Charanjit Singh and others vs Additional Director, Consolidation Punjab, Chandigarh and others

I.S. Tiwana, J.—The Petitioners impugne the order of the Additional Director, Consolidation of Holdings, Punjab (Mr. K. S. Minhas)(sic), dated 12.7.84 Annexure P-4 as totally without jurisdiction. The following few facts which are otherwise not in dispute furnish the necessary backdrop of the case.

Arjan Singh, father of Petitioner No. 3, and Gaggar Singh Petitioner No. 4 preferred an appeal before the Settlement Officer u/s 21(3) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter called the ''Act'') against the order of the Consolidation Officer, Ferozepore, dated 18.6.80 whereby he had proved a watercourse for irrigating the kurrah of the Respondents-Sudarshan Partap Singh, now Respondent No. 4, and his brothers. The Settlement Officer allowed this appeal vide his order dated 27.11.80 Annexure P-1 after holding that the area of the Respondents was already being irrigated through some other watercourse provided for the said purpose and there was absolutely no justification for providing another watercourse as had been done by the Consolidation Officer. He, thus, set aside the order of the Consolidation Officer dated 18.6.1980.

Sudarshan Partap Singh then preferred a petition u/s 42 of the Act before the Additional Director (Shri Gulbahar Singh) against the order of the Settlement Officer (Annexure P-1) claiming that before the consolidation operations "the area allotted to them was served by two different canal outlets but the said petition was dismissed on 23.7.1981 vide order Annexure P-2 while doing so, the Additional Director made the following observations:

After hearing the parties and going through the tile, it was directed that the Petitioner should produce concrete evidence in support of his claim by relying upon extract of record of the Irrigation Department and he should clearly establish that some area which was previously irrigated from other canal outlet has not been included in his kurrah. Despite repeated opportunities, the Petitioners have failed to produce any such evidence and I am not satisfied regarding their claim. The petition is, therefore, dismissed.

About 6 months thereafter Sudarshan Partap Singh once again filed a petition u/s 42 of the Act before the Additional Director (Sh K S. Minhas) seeking review of the order Annexure P-2 on the ground that as he was not possessed of a copy of the warabandi regulating the turn of irrigation of the lands of land-owners at the time of the passing of the order Annexure P 2 and had secured one such copy by the time he filed the 2nd petition, on 28.1.1982, the order Annexure P-2 be reviewed. The Additional Director vide his impugned order has granted this prayer and set aside the order Annexure P-2 while passing the impugned order, he has justified the exercise of power of review with the following observations:

I have heard the parties and examined the record. The Petitioner had produced a copy of the warabandi duly certified by the Canal authorities as effective on 16.3.1984. I have also examined Shri Amar Nath Sub Inspector CH. The order dated 23.7.1981 is sought to be reviewed and the review petition was filed on 28 1.1982 and as such there is no question of limitation being applied here with reference to the decision of the lower authorities. The argument of the Learned Counsel for the Respondent Naib Singh that no review could be possible, is not correct. It is mentioned in the order dated 23.7.1981 itself that the Petitioner was called upon to produce warabandi but at that time it was not available and he could not do it. Warabandi from the Irrigation Department is a document which enjoins the Consolidation Department to adopt it and follow it. There is nothing illegal about it and at such there is ample justification for the review of the order dated 23.7.1981 as the warabandi gives a right to the Petitioner to get relief in accordance with the warabandi plan of the Irrigation Department and this can only be done u/s 42 of the CH Act especially when all the lower stages have been exhausted.

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I am quite clear in my mind that the review of the order dated 23.7.1981 on the basis of the warabandi had to be accepted and is accepted Therefore, there is no question of jurisdiction arising there at this stage. It has already been exercised on 23.7. 1981 and only that order is being reviewed.

Having heard the Learned Counsel for the parties at some length, I find that the Additional Director Shri K. S. Minhas has simply distorted the factual as well as the legal position in order to earve out a jurisdiction for himself which is not there. It is difficult to understand the rationale adopted by him. It is well established by now in the light of the various judgments of this Court that in the absence of any statutory provision in the Act the Additional Director has no inherent power of review and cannot tinker with an earlier order passed by him or his predecessor u/s 42 of the Act. To cite a few of such precedents, it may be pointed out that a Special Bench of five judges of this Court in Deep Chand and Anr. v. Additional Director, Consolidation of Holdings, Punjab, Jutlundur (1964) 66 P. L.R. 318 ruled about 20 years back that-

An Additional Director of Consolidation is not empowered to recall or review his earlier erroneous and unjust order whenever it is discovered that the error was due to his own mistaken view of the merits of the controversy.

Similarly, a Division Bench of this Court in Rulia Singh v. The State of Punjab 1971 P L.J. 464, held that an Additional Director, Consolidation of Holdings, has no jurisdiction to review his previous order given on merits, en the ground that a fraud was committed by the successful Petitioner in changing the date in the order under revision and thus indicating that the petition before the Additional Director was within time. Recently in two cases (i) C. W P No. 5655 of 1983 (Bachan Singh and Ors. v. Additional Director, Consolidation of Holdings, Punjab, etc. C. W. P. 5655 of 1983) decided on 11.5 1984 and (ii) C W P No, 264 of 1984 (Jawala Singh and Ors. v. Additional Director, Consolidation of Holdings, Punjab, etc. C. W. P. 264 of 1984) decided on 17.10 1984, two similar orders passed by this very Additional Director, i e. Sh. K. S Minhas, were impugned and were set aside on the same very ground that he had no power of review under the Act. In the light of these peecedents. the Additional Director cannot possibly be absolved of the knowledge of the legal position that he had no jurisdiction to review order Annexure P-2 Rather a reading of the impugned order Annexure P-4 betrays that he was conscious of the fact that he had no such power of review but still he has made an effort to justify the exercisece such a power in the light of the observations made by his predecessor in Annexure P-2 that the Petitioner before him had failed to produce seme record from the Canal Department in spile of repeated opportunities having been granted Inspite of these observations in Annexure P-2, it nonetheless remained an order on merits. In order to justify the exercise of power which did not vest in him, the Additioral Director has unnecersarily tried to draw on the above noted observations made by his predecessor in order Annexure P-2.

Further, as far as the factual aspect of the matter is concerned, I am of the view that order Annexure P-2 did not leave it open to the Petitioner to produce the evidence he was directed to produce in support of his claim at any time or even after the passing of that order finally disposing of his petition u/s 42 of the Act. This order was not in the nature of an interim order Rather as the concluding portion of the order indicates, it finally dismissed the claim of the Petitioner on account of his failure to produce evidence in support of his case. Mr Minnas appears to have unnecessarily strained the language of this order in order to exercise jurisdiction which was nonexistent He has also not made it clear anywhere as to how the production of a copy of the warabandi or the record regulating the turn or water made him conclude the existence of another watercourse for irrigating the land of the Petitioner prior to the consolidation proceedings

Even Mr. Puri, the Learned Counsel appearing for Respondent No. 4, expresses his inability to support the order of the Additional Director and very fairly and frankly concedes that he had no power of review and thus the impunged order Annexure P-4 is totally without jurisdiction He, however, contends that by passing this order the Additional Director has done some justice to his client and, therefore, the order should not be set aside. According to him, had the Additional Director not passed the in pugned cider a vast area of his client would have remained unirrigated. Even if that fact has to be accepted for argument''s sake, then certainly the remedy with his client did not lie with the Additional Director and if at all he was to approach any competent authority he was to seek redress under the Northern India Canal and Drainage Act, 1873. Further this argument of "justice to his client" advanced by Mr. Puri has no meaning in the light of the observations made by the settlement Officer in order Annexure P-1 that there already existed a watercourse for irrigating the kurrah of the client of Mr. Puri, Thus, the sub-mission made by Mr. Puri deserves to be given no weight.

Yet another argument advanced by Mr. Puri is that the Petitioners are guilty of suppressing some material facts and in view of that they deserve to be nonsuited and disentitled to the discretionary relief that can be granted by this Court in exercise of powers under Article 226 of the Constitution. To sustain this submission of his, Mr Puri, makes a reference to a suit filed by Naib Singh Respondent No. 5, a son of Gaggar Singh Petitioner No. 4, whereby he had sought permanent injunction against Sudarshan Partap Singh res-training him from digging a watercourse on the eastern side of khasra No. 21/2. It is difficult to understand bow the said suit is in any way relevant to the proceedings before me. Firstly, if at all Sudershan Partap Singh was digging a watercourse as alleged in the plaint it was not in pursuance of any of the orders of any of the authorities under the Act. At the maximum it was an illegal act that the Defendant in that civil litigation was out to commit. Secondly, in this petition it has categorically been stated by the Petitioners that Naib Singh Respondent No. 5 who was the Plaintiff in that suit has nothing to do with them and he is a proforma Respondent in the petition. According to the averments made in the petition even the khata of Naib Singh is separate from his father Gaggar Singh Petitioner No. 4. Thus, I am satisfied that the Petitioners are not guilty of suppressing any material facts which can have any relevance to the controversy raised in this petition Further, the order of the Additional Director Annexure P 4 is purely on legal grounds, i. e., lack of jurisdiction with the Additional Director.

I am, thus, satisfied that it appears to be a case of misuse of power by the Additional Director. I also cannot help observing that by now there are scores of cases pending in this Court wherein similar orders passed by this very Additional Director reviewing the earlier orders either passed by himself or his predecessor have been impugned on similar ground, i. e. lack of jurisdiction. I would have refrained from making these observations had the Learned Counsel for the parties not informed me that by now Shri K.S. Minhas has luckily for himself and unlukily for the litigants before him been promoted as Director, Consolidation of Holdings, Punjab In view of all this, I direct that a copy of this judgment be sent to the Chief Secretary to Government, Panjab, for such appropriate action as the Government may care to take I, thus, allow this petition with costs and set adide order Annexure P-4. The costs are asserssed at Rs. 500/- which shall be paid by the Additional Director Mr. K.S. Minhas personally.