Rama Shanker v. Commissioner, Gorakhpur Division — 1978 DIGILAW 1003 (ALL)

JUDGMENT N.D. Ojha, J. - By these writ petitions certain orders passed by the Commissioner, Gorakhpur Division, Gorakhpur, cancelling the leases granted to the petitioner or petitioners in each of these connected cases under Section 27 of the U. P. Imposition of Ceiling on Land Holdings Act, 1961 (hereinafter referred to as the Act) are sought to be quashed. 2. The admitted facts are that these leases were granted in respect of such land which was held by certain sugar factories and was declared surplus under the provisions of the Act. The leases were cancelled inter alia on the ground that they had been executed not by the Collector of the district but by some officer subordinate to the Collector, 3. Having heard counsel for the petitioners in each of these writ petitions and the Standing Counsel we are of opinion that the view taken by the Commissioner that the leases were invalid inasmuch as they had not been executed or signed by the Collector is correct and as such it is not necessary to go into the correctness of the other findings on which these leases have been cancelled, Section 25 of the Act reads: - "25. Use of surplus land for other public purposes. - The State Government may, instead of settling any surplus land in accordance with the provisions of this Act, use or permit the use either temporarily or permanently of the whole or any portion of such land for any purpose for which such land could have been acquired under the Land Acquisition Act, 1894." Sections. 26 to 28 of the Act deal with the settlement or letting out of the surplus land and the terms and conditions of the settlement etc. A perusal of Section 25 makes it clear that the State Government can use the land which has been declared surplus under the Act in three manners - (1) settle the said land in accordance with the provisions of the Act; (2) use the land itself; and (3) permit the use either temporarily or permanently of the whole or any portion of such land for any purpose for which such land could have been acquired under the Land Acquisition Act. 1894. 1894. The words "instead of settling any surplus land in accordance with the provisions of this Act" make it clear that recourse to settling of the land in accordance with the provisions of this Act is to be taken only if the State Government does not require the land for its own use nor does it desire to permit the same being used either temporarily or permanently for any purpose for which such land could have been acquired under the provisions of the Land Acquisition Act. 4. At this place it will be relevant to refer to a Government order, copy of which has been filed as Annexure 1 to the counter-affidavit. This copy was found to contain certain typing errors. However, another copy was supplied by counsel for the petitioners which is free from these typing errors. This Government order is dated 2nd of June, 1972. It refers to an earlier Government order dated 7th Oct., 1970. By the Government order dated 7th October, 1970, a complete bar had been placed on settlement of such land which was held by the sugar factories and had been declared surplus under the provisions of the Act. But by the Government order dated 2nd June, 1972, the manner in which such land was to be dealt with was provided for. Clause 2 of the Government Order indicates the class of persons to whom such land was to be let out. Clause 3 provides for the maximum area of land which could be let out to a person. Cl. 4 provides that such land would be given on lease under the provisions of the Government Grants Act and that the Collector will have the authority to sign the leases on behalf of the State Government. Cl. 5 contains the terms on which the leases are to be granted. The two Government Orders read together make it clear that the Government did not intend such land, which had been held by the sugar factories and was declared surplus, to be settled in accordance with the provisions of the. Act. Government order dated 2nd June, 1972, purports to have been issued under Section 25 of the Act. It is apparent that it had been issued to effectuate the last category of use contemplated by the said Section 25. Act. Government order dated 2nd June, 1972, purports to have been issued under Section 25 of the Act. It is apparent that it had been issued to effectuate the last category of use contemplated by the said Section 25. Once the Government decided that such land shall be permitted to be used in accordance with the last category of use contemplated by Section 25 referred to above the land was not available for being settled in accordance with the provisions of the Act. The leases which have been cancelled by the orders impugned in the writ petitions had been granted not by the Collector but by the subordinate officers in accordance with the provisions of the Act. Thus the leases were on the face of it illegal and had been executed without authority of law. 5. It was urged by counsel for the petitioners that ,S. 43 of the Act permits the exercise of such powers which had been delegated to the Collector under the Act by an Assistant Collector of the 1st Class, incharge of the Sub-Division, or by any other Assistant Collector of the 1st Class specially empowered by the Collector in this behalf and since the Government order also had been issued under Section 25 of the Act, the power which was to be exercised by the Collector under the Government order could, in view of Section 43, be exercised by the Assistant Collector of 1st Class. We find no substance in this submission. The] power which has been given to the Collector under the Government order dated 2nd of June. 1972, is not a power to be exercised by him under the Act but is a power to be exercised by him as contemplated by Art. 299 of the Constitution. Once the Government decided that such surplus land was not to be settled under the Act, it was to be dealt with in the manner provided for in the Government order. Clause (1) of Art. 299 of the Constitution, which is relevant for our purposes, provides: - "299. Once the Government decided that such surplus land was not to be settled under the Act, it was to be dealt with in the manner provided for in the Government order. Clause (1) of Art. 299 of the Constitution, which is relevant for our purposes, provides: - "299. Contracts: - (1) All contracts made in the exercise of the executive power of the Union or of a State shall be expressed to be made by the President, or by the Governor of the State, as the case may be, and all such contracts and all assurances of property, made in the exercise of that power shall be executed on behalf of the President or the Governor by such persons and in such manner as he may direct or authorise." The words "by such persons and in such manner as he may direct or authorise" are important. The Government order dated 2nd June, 1972, provides for the person, viz., the Collector who was authorised to execute the lease and also the manner in which the lease was to be' executed on behalf of the State Government. Clause 2 of this Government Order specifically states that the directions contained therein were of the Governor. Since in respect of land which was held by the sugar factories and was declared surplus under the Act the State Government decided that such land should not be settled in accordance with the provisions of the Act but should be permitted to be used for a purpose for which such land could have been acquired under the Land Acquisition Act it was necessary to make suitable provision to carry out the said decision and this was done by the Government order dated 2nd June, 1972. We are of opinion that the purpose for which the land has been permitted to be used by the Government order aforesaid is a "purpose for which such land could have been acquired under the Land Acquisition Act", within the meaning of Section 25 of the Act. Consequently in view of Art. 299 of the Constitution leases in respect of the said land could have been executed only by the person authorised in this behalf by the Governor under the Government order aforesaid namely the Collector and by no one else. 6. Consequently in view of Art. 299 of the Constitution leases in respect of the said land could have been executed only by the person authorised in this behalf by the Governor under the Government order aforesaid namely the Collector and by no one else. 6. In Thawardas v. Union of India ( AIR 1955 SC 468 ) it was held that Governments can only be bound by contracts that are entered into in a particular way and which are signed by the proper authority. In Mulam Chand v. State of M. P., AIR 1968 SC 1218 : (1968 All LJ 745) it was held that the provisions of Section 175 (3) of the Government of India Act, 1935, or the corresponding provisions of Art. 299 (1) of the Constitution of India are mandatory in character and the contravention of these provisions nullifies the contracts and makes them void. There is no question of estoppel or ratification in such a case. In Union of India v. N. K. Private Ltd. ( AIR 1972 SC 915 ) it was held that a contract whether by a formal deed or otherwise by persons not authorised as contemplated by Art. 299 (1) of the Constitution of India cannot be binding and is absolutely void. We are, as such, of opinion that the leases which have been cancelled by the impugned orders of the Commissioner were void and have rightly been cancelled. 7. It was then urged by counsel for the petitioners that if the leases in favour of the petitioners could not have been executed under the Act, the Commissioner did not have jurisdiction to cancel these leases because he could cancel only such leases which had been executed under the Act. In our opinion this submission also has no substance. It is not the case of the petitioners that these leases had been executed by the Collector in accordance with the- manner provided for in the Government order dated 2nd June, 1973. On their own case these leases had been executed by the Assistant Collector 1st Class, incharge of the Sub-Division, in accordance with the provisions of :S. 27 of the Act. Once the leases had been executed under the Act the Commissioner would have the jurisdiction to set aside those leases notwithstanding the fact that they had been executed without authority of law. Once the leases had been executed under the Act the Commissioner would have the jurisdiction to set aside those leases notwithstanding the fact that they had been executed without authority of law. In such a case the principle contained in the doctrine of coram non judice will be applicable. In Janardhan Reddy v. State of Hyderabad ( AIR 1951 SC 217 ) it was held in para 26: - "It is well settled that if a court acts without jurisdiction, its decision can be challenged in the same way as it would have been challenged if it had acted with jurisdiction, i.e., an appeal would lie to the court to which it would lie if its order was with jurisdiction." In our opinion the same principle would apply to the facts of the present case. If no lease could be executed in accordance with the provisions of the Act and yet a lease was executed purporting to do so under the provisions of the Act, the authority which has been given the power to cancel the lease executed in accordance with the provisions of the Act would have the jurisdiction to cancel even that lease which had been executed in colourable exercise of the power without authority of law. In this view of the matter it is not right to say that the . Commissioner had no jurisdiction to set aside the leases in question. 8. We accordingly find no merit in any of these writ petitions and each one of them is dismissed, but in the circumstances of the case there will be no order as to costs. The order of stay passed in each of these cases is vacated.