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Harbhajan Singh Vs. Karam Singh & Ors [1965] INSC 183 (16 September 1965)

16/09/1965 RAMASWAMI, V.

RAMASWAMI, V.

SARKAR, A.K.

DAYAL, RAGHUBAR

CITATION: 1966 AIR 641 1966 SCR (1) 817

CITATOR INFO:

D 1969 SC 329 (9) D 1977 SC1494 (4) R 1978 SC1814 (13)

ACT:

East Punjab (Consolidation and Prevention of Fragmentation) Act, 1951-s. 42-Whether State Government has power to review an order passed on an application under s. 42.

HEADNOTE:

In accordance with a scheme for consolidation of holdings under the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, parcels of land were re- allotted to the appellant and the first and eight respondent. Being dissatisfied with the allotments, these two respondents preferred appeals at first under s. 23(3) and then under a. 23(4) of the Act. The first appeal was dismissed, but in the second appeal, the first respondent's claim was partially allowed by the Assistant Director, Consolidation of Holdings.

The appellant then moved the State Government under s. 42 of the Act for revision of the Assistant Director's order and in doing so, submitted two copies of the requisite application under s. 42 On the first copy, the Director of Consolidation of Holdings passed an order on the 17th February, 1958, that application should be put up with previous papers. On the second copy he passed an order on the 3rd April, 1958, dismissing the application.

Thereafter, on the first copy, the Director beard the parties and by an order dated 29th August 1958, allowed the appellant's application and set aside the Assistant Director's order.

The first respondent then filed a petition in the High Court under Art. 226 for a writ to quash the Director's order of the 29th August, 1958, and this petition was allowed on the ground that in view of his order dated the 3rd April 1958, dismissing the application, the Director we.-; not competent to pass the order of the 29th August 1958.

On appeal to this Court.

HELD :The order of the Director dated the 29th August, 1958, was ultra vires and without jurisdiction. [820 A-B] There is no provision in the Act granting express power of review to the State Government with regard to an order under s. 42 of the Am In the absence of any such express power, it is manifest that the Director could not review his previous order of 3rd April 1958, dismissing the Appellant's application under s. 42. [819 H] Drew v. willis, [1891] 1 Q.B. 450, Hession v. Jones, [1914] 2 K.B. 421 and Anantharaju Shetty v. Appu Hegada, A.I.R.

1919 Mad. 244.

Baijnath Ram Goenka v. Nand Kumar Singh, 401,A. 54, referred to Patel Chunibhai Dajibhai v. Narayanrao Khanderao Jambekar and Anr., [1965] 2 S.C.R. 328. followed.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 447 of1963.

Sup.C-I/65 818 Appeal by special leave from the judgment and order dated April 19, 1960 of the Punjab High Court in Letters Patent Appeal No. 128 of 1960.

Gopal Singh, for the appellant.

K. R. Chaudhuri, for respondent No. 1.

O. P. Malhotra and R. N. Sachthey, for respondent No. 2 to The Judgment of the Court was delivered by Ramaswami J. This appeal is brought by Special Leave from the judgment and decree of the Punjab High Court dated 19th April, 1960 in Letters Patent Appeal No. 128 of 1960.

In the year 1955, consolidation proceedings under East Punjab Holdings (Consolidation and Prevention of Fragmenta- tion) Act, 1948 (hereinafter called the Act) were started in the village Bholpur of District Ludhiana. In accordance with the provisions of the Act, a scheme for consolidation of holdings was published on 29th March, 1956. On 14th May, 1956 that scheme was confirmed under s. 20 of the Act. The Consolidation Officer accordingly re-allotted parcels of land to the appellant and respondents Nos. 1 and 8 in the village of Bholpur. Being dissatisfied with the allotment, respondents 1 and 8 preferred appeals under s. 21(3) of the Act but these appeals were dismissed by the Settlement Officer. Respondents 1 and 8 thereafter preferred further appeals under s. 21(4) of the Act to the Assistant Director, Consolidation of Holdings. The Assistant Director partially allowed the appeal of respondent No. 1 by his order dated 29th October, 1957 but dismissed the appeal of respondent No. 8. On 10th February, 1958, the appellant moved the State Government under s. 42 of the Act for revision of the order passed by the Assistant Director in the appeal of respondent No. 1. The Revision Petition was ultimately accepted on 29th August, 1958 by the Director, Consolidation of Holdings.

The Director held that the original order made by the Assistant Director on 29th October, 1957 was contrary to the scheme and was based upon a mistake of fact. The Director accordingly allowed the Revision Petition of Harbhajan Singh on 29th August, 1958.

It appears that Harbhajan Singh had filed two copies of the application under s. 42 of the Act and on one copy the Director of Consolidation of Holdings passed an order on 17th February, 1958 that the application should be put up with previous papers. On 819 the second copy of the application the Director passed an order on 3rd April, 1958 to the following effect :- "The order of Assistant Director, Consolidation of Holdings, under s. 21(4) need not be amended. File Inform." On the copy of the application on which the order of 17th February, 1958 was passed, the Director heard the parties and passed his order on 29th August, 1958 by which he allowed the application of Harbhajan Singh and set aside the order of the Assistant Director. Respondent No. 1 thereafter moved the Punjab High Court under Art. 226 of the Constitution for quashing the order of the Director, Consolidation of Holdings, made on 29th August, 1958. The application was allowed by the High Court on 11 th January, 1960 on the ground that the Director, Consolidation of Holdings, was not competent to pass the order dated 29th August, 1958 in view of his previous order dated 3rd April, 1958 dismissing the application of Harbhajan Singh. The appellant took the matter in appeal under Letters Patent but the appeal was dismissed on 19th April, 1960.

The question of law presented for determination in the appeal is, whether the Director, Consolidation of Holdings, had power to review his previous order dated 3rd April, 1958 dismissing Harbhajan Singh's application, and whether his subsequent order made under s. 42 of the Act dated 29th August, 1958 is legally valid ? S. 42 of the Act states "The State Government may at any time for the purpose of satisfying itself as to the legality or propriety of any order passed, scheme prepared or confirmed or repartition made by any officer under this Act call for and examine, the record of any case pending before or disposed of by such officer and may pass such order in reference thereto as it thinks fit :

Provided that no order, scheme or repartition shall be varied or reversed without giving the parties interested notice to appear and opportunity to be heard except in cases where the State Government is satisfied that the proceedings have been vitiated by unlawful consideration." There is no provision in the Act granting express power of review to the State Government with regard to an order made under s. 42 of the Act. In the absence of any such express power, it is 820 manifest that the Director, Consolidation of Holdings, cannot review his previous order of 3rd April, 1958 dismissing the application of Harbhajan Singh under s. 42 of the Act. It follows therefore that the order of the Director dated 29th August, 1958 is ultra vires and without jurisdiction and the High Court was right in quashing that order by the grant of a writ under Art. 226 of the Constitution.

In Drew v. Willis(1), Lord Esher, M. R.

pointed out that ,no court (and I would add 'no authority') has .... a power of setting aside an order which has been properly made, unless it is given by statute'.

In another case Hession v. Jones(2) Bankes, J. pointed out that the court, under the statute, has no power 'to review an order deliberately made after argument and to entertain a fresh argument upon it with a view to ultimately confirming, or reversing it and observed "Then as to the inherent jurisdiction of the Court. Before the Judicature Acts the Courts of common law bad no jurisdiction whatever to set aside an order which had been made. The Court of Chancery did exercise a certain limited power in this direction. All Courts would have power to make a necessary correction if the order as drawn up did not express the intention of the Court; the Court of Chancery however went somewhat further than that, and would in a proper case recall any decree or order before it was passed and entered; but after it had been drawn up and perfected no Court or Judge had any power to interfere with it. This is clear from the judgment of Thesiger L.J. in the case of in re. St. Nazaire Co. (1879) 12 Ch. D. 88." The same principle was laid down by the Madras High Court in Anantharaju Shetty v. Appu Hegada(3) in which Seshagiri Aiyar, J. observed:

"It is settled law that a case is not, open to appeal unless the statute gives such a right.

The power to review must also be given by the statute. Prima facie a party who has obtained a decision is entitled to keep it unassailed, unless the Legislature had indicated the mode by which it can be set aside. A review is practically the hearing of an appeal by the same officer who (1) 118911 1 Q.B.450.

(3) A.I.R. 1919 Madras 244. (2) [1914] 2 K.B.

421.

821 decided the case. There is at least as good reason for saying that such power should not be exercised unless the statute gives it, as for saying that another tribunal should not hear an appeal from the Trial Court unless such a power is given to it by statute." The same principle has been affirmed by the Judicial Committee in Baijnath Ram Goenka v. Nand Kumar Singh(1) in which a mahal was sold for arrears of revenue. Two appeals to annul the sale were preferred to the Commissioner under the Bengal Land Revenue Sales Act, 1859, s. 33, as amended by the Bengal Land Revenue Sales Act, 1868. One of these appeals was by the respondent, a co-sharer of the mahal, and was dismissed on the ground that the auction purchaser had not been made a defendant. A Second Appeal was preferred by the other co-sharers in the mahal, and in this appeal the Commissioner, on March 23, 1900, made an order annulling the sale on the ground of an irregularity in the sale notice.

This order related to the entire mahal. On June 21, 1900, the Commissioner having come to the conclusion that his order of March 23, 1900, was wrong in law, reviewed it, and made an order upholding the sale. The respondent thereupon brought the suit giving rise to the appeal to the Judicial Committee praying for a declaration that the order of June-.

21, 1900, was ultra vires and illegal. The Additional Subordinate Judge declared that the order setting aside the sale was a final order and was not open to review. The High Court concurred with the decision of the Additional Subordinate Judge. While dismissing the appeal of the defendant-appellant, Lord Atkinson said :

"Their Lordships are clearly of opinion that the order of March 23, 1900, was final and conclusive, and that, so far as the Commissioner was concerned, he bad no power to review that order in the way in which he has reviewed it." The same principle has been reiterated by this court recently in Patel Chunibhai Dajibhai etc. v. Narayanrao Khanderao Jambekar and Another (2) . In that case respondent No. 1 was a landlord and the appellant was a tenant. On May 1, 1956, respondent No. 1 gave a notice to the appellant under s. 14 of the Bombay Tenancy and Agricultural Lands Act, 1948 (Bombay Act LXVII of 1948) terminating his tenancy. On December 25, 1956 respondent No. 1 gave another notice to the appellant under s. 31 termination the tenancy.

On July 10, 1957, respondent No. 1 filed an application under s. 29 read with s. 14 for recovery of (1) 40 I.A. 54. (2) [1965] 2 S.C.R. 328.

822 possession of the lands. By an order dated December 25, 1957 the Mahalkari allowed respondent No. 1's application under s. 29 read with s. 14 filed on July 10, 1957, and directed that the tenancy be terminated and possession of the lands be delivered to respondent No. 1. The appellant applied to the Collector of Baroda on August 9, 1958 and again on August 26, 1958 under s. 17A for revision of the Mahalkari's order dated December 25, 1957. On or about August 14, 1958, the Collector called for the records from the MahaLkari, but the records did not reach the office of the Collector until December 24, 1958. On or-about October 3, 1958 the Collector rejected these revision applications.

On October 6, 1958 the appellant again applied to the Collector for revision of the Mahalkari's order, but this application also was disposed of by the Collector on October 17, 1958. On November 7, 1958, the local Congress Mandal Samiti passed a resolution requesting the Collector to reconsider his previous orders. A copy of this resolution was sent to the Collector on November 10, 1958. On November 14, 1958, the appellant again applied to the Collector under s. 76A for revision of the Mahalkari's order. On February 17, 1959, the Collector acting under s. 76A reversed the Mahalkari's order and directed that possession of the disputed lands be restored to the appellant. S. 76-A of the Bombay Tenancy and Agricultural Lands Act, 1958 (Bombay Act LXVII of 1948) provides as follows :

"Where no appeal has been filed within the period provided for it, the Collector may, suo motu or on a reference made in this behalf by the Divisional Officer or the State Government at any time,- (a) call for the record of any enquiry or the proceedings of any Mamlatdar or Tribunal for the purpose of any order passed by, and as to the regularity of the proceedings of such Mamlatdar or Tribunal, as the case may be, and (b) pass such order thereon as he deems fit Provided that no such record shall be called for after the expiry of one year from the date of such order and no order to such Mamlatdar or Tribunal shall be modified, annulled or reversed unless opportunity has been given to the interested parties to appear and be heard." An application for revision preferred by respondent No. 1 on March 24, 1959 was dismissed by the Tribunal on February 23, 1961. An application under Art. 227 of the Constitution pre- 823 ferred by respondent No. 1 on June 15, 1961 was allowed by the High Court on November 5, 1963. In this state of facts, it was held by this court that in the absence of any power of review the Collector had no power to reconsider his previous decisions dated October 3, October 4 and October 17, 1958 and the subsequent order of the Collector dated February 17, 1959 re-opening the matter was illegal, ultra vires and without jurisdiction. The majority judgment of this Court states :

"Though s. 76A, unlike s. 76, does not provide for an application for revision by the aggrieved party, the appellant properly drew the attention of the Collector to his grievances and asked him to exercise his revisional powers under s. 76A. Having perused the applications for revision filed by the appellant, the Collector decided to exercise his suo motu powers and called for the record on August 14, 1958 within one year of the order of the Mahalkari. But before the record arrived and without looking into the record, the Collector passed orders on October 3, October 4 and October 17, 1958 rejecting the applications for revision. By these orders, the Collector decided that there was no ground for interference with the Mahalkari's order.......... All these orders were passed by the Collector in the exercise of his suo motu power of revision. These orders as also the previous order calling for the record could be passed by the Collector only in the exercise of his revisional power under s. 76-A. As he refused to modify, annul or reverse the order of the Mahalkari, he could pass these orders without issuing notice to the 2nd respondent. These orders passed by the Collector in the exercise of his revisional powers were quasi-judicial, and were final. The Act does not empower the Collector to review an order passed by him under s. 76A. In the absence of any power of review, the Collector could not subsequently reconsider his previous decisions and hold that there were grounds for annulling or reversing the Mabalkari's order. The subsequent order dated February 17, 1959 re- opening the matter was illegal, ultra vires and without jurisdiction. The High Court ought to have quashed the order of the Collector dated February 17, 1959 on this ground." We are of the opinion that the same principle applies to the present case and the Director, Consolidation of Holdings had no 824 power to review his previous order dated 3rd April, 1958 rejecting the application of Harbhajan Singh under s. 42 of the Act. It follows that the subsequent order of the Director, Consolidation of Holdings dated 29th August, 1958 allowing the application of Harbhajan Singh was ultra vires and illegal and was rightly quashed by the High Court.

Accordingly we dismiss the appeal with costs.

Appeal dismissed.

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