Harbhajan Singh Vs. Karam Singh &
Ors  INSC 183 (16 September 1965)
16/09/1965 RAMASWAMI, V.
CITATION: 1966 AIR 641 1966 SCR (1) 817
D 1969 SC 329 (9) D 1977 SC1494 (4) R 1978
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.
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
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,  1 Q.B. 450, Hession v. Jones,  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.,  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
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)  2 K.B.
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
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)
 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.