R.S. Narula, J. - (1.) IN this appeal under Clause 10 of the Letters Patent against the judgment of a learned Single Judge of this Court dismissing the Appellant's writ petition under Article 226 of the Constitution, the ultimate question that has to be answered will depend on the interpretation of Sub -section (2) of Section 99 of the Punjab Land Revenue Act, 1887 (Act 17 of 1887), hereinafter referred to as the Act.
(2.) SHORN of unnecessary details, the facts relevant for the decision of this appeal are that one Nand Singh purchased shop -cum -flat plot No. 18 in Sector 21 -C. Chandigarh, from the Punjab, Government. For raising the requisite construction on the plot Nand Singh obtained a loan from the Punjab Government, in pursuance of certain Government -sponsored housing scheme, which was repayable by instalments. Nand Singh utilised the loan and put up a building on the plot in question. He, however, committed default in payment of the instalments of the loan; and the entire, property, i.e., the land with its superstructure, was sold by public auction to Jiwa Singh, Respondent No. 2, on August 25, 1966. Before the property was auctioned, Nand Singh had already put in Bhagwan Bass Appellant as a tenant in the shop portion thereof. The sale in favour of Jiwa Singh Respondent was confirmed with effect from October 5, 1966. On October 13, in that year the Appellant received a notice from the Estate Officer, Capital Project, Chandigarh, asking the Appellant to vacate the shop within seven days and to hand over vacant possession of the same to the Estate Officer, failing which he would be evicted therefrom forcibly without any further notice to him. He was told in the notice that he was liable to eviction because the property had been sold under Section 75 of the Act for the recovery of the arrears of the loan which was due from Nand Singh. The Petitioner claims that the execution of this order for eviction was stayed for one month by the order of Chief Commissioner, Chandigarh Administration, dated October 18, 1966. Ultimately on November 18, 1966, the Estate Officer ordered forcible eviction of the Appellant from the shop in question. It was in the above said circumstances that the Appellant came to this Court under Article 226 of the Constitution on November 15, 1966, with a prayer for the issue of an appropriate writ or order directing the Estate Officer, who was exercising the powers of Collector, to forbear from taking any action to eject the Appellant from the premises in question and also to quash the order contained in the abovementioned notice of eviction. The writ petition was contested on behalf of the Estate Officer as well as on behalf of Jiwa Singh. By the judgment under appeal the learned Single Judge dismissed the writ petition on November 15, 1967. He found that the property had been sold under Section 75, of the Act for recovery of the outstanding amount of loan due from Nand Singh as arrears of land revenue in exercise of the powers conferred on the first Respondent, who was admittedly acting as Collector, under Section 98(dd) of the Act. The learned Single Judge further found that the Government was entitled to recover the outstanding amount of the loan not only from the plot of land but also from any other property of Nand Singh defaulter, including the superstructure on the plot in question, because of the provisions of Section 67(h) of the Act read with Section 77 thereof. The learned Single Judge then relied on Section 76 of the Act, which is related to a sale under Section 75 of the Act, in accordance with which all contracts made by any person other than the purchasers in respect of the land prior to the sale become void as against the purchaser at the sale. It was held that under Rule 43 of the Land Revenue Rules the tenant of the property had to be evicted therefrom in the manner provided by Rule 35 of Order 21 of the Code of Civil Procedure. As already stated, the writ Petitioner has become up in appeal as he is not satisfied with the judgment of the learned Single Judge. Mr. R.N. Mittal, the learned Counsel for the Appellant, has not contested before us the fact that the entire property in question was liable to sale for the recovery of the amount which was due from Nand Singh. Nor has he questioned the fact that consequent on the sale, possession of the entire property, including the shop in dispute, had to be delivered to the auction -purchaser, i.e., Respondent No. 2. The learned Counsel confined his arguments to only three aspects of the case. Broadly speaking he has firstly contended that the sale in question could in the circumstances of this case be conducted only under Section 77 of the Act and not under Section 75, the result of which situation is that Section 76 of the Act would not be applicable to the sale and the Appellant who was a tenant in the property would not be liable to be actually ejected from the shop as his contract with Nand Singh would not be void as against Jiwa Singh, Respondent No. 2. His second submission really flows from the first. This is to the effect that in exercise of the powers conferred on the Collector by Rule 43 of the aforesaid rules, possession has to be delivered by the Appellant to Respondent No. 2 under Rule 36 of Order 21 and not under Rule 35 of that Order of the Code of Civil Procedure, i.e., only symbolical possession and not actual physical possession of the shop is required to be delivered to Jiwa Singh. The last argument of Mr. Mittal is that even if the sale is deemed to have been conducted under Section 75, the contract of tenancy which was entered into by the Appellant with Nand Singh is not nullified by Section 76(1) of the Act, a proposition for which support is sought from a Division Bench judgment of the Madras High Court to which reference will be made hereinafter.
(3.) IN order to appreciate the main argument of Mr. Mittal, it is necessary to take notice of certain provisions in the Act and of Rule 43 of the aforesaid rules. Section 3(1) defines 'estate' as any area for which a separate record -of -right has been made, or any area which has been separately assessed to land -revenue, etc., or which the State Government may by general rule or special order declare to be an estate. It is the common case of the parties before us that the property which has been sold out in this case does not fall within the definition of 'estate' referred to above and the State Government has not made any general rule or special order declaring any such properties within Chandigarh to be estates. 'Holding' has been defined in Sub -section (3) of Section 3 to mean "a share or portion of an estate held by one land -owner or jointly by two or more landowners." The property in question not being an estate or a portion thereof, it cannot possibly be argued that it comprises a holding within the meaning of Section 3(3) of the Act. Sub -section (6) of Section 3 defines 'land -revenue and Sub -section (7) states that "arrear of land -revenue" means land -revenue which remains unpaid after the date on which it becomes payable." Once again it may be made clear that the property in this case was not sold for recovery of any actual arrears of land -revenue as such. 'Defaulter' has been defined in Sub -section (8) of Section 3 to mean "a person liable for an arrear of land -revenue, and includes a person who is responsible as surety for the payment of the arrear." It is conceded that Nand Singh was a defaulter inasmuch as the amount in question was recoverable from him as an arrear of land -revenue, though in fact it was not an arrear of land -revenue itself.;