Roop Chand Vs. State of Punjab [1962]
INSC 281 (10 October 1962)
SARKAR, A.K.
DAS, S.K.
KAPUR, J.L.
HIDAYATULLAH, M.
DAYAL, RAGHUBAR
CITATION: 1963 AIR 1503 1963 SCR Supl. (1)
539
CITATOR INFO :
D 1967 SC 295 (56) D 1977 SC2313 (20) D 1991
SC2137 (5)
ACT:
Consolidation of Holdings-Appeal to State
Government-Power to hear appeal delegated to officer-Decision of such
officer-Revision of decision by State Government-Legality of-Fundamental
rights-If infringed by illegal order of State Government-East Punjab Holdings
(Consolidation and Prevention of Fragmentation) Act, 1948 (Punj. 50 of 1948),
ss. 21 (4), 41 (1),42-Constitution of India, Art. 32.
HEADNOTE:
Under the E. P. Holdings Consolidation and
Prevention of Fragmentation) Act, 1948, a scheme, for consolidation of holdings
was framed for the petitioner's village and a repartition of the lands was
proposed. The petitioner objected to the repartition and contended that under
the scheme he was entitled to retain his plots Nos. 635 and 636 and to get some
more land adjacent to them in exchange for other lands belonging to him. This
contention was rejected by the Consolidation Officer The petitioner filed an
appeal before the Settlement Officer 540 but the appeal also failed. Against
this the petitioner filed an appeal before the State Government under s. 21 (4)
of the Act, which was heard by Shri Brar, Assistant DIrector, Consolidation, to
whom the power to hear such appeals had been delegated under s. 41 (1). Shri
Brar allowed the appeal and the petitioner became entitled to retain plots Nos.
635 and 636. Respondent No. 2 to whom these plots had been given on repartition
moved the State Government under s. 42 to revise the order made by Shri Brar,
and the State Government set aside the order of Shri Brar and restored that of
the Consolidation Officer. The petitioner filed a writ petition in the Supreme
Court challenging the order of the State Government contending that under S. 42
it could not interfere with an order made by itself or by an officer exercising
powers of the Government delegated to him under s. 41 (1).
Held (per Das, Sarkar and Dayal, JJ.) that s.
42 did not empower the State Government to interfere with an order passed by an
officer to whom the power to hear appeals filed under s. 21 (4) had been
delegated by it under s. 41 (1).
The words II any order passed by an officer
under this Act, in s. 42 did not include an order passed by an officer in
exercise of powers delegated to him by the Government under s. 41 (1). Section
21 (4) gives the power to the Government to hear appeals, and an order made in
the exercise of that power, whether by the Government itself or by its
delegate, would be an order of the Government.
Section 42 was applicable to an order made by
a subordinate officer exercising independent powers under the Act.
Lakha Singh v. Director, Consolidation of
Holdings, Punjab, A. 1. R. (1959) Punj. 157, disapproved.
The. impugned order infringed the fundamental
rights of the petitioner and he was entitled to a writ or direction from the
Supreme Court. If the order was allowed to stand the petitioner would be
deprived of plots Nos. 635 and 636 which were his property.
Per Kapur and Hidayatullah, JJ.-The State
Government had jurisdiction to revise the order made by Shri Brar. Under s. 42
the Government had over-all control at all stages of the Consolidation
proceedings. An officer to whom powers were delegated under s. 41, though
exercising the powers of the Government was still an officer of the State Government
and his order was subject to the power of revision under s.
42. The order made by Shri Brar under s. 21
(4) was an order of repartition and was liable to be revised under s. 42.
541 Lakha Singh v. Director, Consolidation of
Holdings, Punjab, A. I. R. (1959) Punj. 157, approved.
ORIGINAL JURISDICTION : Writ Petition No. 77
of 1957.
Petition under Art. 32 of the Constitution of
India for the enforcement of Fundamental Rights.
Pritam Singh Safeer, for the petitioner.
S. M. Sikri, Advocate-General for the State
of Punjab, N. S. Bindra and P. D. Menon, for the respondent No. 1.
N. S. Bindra and Govind Saran Singh, for
respondent No. 2.
1962. October 10. The Judgment of Das, Sarkar
and Dayal, JJ. was delivered by Sarkar, J. The judgment of Kapur and
Hidayatullah, JJ. was delivered by Kapur, J.
SARKAR, J.-This petition under Art. 32 of the
Constitution asks for a writ quashing an order purported to have been made
under s. 42 of the East Punjab Holdings (Consolidation and Prevention of
Fragmentation) Act, 1948. It is said that the order was entirely without
jurisdiction and if allowed to stand, it would deprive the petitioner of
certain lands and so wrongfully affect his fundamental rights under Part III of
the Constitution.
The question raised by this petition depends
on a construction of certain provisions of the Act which we shall later quote.
A general idea of some of the purposes and provisions of the Act will however
be useful for deciding that question and may be given now.
Shortly put, one of the objects of the Act
appears to be to pool together the entire lands held 542 by different persons
in a village and redistribute the same among them on a more utilitarian basis
in accordance with a scheme framed for the purpose. The final result that the
Act achieves is that instead of his original holding a person is given some
other holding. Section 14 gives the State Government the power to declare by
notification its intention to frame a scheme for the consolidation of holdings
in any area and thereupon to appoint a Consolidation Officer who is to prepare
the scheme. Section 19 provides for the publication of the draft scheme
prepared by the Consolidation Officer and for objections thereto being made by
the persons likely to be affected. It also provides that the Consolidation
Officer will submit the scheme with the objections and his suggestions with
regard to them to the Settlement Officer and for republication of the scheme
with such amendments as may have been made.
Section 20 empowers the State Government to
appoint Settlement Officers (Consolidation), in this judgment referred to as
Settlement Officers. It further provides that if no objections are received to
the draft scheme when first published or to the amended scheme when
republished, the Settlement Officer shall confirm the scheme and if gay
objections are received, he may after considering the objections, confirm the
scheme with or without modification.
It lastly provides that upon confirmation the
scheme shall be published again. Sub-section (1) of s. 21 provides that the
Consolidation Officer shall carry out a re-partition in accordance with the
scheme as confirmed under s. 20. Subsection (2) provides that any person
aggrieved by the repartition may file an objection before the ConsolidationOfficer.
Sub-section (3) gives to the person aggrieved by the order of the Consolidation
Officer made under subset.
(2), a right to file an appeal before the
Settlement Officer. Sub-section (4) provides that "any person aggrieved by
the order of the Settlement Officer (Consolidation) under subsection (3) may
within 543 sixty days of that order, appeal to the State Government."
Section 22 requires the Consolidation Officer to prepare a new record of rights
giving effect to the repartition as finally sanctioned under s. 21.
A scheme under the Act had been framed for
village Palrikalan where the petitioner held some lands, The petitioner had no
objection to the scheme as such but he had taken objection to the re-partition
made under it by the Consolidation Officer on the ground that the repartition
was not in accordance with the scheme. The petitioner contended that under the
scheme he was entitled to retain plots Nos.
635 and 636 which originally belonged to him
and to get some more land adjacent to them in exchange for other lands held by
him in the village while under the repartition made by the Consolidation
Officer he was being deprived of those plots and was being given lands
elsewhere. With the merits of this and the rival contention we are not
concerned in this petition.
The petitioner's contention was rejected by
the Consolidation Officer and he filed an appeal under s. 21(3) before the
Settlement Officer but that appeal also failed.
The petitioner thereafter went up in appeal
under s. 21(4) against the order of the Settlement Officer.
Now, s. 21(4) provided for an appeal to the
State Government but the petitioner's appeal was heard by Shri Brar, Assistant
Director, Consolidation of Holdings, Ambala to whom the Government's powers and
functions concerning the appeal had been delegated under s. 41 (1) which is in
these terms :
S. 4-1(1) : "The State Government may
for the administration of this Act, appoint such persons as it thinks fit, and
may by notification delegate any of its powers or functions under this Act to
544 any of its officers either by name or designation." Shri Brar allowed
the petitioner's appeal. As a result of his decision the petitioner became
entitled to retain plots Nos. 635 and 636 which he originally owned and Hari
Singh, respondent No. 2, to this petition who had on the repartition been given
by the Consolidation Officer those plots along with some more adjacent lands,
was to be deprived of them. Hari Singh being dissatisfied with the order of
Shri Brar moved the Government under s. 42 of the Act and the impugned order
was thereupon made. That order set aside the order of Shri Brar and restored
that of the Consolidation Officer. As a result of this order, therefore, the
petitioner was to be deprived of plots Nos. 635 and 636.
It is now necessary to set out s. 42 on the
interpretation of which this petition depends. That section was amended by Act
27 of 1960 with retrospective effect and it is the amended section that has to
be considered by us. The amended section is in these terms S. 42. "'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 records
of any case pending before or disposed of by such officer and may pass such
order in reference thereto as it thinks fit." The petitioner's contention
is that an order which can be interfered with under s. 42 is an order passed
under the Act by any officer in his own right and not an order made by the
Government itself or by an officer exercising powers of the Government upon
delegation under s. 41 (1).
545 The question really is as to the meaning
of the words "'any order passed...... by any officer under this Act"
in s. 42.
Do these words include an order passed by an
officer in exercise of powers delegated to him by the Government under s. 41
(1) ? We do not think, they do.
Now, there cannot be much doubt that s. 42
makes a distinction between the Government and an officer, because under it the
Government is given power to interfere with an order passed by an officer and,
therefore, it does not authorise the Government to interfere with an order made
by itself. As we understood the learned Advocate-General of Punjab, who
appeared for the respondent State of Punjab, he conceded that position. He said
that the Government could no doubt have itself heard an appeal preferred under
s. 21 (4) instead of getting it heard by an officer/ to whom it delegated its
power, and if it did so, then it could not under s. 42 interfere with the order
which it itself passed in the appeal. We think that this is the correct
position, and we wish to make it clear that we are not basing ourselves on the
concession made by the learned AdvocateGeneral. We feel no doubt that an order
passed by an officer of the Government cannot be an order passed by the
Government itself.
The question then arises, when the Government
delegates its power, for example, to entertain and decide an appeal under s. 21
(4) to an officer and the officer pursuant to such delegation hears the appeal
and makes an order, is the order an order of the officer or of the Government ?
We think it must be the order of the Government. The order is made under a
statutory power. It is the statute which creates that power. The power can,
therefore, be exercised only in terms of the statute and not otherwise. In this
case the power is created by s. 21 (4). That section gives the power to the
Government. it 546 would follow that an order made in exercise of that power
will be the order of the Government for no one else has the right under the
statute to exercise the power. No doubt the Act enables the Government to
delegate its power but such a power when delegated remain,; the power of the
Government, for the Government can only delegate the power given to it by the
statute and cannot create an independent power in the officer. When the
delegate exercises the power, he does so for the Government. It is of interest
to observe here that Wills, J., said in Huth v. Clarke (1) that "'the word
delegate means little more than an agent". An agent of course exercises no
powers of his own but only the powers of his principal. Therefore, an order
passed by an officer on delegation to him under s. 41 (1) of the power of the
Government under s. 21 (4), is for the purposes of the Act an order of the
Government. If it were not so and it were to be held that the order had been
made by the officer himself and was not an order of the Government-and of
course it had to be one or the other-then we would have an order made by a
person on whom the Act did not confer any power to make it. That would be an
impossible situation. There can be no order except as authorised by the Act.
What is true of s. 21 (4) would be true of all other provisions in the Act
conferring powers on the Government which can be delegated to an officer under
s. 41 (1). If we are wrong in the view that we have taken, then in the case of
an order made by an officer as delegate of the Government's power under s. 21
(4) we would have an appeal entertained to and decided by one who had no power
himself under the Act to do either. Plainly, none of these things could be
done.
Again, if an order passed by an officer to
whom a power had been 'delegated by the Government under s. 41(1) was an order
passed by the officer then an order made by an officer to whom power under s.
42 had been delegated would be an order (1) L. R. (1890) 25 Q. B. D. 391.
547 by an officer within the meaning of s.
42. That order would then be liable to be interfered with by the Government
under s. 42 and if such interference is again not by the Government itself but
by another officer as its delegate, then in that way the process of
interference might be repeated for ever. Obviously an interpretation leading to
such, a; result cannot be correct. It is of some interest to point out here
that in the present case the order tinder s. 42, that is, the impugned order
had not been made by the Government itself but by the Director, Consolidation
of Holdings, to whom the Government's power under that section had been
delegated.
It was however said by the learned Advocate
General that this absurd result would not follow because power under s. 42 can
be exercised only once in respect of the same order.
We will assume that power can be exercised in
respect of the same order only once. But even so it seems to us that if the
order by a delegate officer is an order within s. 42, then the power under that
section can be exercised repeatedly. This will appear clearly if we take an
illustration. Suppose delegate officer A makes an order under s. 21 (4). This
order can be interfered with by the Government under s. 42. Now suppose the
Government delegates its power under s. 42 to officer B and officer B then
makes an order under s. 42 as delegate of Government.
That would be an order made by a delegate
officer and capable-of being interfered with under s. 42. This exercise of
power would be in respect of an order of officer B and therefore not in respect
of the same order in respect of which power under s. 42 had been once
exercised, namely, the order by officer A. Now assume this time delegate
officer C exercises Government's power under s. 42. Again the order made by him
would be interfered with under s. 42. Repeated exercise of power would be in
respect of successive orders and never in respect of the same order. In this
way finality in the matter 548 can never be reached. We must reject an
interpretation which prevents finality being reached. On the interpretation
that we have suggested the matter would be finally decided; the power under s.
42 cannot be exercised more than once in respect of the same matter.
We think there are other reasons leading to
the view that the order contemplated by s. 42 is an order made by an officer in
his own right. The words "'The State Government may...... call for and
examine the record of any case pending before or disposed of by such
officer" in the section clearly indicate that the records are not in the
possession of the Government but are in the possession of somebody else in his
own right and therefore it is that the Government is given power to "'call
for" those records. It would not be necessary to give the Government expressly
the power to call for records if the records were with the Government's
delegate, for such delegate would be even without such express power, within
the control of the Government. The records with the delegate would really be
records in the possession of the Government. Furthermore, the expression
"'call for" the records is one familiar to courts of law. It occurs
in s. 115 of the Code of Civil Procedure where a superior court which
therefore, is a different court, is given the power to call for the records of
a subordinate court. It may reasonably be presumed that by using the familiar
words " call for" the records, the legislature indicated that the
officer whose order was to be interfered with under s. 42 was an officer
exercising independent powers and therefore a subordinate officer and not an
officer exercising powers delegated by the Government.
We do not think that Lakha Singh v. Director,
consolidation of Holdings, Punjab(1) to which we were referred was correctly
decided. There Falshaw, J., (1) A.I.R. (1959) Punj. 157.
549 with whom Dua, J., agreed, approved of an
earlier decision by Bishan Narain, J., where the latter said that "'under
s. 40 (1) the Government can delegate its Viewers or functions only to one of
its officers. It, therefore, follows that the Government's delegate under s. 20
(4) is an Officer and as he is appointed under this Act and has to perform
duties relating to administration of this Act, he must be held to be an Officer
under this Act." Falshaw, J., as also Bishan Narain., J., were dealing
with the Pepsu Holdings (Consolidation and Prevention of Fragmentation) Act.
This Act however contained the same provisions as the Act now before us though
the sections were numbered differently.
Apparently, the learned judges were of the view
that the words "under this Act" in s. 41 of the Act before them which
corresponds to s. 42 of our Act, referred to the word "'Officer" and
not to the word "order". But we do not think that that view solves
the problem. The question is not whether the officer is one under the Act.
which perhaps means mentioned in or appointed under the Act, but whether the
order is by him in his own right as such officer? We may point out that the Act
does not expressly say that an officer to whom Government may delegate its
power under s. 40 (1) has to be an officer "under the Act". Falshaw,
J., thought that the words "any order passed by any officer under this
Act" in s. 41 of the Act before him should be read as "any order
passed under any provision of the Act by any officer having power to pass any
order under the Act".
If they are so read, we think they would mean
that the officer had power under the Act to Pass the order in his own right and
not as delegate of he Government.
The learned Advocate-General said that when
power is delegated to an officer under s. 40(1), he does not cease to be an
officer and therefore an order passed by him is an order passed by an officer
within s. 42. It seems to us that this is not at all 550 determinative. If the
officer does not cease to be an officer because Government had delegated power
to him, neither does he cease to be a delegate of the Government because he is
an officer. The real question is different.
It is whether the order made by the officer
was made as a delegate of the Government or in his own right.
Then it was pointed out that the order in
this case was the order of an officer and not of the Government at all, for if
it had been the order of the Government it would have been made in the name of
the Governor as required by the rules of the executive business framed under
Art. 166 of the Constitution. But it seems to us that the form in which the
order was made is immaterial. The order was not in fact made by the Government
but by somebody else in exercise of the power which lay vested in the
Government alone. We are not aware that such an order has to be in the name of
the Governor. The question is, in whose right has an order to be made so that
it may be interfered with under s. 42 ? It is of no help in answering that
question to consider the form in which the order was made.
The learned Advocate-General then said that
the words "under the Act" in the section referred to the word
"order" only and not to the word "officer" and therefore
the order contemplated by it may be one made by an officer to whom power was
delegated by the Government for that would be an order contemplated by the Act
and therefore an order "under the Act". We think that this is a
pointless contention.
When the Act permits an order to be made, it
must at the same time indicate, as the present Act does, who is to make the
order. Obviously, a man in the street cannot make an order under the Act.
Therefore the question that has, arisen in the present case cannot be answered
simply by 551 saying that the words "under the Act" refer to the word
"order" alone. It cannot be that an order under the Act can be made
by any officer whatsoever. If the contention of the learned Advocate-General
was right, then even an order made by the Government itself under s. 21(4)
would be liable to interference under s. 42, but as already stated he concedes
that this cannot be done. Quite clearly s. 42 does not contemplate all orders
whatsoever made under the Act.
The learned Advocate-General further said
that when the legislature amended s. 42 by Act 27 of 1960 it had before it the
decision in Lakha Singh's case (1) and as it did not expressly provide to the
contrary, it must be deemed to have approved of the interpretation put upon the
section r to s. 42 by that case. He referred us to a passage in Ramnandan
Prasad Narayan Singh v. Mahanath Kapildeo Ram (1) in support of this
contention. In that case a somewhat obscure text in a Bihar. Statute had been
interpreted by the High Court of Patna consistently from the beginning, that
is, from a time soon after its enactment, in a certain way and this Court held
in view of the obscurity in the text and the inaction of the legislature over a
number of years that it could be legitimately inferred that the High Court had
correctly interpreted the intention of the legislature.
Without being understood as saying that such
all inference must always be made, we would like to. point out that the present
is all entirely different case. Here there is no unanimity of opinion as
regards the interpretation of the, statute concerned. At least one judge.
namely Grover, J., was unable to accept the view that was adopted in Lakha
Singh's case (1). That learned judge said, "The use of the expression
"officer" by necessary implication means that the officer should have
exercised power as, such and not by virtue of the., delegation made by the
State Government.":
see (1) A.I.R. (1959) Punj. 157.
(2) [1951] S.C.R. 138, 144, 552 Lakha Singh's
case.(1) p. 159. With this view we entirely agree. Furthermore, the present
petition was pending in this Court when the Act was amended and the legislature
might have thought that it was unnecessary to amend the statute to indicate
that the view in Lakha Singh's case(1) was wrong for this Court would correct
that error.
It was lastly said that it may so happen that
an order under s. 21(4) might give rise to a chain of reactions which can only
be coped with by an order made under s. 42. The precise contention is not very
clear to us. This contention appears to have been accepted by Bishan Narain,
J., in the judgment on which Lakha Singh's case(1) is based where he said
"The changes in allotments in consolidation proceedings often produce a
claim (sic) of reactions and affect a number of persons and the rights of parties
cannot always be satisfactorily adjusted in an appeal under s. 20(4). In such
cases s. 41 is the only provision which can be utilised to achieve this
object." Section 41 referred to by the learned judge corresponds as we
have earlier said to s. 42 of our Act. Suppose the position is that in view of
the chain reactions started the order made under s. 21(4) was better recalled.
Now suppose the order under s. 21(4) is made by the Government itself, then
admittedly nothing can be done about it under s. 42 to give effect to any chain
reactions. There is no reason to think that if that order happens to be made by
an officer to whom Government's powers under s. 21(4) are delegated that should
make any difference. The harm, it any in each case would be the same, and there
is no reason why the legislature should have provided for a remedy in one case
and not in the other. It might however be reasonably thought that when an
appeal is being heard under s. 21(4) either by the Government or by an officer,
the authority concerned will before making the order in the appeal consider the
chain reactions that the order might cause and then decide not to (1) A.I.R.
(1959) Punj.157.
553 make the order at all or to make the
order and give effect to the chain reactions by interfering under s. 42 with
other orders. Even on the interpretation that we suggest all necessary chain
reactions might be given effect to. This reasoning does not assist the
respondents at all.
We therefore think that the order impugned in
this case which was made on July 21, 1956 under s. 42 was entirely without
jurisdiction and must be treated as a nullity. No effect can be given to it and
the petitioner is entitled to an order quashing it.
Then it is said that even so, no writ can be
issued quashing the order as it cannot be said to affect the petitioner's right
to property. The contention in short is that the order affects no fundamental
right and therefore no petition under Art. 32 is maintainable. This objection
to the petition is also without foundation. From what we have earlier said
about the provisions of the Act it would appear that the object of the scheme
is to give to a person affected by it right in the lands allotted to him under
the repartition made pursuant to the scheme in the place of his right in lands
which were pooled and which he previously held. Now under ss. 23, 24 and 25
taken together, the original right to lands come to an end and a right to the
substituted lands spring up upon possession being delivered of the new
allotments as mentioned in these sections. It is not necessary to refer to the
provisions of these sections in detail for this, it is agreed, is the substance
of them.
It may be that possession has not yet been
delivered in terms of the Act and, therefore, in a manner of speaking, the
petitioner's original right to land has not yet come to an end nor has his new
right come into existence. But it is obvious that if the impugned order is
allowed to stand, then it is the intention of the respondent State and the
respondent Hari Singh to carry it into effect. If the impugned order stands,
Hari Singh 554 would be entitled to ask for delivery of possession of the lands
given to him under that order and the respondent State would be bound to give
him such possession. The petitioner would have no means of opposing possession
being so given.
Immediately upon such delivery of possession
the petitioners original right to his lands would disappear. Therefore it seems
to us/that the inevitable result of the order is to affect the petitioner's
right to property illegally. It may be that just now the right has not been
affected and there is only a threat that it will be affected. But we think that
the threat is sufficiently serious and the petitioner is not bound to wait till
his right has actually been affected more particularly as it is not disputed
that it would inevitably be affected.
in the result we would allow the petition and
issue a writ quashing the order purported to be made by the Director,
Consolidation of Holdings, Punjab on July 21, 1956, under s.
42 of the Act. The petitioner will be
entitled to the costs of this petition.
KAPUR, J.-The decision of this case depends
upon the construction of two provisions of the East Punjab Holdings
(Consolidation and Prevention of Fragmentation) Act, 1948, (Punj. 50 of 1948),
hereinafter termed "the Act"; those provisions are ss. 21(4) and 42.
The former section confers on the State Government appellate powers and the
latter the power to call for '-proceedings" for the purpose of satisfying
itself as to the legality and propriety of any order passed tinder the Act by
any officer acting under the Act. The respective submissions of the parties
before us are these: according to the petitioner once the power of appeal in
regard to an order of the Settlement Officer is exercised under s. 21(4) by the
State Government or its delegate to whom power is delegated under s. 41 the
State Government cannot exercise the power of control contained in s. 42 of
calling for the record and correcting the errors of its 555 officers. According
to the respondents' submission the two powers of appeal and control are
separate and distinct powers and if they are delegated to two different
officers as they were in the present case then the exercise of one power (under
s. 21(4)) does not exhaust the Government's power or that of its delegate under
s. 42 of the Act. In order to resolve the controversy it is necessary to refer
to some of the provisions and the objects of the Act.
As the long title of the Act shows the
underlying object of the Act is the consolidation of holdings and prevention of
fragmentation and thus to improve agriculture in the State.
By a series of partitions since the founding
of the various villages in the State the holdings had become fragmented and
uneconomic for the purpose of efficient cultivation. The Act provides the
remedy for this by means of consolidation of holdings. In order to effectuate
that object, the Act has created a machinery which provides for putting all the
holdings in a village in hotch-potch evaluating each holding and then
repartitioning in accordance with that evaluation with a provision for
compensation to equalise the values.
Chapter III deals with consolidation of
holdings. Under that Chapter first the State Government declares its intention
to make a scheme for consolidation of holdings and then a scheme is prepared by
the Consolidation Officer after obtaining the advice of the landowners of the
state. Under s. 15 the scheme has to provide for compensation. After the scheme
is prepared it can be objected to by any landowner and is liable to be amended
by the Consolidation Officer and the Settlement Officer who is a higher
official. The scheme as finally drafted has to be confirmed by the Settlement
Officer. After the scheme is prepared and confined and published, the land is
put in hotch-potch and repartitioned in accordance with the scheme of
consolidation and, with the advice of the landowners.
556 Here comes the hierarchy of officers who
are empowered to look into the grievances of any aggrieved person in regard to
repartition and that is provided in s. 21 of the Act. An objection can be
lodged in the first instance by any person aggrieved by the repartition before
the Consolidation Officer and any person aggrieved by the order of the
Consolidation Officer can appeal to the Settlement Officer (Consolidation) and
if any person is aggrieved by his order he can take the appeal Within the time
specified to the State Government and there the machinery for appeals stops and
subject to that appellate order the order of the Settlement Officer is final.
After repartition has been finally sanctioned
under the provisions of the Act and has been effected a new record of rights
has to be prepared and then if all the land-owners agree to enter into
possession in accordance with the scheme of repartition the possession is given
to the land owners and if they do not agree to enter into possession then
possession is to be taken by the landowners at the commencement of the
agricultural year following the date of the publication of the final scheme and
they have to be put into physical possession of the holdings and would be
entitled to the standing crop on payment of such compensation as may be
determined. Under s. 24 as soon as possession is taken in accordance with the
provisions of the Act the scheme shall be deemed to have come into force.
Provision is then made in regard to
encumbrances of the landowners and tenants. Provision is also made for
apportionment of compensation.
Now we shall deal with 1 Chapter V which is
headed "General". For the administration of the Act s. 41 empowers
the State Government to appoint such persons as it thinks fit and it may by
notification delegate any of its powers under the Act to any of its officers
either by name or designation. Section 42 557 confers power on the State
Government to call for the proceedings i. c. any order passed, scheme, prepared
or confirmed or repartition made under the Act by any officer acting, under the
Act to satisfy itself as to the legality and propriety of orders passed by its
officers and to pass such orders as it thinks fit. Section 43 provides that
except as provided in the Act no appeal or revision shall lie from any order
passed under the Act and under s. 44 no civil suit is entertainable in respect
of any matter which the State Government or any other officer is empowered to
determine, decide or dispose of under, tile Act and under s.
45 no suit is maintainable in respect of the
exercise of any power or discretion conferred by the, Act or against any public
servant or person (duly appointed or authorised under the Act in respect of'
anything done in good faith or purporting to be done under the Act and s. 46 is
the rule making power. This, in short, is the scheme of the Act.
It is to be noticed that the Act provides
under s. 42 an over-all control of the State Government it all stages of
consolidation proceedings. It is the State Government which has to specify the
estate for the purposes of the Act and it has the power to determine and revise
at any time the standard areas under s. 5 of the Act. The scheme for
consolidation of holdings has to be finally sanctioned by the State Government
or by its delegate and after the scheme is sanctioned repartition is to take place
so as to allot lands to the people in accordance with the value of their
original holdings with such compensation as may be necessary and if any person
is dissatisfied with the repartition lie can appeal first to the Consolidation
Officer, then to the Settlement Officer and thereafter to the State Government
but the appeals are not confined to the person aggrieved by the repartition
scheme; any person who may be aggrieved by the order of Consolidation Officer
may, under s. 21(2) of the Act appeal to the Settlement Officer under s. 21 (3)
558 and any person who is aggrieved by that order, who may not necessarily be
the per-son who, started the proceedings before the Consolidation Officer can
appeal to the State Government. Section 21 reads as follows :
"S. 21 (1) The Consolidation Officer
shall after obtaining the advice of the landowners of the estate or estates
concerned, carry out repartition in accordance with the scheme of consolidation
confirmed under section 20, and the boundaries of the holdings as demarcated
shall be shown on the shajra which shall be published in the prescribed manner
in the estate or estates concerned.
(2) Any person aggrieved by the repartition
may file a written objection within fifteen days of the publication before the
Consolidation Officer who shall after hearing the objector pass such orders as
he considers proper confirming or modifying the scheme.
(3) Any person aggrieved by the order ,of the
Consolidation Officer under sub-section (2) may within one month of that order
file an appeal before the Settlement Officer (Consolidation) who shall after
hearing the appellant pass such order as he considers proper." The effect
of this section is to give a right to every person who is aggrieved by any
order passed either at the time of the repartition or by the order of the
Consolidation Officer or by the order of the Settlement Officer to object and
get relief, The reason for this 559 is that the order passed by the
Consolidation Officer in favour of a person who applies under s. 21(2) may
start a chain reaction which may affect the rights of others, like any other
ordinary partition proceedings may do, and therefore any person aggrieved has
been given the right to take objection under the various provisions of s. 21.
When the appellate power of the State Government is exercised by an officer to
whom powers are delegated under s. 41 which provides :S. 41 (1) "The State
Government may for the administration of this Act, appoint such persons as it
thinks fit, and may by notification delegate any of its powers or functions
under this Act to any of its officers either by name or designation.
2) A Consolidation Officer or a Settlement
Officer (Consolidation) may, with the sanction of the State Government,
delegate any of its powers or functions under this Act to any person in the
service of the State Government." The officer though exercising such
powers as the State Government itself possesses is still an officer of the
State Government and has all the protection which is given by s. 45 of the Act
and his order is final as provided in s. 43.
Any order passed by him as an appellate
authority is an order in regard to repartition which has to be taken into
consideration for the purposes of bringing the scheme into effect under s. 24
of the Act. Thus he does not cease to be an officer of the State Government
even though in disposing of appeals lie is exercising delegated powers.
Section 42 of the Act provides :
"S. 42 The State Government may at any
time for the purpose of satisfying itself as to 560 the legality of 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." Now this power of the State Government is distinct from
the power s. 21(4) and is in the nature of revision. This gives an overall
control to the State Government to see that the orders passed by its officers
are legal and are proper because one illegal or improper order may start a
chain of reactions which may disturb the whole scheme of consolidation and
prevent its coming into effect. One order passed at any stage under s. 21 of
the Act by which a landowner gets more than his share or is given a different
area to that which is provided in the repartition scheme may lead to the
undoing of the whole scheme and may set at naught the whole scheme of
consolidation. It is for that purpose that the State Government has been given
the power under s. 42 which is further clear from the fact that under the
proviso to s. 42 the Government is expressly given the power to set aside
proceedings ex parte in regard to which it is satisfied that there has been an
element of unlawful consideration. This would apply equally to an order under
s. 21(4) by a delegate as to any other order improperly obtained.
The Government has necessarily to act through
its officers and as consolidation has to take place in 561 several villages,
where the rights of a large number of landowners are affected, it cannot always
appoint as a final appellate authority, persons who correspond to a Financial
Commissioner under the Land Revenue Act of the Punjab; and as the orders of
such officers become immune from challenge in courts and can in certain cases
affect the whole scheme the State Government has been given the power of
overall control over all actions of its officers and at all stages.
In the present case the officer who exercised
the appellate power was Mr. Avtar Singh Brar, Assistant Director, Consolidation
of Holdings, Ambala. Naturally the Government had to appoint an officer of a
higher status to see that no improper or illegal order was passed and for that
purpose its powers under s. 42 were delegated to the Director of Consolidation
of Holdings.
The language of s. 42 shows that an overall
control is given to the State Government over all consolidation proceedings and
at all stages. In that section are mentioned firstly any order passed by an
officer, secondly a scheme prepared or confirmed, thirdly a partition made by
any officer under the Act. They are all equally subject to the power of the
State Government under's. 42 The order tinder s. 21 (4) by a delegate is an order
of repartition and would even apart from the fact that it is an order of an
officer be subject to the revisional powers of the State Government under s. 42.
Therefore the statute must be taken to have authorised the State Government to
reconsider the scheme confirmed by its delegate. If in that case the power is
exercisable by the State Government there does not seem to be any reason why
that power is not exercisable when its delegate passes an order under s. 21 (4)
and thus makes an order in regard to repartition. So read the extent of the
power of the State Government under s. 42 extends equally to any order passed
by its officers whether of confirmation of a scheme or of repartition and
whether the power is exercised by the officer 562 making the order acting under
authority expressly given to him under the Act or it is delegated to him by the
State Government under s. 41 of the Act. If this power were not to be inferred
from s. 42 then no kind of illegality or impropriety would be liable to
correction. This argument receives further support from the power given to the
State Government where it is satisfied that proceedings have been vitiated by
unlawful consideration. If this power was not there then any order howsoever
obtained would remain immune from all control of higher officials and would
lead to a great deal of inconvenience if not injustice.
The view of the Punjab High Court in Lakha
Singh v. Director' Consolidation of Holdings, Punjab(1) which was a case under
a similar provision of the Pepsu State in our opinion is a correct
interpretation of s. 41 of the Pepsu Act corresponding to s. 42 of the Act. In
that case it was held that the appellate powers are concerned with the
grievances of the appellant and those who are arrayed as parties In the appeal
but s. 42 gives an overriding power to the Government to consider. any order of
its officers under the Act and to make such orders as would subserve the
objects and purposes of consolidation proceedings. The change in allotment, as
a result of an appeal, may produce a chain of reactions and affect the rights
of a number of persons which cannot be satisfactorily adjusted in appeal but
under its general powers the Government may make such orders as would prevent
the right of all or a large number of landowners from being affected. Without
such a power, as we have said above the whole scheme of consolidation may fail
because there would be no remedy in a civil court and finality being given to
the appellate order would produce an impasse which must necessarily defeat the
object of the Act and the process of consolidation.
In this view of the matter, in our opinion,
this (1) A.I. R. (1959) Punj. 157.
563 petition is without force and is
dismissed with costs.
BY COURT :-In view of the majority opinion the
Writ Petition is allowed with costs.
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