Union of India & ANR Vs. Avtar
Singh & ANR [1984] INSC 74 (4 April 1984)
DESAI, D.A.
DESAI, D.A.
SEN, A.P. (J) ERADI, V. BALAKRISHNA (J)
CITATION: 1984 AIR 1048 1984 SCR (3) 391 1984
SCC (3) 589 1984 SCALE (1)822
ACT:
Punjab Refugees (Registration of Land Claims)
Act, 1948-s. 33-Revisional power of Central Government-Scope of- Whether can be
exercised repeatedly.
HEADNOTE:
One Harnam Singh, father of the respondents,
was owner of some agricultural land in the erstwhile Sind Province now forming
part of Pakistan. After the partition of the country he along with his wife and
three sons migrated to India. As displaced person, he lodged a claim on March
15, 1948 in respect of his entire holding on Pakistan. On the introduction of
the Punjab Refugees (Registration of Land Claims) Act, 1948, on April 3, 1948
the said Harnam Singh, his sons and his wife filed separate claims alleging
that in 1946 there was an oral partition of the land which originally belonged
to Harnam Singh. The claims were verified and allotments were made in favour of
each claimant. The Chief Settlement Commissioner rejected a reference from the
department and by his order dated August 21, 1961 held the allotments to be
valid. Apprehending that the claim of ownership of land in Sind and the
partition between himself, his sons and his wife and the allotment of land was
being re-examined, on March 13, 1962 Harnam Singh submitted a representation to
the Government of India for issuing a direction under s. 33 of the Act that the
matter be treated as finally settled. On this representation, Shri N. P. Dube,
Joint Secretary to the Government of India, Department of Rehabilitation wrote
a D. O. letter dated May 31, 1963 to Shri J. M. Tandon, Deputy Secretary to the
Government of Punjab, Rehabilitation Department, saying, inter alia. "that
there is no point in waiting any more and the matter should be finalised on the
basis of the judicial findings arrived at in the case. We also feel that there
are no reasons to differ from those judicial pronouncements at this stage. The
record received from the Punjab Government is, therefore, returned with the
request that the case may be finalised as mentioned above". It appears
that the Managing Officer of the Rehabilitation Department, Punjab Government
submitted a note to move the Central Government under s. 33 of the Act for
reopening and cancellation of the order of the Chief Settlement Commissioner
dated August 21, 1961. The reopen a notice was issued to the allotees calling
upon them to show cause why the order of the Chief Settlement Commissioner
dated August 21, 1961 should not be set aside and allotment in favour of each
of them should 392 not be cancelled. The allotees contended that since the
power of revision conferred by s. 33 of the Act had already been exercised by
the Central Government, the same power of revision could not be repeatedly
exercised particularly when no fresh material against the allotees was produced
after the earlier decision. Ultimately a Joint Secretary to the Government of
India exercising power of revision conferred by s. 33 by his order dated March
15, 1965 quashed and set aside the order of the Chief Settlement Commissioner
dated August 21, 1961 and further directed that the allotment of land favour of
Harbans Singh his sons and his wife be cancelled and that a fresh allotment be
made on the footing that Harnam Singh alone was the owner of the land situated
in Sind. The validity of the order dated March 15, 1965 of the Joint Secretary
was challenged in the High Court by two sons of Harnam Singh, respondents in
this appeal. Broadly agreeing with the view taken by a learned single Judge, a
Division Bench while dismissing the Letters Patent appeal in the High Court,
held that the D. O. Letter of the Joint Secretary dated May 31, 1963 conveyed
the decision of the Government of India in exercise of powers under s. 33 and
therefore, the power of revision against the order of the Chief Settlement
Commissioner was exhausted because a quasi- judicial tribunal had no power to
revise or review its earlier decision on merits even if the earlier decision
was wrong on facts or law. Accordingly, the High Court held that the impugned
order of the Government of India dated March 15, 1965 was without jurisdiction
and was invalid and of no legal efficacy. Hence this appeal.
Allowing the appeal,
HELD : The contention that the power of
revision cannot be repeatedly exercised and finality must attach to the orders
would necessitate an examination in depth of the nature and extent of power
conferred by section 33 of the Punjab Refugees (Registration of Claims) Act,
1948 which enables the Central Government to revise and reopen any proceeding
under the Act and to pass any order in relation thereto as in the opinion of
the Central Government the circumstances of the case require and as is not
inconsistent with any of the provisions contained in the Act or the Rules made
thereunder. But in the facts of the present case it is not necessary to
undertake this exercise. The Court would proceed on the assumption that section
33 of the Act does not provide reservoir of power from which revisional
jurisdiction can be exercised more than once in respect of the same order or
the same proceeding. [403E-F] In the instant case the question which would
squarely arise is whether on an earlier occasion, the Central Government had
exercised any revisional power conferred by section 33 in respect of the order
dated August 21, 1961 of the Chief Settlement Commissioner. In other words,
whether, as contended by the appellants, the letter of Shri N. P. Dube, Joint
Secretary dated May 31, 1963 is a decision recorded by the Central Government
in exercise of the power conferred by section 33 ? The letter of Mr. Dube dated
May 31, 1963 does not record any decision of the Central Government. It merely
says that it is not necessary to wait any more for response to the queries
addressed to authorities in Pakistan and 393 the matter should be finalised on
the basis of finding arrived at in the case. It further proceeds to aver that
there is a feeling that there is no reason to differ from those judicial
pronouncements at `this stage'. Such expression of feeling could hardly
tantamount to a decision of the Central Government under Sec. 33. By this
letter the Central Government informed the Government of Punjab that the record
is returned with the request that the case may be finalised as indicated in the
letter. The revisional power is the power is the Central Government and not of
the Punjab Government. There decision was left to the Punjab Government. There
was nothing pending with the Punjab Government for finalisation Therefore, the
High Court was clearly in error in treating the letter of Shri Dube dated May
31, 1963 as a decision of the Central Government in exercise of the power conferred
by Sec. 33. There was no occasion for the Central Government to exercise power
under Sec. 33 and therefore, it is not possible to agree with the High Court
that the letter records the decision of the Central Government under Sec. 33.
If the letter of Shri Dube is not a decision of the Central Government under
Sec. 33 of the Act, as a necessary corollary, the impugned decision must be
treated as one renderer for the first time in exercise of the revisional power
under Sec. 33 and therefore, it cannot be said to be one without jurisdiction.
[403 G; 404 A; F-G; 405 B-E] D. N. Roy and S.
K. Bannerjee & Ors v. State of Bihar & Ors. [1971] 2 S.C.R. 522.
If every litigant in whose favour a competent
authority has made an order can still approach the higher authority for the
affirmance of the order without any rhyme or reason, the whole gamut of power
of revisional jurisdiction would become a play thing for already successful
party who may foreclose the decision and when needed can successfully urge that
the power of revision is exhausted. [404 E-F]
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 503 of 1971.
From the Judgment and Order dated 22.5.1969
of the Punjab & Haryana High Court in L.P.A. No. 384 of 1966.
M. M. Abdul Khader and Ms. A. Subhashini for
the appellants.
P.P. Rao for the Respondent No. 1 and R.S.
Bindra and Harbans Singh for respondent No. 2.
The Judgment of the Court was delivered by
DESAI, J. Avtar Singh and Dr. Kartar Singh two sons of S. Harnam Singh filed
Civil Write No. 1242 of 1965 against their father S. Harnam Singh, respondent
No. 2 and Union of India and Tehsildar cum Managing Officer, respondents Nos. 1
and 3 res- 394 pectively questioning the correctness and validity of an order
dated March 15, 1965, Annexure `G' to the petition.
S. Harnam Singh was the owner of agricultural
land comprised in Deh No. 100 as also a portion of the land included in Deh No.
99 situated in District Nawab Shah, in erstwhile Sind Province now forming part
of Pakistan. Harnam Singh had three sons : Avtar singh, Dr. Kartar Singh and
Harbans Singh. Smt. Tej Kaur was the wife of Harnam Singh.
It was alleged that in the year 1946 Harnam
Singh effected a partition of agricultural land between himself, his three sons
and his wife Smt. Tej Kaur each being given an almost equal share. It was
alleged that intimation of the alleged partition was sent to the revenue
authorities of Sind Province with a request to effect necessary mutation in the
revenue records showing land as having been given in the partition to the
particular person. After the partition of the country S. Harnam Singh his three
sons and his wife migrated to India and they claim to be displaced persons.
Harnam Singh lodged a claim on March 15, 1948
in respect of the entire land including the land belonging to the heirs of Ch.
Attar Singh who was his father-in-law. Later on, on April 21, 1948 Harnam Singh
intimated to the Rehabilitation Authorities that out of a total claim of 300
acres of land lodged by him, about 75 acres of land was of the ownership of Ch.
Attar Singh and confined his claim to the total area of 225 acres of land. It
may be mentioned that in the claim lodged on March 15, 1948 there was no
reference to the partition effected by Harnam Singh between himself his sons
and his wife. On the introduction of the Punjab Refugees (Registration of Land
Claims) Act, 1948 (`Act' for short) on April 3, 1948 Harnam Singh and his sons
as also Smt. Tej Kaur filed separate claims on the basis of the partition of
the land which originally belonged to S. Harnam Singh. It was alleged that
these claims were verified and allotments of land were made to the extent of
21-8 standard acres in favour of each claimant on temporary basis. On October
5, 1953, Harnam Singh and his sons approached the authorities in the
Rehabilitation Department to convert temporary allotment into quasi-permanent
allotment. Deputy Registrar Land Claims accepted the request of Harnam Singh
and his sons, both with regard to the ownership of the land as well as
partition thereof amongst various members of the family.
However, it was recommended that on the basis
of the revised calculations, each claimant would be entitled to 19-11 1/2 S.A.
of land instead of 21-8 S.A. and the excess allotment should be cancelled This
recommendation was approved by the competent authority vide its order dated 395
October 28, 1953 as also by the Deputy Custodian of Evacuee Property as per its
order dated November 11, 1953.
Consequently excess allotment of 8-14 1/2
standard acres in respect of five claimants was cancelled and the remaining
allotment was ordered to be made on quasi-permanent basis.
It was alleged that later on proprietary
rights were conferred on each claimant in respect of the land allotted to him
by the Managing Officer. Sometime in 1960, a notice was received by the
allottees from the Chief Settlement Commissioner, Punjab calling upon them to
show cause why their allotment should not be cancelled. In view of the notice,
it became necessary for the allottees to establish not only the ownership of
land in Sind but the partition thereof amongst themselves. The allottees
claimed that they offered the necessary proof which satisfied the Chief
Settlement Commissioner who had issued notice on the basis of Jamabandi entries
received from Pakistan. Accordingly the Chief Settlement Commissioner by his
order dated August 21, 1961 confirmed the allotment, directed conferment of
quasi- permanent status and rejected the departmental reference.
Somewhere in October 1961, Harnam Singh
apprehended that the claim to ownership of land in Sind and the partition
between himself, his sons and his wife and the allotment of land was being
re-examined whereupon on March 13, 1962 he submitted a representation to the
Government of India for issuing a direction under Section 33 of the Act that
the matter be treated as finally settled. It is alleged that on this
representation, the Government of India sent for the record of the whole case,
called for the comments of the Punjab Rehabilitation Department which led Land
Claims Officer to forward his note dated October 27, 1961 to the Government of
India alongwith the whole record of the case. It is alleged that the case was
examined and the Joint Secretary to the Government of India, Ministry of
Rehabilitation, one Shri Dube, conveyed the decision of the Government of India
to the Deputy Secretary to the Government of Punjab, Rehabilitation Department,
Jullundur vide his D.O. Letter No. 13(66) L & RO-62 dated May 31, 1963 with
certain observations which it is alleged tend to show that the power of
revision under Sec. 33 was exercised and both, the holding of the land in Sind,
partition thereof between Harnam Singh, his sons and his wife and the allotment
of land to them as displaced persons in India were considered as valid and
finally settled. It appears that the Managing Officer of the Rehabilitation
Department, Punjab Government submitted a note dated November 5, 1963 to move
the Central Government under Sec. 33 of the Act for cancellation of the order
of the Chief Settlement Commissioner dated August 396 21, 1961. Thereupon the
Chief Settlement Commissioner issued a notice dated May 21, 1964 to the
allottees calling upon them to show cause why allotment in favour of each of
them should not be cancelled. The allottees appeared and submitted their
objections to the re-opening of the case inter alia contending that the power
of revision conferred by Sec. 33 of the Act cannot be repeatedly exercise and
it having been earlier exercised and the allotment having been held to be valid
as per the letter of Shri Dube dated May 31, 1963, the Central Government had
no jurisdiction either to revise or review its previous decision more
particularly when no fresh material against the allottees is produced after the
earlier decision. Ultimately the Joint Secretary of the Government of India
exercising power of revision conferred by Sec. 33 by his order dated March 15,
1965 Annex. G to the writ petition quashed and set aside the order of the Chief
Settlement Commissioner dated August 21, 1961 and further directed that the
allotment of land in favour of Harnam Singh, his sons and his wife be cancelled
and that a fresh allotment be made on the footing that Harnam Singh alone was
the owner of the land situated in Sind. In other words, the claim that each
sons of Harnam Singh had acquired land on partition was rejected as untenable.
Thereupon, two sons of Harnam Singh, Shri Avtar Singh and Dr. Kartar Singh
filed Civil Writ Petition in the High Court of Punjab at Chandigarh.
An affidavit in opposition was filed on
behalf of respondent Nos. 1 and 3 by one A. G. Vaswani, Settlement Commissioner
(A) & Ex-Officio Under Secretary to the Government of India, Ministry of
Labour Employment & Rehabilitation inter alia contending that in April 1948
when for the first time Shri Harnam Singh lodged his claim as displaced person
against the loss of his land and property in Pakistan, he had categorically
stated that 225 acres of land situated in Sind belonged to him and there was no
express or implied, overt or covert reference or even a whisper of a partition
between himself and his sons and wife before he migrated to India. It was also
contended that the claim lodged by Harnam Singh in April, 1948 was attested by
Shri Harnam Singh, then Deputy Custodian of Evacuee Property, East Punjab and
at the relevant time Judge of the Punjab High Court. It is alleged that on the
basis of the alleged partition, separate claims were lodged for the first time
in June 1948 each claiming 48 acres of land which was reduced to 32 acres. It
was specifically contended that the separate claims on the basis of alleged
oral partition were an afterthought and were submitted 397 to escape a higher
graded cut under the Quasi-permanent Allotment Scheme. Other averments in the
affidavit are hardly relevant. With respect to the D. O. Letter of Shri Dube,
it was stated that the opinion expressed in it was not a judicial decision in
exercise of the revisional jurisdiction under Sec. 33 of the Act nor could it
constitute an exercise of power under Sec. 33 of the Act. It was submitted that
the revisional power was exercised for the first time when the allotment was
cancelled and a direction was given for fresh allotment on the basis that
Harman Singh alone was the owner of the land situated in Sind.
The writ petition came up before a learned
Single Judge of the High Court. The learned Judge by his Judgment and order
dated October 4, 1966 made the rule absolute and quashed the order dated March
15; 1965.
The Union of India preferred Letters Patent
Appeal No. 384 of 1966 which was heard by a Division Bench of the Punjab and
Haryana High Court. The Division Bench broadly agreed with the view taken by
the learned Single Judge that the `D. O. letter of Shri Dube dated May 31, 1963
conveyed the decision of the Government of India in exercise of powers under
Sec. 33 and therefore, the power of revision against the order of the Chief
Settlement Commissioner was exhausted because a quasi-judicial tribunal has no
power to revise or review its earlier decision on merits even if the earlier
decision is wrong on facts or law'. Accordingly, while dismissing the L.P.
Appeal the High Court held that the impugned order of the Government of India
dated March 15, 1965 was without jurisdiction and was invalid and of no legal
efficacy. Hence this appeal by special leave by the Union of India.
Mr. Abdul Khader, learned counsel for the
appellant urged that the High Court was in error in treating D. O.
letter No. 33 (66)/ L & RO-62 of Shri N.
P. Dube dated May 31, 1963 as a decision reached or recorded in exercise of the
power conferred by Section 33 so as to exhaust the power of revision.
Consequently, it was urged that the High Court was in error in holding that the
decision of the Central Government dated March 15, 1965 was without
jurisdiction.
Chronology of events and the assertion and
counter assertion would reveal that controversy centres round the nature and
character of the letter dated May 31, 1963 of Shri N. P. Dube, Joint 398
Secretary to Shri J. M. Tandon, Deputy Secretary to the Government of Punjab,
Rehabilitation Department, Jullundur.
More specifically the question is whether it
was an inter- departmental communication or it was the decision recorded in
exercise of the power conferred by Sec. 33 of the Act? If it was not a decision
recorded by the Central Government in exercise of the power conferred under
Sec. 33 the judgment of the High Court would be unsustainable.
The Act as its long title shows was enacted
to provide for the payment of compensation and rehabilitation grants to
displaced persons and for matters connected therewith.
Consequent upon the partition of the country,
there was migration of population both the ways. Large number of residents of
area now forming part of Pakistan migrated to India and there was also a flow
in the reverse direction.
Those who migrated under those tragic,
traumatic and compulsive circumstances were forced to leave their properties at
the place they were settled for generations.
Both India and Pakistan were faced with a
huge problem of settling persons thus displaced. In order to compensate such
displaced persons who were uprooted out of their abodes, the Act was enacted.
Sec 2 (b) defines `displaced person' to mean
`any person who, on account of the setting up of the Dominions of India and
Pakistan, or on account of civil disturbances or the fear of such disturbances
in any area now forming part of West Pakistan, has, after the first day of
March, 1947, left, or been displaced from, his place of residence in such area
and who has been subsequently residing in India, and includes any person who is
resident in any place now forming part of India and who for that reason is
unable or has been tendered unable to manage, supervise or control any
immovable property belonging to him in West Pakistan, and also includes the
successors-in-interest of any such person.' `Evacuee property' has been defined
in Sec. 2 (c) to mean `any property which has been declared or is deemed to
have been declared as evacuee property under the Administration of Evacuee
Property Act, 1950.' Sec, 14 of the Act envisages constitution of a
compensation pool which shall consist of evacuee property both in cash and
kind.
Sec. 4 requires all displaced persons having
a verified claim to make applications for the payment of compensation.
Sec. 7 casts a duty on the Settlement
Commissioner to make an enquiry in such manner as may be prescribed and having
due regard to the prescribed scales of compensation, the nature of the verified
399 claim and other circumstances of the case, to ascertain the amount of
compensation to which the applicant is entitled.
After following the procedure prescribed in
several sub- sections of Sec. 7, the Settlement Commissioner has to make an
order determining net amount of compensation, if any, payable to the applicant.
Sec. 8 prescribes the form and manner of payment of compensation. Compensation
can be paid in cash, in Government bonds, by sale to the displaced person of
any property from the compensation pool and setting off the purchase money
against the compensation payable to him etc. Sec. 22 provides for appeal
against the order of the Settlement Officer or a Managing Officer to the
Settlement Commissioner as the case may be, in such form and manner as may be
prescribed. Sec. 23 provides for an appeal against the orders of the Settlement
Commissioner or the Additional Settlement Commissioner or an Assistant
Settlement Commissioner to the Chief Settlement Commissioner in such form and
manner as may be prescribed, with this proviso that no appeal shall lie from
any order passed in appeal under Sec. 22. The next important section material
for the present appeal in Sec. 33 which reads as under:- "33 : The Central
Government may at any time call for the record of any proceeding under the Act
and may pass such order in relation thereto as in its opinion the circumstances
of the case require and as is not inconsistent with any of the provisions
contained in the Act or the rules made thereunder." Having noticed the
relevant provisions, certain facts may be reiterated. Harnam Singh a displaced
person submitted a land claim on March 15, 1948 at Delhi for an area of 300
acres said to have been abandoned by him in Nasrat Tehsil, district Nawabshah
in Sind. He filed another claim at Jullundur on April 1, 1948, reducing his
claim to 225 acres.
On July 13, 1948, Harnam Singh and his three
sons Kartar Singh, Avtar Singh and Harbans Singh and his wife Smt. Tej Kaur
lodged separate claims each for 48 acres of land in lieu of land alleged to
have been abandoned by each one of them in Pakistan. There was a modified claim
submitted on February 22, 1949. The difference between the first and the second
claim arises from the altered stand adopted by the claimants. Initially Harnam
Singh claimed to be the exclusive owner of 225 acres of land but when separate
claims were submitted by his three sons and his wife it was alleged that there
was orapl artition of the property belonging to Harnam Singh between 400
himself his wife and his three sons. Each one of the five claimants verified
his own claim, whereupon each was allotted 21-8 S. A. of land. Upon their
request to convert temporary allotment into quasi-permanent allotment, their
cases were examined by the Managing Officer who found that there was an excess
allotment of 1-12 1/2 standard acres in case of each of the claimants and with
their consent the excess area of 8-14 1/2 standard areas was cancelled. A
little while after the officer in-charge (Land claims) Jullundur examined the
case of each of the claimants and made a reference to the Chief Settlement
Commissioner on September 2, 1960 recommending that 48-14 standard acres was in
excess of the entitlement of the five claimants in view of the entries in
Jamabandi and the excess allotment be cancelled. A further enquiry revealed
that the claim of Harnam Singh that there was partition between himself and his
sons was untenable and that except Harnam Singh, the other claimants did not
have any land of their ownership and therefore the entire allotment deserved to
be cancelled. The Chief Settlement Commissioner rejected the reference by his
order dated August 21, 1961. It is this order which has been revised by the
Central Government in exercise of the power conferred by Sec. 33 by the
impugned order dated March 15, 1965.
It would appear from the mere recital of the
facts that the Chief Settlement Commissioner who rejected the reference as per
its order dated August 21, 1961 held the allotment in favour of the five
claimants to be valid, legal and correct.
If the decision of the chief Settlement
Commissioner dated August 21, 1961 is wholly in favour of Harnam Singh and his
sons and wife, they could, by no stretch of imagination, be said to be persons
aggrieved by the decision of the Chief Settlement Commissioner. Harnam Singh
and his sons contended that the allotment was valid and that the reference made
by the Officer-in-charge (land claims) department must be rejected. The Chief Settlement
Commissioner accepted this submission of Harnam Singh and his sons and rejected
the reference. Can it ever be said that a decision wholly in favour of Harnam
Singh and his sons is one adverse to them or that they are aggrieved by the
decision ? It is now necessary to turn to an intervening event. It appears that
the Chief Settlement Commissioner while rejecting the reference and accepting
the allotment in favour of Harnam Singh and 401 his sons on the basis of
holding and oral partition as legal and valid observed in para 12 of the order
as under :
"Further in the terms of the proprietary
rights Sanad if any, evidence comes to the notice of the department which
establishes any of the facts mentioned in the clause below, the Central Govt.
can at any time resume whole or any part of the property." After
converting temporary allotment into quasi-permanent allotment a Sanad was
issued to each claimant. One condition in the Sanad was that if it appears at
any time that the grant or allotment of land described in the Sanad, is
obtained by fraud, false representation or concealment of any material fact, it
shall be lawful for the President to resume the whole or any part of the said
property so allotted.
In view of the aforementioned observations
and in absence of any document evidencing partition of the property as claimed
by Harnam Singh, the Punjab Government made a reference to the Pakistan
authorities for the necessary verification of entries in the Government record.
A similar request was also addressed to the Central Government which led to a
query being addressed to the High Commissioner for India in Pakistan to obtain
documentary evidence if any in this behalf. Nothing concrete emerged from these
queries. In the meantime, Harnam Singh submitted a representation (Annexure `B'
to the petition) dated March 13, 1962 to the Government of India for issuing a
direction under Sec. 33 of the Act that the matter be treated as finally
settled. Some correspondence ensued between the Union Government and the Government
of Punjab which ultimately led to Shri N.P. Dube, Joint Secretary, Ministry of
Rehabilitation sending a letter dated May 31, 1963 to the Deputy Secretary to
the Government of Punjab, Rehabilitation Department, Jullundur which reads as
under :
"N.P. Dube, Regd. A.D.
Joint Secretary. D.O. No. 13 (66)/L&R/62
W.H. & R.
(Department of Rehabilitation) 31st May, 1963
402 My dear Tandon, Please refer to Balmukand Sharma's D.O. letter No. 422/SINGH
dated the 29th August, 1962, in connection with the representation filed by
Shri Harnam Singh P.C.S (Retd).
The High Commissioner for India in Pakistan
was also addressed by Secretary in August, 1962, to get the required
information but the Pakistan Government have not been able to supply it so far.
The matter has, therefor, been considered in this office and it is felt that
there is no point in waiting anymore and the matter should be finalised on the
basis of the judicial findings arrived at in the case. We also feel that there
are no reasons to differ from those judicial pronouncements at this stage. The
record received from the Punjab Government is, therefore, returned with the
request that the case may be finalised as mentioned above.
Yours sincerely, Sd/- N.P. Dube 1.6.63 Shri
J.M. Tandon Deputy Secretary to the Government of Punjab, Rehabilitation
Department, Jullundur." On November 5, 1963, the Managing Officer,
Rehabilitation Department, Government of Punjab submitted a note inter alia
pointing out that the story of partition alleged by Harnam Singh and his sons
is a myth and consequently, except Harnam Singh, no other claimant was entitled
to any allotment and therefore, the decision of the Chief Settlement
Commissioner dated August 21, 1961 requires to be reopened under Sec 33 and
allotment upheld by him should be cancelled. Upon this note a reference was
made to the Central Government. Thereupon a notice dated May 21, 1964 was
issued to Harnam Singh and his sons, his wife Smt.
Tej Kaur having died in the meantime, calling
upon them to show why the order of the Chief Settlement Commissioner dated
August 21, 1961 should not be set aside and the allotment in favour of each
allottee be not cancelled.
Ultimately, the impugned order was passed.
Undoubtedly, the impugned order is made under
Sec. 33 403 which confers a wide power of revision on the Central Government.
The power of widest amplitude for revising and reopening any proceeding under
the Act and to pass any order in relation thereto as in the opinion of the
Central Government the circumstances of the case require and is not
inconsistent with any of the provisions contained in the Act or the rules made
there under is conferred on the Central Government. This is undoubtedly a power
of revision. It is not even hedged in by any concept of limitation. Such power
of wide plenitude had to be conferred on the Central Government to set right
any illegal unfair, unjust or plainly untenable order because the proceedings
under the Act were not adversary in form and character which may lead to the
one or the other party approaching the Central Government to set right the
matter. If a displaced person obtains allotment from the compensation pool, to
which he was not entitled, certainly the Central Government would hardly come
to know in the absence of any opposite party or adversary drawing attention of
the Central Government to such unjust enrichment. Therefore, Parliament
conferred a very wide power of revision on the Central Government to reopen any
proceeding or order under the Act. This was hardly disputed.
It was, however, contended that a power of
revision cannot be repeatedly exercised and there must be attached finality to
the orders. This submission would necessitate an examination in depth of the
nature and extent of power conferred by Sec. 33. But in the facts of the
present case we consider it unnecessary to undertake this exercise. We would
proceed on the assumption that Sec. 33 does not provide a reservoir of power
from which revisional jurisdiction can be exercised more than once in respect
of the same order or the same proceeding. In this view of the matter the
decision in Everest Apartments Co-operative Housing Society Ltd. v. State of
Maharashtra and Ors. (1) is hardly of any assistance.
The question that would squarely arise is :
whether on an earlier occasion, had the Central Government exercised any
revisional power conferred by Sec. 33 in respect of the order dated August 21,
1961 by the Chief Settlement Commissioner by which the departmental reference
was rejected and the Chief Settlement Commissioner had upheld the allotment of
land in favour of Harnam Singh and his sons.
404 Mr. P.P. Rao, learned counsel for the
respondents strenuously urged that the letter of Shri N.P. Dube dated May 31,
1963 is a decision recorded by the Central Government in exercise of the power
conferred by Sec. 33 in respect of the proceeding in which allotment made in
favour of Harnam Singh and his sons was upheld by the Chief Settlement
Commissioner and therefore, the order of the Chief Settlement Commissioner
dated August 21, 1961 became final and could not be the subject matter of a
revision second time, under Sec. 33 of the Act. There is no substance in this
contention.
It needs to be recalled that the decision of
the Chief Settlement Commissioner dated August 21, 1961 was wholly in favour of
Harnam Singh and his sons. Atleast Harnam Singh and his sons could not be said
to be persons aggrieved by the order so as to move the Central Government
invoking its revisional power under Sec. 33. Mr. Rao however, contended that
the representation Annexure `D' dated March 13 of Harnam Singh reveals that he
apprehended that the case may be reopened and therefore, by his representation
he moved the Central Government to affirm or confirm the decision of the Chief
Settlement Commissioner dated August 21, 1961. We remain unimpressed. If every
litigant in whose favour a competent authority has made an order can still
approach the higher authority for the affirmance of the order without any rhyme
of reason, the whole gamut of power of revisional jurisdiction would become a
play thing for already successful party who may foreclose the decision and when
needed can successfully urge that the power of revision is exhausted. Further,
assuming Harnam Singh made the representation apprehending danger to his
allotment, the letter of Mr. Dube dated May 31, 1963 does not record any
decision of the Central Government. It merely says that it is not necessary to
wait any more for response to the queries addressed to authorities in Pakistan
and the matter should be finalized on the basis of finding arrived at in the
case. It further proceeds to aver that there is a feeling that there is no
reason to differ from those judicial pronouncements at `this stage'. Such
expression of feeling could hardly tentamount to a decision of the Central
Government under Sec. 33. It is not for a moment suggested that the decision of
the Central Government has to be recorded in any particular form. In D.N. Roy
and S.K. Bannerjee & Ors. v. State of Bihar & Ors. (1) a letter
addressed by Under-Secretary to the Government of India to a particular person
405 Stating therein `that with reference to the application of the addressee on
the subject noted, he was directed to say that after careful consideration the
Central Government by the letter rejects the revision application as being
time- barred' was treated as a decision of the Central Government.
This calls for no comments because the letter
is self- explanatory. There is nothing in Shri Dube's letter remotely
comparable with the letter in the aforementioned case. On the contrary the
Central Government informed the Government of Punjab that the record is
returned with the request that the case may be finalised as indicated in the
letter. The revisional power is the power of the Central Government and not of
the Punjab Government. The decision was left to the Punjab Government. There
was nothing pending with the Punjab Government for finalisation. Therefore, the
High Court was clearly in error in treating the letter of Shri Dube dated May
31, 1963 as a decision of the Central Government in exercise of the power
conferred by Sec. 33. There was no reason for decision nor any occasion for the
Central Government to exercise power under Sec. 33 and therefore, it is not
possible to agree with the High Court that the letter records the decision of
the Central Government under Sec.
33. If the letter of Shri Dube is not a
decision of the Central Government under Sec. 33 of the Act, as a necessary
corollary, the impugned decision must be treated as one rendered for the first
time in exercise of the revisional power under Sec. 33 and therefore, it cannot
be said to be one without jurisdiction. In this view of the matter, the appeal
will have to be allowed.
Mr. Bindra, learned counsel who appeared for
some of the respondents made a strenuous effort to persuade us to look into the
equities of the case. In fact, we are wholly disinclined to undertake this
exercise of evaluating facts or evidence in a petition for a writ of
certiorari. Further in the impugned decision the facts as appearing from the
record and submissions made by the learned counsel for claimants are
exhaustively dealt with and no case for interference is made out. Only two
aspects however may be referred to.
Harnam Singh claimed to be the owner of 225
acres of land situated in erstwhile Sind Province. In the first claim lodged by
him, he clearly stated that he was the owner of 300 acres. He then modified it
to 225 acres. In neither of the two claims, he ever suggested that there was a
partition between him and his sons also giving a share to his wife.
The story of partition clearly appears 406 to
be an afterthought because it is helpful in obtaining higher allotment. No
documentary evidence has been placed on record to support the case of partition
which clearly appears to have been an afterthought. Earlier Jamabandi entries
from Pakistan permitted a negative inference that there was no partition. The
Central Governments while setting aside the order of the Chief Settlement Commissioner
dated August 21, 1961 recorded the finding that : (i) there is no writing or
deed of partition : (ii) Revenue records show the name of Shri Harnam Singh
alone on the basis of the sale deed in his exclusive name : (iii) there are no
receipts indicating separate payment of land revenue by any one of the
respondents after alleged partition; (iv) no objection was taken by the sons at
the time of the filing of the claim by the father; (v) there is no mention of
individuals share in the claim filed by the father; These are relevant
considerations which would certainly throw doubt on the claim of oral partition
alleged to have been effected by Harnam Singh. Once the allegation of oral
partition is rejected, the respondents are not entitled to any consideration
even on equitable grounds.
In the concluding stages of the arguments the
respondents contended that Harnam Singh has died and his heirs having not been
substituted, the appeal has abated.
There is no merit in this contention. Harnam
singh was not the petitioner before the high Court. He was respondent No. 2. No
relief was claimed against him. Further Harnam Singh was not asked to surrender
the land. Petitioners before the High Court were adversely affected by the
impugned decision.
Death of Harnam Singh would therefore, have
no impact on this appeal. Therefore, the contention is rejected.
In view of the above discussion, this appeal
is allowed and the judgment and the order of the learned Single judge dated
October 4, 1966 in Civil Writ No. 1242 of 1965 as also the judgment and order
in L.P.A. No. 384 of 1966 dated May 22, 1969 of the same High Court are quashed
and set aside and the decision of the Central Government dated March 15, 1965
is restored with no order as to costs throughout.
H. S. K. Appeal allowed.
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