. The Division Bench had held, and it is conceded by the petitioners that it was held correctly, that the Collector could proceed to a Civil or revenue Court for claiming ejectment under clause 11 of the relevant lease-deeds. Section 6 merely conferred on the Collector the authority to have the lease determined and to obtain possession of the lease-hold land in a more summary and drastic manner. I am, therefore, unable to hold that merely because Section 6 was enacted in 1957, the leases of the petitioners could not be terminated under that provision before the expiry of the period of twenty years.
7. Now I am able to agree with the third argument advanced on behalf of the petitioners. Clause 11 in the lease-deeds authorises the Collector to determine the lease and to take possession of the land in case of any breach of any of the conditions of the lease by the lessee. Condition No. 2 requires the last two years' rent to be paid by the lessee in advance. Condition No. 3 enjoins on the lessee the duty to deposit the rent on or before the due date with the Collector. What is due date is stated in condition No. 1. It is provided there that the rent for the first year has to be paid on the 25th of January, and thereafter it is payable on the 15th of January each year. It cannot, therefore, be successfully argued that if the condition for payment of rent of the succeeding years (after the first year) on or before the 15th of January is not fulfilled still there is no contravention of any of the terms of the leases. The distinction between the payment of lease-money being consideration for the lease and not a condition of the lease, is indeed subtle but not sound.
The argument advanced in those cases in which there was default in payment of only one year's rent about non-payment of one year's lease-money not amounting to default in payment of rent is misconceived. Reliance was placed by Mr. Bhagat Singh Chawla, learned counsel for some of the petitioners, in support of that proposition on the judgment of Shamsher Bahadur, J. in Pera Ram v. The Financial Commr., 1966 Cur LJ 344 (Punj) and on the subsequent judgment of a Division Bench (Mehar Singh, C. J. and myself) in Mrs. Raj Kanta v. The Financial Commr., Punjab, 1970 Pun LJ 219. Those cases were concerned with the interpretation and scope of the words 'failure to pay rent regularly' occurring in Section 9 (1) (ii) of the Punjab Security of Land Tenures Act. No such words occur in the leases with which we are concerned. The fact that the failure to pay rent regularly was construed in the abovementioned cases as involving some element of contumacy, is wholly irrelevant to the conditions of the leases in the instant cases to which reference has already been made. I have, therefore, no hesitation in repelling all the aspects of the third contention advanced on behalf of the petitioners.
8. Lengthy arguments were addressed by both sides on the fourth point relating to the alleged duty of the Collector to relieve the defaulting lessees of the forfeiture incurred by them for non-payment of rent on the due date. Section 114 of the Transfer of Property Act of which the equitable principles were invoked by the petitioners states as follows :--
'Relief against forfeiture for non-payment of rent--Where a lease of immovable property has determined by forfeiture for non-payment of rent and the lessor sues to eject the lessee, if at the hearing of the suit the lessee pays or tenders to the lessor the rent in arrear together with interest thereon and his full costs of the suit or gives such security as the Court thinks sufficient for making such payment within fifteen days, the Court may in lieu of making a decree for ejectment, pass an order relieving the lessee against the forfeiture and thereupon the lessee shall hold the property leased as if the forfeiture had not occurred.'
It was submitted that the abovequoted statutory provision not having been enforced and made applicable to agricultural land in Punjab and Haryana, its rigour and technicalities did not apply to the present cases but only its equitable principles were binding on the Collector. It was, therefore, said that if the lessee paid or tendered to the Collector was bound to consider in each case whether or not he would pass an order relieving the lessee against the forfeiture instead of passing an order determining the lease so that in case relief against forfeiture was granted, the lessee could hold the leased property as if the forfeiture had not occurred. It was argued that in order to invoke the equitable principles of Section 114, the lessee was bound to tender only the rent in arrears and not any interest due thereon or any amount of costs. The provision for paying or tendering interest and costs is only the technical and rigorous part of the section, whereas the authority to relieve against forfeiture was referred to by counsel as the equitable part of the legal provisions. The first matter to be considered in respect of this contention is the effect of Section 114 of the Transfer of Property Act not being applicable to the area with which we are concerned.
It is by now as well settled that the suitable principles contained in the various provisions of the Transfer of Property Act are applicable to the State of Punjab (including the area which has now become the State of Haryana) but the technical rules contained therein would not apply to such areas where the Transfer of Property Act does not in terms apply. It is unnecessary to deal with the large number of authorities on that point to which counsel referred. The latest authority on that point is contained in the Full Bench judgment of this Court in Bhaiya Ram v. Mahavir Parshad, 70 Pun LR 1011=(AIR 1969 Punj 110) (FB). That case related to the invoking of the provisions of Section 106 of the Transfer of Property Act in Punjab where the statutory provision had no application. It was held that the equitable principles of that section have to be invoked under Section 6 of the Punjab Laws Act and are accordingly deemed to be requirements of law in the absence of any statutory provision to the contrary. At the same time it was held that the technical rule contained in Section 106 about the necessity of the notice of termination of tenancy coinciding with the end of the month is not applicable in Punjab. The other two cases cited by counsel on this point are Mst. Bhagwan Devi v. Mst. Bunyadi Khanum, 85 Pun Re 1902 and Krishna Shetti v. Gilbert Pinto, AIR 1919 Mad 12. It is, therefore, clear that the equitable principles contained in S. 114 of the Transfer of Property Act are applicable to Punjab and Haryana also.
9. On behalf of the respondents it was contended that even if the abovementioned conclusion is correct, the 'principles of Section 114 could not be invoked by the petitioners in these cases as all the leases in question were for agricultural purposes. Section 117 of the Transfer of Property Act states as follows :--
'Exemption of leases for agricultural purposes-
None of the provisions of this Chapter (and Section 114 is in the same Chapter) apply to leases for agricultural purposes, except in so far as the State Government may, by notification published in the Official Gazette declare all or any of such provisions to be so applicable in the case of all or any of such leases together with, or subject to, those of the local law, if any, for the time being in force.
Such notification shall not take effect until the expiry of six months from the date of its publication.'
Admittedly no notification under S. 117 of the Act had either been or could have been issued by the State of Haryana in respect of agricultural leases. It was not because in fact it had not been published. It could not be because Section 117 and for the matter of that Section 114 has in terms no application to the area covered by that State. On behalf of the petitioners it was emphasised that the statutory provision contained in Section 114 not being applicable, the statutory restriction contained in Section 117, to which Section 114 is subject cannot be invoked by the respondents and it is only the equitable principles of Section 114 which are binding on the Collector and not the rigidly and technicality mentioned in Section 117. Large number of cases were cited in support of the proposition that Section 117 does not bar relief being granted on the principles contained in Section 114 even in places where the statutory provisions contained in the Transfer of Property Act are not applicable. In Aziz-ul-Din v. Guru Bhagwan Das, 6 Pun Re 1912 it was held that the relief allowable under Section 114 of the Transfer of Property Act may be granted to a lessee, whose lease has been determined by forfeiture for non-payment of rent as the provisions contained in Section 114 are in consonance with the principles of justice, equity and good conscience. It was further held that the order of a Collector who fails to consider this point was open to revision by Financial Commissioner inasmuch as by non-consideration of this aspect of the matter the Collector is deemed to have failed to exercise a jurisdiction vested in him by law.
In Janab Vellathi v. Smt. K. Kadervel Thayammal, AIR 1958 Mad 232, it was held that relief against forfeiture is granted in Madras on considerations of justice, equity and good conscience, and that the High Court is not precluded from granting relief against forfeiture in a second appeal merly because the tenant did not make an application for it in the Court below and had not paid arrears at a stage prior to the decree of the trial Court. P. V. Rajamannar, C. J. and Pahchapakesa Ayyar, J., who constituted the Division Bench of the Madras High Court held that the Court has power to give relief against forfeiture independently of the provisions of Section 114, if justice, equity and good conscience require it. It was significantly pointed out that though an agricultural lease does not come within the purview of S. 114, a Court, exercising the powers for determining a lease will relieve against forfeiture for non-payment of rent on such conditions as may appear equitable on the facts of each particular case. It is also important to notice that the Division Bench went further to hold that in granting relief on the equitable principles contained in Section 114 the Court is not bound by the conditions laid down in that section. It was also held that the principle that relief against forfeiture should not be granted to a tenant who had set up a false claim of having paid the arrears cannot be accepted as universally applicable and it all depends on the circumstances of each case. In Palaniswamy Gurukkal v. Kandappa Goundar, AIR 1968 Mad 96, a Division Bench of the Madras High Court while dealing with the jurisdiction of the special authority under the Madras Cultivating Tenants' Protection Act (25 of 1955) held that the principles underlying Section 114 of the Transfer of Property Act can be invoked even in respect of agricultural holdings to which the Act itself does not apply for want of a notification under Section 117. A Division Bench of the Lahore High Court held in Kallan v. Jowahar Singh, AIR 1924 Lah 49 that it was against equity and good conscience to allow the landlord to cancel the lease simply on account of a few days' delay in the payment of rent in a case where the lessee had not yet even succeeded in getting possession of the property which he had taken on lease and the landlord had accepted some nazarana. In that connection it was held that wherever a penalty is inserted merely to secure the performance or enjoyment of a collateral object the latter is considered as the principal intent of the instrument, and the penalty is deemed only as necessary, and therefore, as intended only to secure the due performance thereof. Relief against forfeiture otherwise admittedly incurred for non-payment of rent was granted by the Court in that case.
In S. K. Shaw and Brothers v. Brij Raj Krishna, AIR 1949 Pat 474 it was observed by a Division Bench of the Patna High Court that relief against forfeiture is based upon the principle that as a right of re-entry was intended merely as a security for rent, the lessor by the lessee's bringing the rent into Court, recovered full compensation and was put in the same situation as if rent had been paid to him when it was originally due. It was further held that this relief granted on the principles of Section 114 of the Transfer of Property Act, has of course, been made discretionary with the Court hearing the suit for ejectment of the tenant. It was emphasised that the proper rule, however, as established by judicial decisions seems to be that if at the time the relief is asked for the position has been altered so that the relief cannot be given without causing injury to third parties, relief will be refused but if the position is not altered to that no injustice will be done, there is no real discretion and the Court should make the order relieving the tenant against forfeiture. Shah, C. J. and Chhatpar, J. held in Mangalsinhji Shivsinhji v. Vela Jetha, AIR 1956 Sau 44 that no doubt Section 114 does not apply to agricultural leases but there are decisions in which it has been held that where a lease does not come within the purview of the Transfer of Property Act, Court exercising the power which it possessed even previous to that Act will relieve against forfeiture incurred for non-payment of rent on such conditions as may appear to be equitable on the facts of each particular case. Similarly a Division Bench of the Nagpur High Court held in Shrikishanlal v. Ramnath Jankiprasad Ahir, AIR 1944 Nag 229, that the fact that the incidents of tenancy are governed by contract does not prevent a Court of justice from applying equitable principles in regard to its enforcement. Referring specially to the provisions contained in Section 114 of the Transfer of Property Act it was held that though that provision does not apply in terms to agricultural leases, the Court has power to relieve against forfeiture even in those cases. It was further held that when Section 114 does not apply in its terms to the case, an appellate Court is not precluded from granting relief against forfeiture for non-payment of rent if on a consideration of all the facts it considers it to be equitable.
10. Reference was lastly made to the authoritative pronouncement of the Supreme Court in R. S. Lala Praduman Kumar v. Virendra Goyal, AIR 1969 SC 1349 wherein it was held that the covenant of forfeiture of tenancy for non-payment of rent is regarded by the Courts as merely a clause for securing payment of rent, and unless the tenant has by his conduct disentitled himself to equitable relief, the Courts do grant relief against forfeiture of tenancy on the tenant paying the rent due interest thereon and costs of the suit. It was further held that in appropriate cases it is open even to an appellate Court at the hearing of the appeal to relieve the tenant in default against forfeiture, and that the passing of a decree for ejectment against a tenant by the Court first instance does not take away the jurisdiction of the appellate Court to grant equitable relief. It was observed that failure of the tenants to avail themselves of the opportunity does not operate as a bar to the jurisdiction of the appellate Court to grant relief against forfeiture and that the appellate Court may having regard to the conduct of the tenant decline to exercise its discretion to grant him such relief.
11. The following propositions of law emerge from a careful study of all the above quoted decisions :--
(i) The principle of equity, justice and good conscience relating to grant of relief against forfeiture of a tenancy on account of simple non-payment of rent has assumed the status of a statutory provision in Punjab and Haryana though Section 114 of the Transfer of Property Act does not in terms apply to those areas;
(ii) While applying the equitable principles of Section 114 to the areas in question, though it is not necessary to insist on the compliance with the technical requirements of the section relating to payment of costs and interest as a condition precedent to the exercise of jurisdiction in that respect still the Court may impose conditions to that effect, or other suitable conditions for relieving a tenant against forfeiture of his tenancy in suitable cases;
(iii) Want of a notification under Section 117 of the Transfer of Property Act would not bar the grant of relief against forfeiture on the equitable principles of Section 114 where the Transfer of Property Act is not applicable;
(iv) Relief against forfeiture of tenancy for non-payment of rent may be granted by a Court even if no application or specific prayer for that purpose is made by the tenant;
(v) Relief against forfeiture of tenancy for non-payment of rent may be granted even by an appellate or revisional Court after taking into consideration the conduct of the tenant even though the tenant may not have made an application for being relieved against forfeiture in the trial Court; and
(vi) Where relief against forfeiture is claimed by a tenant either expressly or by implication before a Court of the first instance or before a special tribunal, and the Court or the tribunal does not at all deal with the matter and neither states that it has no jurisdiction to grant such relief nor grants the relief, such Court or tribunal must be held to have failed to exercise jurisdiction vested in it by law.
12. The admitted facts of all the cases in which leases have been terminated merely on account of non-payment of rent are that the tenants pointed out that rigid adherence with the requirements of payment by the 15th of January in each year had not been insisted upon in any previous years or in the past, and that the tenants were prepared to pay the entire amount of arrears claimed by the Collector forthwith. In such a situation, the Collector was, in my opinion, bound to go into the question of granting or not granting relief against forfeiture and was bound to give some decision one way or the other on two points viz. (i) whether he had or had not the jurisdiction to grant relief against forfeiture for non-payment of rent in a suitable case, and if so, (ii) whether in each given case he should or should not have granted such relief. Having failed to exercise jurisdiction vested in him by law, as held by me above, to give a decision on the two points referred to above, the orders passed by the Collector under Section 6 of the Act terminating the leases of those petitioners who have been found to have merely defaulted in the payment of rent by the 15th of January, are liable to be struck down on that additional ground.
13. This takes me to the question of alleged waiver of the condition for payment of rent by the 15th of January by the Collector. It was not disputed before us that during the first 15 to 18 years of the leases, no one had eve bothered about payment being made by the 15th of January, and it was only in 1970 that it was for the first time insisted upon in the history of the leases in question that payment should be made by the specified date. It is also significant in some cases that action for non-payment of rent by the 15th of January was initiated just a few days after that date though in other cases it was after a few weeks. It was argued that in such a situation it should be held that the Collector had waived condition No. 1 of the leases insofar as that condition related to incurring forfeiture of the leases on account of non-payment of rent by the 15th of January. I must take notice of one fact in connection with contention No. (v) with which I am dealing at the moment on which there was no dispute between the parties. It was admitted that in almost all the cases where leases have been determined for non-payment of rent, the entire arrears of rent were not only offered by the tenants but were actually paid out either on the same day, or within a week or at best within a few weeks after the date of hearing. It was also admitted that rent for the whole of the year 1970 was accepted by the Collector after passing the impugned orders. In some of the cases we were shown receipts for rent even for the subsequent year of 1971 having been paid by the tenants without any objection having been raised by the Collector. On the side of the State it was submitted that rent could not be refused when the lessees continued in possession, and that though the Collector did not say so at the time of accepting the rent, we should hold that it was accepted as compensation for use and occupation.
Counsel for the petitioners referred to the Division Bench judgment of the Mysore High Court in Rahmath Unnissa Begum v. Shimoga Co-op. Bank Ltd., AIR 1951 Mys 59, wherein it was held that by accepting irregular instalments the defendant had waived his right to insist upon regular payments and the plaintiff was lulled into the belief that regularity in payment of instalments was not necessary. The judgment of Grover, J. (now adorning the Bench of the Supreme Court) in Civil Writ No. 371 of 1962 (SC); Jaswant Singh v. The Estate Officer, Capital Project, Chandigarh, D/- 3-12-1963 was then cited by counsel. By the order impugned in that case, the Collector and the Estate Officer, Chandigarh, had directed the writ petitioner under Section 5 (1) of the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1959, to vacate the premises in dispute within thirty days of the date of publication of the order. In appeal against that order, it was argued before the Commissioner that the petitioner had been paying rent regularly for the site in dispute, and also complying with other conditions of the lease. It was, however, held that the petitioner had no right to remain in occupation of the premises any more, as the term of his lease had expired and notice had been given to him. It was admitted that rent for the period subsequent to the expiry of the lease by efflux of time had been regularly accepted by the Collector. It was claimed that by virtue of the principles embodied in Section 116 of the Transfer of Property Act, the lease was deemed to have been renewed as the lessor had accepted rent from the lessee. On behalf of the State it was contended that the possession of the writ-petitioner after the efflux of time of the original lease had become unauthorised despite acceptance of rent for the subsequent period by the Collector. The learned Judge observed :--
'In the present case if rent had not been accepted after the determination of the lease then there could be no doubt that the petitioner would have been in unauthorised occupation of the premises in question but as rent was accepted, by virtue of the principle embodied in Section 116 of the Transfer of Property Act, the lease got renewed, with the result that it could not be said that his occupation was unauthorized any longer.'
The argument of the counsel for the State to the effect that the language of Section 3 (b) of the said Act was such that as soon as the lease was determined by efflux of time, the petitioner became unauthorised occupant for the purposes of that Act was repelled by the learned Judge in the following language :--
'I regret I cannot accede to that contention because if under the law of the land the petitioner did not cease to be the lessee or in other words if the lease was renewed by virtue of the principle of the provisions contained in Section 116 of the Transfer of Property Act, he could not possibly be regarded to be in unauthorised occupation of the public premises. Once the lease got renewed, it meant that he continued to be the lessee throughout. For these reasons the orders which are undoubtedly illegal and must be quashed and are hereby quashed.'
14. We are in full agreement with the law laid down by Grover, J. in Jaswant Singh's case, C. W. No. 371 of 1962, D/- 3-12-1963 (SC) (supra). Following the same, we would hold that the forfeiture, if any, which was incurred by the petitioner on account of non-payment of rent or on account of the passing of the impugned orders against them by the Collector under Section 6 stood automatically vacated, and the leases stood renewed on the principles of Section 116 of the Transfer of Property Act by subsequent acceptance of rent for the whole of 1970 and for 171 by the Collector. On that additional ground the order determining the leases in such cases cannot be enforced and the petitioners cannot be dispossessed from the lands in question till the end of 1971 or till the end of their original leases whichever period expires later.
15. The sixth contention which was advanced only by Mr. Bhagat Singh Chawla, Advocate for some of the petitioners, is, however, without any substance. After referring to the definition of 'Collector' contained in Section 2 (b) of the Act, it was argued that Shri Ram Narain Singh, Sub-Divisional Officer, Kaithal, not being the Collector of the district of Karnal, in which district the land was situate had no jurisdiction to pass orders under Section 6 of the Act which could be passed only be a person who fell within the definition of 'Collector' as contained in the abovementioned provision. In making this submission, the petitioners appear to lose sight of Section 12 of the Act which authorises the Collector to delegate all or any of his powers and functions under the Act to any officer of the Revenue or Rehabilitation Department in his district either by name or by designation. Respondents have placed on the records of the cases in which this point has been taken up, a copy of the order of Shri R. C. Kapila, Collector Karnal, passed in September, 1965 (when Punjab was still united) which reads as follows :--
'In exercise of the powers conferred upon me under Section 12 of the East Punjab Utilization of Lands Act, 1949 (as amended by Punjab Government Notification No. 50-Leg/5, dated 25-11-1956 and No. 32-Leg/57, dated 29-7-1957. I hereby delegate all the powers of Collector vested in me under the said Act to all the Sub-Divisional Officer (Civil) in the Karnal district to function as such in their respective Sub-Divisions.'
No invalidity has bee pointed out by any of the learned counsel in the abovequoted order passed under Section 12 of the Act. Inasmuch as Shri Ram Narain Singh was admittedly a Sub-Divisional Officer (Civil) posted in the district of Karnal, he was duly authorised to exercise the functions of the Collector under Section 6 of the Act. This contention advanced on behalf of the petitioners must, therefore, fail.
16. Nor am I able to accept the seventh argument on which great emphasis was laid by almost all the counsel appearing for the petitioners. It was argued that the Collector could not combine in himself the capacity of a landlord and a Judge for acting under Section 6 of the Act. Firstly, it was the Collector of the district as defined in Section 2 (b) of the Act who was the landlord. Shri Ram Narain Singh was not the landlord but only a Judge exercising functions under Section 6 by virtue of the delegation of the authority under the Act to him. Secondly, there is a distinction between the cases in which a statutory authority exercises quasi-judicial functions vested in him by law though such an authority is itself a party to the proceedings in another capacity on the one hand, and cases in which otherwise than in exercise of statutory powers someone wants to decide a case in which he has personal interest on the other.
The observations of the Division Bench of this Court in Ladli Pershad Jaiswal's case, 1956-58 Pun LR 548 to the effect that the Collector under the original Section 6 of the Act could not be a Judge in his own cause and could not direct that the petitioner should be thrown out of the land by use of force were peculiar to the facts and circumstances of that case. Emphasis in that judgment was on the question of jurisdiction of the Collector to pass an order of ejectment against a lessee. The observations about the Collector being not able to pass such an order as Judge in his own cause were in my opinion made merely by way of embellishment. The only other case to which reference was made in support of this proposition by counsel for the petitioners was the judgment of a Full Bench of the Allahabad High Court in Ram Gopal Gupta v. Assistant Housing Commr., AIR 1969 All 278 to which detailed reference has been made by me in the course of my judgment in L. P. A. No. 762 of 1970 (Punj). I am unable to spell out from any universal proposition of law supporting the petitioners in this respect. I, therefore, find no force in the seventh proposition of law canvassed before us on behalf of the petitioners.
17. This takes me to another important matter covered by the eighth contention. Section 6 confers on the Collector two distinct powers against a lessee who is found to be guilty of having committed breach of any of the terms and conditions of lease. If the lessee commits breach of any of the terms and conditions of the lease, the Collector is entitled to exercise (i) the power to determine the lease, and (ii) the power to take possession of the land. Though the Collector cannot take possession of the land without determining the lease, the reverse of it is not correct. If the Collector so chooses he may determine the lease and still not take possession of the land and allow the possession to remain with the lessee on special terms and conditions. The notices which were issued to the lessees were in the following terms :--
'In the above noted case land measuring............ was leased to you for a period of twenty years under the Utilization Act, 1949. You were required to deposit its rent by the 15th January every year but you have violated condition No. 1 of the lease-deed by not depositing the rent for one year amounting to Rs.------------. Hence you should appear in this Court........... and show as to why your lease may not be cancelled.'
The heading of the case above the body of the notice is in the following language :--
'Case regarding cancellation of lease regarding land situated at................. tahsil Kaithal.'
These notices were issued under Rule 5 of the Punjab Utilization of Lands Rules, 1950 as amended in 1957. Rule 5 enjoins on the Collector a duty to afford a reasonable opportunity to a lessee to show cause why (i) his lease should not be determined; and (ii) possession of land should not be taken from him making either an order determining a lease or an order for taking possession of the land under Section 6 of the Act. None of the notices afforded opportunity to the lessees to show cause why their leases should not be cancelled (determined). In this view of the matter, I find greater force in the submission of the learned counsel for the petitioners that even if all the proceedings and the impugned orders could be held to be valid, and legal, the result of those proceedings and orders would only be that the leases of the individual petitioners stood determined. From mere determination of lease on order for taking possession of the land cannot be inferred. Sub-section (2) of S. 6 merely states that where a lease has been determined by the Collector, the lessee shall not be entitled to any compensation. It does not say that where the lease has been determined, the Collector shall automatically have the power to take possession of the land from the lessee immediately. Section 11 authorises the Collector to take or cause to be taken such steps and use or cause to be used such force as may in his opinion be reasonably necessary for securing compliance with 'any order made by him' under the Act. The order determining the lease is not executable. The only order under which a lessee can be dispossessed is an order for taking possession of the land from him. The passing of such an order is expressly envisaged by Section 6. For the foregoing reasons I would hold that the petitioner are not liable to be dispossessed of the lands which had been leased to them merely on account of their leases having been determined under Section 6 without any order having been passed against them under that provision for taking possession of the lands from them. Subject to the findings recorded on the other points raised before us, if and when the Collector wants to take possession of the leased land from the respective lessees before the expiry of the period of the leases, he shall have to give sufficient notice under Rule 5 and pass appropriate orders under Section 6 after affording the lessees adequate opportunity to show cause against the proposed order to take possession of the land from them.
18. I am unable to find any force in the ninth submission made by the counsel. Even if the notices issued to the lessees are not very happily and clearly worded, they appear to me to substantially comply with the requirements of R. 5 insofar as the only action threatened to be taken in pursuance of the notices is to determine the leases.
19. The eleventh contention (the tenth relating to mala fide will be dealt with at the end) cannot be raised in writ proceedings for the first time. The lessees should have raised this point before the Collector. If they had told the Collector that amounts more than those demanded from them were already in deposit with the Collector, it would have been for the Collector to decide whether in fact it was so or not and in case it was so whether in terms of the leases it was permissible for the Collector to adjust the amount of the security towards the overdue rent or not. So far as this argument is concerned. I am unable to permit it to be raised without any such specific plea having been taken before the Collector.
20. So far as the cancellation of leases on the ground of growing commercial crops instead of showing food or fodder in the land in question is concerned, it is no doubt correct that no lease could be granted under Section 5 of the Act for any purpose other than the purpose of growing food and fodder crops. This is provided in Section 5 itself. Section 8 specifically states that where the tenant fails to grow food or fodder crops on the land leased to him, he shall be required to pay penalty not exceeding twice the amount of rent fixed under Section 5 besides the fixed rent. Section 10 authorises the Collector to recover all amounts from a tenant as arrears of land revenue. The argument of the learned counsel for the petitioners was that the various provisions referred to above constitute a complete code for the matter of enforcement of the condition of growing only food or fodder crops in the leased land. Action under Section 6 in authorised for breach of any of the terms and conditions of the lease. If the condition of growing only food and fodder crops was given only in the Act and not in the leases no action under Section 6 could be taken in the case of breach of that term. I, however, find that Clause 7 of the lease-deed states as follows :--
'The lessee shall use the land only for the purpose of sowing food and fodder crops and for no other purpose. 'In as much as Clause 11 of the lease-deed and Section 6 of the Act authorise the Collector to determine the lease, and to take possession of the land in case of breach by the lessee of any of the conditions to be performed by him and there is a specific condition mentioned in Clause 7 of the lease-deed. I am unable to agree with the petitioners that action under Section 6 cannot be taken by the Collector for violation of the stipulation in question.
21. The additional argument (the thirteenth submission) is confined to cases in which there is no written lease-deed. It was not disputed before us that a lease under Section 5 of the Act need not be in writing. Section 107 of the Transfer of Property Act was not in force in Punjab when these leases were granted. It came into force in Punjab only from April 1, 1955. Still it would not apply to agricultural leases without a notification under Section 117 being issued. No such notification was admittedly issued in the erstwhile pre-reorganized State of Punjab or in the State of Haryana. It was therefore, not necessary for the Collector to execute written instruments of leases at the time the leases in question were granted. Section 13 of the Act states that notwithstanding anything contained in any law for the time being in force, no instrument in writing to give effect to a lease by the Collector under the Act shall require stamp attestation or registration. On the basis of this provision it was argued by the Advocate-General that no written instrument is necessary. I am unable to agree with this submission. Section 13 merely states that if there is a written instrument, it need not be stamped, attested or registered. The only difference that can arise in the case of a written lease-deed on the one hand, and an oral lease on the other relates to the manner of proving terms and conditions of the lease. In the cases before us where written lease-deeds were not executed, it was admitted by the lessees in their statements before the Collector that rent was payable by the 15th of January, but had not been so paid. Once this condition was admitted, the cases in which no lease-deeds had been executed did not differ in any material particular from the cases in which there were written lease-deeds so far as the matters in issue before us are concerned.
22. It was then contended that the Collector does not appear to have been even aware of the fact that there were no written leases in the second group of cases as he did not pass an order for determining the leases but directed cancellation of the lease-deeds. This argument, though a little attractive at the first sight, appears to me to be hypertechnical. Cancellation of lease-deed means, in my opinion, nothing different from determining the lease. In cases where there were no lease-deeds, the order passed by the Collector amounted to his determining the oral lease. This argument of the petitioners, therefore, fails.
23. In all the four groups of cases, the only common argument left to be dealt with is the tenth contention, relating to the alleged mala fides on the part of the State and the Collector. It was vehemently argued by almost all the counsel appearing for the petitioners that the impugned proceedings which were taken in hundreds of cases between December 1969 and February 1970 were the outcome of 'an acute political dispute' which had arisen 'between the State of Punjab and the newly carved State of Haryana regarding the demarcation of their inter-State boundaries, and consequently the highest functionaries of the State of Haryana have now embarked upon a mass campaign of ousting all Punjabis from the area which adjoins the State of Punjab.' It was submitted that as soon as the policy decision of the Central Government for appointing a Boundary Commission relating to adjustment of claims of Punjab and Haryana regarding small bits of each other's territory on linguistic basis was announced at the time of awarding Chandigarh to Punjab and Fazilka area to Haryana, the Haryana State authorises made every possible effort to turn out the Punjabi-speaking people from Kaithan tahsil where they were otherwise in majority by cancelling their leases and demolishing their houses. It was pointed out that most of the petitioners were cultivating land in Guhla tahsil which adjoined Punjab boundary, and which is being claimed by the State of Punjab on linguistic basis. We were also asked to take notice of the fact that whereas delay of many months in payment of rent was condoned in the past, a few days' delay or delay for a few weeks was taken serious notice of at the fag-end of the leases when only a few years life of the leases was left in most of the cases. Importance was sought to be attached to the further fact that the amounts of arrears of rent were almost insignificant and even those small amounts had not been paid out by the lessees almost immediately.
It was then urged that recovery of the small amounts could be effected under Section 10 of the Act even if any lessee was found to be recalcitrant and no case was made out for resorting to the extreme penalty of determining the leases. Emphasis was also laid on the fact that action had been taken in most of the cases suo motu by the Collector, and not at the instance of the original landowners. An additional argument was built on the policy of the Government to show maximum consideration to the tillers of the land and to ensure security of tenure to them and the impugned actions being in direct contravention of such a policy counsel submitted that instead of belong obliged to the Punjabi cultivators who had brought uncultivable banjar land under the plough and reclaimed it by strenuous labour with their blood and sweat after incurring huge expenditure, the Haryana Government has suddenly decided upon terminating their leases and throwing them out. This could not submitted counsel, be due to mere technical violation of a condition of the leases. Our attention was also invited to the judgment of Financial Commissioner B. S. Grewal in Wadhawa Singh v. The State of Haryana, 1970 Pun LJ 572, wherein the learned Financial Commissioner stated that as some of the allegations made before him by the lessees seemed to be extraordinary and were vehemently pressed he thought it proper to examined the Naib Tahsildar, Agrarian to ascertain the back-ground of those cases and that the Naib Tahsildar deposed before the Financial Commissioner that those cases had been started suo motu 'on the oral instructions of Shri Ram Narain Singh, Sub-Divisional Officer (Civil), Kaithal.'
Pointed attention of the Court was drawn to the fact that separate orders were not written in the large number of cases decided within a few days, but mere blanks were filled in the routine typed orders prepared in advance for the purpose. It was also argued that unless pre-planned arrangement on a largescale for passing such orders for eviction had been made, it would have been impossible for the Sub-Divisional Officer (Civil) to get the statement of such a large number of lessees recorded on the same day, peruse the same, hear the parties and to pass orders therein. From all the abovementioned facts it is sought to be inferred that the impugned orders were not passed in bona fide exercise of the legal power vested in the Collector but for extraneous reasons and, therefore, the orders were passed in an absolute abuse of the said power. All the counsel submitted that even if a right thing is done by the right procedure, it is still liable to be quashed in Certiorari proceedings if it is done either on wrong grounds or in an unreasonable manner. Reference was made to certain passages in Administrative Law by H. W. R. Wade, wherein it is stated that even the widest powers of the executive authorities can be subject to a measure of judicial control (page 57 of the 1961 edition). It must, however be remembered that in the same treatise the author has struck a note of warning against the Court usurping the discretion given to some other authority. If the statute states that a certain authority will decide something, it is not for the Court to impose its own idea of what ought to have been decided as the statute intended the power of decision to lie not in the Court, but elsewhere.
In the cases before us the allegations of mala fides have been denied by the respondents. Howsoever much suspicion may be aroused by the circumstances in which the impugned action has been taken, and the manner in which and the mass scale on which the cases were decided, and the force and speed with which the orders were sought to be enforced, it is still not possible for me to definitely spell out mala fides on the part of the Haryana State authorities in taking the impugned action. Indeed the ties in taking the impugned action. Indeed the Government might have adopted a policy to enforce the conditions of the leases, the breach of which was not being taken serious notice of previously. All the same, there is not enough material before us on the basis of which we may be able to label the policy decision as the outcome of mala fides. The charge of mala fides is, herefore, held to be not proved. This disposes of the first two groups of cases. Each of the petitions falling in these groups is entitled to succeed for the reasons which have already been recorded.
24. In the cases falling in the third group, no specific relief can be granted under Article 226 of the Constitution as the petitioners have failed to establish that they have any subsisting interest in any lease. They are admittedly not lessees of the land. They have not shown to the Court what right they have in the land in dispute. In most of those cases, it was stated that orders under Section 6 had been passed of which copies would be filed later. No such copies were subsequently filed. We cannot possibly quash an order which has not even been shown to us. The reply of the State in all these cases is that either the petitioners were inducted on the lands as sub-tenants of the original lessees, or they otherwise took unauthorised possession of the lands. It was stated that they have no right to set the machinery of this Court under Art. 226 into motion as they are not authorised occupants of the lands. This aspect of the case was again pressed before us by the learned Advocate-General. The view that an authorised occupant of land has no locus standi to move this Court under Art. 226 of the Constitution against being dispossessed in an authorised manner can no longer be upheld in view of the authoritative pronouncement of their Lordships of the Supreme Court in Mohan Lal v. The State of Punjab, Civil Appeal No. 1024 of 1967, D/- 25-11-1969 (SC). It was observed by Hedge, J. (who prepared the judgment of the Court) as follows :--
'Mr. Keswani, learned counsel for the Gram Panchayat contended that as the High Court has come to the conclusion that the appellants are in unauthorised occupation of the suit properties, they are not entitled to invoke the jurisdiction of the High Court under Articles 226 and 227 of the Constitution. This contention has merit. Under our jurisprudence even an unauthorised occupant can be evicted only in the manner authorised by law. This is the essence of the rule of law.'
Even if, therefore, the petitioners in the third group of cases are found to be in unauthorised occupation of the land with them, they cannot be thrown out just by police force. A competent authority will have to go into the matter, hear them, record a finding about their being in unauthorised occupation and then evict them in the manner authorised by law if it is found that they are liable to eviction. Except for bringing this legal position to the notice of the authorities concerned, we are unable to grant relief to the petitioners in this group of cases as they have not placed any material before us entitling them to seek the interference of the Court. No order directing their eviction having admittedly been passed, and no such order having been shown to us, we are unable to grant any relief to them. All the petitions falling in the third group are, therefore liable to be dismissed subject to the observations made above.
25. Now I take up the individual cases falling in the fourth group. The first case in which an additional argument was advanced is of Helwa Ex-Servicemen Society v. The State of Haryana, Civil Writ 1394 of 1970. According to the State's return, the first petitioner-Society is a duly registered one under the Punjab Co-operative Societies Act, but the land under the possession of the Society has been separately under the occupation of its individual members who have been paying their lease-money separately. The land in question was allotted to the petitioner-Society in 1952-1953, and according to the admission made in paragraph 4 of the State's return, the Society has been in its possession since then. It has, however, been repeated by the respondents that the individual members of the Society are cultivating the land separately and rent is also being charged separately. The total amount for which the Society was in default for the previous year is stated to be Rs.465. The respondents have filed as Annexure R/2 to their return a copy of the notice issued to Bachan Singh asking him to show cause why lease of ten acres land given to him should not be cancelled for non-payment of Rs.60/- on account of two years' lease-money. Though the notice was sent to Bachan Singh alone, the impugned order (Annexure 'A' to the writ petition) mentions that the Collector heard all the 14 petitioners including Bachan Singh. The learned counsel for the petitioner stated that on service of notice to show cause against cancellation of lease of ten acres, the Collector had no jurisdiction to cancel the lease for 1100 Kanals and 19 Marlas as has been done by order Annexure 'A'. This point was not, however, specifically taken up in the petition, and, therefore, the respondents having had no opportunity to meet the same, it does not appear to be fair to the respondents to base the decision of the case on this contention.
26. In Civil Writ 1643 of 1970--The Karnal Nilibar Co-operative Farming Society Ltd., Pharal v. Haryana State. Mr. Kuldip Singh, the learned counsel for the petitioner, submitted that a total area of 755 acres having been leased out to the petitioner, the lease of 64 acres out of it was cancelled by the Collector, Kaithal, on December 4, 1969, that the appeal of the lessee against that order of cancellation had been allowed and the case was remanded for fresh decision by the Financial Commissioner, that the petitioner had made an application to the Commissioner for transfer of the case to some other Collector, and having failed there, went up further to the Financial Commissioner for the same relief. In paragraph 7 of the application to the Financial Commissioner the petitioner stated as below :--
'That when the order of the learned Commissioner, Ambala Division, staying the proceedings and summoning the record was put before Shri Chaudhry Ram Narain, the Presiding Officer, he was infuriated and remarked in the Court do whatever you can, what to talk of 80 acres, I am going to cancel the lease of the entire land, leased out to the Society. All the Societies of the Punjabis are to be cancelled. They have looted for sufficient time. I am Jat and Haryanvi'.'
The Financial Commissioner admitted the application for transfer and stayed further proceedings before the Collector, Kaithal. Though the stay order had been conveyed to the Collector, Kaithal, he is alleged to have procured an application from one Saudagar Singh who was one of the original land-owners, and on that application summoned the petitioner society for May 18, 1970. On that day, without assigning any reason, the Sub-Divisional Officer, acting as Collector, cancelled the whole of the lease of the petitioner including the area of 64 acres in respect of which his earlier order had been set aside and further proceedings by him had been stayed on the transfer application. In the State's return, the facts relating to the cancellation of lease of 64 acres on December 4, 1969, and the order of remand passed by the Financial Commissioner as well as the grant of petitioner's application for transfer by the Financial Commissioner, have been admitted. It is, however, stated (in paragraph 5 of the return) that the case relating to 64 acres having been transferred to the Court of the Collector, Karnal, is still pending there. The impugned order of cancellation has not been filed by either of the parties. Without seeing that order, we are unable to find out whether the subsequent cancellation related to all the 755 acres or only to the remaining area after excluding from consideration the 64 acres in respect of which the case is still stated to be pending at the post-remand stage. Whatever may be the facts in this respect, it is clear that the Collector, Kaithal against whom serious personal allegations had been made as a result of which the earlier case had been transferred from him, should not have dealt with even the subsequent case. To that extent the conduct of the Collector, Kaithal, is certainly not reasonable. In fact it was unbecoming a judicial or quasi-judicial authority to deal with the case of this petitioner after the petitioner had got its earlier case relating to a part of the land transferred from that Collector's Court on the allegation that the Collector had been infuriated against this Society. But in the view we have taken of the main points common to other cases, it does not appear to us to be necessary to strike down the impugned order on this additional ground, more so when the order itself has not been shown to us. The learned Advocate-General for the State of Haryana undertook to make a copy of the order available to us immediately after the hearing. But the State has not done the needful. This does indicate that possibly the petitioner is correct in its contention in respect of the scope of the order, but as already stated, it is unnecessary to pronounce on the same.
27. In Civil Writ 2245 of 1970, there are five petitioners viz. (i) Puran, (ii) Tulsi Ram, (iii) Topa Ram, (iv) Munshi Ram and (v) Sardara. In their joint petition, they have impugned the ex parte order of the Collector, dated March 2, 1970, cancelling their leases on the usual grounds. No copy of any order has been filed with the petition. In the State's return dated October 14, 1970, it has been stated inter alia that each of the petitioners held a separate lease, that the order cancelling the leases of Puran and Sardara Petitioners Nos. (i) and (v) respectively have been set aside in revision by the Financial Commissioner, that the lease of Tulsi Ram Petitioner No. (ii) has not been cancelled at all, but the leases of petitioners (iii) and (iv) have, however, been cancelled. An objection to the maintainability of a joint petition by the five petitioners has been taken. No such objection was, however, pressed by the respondents at the hearing of the petition. The petition of Tulsi Ram Petitioner No. (ii) is infructuous. His lease will not, however, be liable to cancellation under Section 6 of the Act as that provision has been held to be invalid. The petition of Puran and Sardara has also become infructuous as the Financial Commissioner has granted them the relief claimed by them. No fresh order shall, however, be passed by the respondents under Section 6. Petitioners (iii) and (iv) are entitled to full relief like all the petitioners of groups 1 and 2.
28. In Chandi Ram v. The State of Haryana, Civil Writ 1883 of 197, additional groups were raised by Mr. R. S. Mital, Advocate for the land-owners, who are respondents 4 to 6 in the petition. Learned counsel submitted that no relief should be granted to the petitioner as he had merely challenged the order of the Collector, and not the subsequent order of the Commissioner in which the Collector's decision had merged. It was then contended that a revision petition filed by the petitioner was pending before the Financial Commissioner and in that view of the matter, the writ petition is premature. Objection was also taken about the land-owners not having been impleaded by the petitioner himself in the first instance though the impugned order had been passed at their instance. None of these points make any difference to the merits the controversy. Section 6 of the Act having been held by us to be unconstitutional, the entire proceedings culminating with the impugned order purported to have been passed under that provision are wholly without jurisdiction and non est.
29. For the foregoing reasons, we allow all the writ petitions of groups 1, 2 and 4 with costs but dismiss the writ petitions of group 3 with costs.
H.R. Sodhi, J.
30. I agree.
31. Order accordingly.