A lease which is void cannot be cancelled under Section 5(i) of the Orissa Estates Abolition Act, 1951.

JUDGMENT :

Sarkar, J.

The appellant is the widow of Shyamsundar Nath Suthoo who was the proprietor of an impartible permanently settled estate, called Darpan Estate, situate in the State of Orissa. On December 12, 1949, the appellant's husband granted her a lease of certain lands, quarries, beds of stones and other minerals lying in the estate for a period of 99 years from December 12, 1949 at an annual rent of Rs. 1000. By a notification dated November 27, 1952, issued under Section 3(1) of the Orissa Estates Abolition Act, 1951, which had come into force on February 9, 1952, the Government of Orissa declared that the entire Darpan Estate had become vested in it. On March 10, 1955, the Collector of Cuttack made an order under Section 5(i) of the Act setting aside the lease. The appellant filed on appeal to the Board of Revenue, Orissa, against the Collector's order but the appeal was dismissed on November 26, 1959. The appellant then moved the High Court of Orissa under Article 226 of the Constitution for : a writ quashing the orders of the Collector and the Board. By a judgment passed on September 5, 1960, the High Court dismissed the application for the writ. The appellant has now appealed to this Court against the judgment of the High Court.

2. The question debated in the courts below was whether in view of the provisions of the Act, the lease could be properly cancelled. But it seems to me that the question does not really arise for the lease was void. However, as that question was discussed at great length at the bar and in the judgments of the courts below, I think it desirable to express my views on it also. I will deal with that matter first.

3. The question of the propriety of the order setting aside the lease naturally depends on the terms of the Act. Unfortunately, however, the Act is not what one would call a good specimen of draftsmanship and this has increased the difficulty of deciding it. Now, the Act defines an estate, as land held by or vested in an intermediary, and an intermediary, as a proprietor and other holder or owner or interest in land between a raiyat and the State. It is not in dispute that the appellant's husband was an intermediary and Darpan, an estate. Section 3(1) of the Act gives power to the State Government to declare by notification that an estate has passed to and become vested in the Government. Section 5, which occurs in : Chapter II of the Act, provides that "on the publication of the notification under sub-section (1) of Section 3 the following consequences shall ensue, namely:

subject to the subsequent provisions of this Chapter the entire estate including all communal lands ... mines and minerals ... quarries........shall vest absolutely in the State Government free from all encumbrances and such intermediary shall cease to have any interest in such estate other than the interests expressly saved by or under the provisions of this Act;

Explanation. Encumbrance' means a mortgage of or a charge on any estate or part thereof and includes any rights in land or other immovable property comprised in an estate, but does not include an intermediary interest or the interest of a raiyat or an under-raiyat."

The subsequent provisions of Chapter II which it will be necessary to consider in this case are clause (i) and (k) of Section 5 and Sections 10 and 11 and they will be referred to later. It is not in controversy that as a result of the notification dated November 27, 1952, the entire Darpan Estate vested in the Government free from all encumbrances as provided in clause (a) of Section 5 and the proprietor was divested of it and became entitled to certain compensation as provided in Chapter V of the Act.

4. The lease, as I have stated, was set aside by an order made under clause (i) of Section 5. The question is, Was it duly set aside? That clause so far as material is in these terms:

"5. (i) Where the Collector is satisfied in respect of the settlement or lease of any land or mines or minerals com