A.D. Koshil, J. - (1.) THE facts leading to this petition under Articles 226 and 227 of the Constitution of India praying for the issue of a writ of certiorari quashing the notice dated the 13th October, 1970, drawn up by the Collector, Thanesar, and served on the Sarpanch of the Gram Panchayat of village Barrot in Tahsil Thanesar, District Karnal (Annexure "A" to the petition) are not in dispute and may be stated. The said Gram Panchayat (petitioner No. 1) passed a resolution on the 11th of June, 1970, to the effect that land measuring 62 Kanals 12 Marlas detailed therein be leased out by public auction for the purpose of running a brickkiln. The auction contemplated in the resolution took place on the 21st of June, 1970, when Shri Ved Barkash Singal petitioner No. 2, turned out to be the highest bidder whose bid was accepted by the Panchayat in a resolution passed on the same date, a copy of which was sent to the block Development and Panchayat Officer. Ladwa (respondent No. 2) who was the Executive Officer of the Panchayat Samiti and to whose approval the auction was subject under the provisions of Clause (a) of sub rule (2) of Rule 6 of the Punjab Village Common Lands (Regulation) Rules, 1964. On the 23rd of June, 1970, respondent No. 2 returned the said copy to the Panchayat with the remark "Seen". Interpreting this remark as the approval by respondent No. 2 of the auction, petitioner No. 1 executed in favour of petitioner No. 2 a lease of the said land for a period of five years on the 25th June, 1970, and the referred the possession of the land to him. Thereafter petitioner No. 2 started operations for the installation of a (sic) on the land and incurred expenditure in that connection. These operations had been in progress for more then.: 3 1/2 months when the impugned notice was received by the Sarpanch of petitioner No. 1. The notice is in the following terms: That you on 11 -6 -1970 granted lease to respondents of village Parrot of shamilat land against the provision of law and which was clearly to the determent of the interest of the Panchayat. You are hereby directed to attend my Court on 24 -10 -1970 to show cause why action should not be taken against you and further more you are directed to stop the construction if any continuing on the spot. The legality of this notice was attacked in the petition on various grounds but at the hearing, Mr. Anand Sarup, learned counsel for the petitioners has restricted his challenge to only that part of it which directs the stoppage of any construction being continued on the Land According to him no such direction could be given under any provisions of the Punjab Village Common Lands (Regulation) Act therein after referred to as the Act or the rules framed thereunder.
(2.) LEARNED counsel are agreed that the Collector could not take any action in respect of the lease granted by petitioner No. 1 to petitioner No. 2 unless the same was covered by the provisions of Section 10 -A of the Act which is reproduced below: 10 -A (i) Notwithstanding anything contained in this Act or the Shamilal law or in any other law for the tune being in force, the Collector may call for, from the Panchayat in his District the record of any lease, contract or agreement entered into by the Panchayat in respect of any land vested or deemed to be vested in it, whether such lease, contract or agreement is entered into before or after the commencement of the Punjab Village Common Lands (Regulation) Amendment Act, 1964, and examine such record for the purpose of satisfying himself as to the legality or propriety of such lease, contract or agreement. (2) Where, on examination of the record under Sub -section (1) and after making such inquiry, if any, as he may deem fit, the Collector is satisfied that such lease, contract or agreement: (i) has been entered into in contravention of any of the provisions of this Act or the rules made thereunder; (ii) has been entered into as a result of fraud or concealment of facts; or (iii) is detrimental to the interests of the Panchayat as prescribed; the Collector may, notwithstanding anything as aforesaid cancel the lease, contract or agreement or vary the terms thereof, unconditionally on subject to such conditions as he may think proper: Provided that no order under this Sub -section shall be passed by the Collector without affording an opportunity of being heard to the parties to the lease, contract or agreement. (3) Where the terms of any lease, contract or agreement have been varied by the Collector, under Sub -section (2), the variation shall, notwithstanding anything contained in this Act or the shamilat law or in any other law for the time being in force, be binding on the parties to the lease, contractor agreement, as the case may be; (4) Where the lessee or the person with whom a contract or agreement has been entered into by a Panchayat refuses to accept the variation made by the Collector under this section in the terms of his lease, contract or agreement, such lease, contract or agreement, as the case may be, shall be deemed to be cancelled by the Collector under this section with effect from the date of such refusal. (5) Where under this section on any lease, contractor agreement is cancelled or deemed to be cancelled, the person with whom the contract or agreement has been entered into, who suffers by such cancellation or variation, is entitled to receive compensation to be assessed by the Collector for any loss or damage caused to the lessee or such person which naturally arose in the usual course of things from such cancellation or variation: Provided that no such compensation shall be given for any remote or indirect loss or damage sustained by reason of such cancellation or variation. (6) Notwithstanding anything contained in any law for the time being in force, the amount of compensation awarded by the Collector under this section, shall be payable by the Panchayat, in the prescribed manner and shall be a valid charge on the Sabha fund. (7) Any party to a lease, contract or agreement aggrieved by any order of the Collector made under this section, may. within a period of 30 days, from the date of such order, appeal to the Commissioner, whose decision thereon shall be final. No part of the section authorises the Collector to take any action in respect of a lease unless he is satisfied that at least one of the conditions enumerated in the three clauses of Sub -section (2) is fulfilled in relation to it and unless his satisfaction in this behalf follows upon an examination of the record of the lease in question In the present case the averment made in the petition that the Collector never examined the record of the lease nor held any enquiry in relation to its illegality or impropriety has remained uncontroverted so that the impugned notice must be held to have been issued in disregard of the provisions of Sub -section (2) of Section 10 -A of the Act. Without complying with those provisions the Collector had no jurisdiction to pass an order under Section 10 -A which as already stated, is the only provision under which he could have given the direction regarding the stoppage of construction on the land. That part of the impugned notice, therefore, which gives such a direction, is clearly illegal.
(3.) No other point has been urged before me and, for the reasons stated, I quash that part of the impugned notice which reads thus: and further more you are directed to stop the construction if any continuing on the spot. The petitioners shall have their costs from respondents Nos. 1 and 2. Counsel's see Rs. 50/ -.;