Balwant Singh vs The State of Punjab and others

P.C. Pandit, J.—This is a petition under Articles 226 and 227 of the Constitution filed by Balwant Singh, a landlord of village Bhangchari in district Ferozepore, challenging the legality of the order dated 31st December, 1964 passed by Shri Ajit Singh, Additional Director, Consolidation of Holdings, Punjab, u/s 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, hereinafter called the Act.

It appears that consolidation proceedings under the Act took place in the petitioner''s village in 1959. Against the re partition objections were filed by the petitioner u/s 21 (2) of the Act. They were considered by the Consolidation Officer, respondent No. 4 and accepted on 12th November, 1960 and certain changes in the allotments of the parties were made by him Against the order of the Consolidation Officer, Gurcharan Singh and two others, respondent 5, filed an appeal on 12th December, 1960 u/s 21(3) of the Act before the Settlement Officer, respondent No. 3. On 19th January, 1961, respondent No. 3 partly allowed the said appeal Against this order, two appeals were filed u/s 21 (4), one by Jagir Singh and three others, respondents 8-11, and the other by Gahwa Singh and his brother Sham Singh, respondents 12 and 13, before the Assistant Director, respondent No. 2, who was exercising the powers of the State Government at that time. The said appeals were accepted on 29th of August 1961 and the case was remanded, for fresh decision after giving a personal hearing to the parties concerned, to respondent No. 3. On 23rd October, 1961, respondent No. 3, disposed of the matter after remand and he made certain changes in his previous order dated 19th January 1961, which he had passed u/s 21(3) of the Act. No appeal was filed against this order either by the petitioner or respondents 5-7, but three appeals u/s 21(4) were however, instituted one by respondents 8-11, the other by respondents 12 and 13 and the third by Munshi Singh, respondent No. 15. The first two appeals were decided by Shri Krishna Ram, Assistant Director, acting as a delegate of the State Government. On 28th May, 1962, vide annexure ''A'' to the writ petition, he accepted both these appeals, cancelled the order dated 23rd October, 1961, passed by the Settlement Officer and restored the position as it existed at the time of action u/s 21(1) of the Act. The third appeal instituted by respondent No. 15, however, came up for hearing before Shri Ram Narain Singh, Assistant Director who it may be mentioned, was not exercising the powers of the State Government, On 13th February, 1963, he observed that the order of the Settlement Officer dated 23rd October 1961 had already been cancelled by his predecessor, Shri Krishna Ram, on 28th May, 1962 and therefore, the parties were restored to the position u/s 21(2) by the said order. The respondent No. 15, according to Shri Ram Narain Singh, was also satisfied with that order. The Assistant Director, however, remarked in his order, annexure ''B'' to the writ petition,-" a mistake has crept inadvertently in the order of my predecessor. He has mentioned at the end that the position of 21(1) is restored. But by cancelling the order of the Settlement Officer, the position of 21(2) is always restored. Hence in place of 21(1), 21(2) will be read in connection with the order of my predecessor dated 28th May 1962". Against this order of Shri Ram Narain Singh, respondent Nos. 57 filed a petition u/s 42 of the Act before Dewan Karta Krishan, Additional Director. On 23rd May, 1964 in his order, annexure ''D'' to the writ petition, he, observed -

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Shri Ram Narain Singh, Assistant Director, Consolidation of Holdings, Jullundur observed in his order that the order dated 23rd October, 1961 of the Settlement Officer, Consolidation of Holdings Muktsar had already been set aside vide order dated 28th May, 1962 of the Assistant Director, Consolidation of Holdings, Jullundur. He, however, observed that in the order dated 28th May, 1962 of the Assistant Director, Consolidation of Holdings, Jullundur, position of 21(1) was wrongly typed inadvertently in place of 21(2). He ordered the correction of this mistake which was merely accidental. In my view, the order dated 25th May, 1962 of the Assistant Director, Consolidation of Holdings, Jullundur made by him in exercise of the delegated powers of the government u/s 21(4) of the Consolidation of Holdings Act is final. It cannot be reviewed. This view has already been upheld by the Supreme Court in the case P.L.R. 1963 576 and the decision of the Punjab High Court in No. 1302 of 1961 decided on 19th December, 1963.

This application is, therefore, filed as rejected.

Respondents 5-7 were aggrieved by this order, because, according to them, Dewan Karta Krishan had accepted their petition when he held that the order dated 28th May, 1962 was final and not open to review, but had in the end erroneously written that the petition was being rejected. They, therefore, filed a petition for review before the Additional Director. This was heard by Shri Ajit Singh, Additional Director, who was exercising the powers of the State Government u/s 42 of the Act. On 31st December, 1964 in the impugned order, annexure ''E'' to the writ petition, he stated as under :

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It is not for me to say anything regarding the merits of the case as the case has finally been disposed of by ray learned predecessor vide his order dated 23rd May, 1964. It may be added for the purpose of clarification that the view taken by Ch. Ram Narain Singh is not correct. It was for the lower court (Assistant Director) to see whether the position u/s 21(1) or 21(2) of the C/H Act was to be restored It is not so that on cancelling the order of the Settlement Officer the position u/s 21(2) is always restored. I have myself gone through the earlier order of the Assistant Director dated 28th May, 1962. He has clearly stated on page 2 (in the middle) of his order that the petitioner want that the position as it existed at the time of action u/s 21(1) of the C/H Act should be restored. While giving relief, for the reasons given in his order, he accepted both the appeals and cancelled the order of the Settlement Officer by restoring the positions as it existed at the time of action u/s 21(1) of the C/H Act. So there was no occasion for the Assistant Director (Ch. Ram Narain Singh) to say that a mistake had inadvertently crept in the order of the Assistant Director dated 28th May, 1962.

In view of the foregoing and for the reasons given by my learned predecessor in his order dated 23rd May, 1964 the order dated 28th May, 1962 of the Assistant Director, would operate. The order passed by Ch. Ram Narain Singh on 13th February 1963 will not, for the above reason, affect the order of the Assistant Director dated 28th May, 1662.

That led to the filing of the present writ petition on 8th March, 1965. It was stated in the petition that Shri Ajit Singh had no power or jurisdiction to review the order dated 23rd May, 1964 passed by his predecessor, Dewan Karta Krishan, u/s 42 of the Act. It was clear from the perusal of the orders dated 13th February, 1963 and 23rd May, 1964 that Shri Ram Narain Singh had simply rectified the typing error or the accidental mistake in the order dated 28th May, 1962 passed by Shri Krishna Ram, Assistant Director, and that being so, Shri Ajit Singh, Additional Director, acted without jurisdiction in reviewing the order passed by Dewan Karta Krishan, Shri Ajit Singh, Additional Director, according to the petitioner, had no jurisdiction to modify in any manner the order dated 28th May, 1962 which had been passed by Shri Krishna Ram, Assistant Director, u/s 21(4) as a delegate of the State Government. Shri Ram Narain Singh Assistant Director, had merely corrected the typing mistake in the order dated 28th May 1962 passed by Shri Krishna Ram.

The main question for decision in this case is regarding the interpretation of the order dated 28th May 1962 passed by Shri Krishana Ram Assistant Director, u/s 21(4) of the Act. After having accepted the two appeals, had he restored the position as it existed u/s 21(1) or 21(2) of the Act? The contention of the petitioner is that it was u/s 21(2) while the case of respondents 5-7 is that it was u/s 21(1). In order to determine this matter, it is necessary to bear in mind the circumstances which led to the filling of the two appeals which were being disposed of by Shri Krishna Ram It is common ground that the re-partition u/s 21(1) of the Act took place in this village in 1959. It was only Balwant Singh, petitioner who was not satisfied with this re-partition and he filed objections before the Consolidation Officer u/s 21(2). It appears that his dispute was with regard to the allotment made to respondents 5-7. The Consolidation Officer accepted his objection on 12th November 1960. It is pertinent to mention that all the right-holders, except respondents 5-7 were satisfied with the order dated 12th November 1960. It is only they who filed an appeal against that order before the Settlement Officer u/s 21(3). This was partly allowed on 19th January 1961. Against that order of the Settlement Officer, two appeals were filed u/s 21(4), one by respondents 8 11 and the other by respondents 12-13. It is to be emphasised that neither the petitioner nor respondents 5-7 were dissatisfied with that order. On 29th August 1961, the two appeals were accepted by the Assistant Director who remanded the case to the Settlement Officer for fresh decision on 23rd October 1961, the Settlement Officer made some changes in his previous order dated 19th January 1961. With this order again the petitioner or respondents 5-7 were not aggrieved, but three different appeals were instituted by respondents 8-11, 12 and 13 and 15. It were the first two appeals that were being disposed of by Shri Krishna Ram by his order dated 28th, May 1962. It might be mentioned that I had gone through the order of the Settlement Officer dated 23rd October 1961 from the records made available to me by the Learned Counsel appearing for the state and there I found that the Settlement Officer had clearly stated that the Consolidation Officer had correctly fitted Balwant Singh and there was no need to shift him to any other area. A perusal of the order dated 28th May 1962 passed by Shri.Krishna Ram would also show that the appellants before him had made no grievance about the allotments made to the petitioner Balwant Singh, by the Consolidation Officer. Contention (ii) of the Learned Counsel for the appellants before that Officer was that their fitting at the time of action u/s 21(2) of the Consolidation Act was covered by the scheme and the learned Settlement Officer was not justified to interfere in the order under appeal for nothing". Apart from the grievance made by the appellants that their Kurrahs had been wrongly carved out by the Settlement Officer, they also contended before Shri Krishna Ram that respondents 5 7 had been favoured by the Settlement Officer by not fitting them at their major portion which was said to be inferior From what has been stated above, three things clearly emerge (1) that the appellants before Shri Krishna Ram were satisfied with the order of the Consolidation Officer u/s 21(2) (ii) they had no grievance with the area given to Balwant Singh, petitioner; and (iii) they asserted that respondents 5-7 bad been unduly favoured by the Settlement Officer, Shri. Krishna Ram, after examining the contentions of the appellants and the respondents before him, finally held thus:

... Hence I hold that all the right holders were correctly fitted u/s 21(2) of the Consolidation of Holdings Act. They were fully satisfied with their allotments, but on the appeal of Gurcharan Singh e.t.c. (present respondents 5 7), a good deal of dissatisfaction has been caused and Gurcharan Singh (present respondent No. 6) has been greatly benefitted. Gurcharan Singh was previously u/s 21(2) of the Consolidation of Holdings Act on his own major portion and by the order of the learned Settlement Officer under appeal, he has been ousted from his major portion and given area near the village Abadi. As the area near the village abadi is definitely superior, so he should not have been allowed to leave his own major portion area and get near the abadi without allocation.

From this finding, it is quite clear that Shri Krishna Ram was of the definite opinion that all the right holders of the village were correctly fitted by the Consolidation Officer u/s 21 (2) of the Act. He was further of the view that a lot of dissatisfaction was caused amongst the right-holders by the acceptance of the appeal of respondents 5-7 by the Settlement Officer who had undoubtedly favoured them and ousted them from their major portion and gave them area near the village abadi which was definitely superior. He was clearly of the view that respondents 5-7 should not have been allowed to leave their own major portion area and get land near the abadi without allocation. It also pertinent to mention that throughout his judgment Shri Krishna Ram has not said a word against the allotment made to Balwant Singh, petitioner, by the Consolidation Officer, which was later on confirmed by the Settlement Officer. It is undisputed that if after the acceptance of the appeals by Shri. Krishna Ram, the position as it existed u/s 21 (1) was to be restored, respondents 5-7 would not only revert to the position given to them by the Settlement Officer by his order dated 23rd October 1961 but might perhaps got even better allotment. On the other hand, the petitioner Would be deprived of the allotment made to him by the Consolidation Officer and confirmed by the Settlement Officer and would be reduced to the stage when he filed objections before the Consolidation Officer which were accepted by him on 12th November 1960. This obviously could not be the intention of Shri Krishna Ram when he accepted the appeals, as would be apparent from the ultimate finding given by him, as reproduced above, in his order dated 28th May 1962. In the last paragraph of his judgment however, he observed:

For the reasons given above. I accept both these appeals and cancel the order of the learned Settlement Officer by restoring the position as it existed at the time of action u/s 21(1) of the Consolidation Act.

It is the use of the words ''section 21(1)'' in this sentence, which has led to the present controversy between the petitioner and respondents 5-7. It would also be noticed that while accepting the appeals, Shri Krishna Ram only cancelled the order of the Settlement Officer. He did not reverse the decision given by the Consolidation Officer. It could, therefore, be legitimately argued that when he was quashing the order of the Settlement Officer, he was indirectly restoring the older previous to that i.e. which was passed by the Consolidation Officer on 12th November 1960. There is no manner of doubt that the Assistant Director, after reversing the decision of the Settlement Officer could, if he so liked restore the order of the Assistant Consolidation Officer passed u/s 21(1) of the Act. There was no legal bar in his doing so. The question only arises as to whether he actually restored the order of the Assistant Consolidation Officer or that of the Consolidation Officer. If he was of the view that the order of the Consolidation Officer was also unjust or contrary to the scheme, he would have quashed that as well. But as I have stated above in his entire order, he has not said anything against the decision of the Consolidation Officer. On the other hand the appellants before him had specifically argued that the Consolidation Officer had correctly fitted all the right holders according to the scheme u/s 21(2) and the Settlement Officer had unjustifiably interferred with his order. This contention was never negatived by Shri Krishna Ram and, on the other hand, he had accepted the same. He finally held that all the right-holders were correctly fitted u/s 21(2) of the Act. So neither from the body of the order nor from the concluding portion thereof, can it be inferred that Shri Krishna Ram intended to reverse the decision of the Consolidation Officer as well or in any way harm the petitioner, which would obviously be the case if the position u/s 21(1) of the Act was to be restored. It is also worth mentioning that the two sets of appellants before Shri Krishna Ram had not filed any appeal against the order of the Consolidation Officer and their appeals were directed against the Order of the Settlement Officer alone in which also no prayer had been made that the order of the Consolidation Officer be reversed. It is these very appellants who had previously also filed appeals against the order of the Settlement Officer dated 19th January, 1961.

Learned Counsel for respondents 5-7 contended that in his order Shri Krishna Ram had mentioned that the appellants before him wanted that the position as it existed at the time of action u/s 21(1) of the Act be restored and when their appeals were accepted this prayer also was granted as would be apparent from the concluding portion of his judgment. Particular emphasis was laid by the Learned Counsel on the words at the time of action u/s 21(1)'', and his arguments was that these words always meant the position as existed at the time when the re-partition was commanded u/s 21 (1). It was conceded by the Learned Counsel that the words at the time of action did not find place in section 21(1) of the Act. It cannot, therefore, be said that the position at the time of action always meant the situation u/s 21(1). As a matter of fact, while referring to contention (ii) of the Learned Counsel for the appellants before Shri Krishna Ram, he had stated in his order dated 28th May 1962 that all the right holders had been correctly fitted according to the scheme of consolidation at the time of action u/s 21(2) of the Act. That means that those words only signified the position at the time when the proceedings were taken by the officers concerned u/s 21(2). With regared to the prayer of the appellants before Shri Krishna Ram, which was quoted in his judgment, it would be noted that respondents 8-11 and 12 and 13, who had filed the two appeals, were satisfied with both the positions as they existed either u/s 21(1) or 21(2) of the Act, because they had not filed any objections against the re-partition u/s 21(1) or an appeal against the order made by the Consolidation Officer u/s 21(2) of the Act. Under these circumstances, it is possible that they might have prayed that the order of the Settlement Officer be set aside and they be restored to the position u/s 21(1). But it is equally possible that it was by a clerical error that the words ''section 21(1)'' had been written in place of ''section 21(2)'', because admittedly those respondents had not filed any appeal against the order of the Consolidation Officer and had merely challenged the order of the Settlement Officer. In any case as already discussed above, it is quite clear from the order of Shri Krishna Ram read as a whole that he never intended the position of section 21(1) to be restored. As a matter of fact, in my opinion, to hold otherwise would be going completely contrary to what Shri Krishna Ram intended to convey by his order dated 28th May, 1962. It was, therefore, by a typing or a clerical error that in the concluding portion of the judgment, the figures ''21(1)'' instead of ''21(2)'' had been inserted.

Learned Counsel for respondents 5-7 argued that since the operative part of Shri Krishna Ram''s order was against the petitioner, even then he did not file any appeal or a petition for review against that order. There is no force in this submission. Concededly, no appeal could be filed against that order, because Shri Krishna Ram, when he passed the same, was invested with the powers of the State Government. The question of review did not arise, because it appears that all the parties were under the impression that only the order of the Settlement Officer which had been appealed against, had been reversed with the result that the order of the Consolidation Officer had been restored It is also significant to mention that even respondents 5-7 did not move for retrieving the area from the petitioner after the making of the said order. It was only when Shri Ram Narain Singh detected the clerical error and corrected it by his order dated 13th February 1963 that respondents 5 7 became alive to their supposed rights and moved a petition u/s 42 of the Act before Dewan Karta Krishan against that order. Moreover, it is also possible that the petitioner did not fully realise the technical difference between the positions u/s 21(1) and 21(2) of the Act. All that he was aware of and concerned with was that only the order of the Settlement Officer had been quashed by Shri Krishna Ram and since he was not effected by that decision he kept silent, especially when respondents 5-7 did not make any effort to get the land from him.

It was then argued by the Learned Counsel for respondents 5-7 that Shri Narain Singh had no jurisdiction for holding in his order dated 13th Ferbuary, 1963 that in place of section 21(1), section 21(2) would be read in the order of his predecessor, Shri Krishna Ram, dated 28th May, 1962. When Shri Ram Narain Singh passed the order, the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Second, Amendment and Validating Act, 1962 had come into force and he was no longer invested with the powers of the State Government. The order dated 28th May, 1962, according to the Learned Counsel, had been passed by Shri Krishna Ram as a State delegate and Shri Ram Narain Singh who was merely an Assistant Director when he passed the order dated 13th February 1963, could not in any way change the order of Shri Krishna Ram.

There is no substance in this submission as well. In the first place, this contention was not raised by respondents 5-7 before Dewan Karta Krishan, when they filed a petition u/s 42 against the order of Shri Ram Narain Singh. If this point had been urged there, either, he would have negatived this contention or else he would have himself set right this clerical mistake because in his order he had said that it was only a clerical error. Admittedly, he could correct the clerical error, if in his opinion there was one in the order of Shri Krishna Ram. Secondly when Dewan Karta Krishan dismissed the petition u/s 42 filed by respondents 5-7 against the order of Shri Ram Narain Singh, he thereby approved that order and it can be said that he had adopted that order and himself corrected the clerical mistake in the order of Shri Krishna Ram. Thirdly even after the coming into force of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Second Amendment and Validating Act. 1962, all the appeals against the order of the Settlement Officer u/s 21(4), which were pending immediately before the commencement of that Act, either before the State Government or any Officer to whom powers of the State Government in that behalf had been delegated, were to be decided by the Assistant Director. That being so, the appeals, which were pending before Shri Krishna Ram, had to be disposed of by his successor. Shri Ram Narain Singh. If during the hearing of those appeals, he detected that there was some clerical error in the order of his predecessor, he could correct the same u/s 43-A of the Act, under which clerical or arithmetical mistakes in an order passed by any officer under the Act arising from any accidental slip or omission could, at any time, be corrected by the authority concerned either on its own motion or on the application of any of the parties.

It was next argued by the Learned Counsel for respondents 5-7 that Shri Ram Narain Singh could not review the order of his predecessor, Shri Krishna Ram. But I have already held above that the mistake corrected by Shri Ram Narain Singh was merely a clerical one which he could correct at any time u/s 43-A of the Act. There was no question of his reviewing the order of his predecessor.

With regard to the order dated 23rd May 1964, passed by Dewan Karta Krishan, Learned Counsel for respondents 5-7 submitted that he bad actually accepted the revision petition u/s 42 of the Act filed by his clients against the order of Shri Ram Narain Singh, but it was by an accidental slip that towards the end of his order he had stated that the petition was being rejected. According to the Learned Counsel, the discussion of the case in the earlier part of the judgment of Dewan Karta Krishan showed that he was agreeing with the contention of respondents 5-7 that Shri. Ram Narain Singh had no jurisdiction to change the order of Shri Krishna Ram.

This contention of the Learned Counsel also is without any merit. In the said order, it was nowhere stated that Shri Ram Narain Singh had no jurisdiction to correct the error in the order passed by Shri Krishna Ram, or that by doing so, he had actually reviewed the order of his predecessor. It had also not been mentioned therein that the mistake corrected by Shri Ram Narain Singh was not a clerical one. As a matter of fact, he had stated that Shri Ram Narain Singh ordered the correction of the mistake in the decision of Shri Krishna Ram, because it was merely accidental. Dewan Karta Krishan did not find the order of Shri Ram Narain Singh, against which respondents 5-7 had filed a petition u/s 42 before him, either illegal or without jurisdiction and that is why he ultimately rejected the petition. Dewan Karta Krishan was quite right when he remarked in his order that the decision of Shri Krishna Ram dated 28th May 1962, which was made by him in exercise of the delegated powers of the State Government was final and it could not be reviewed u/s 42. In support of this observation he had relied on the Supreme Court decision in Roop Chand v The State of Punjab (1963) 55 P.L.R. 576 where it was held that when the Government delegated its powers under the provision of the Act to an officer and that officer, in pursuance of the said delegation heard an appeal and made an order, then the order of that officer was the order of the Government and the Government could not interfere with it u/s 42 of the Act. Obviously, Dewan Karta Krishan was talking of his own powers u/s 42 of the Act because Shri Krishna Ram had passed the order as the delegate of the Government and therefore, Dewan Karta Krishan could not review it or interfere with it u/s 42 of the Act. If Dewan Karta Krishan was of the view that Shri Ram Narain Singh had, by passing the order dated 13th February 1963, actually reviewed the order of Shri Krishna Ram dated 28th May 1962, then in his order dated 23rd May 1964, he would have said that Shri Krishan Ram''s order was final (and not ''is final'' as he has actually said) and further that it could not be reviewed (instead of saying that it cannot be reviewed) by Shri Ram Narain Singh.

Now coming to the impugned order dated 31st December 1964 passed by Shri Ajit Singh, he had nowhere stated that there was any clerical error in the order of Dewan Karta Krishan or that it was by an accidental slip that Dewan Karta Krishan had mentioned in his order that the application of respondents 5-7 u/s 42 of the Act was being rejected, while, as a matter of fact, he wanted to accept the same. He had also not mentioned that he was correcting a clerical error in the order made by Dewan Karta Krishan. I have already held above that Dewan Karta Krishan had dismissed the application u/s 42, filed by respondents 5-7. Shri Ajit Singh had no jurisdiction to review his order He, being his successor, could only correct a clerical error or arithmetical mistake if some had crept therein. But as I have said, he never mentioned that there was any clerical error in the order of Dewan Karta Krishan which he was correcting. The effect of the impugned order passed by him, however, is that he has actually set aside the order passed by Dewan Karta Krishan, after interpreting in his own way the decisions of Shri Krishna Ram and Shri Ram Narain Singh. This he was not entitled to do. The impugned order, therefore, was passed by him without jurisdiction.

In view of what I have said above, I would accept this petition and quash the impugned order dated 31st December 1964 passed by Shri Ajit Singh, Additional Director, Consolidation of Holdings. In the circumstances of the case, however. I will make no order as to costs.