Kabul Singh vs Additional Director of Consolidation of Holdings H.P. and Others

Lokeshwar Singh Panta, J.—In consolidation proceedings, the land falling in Khasra Nos. 656, 657, 660 and 664 had been allotted to Smt. Meeto (second Respondent), Smt. Jeeto (third Respondent) and Smt. Hukami Kabul Singh and Hussana had been allotted land jointly in Khasra Nos. 661 and 662. In addition thereto, Khasra No. 665 had been allotted to Hussana and Khasra No. 659 to Kabul Singh. The value of khasra No. 659 allotted to Kabul Singh and Khasra No. 660 allotted to aforesaid three women was the same. Smt Meeto, Smt. Jeeto and Smt. Hukami had filed revision petition u/s 54 of H.P. Holdings (Consolidation and Prevention of Fragmentation) Act, 1971, (hereinafter for short the ''Act''), before the Additional Director of Consolidation exercising the powers of State Government, which was registered as case No. 245/95 In their revision petition, they had stated that allotment of Khasra No 659 in favour of Kabul Singh Petitioner herein, was against the spirit of consolidation and as a result thereof the land allotted to them had lost its compactness.

Notice of the revision was sent to Kabul Singh and Hussana. The Additional Director of Consolidation decided the revision petition on 17-8-1996 in the absence of Kabul Singh and Hussana by observing that despite service of summons, both the persons were not present and they were proceeded ex-parte. Resultantly, the revision petition was allowed and Khasra No. 659 was allotted in favour of the aforesaid women Aggrieved thereby, the Petitioner. Kabul Singh moved an application under Order 9, Rule 13 read with 151 CPC for setting aside the ex parte order dated 17-8-1996. He alleged that he was not afforded an opportunity and he was never personally served with the relevant summons issued by the Additional Director of Consolidation. The Additional Director of Consolidation vide order dated 3-7-1997 (Annexure P-3) rejected the application on the ground that there is no provision of recalling and reviewing the orders passed by the consolidation authorities in the Consolidation Act. This observation was made on the basis of judgment of Punjab and Haryana High Court in Deep Chand v. Additional Director, Consolidation AIR 1964 P&H 250.

Kabul Singh Petitioner has challenged the impugned order (Annexure P-3) by way of the present petition filed under Article 227 of the Constitution of India, praying for quashing and setting aside the same.

After notice, reply-affidavits were filed by Additional Director of Consolidation, Smt. Meeto and Smt. Jeeto. In the grounds of petition, the Petitioner has submitted that the notice issued to him on the revision petition by the Additional Director of Consolidation was never served upon him and the 1st Respondent proceeded to decide the case under assumptions that the notice was duly served upon the Petitioner. He has placed on record the copy of the notice (Annexure P-2) Issued to him. He alleged that as soon as the Petitioner came to know about the ex-parte order passed by the 1st Respondent, he immediately filed an application under Order 9, Rule 13, C P C. stating therein that the Petitioner was not duly served and also not heard, hence the ex-parte order dated 17-8-1996 be set-aside.

The parties were heard on the application at length and the order was reserved but no date was given for pronouncement of the order. The Petitioner at regular intervals, made enquiries for ascertaining the fact whether the order on his application had been passed but always told by the officials of the 1st Respondent that the order on his application has not been passed. He alleged that to his utter surprise, one copy of the caveat petition filed by second and third Respondents was served upon him through registered letter dated 8-7-1997 from which the Petitioner came to know that the impugned order was passed by the 1st Respondent on 3-7-1997. He approached the registry of the 1st Respondent to enquire about the fate of his case and at that stage it was confirmed by the dealing hand that the application of the Petitioner had been disposed of. He stated that the order was passed by the 1st Respondent without giving the date of decision. The Petitioner has assailed the impugned order on the ground that it has been passed by the 1st Respondent illegally and without application of mind.

The Respondents in their reply-affidavits have denied the allegations of the Petitioner and stated that the notice of the revision petition was issued by the first Respondent for appearance of the Petitioner on 17-8-1996. The Process-server went to the village along with the summons, contacted the Lambardar, namely, Darshan Singh on 6-8-1996 and went to the house of the Petitioner and that the Petitioner''s son Malhar Singh met them and informed that he would see his father, who had gone to his cow-shed. After some time, Malhar Singh came back and informed the process-server and Lambardar that his father was not there and he had flately refused to accept the summons on his behalf. It is stated that Malhar Singh being the adult member of the joint family was entitled to receive the summons. Therefore, the service of summons upon the Petitioner was duly complied with and despite his service, the Petitioner did not appear before the 1st Respondent and, therefore, there was no remedy left to the 1st Respondent except to proceed ex-parte against him and decide the revision petition of merits. It is denied that the impugned order does not bear the date of decision and the allegations to the contrary are wrong and unjust to the knowledge of the Petitioner.

I have heard learned Counsel on both sides and with their assistance perused the material on record.

A preliminary objection was raised by Sh H. K. Bhardwaj, learned Counsel for second and 3rd Respondent that petition under Article 227 of the Constitution of India is not maintainable as the impugned order passed by the authority is quasi-judicial order and the Petitioner could lay challenge to this order by way of regular writ petition under Article 226 of the Constitution. In support of his objection, he has placed reliance upon three judgments of this Court passed by the learned Single Judge on 1-5-1997 in C.M.P. (M) No. 190/96. Smt Durgi Devi and Anr. v. Sh. Kanshi Ram and Ors. C.M.P. (M) No. 5 of 1995, Hukum Singh v. Collector Sub Division, Badsar and Ors. and C.M.P. (M) No. 34/95, Mahipal Singh v. State of H.P. and Ors. decided on 2 5-1997,

In those cases, petitions under Article 227 of the Constitution of India was filed laying challenge to the order of Gram Panchayat, which order was modified in appeal by the Sub-Divisional Judicial Magistrate, exercising the appellate powers The learned Single Judge observed that the order passed by the SDJM, exercising the powers of the appellate authority, is quasi-judicial order and the aggrieved party could have laid challenge to the said order by filing a regular writ petition Under Article 226 of the Constitution of India

From the perusal of these judgments of the learned Single Judge, I find that the observations made therein will not amount to the conclusion that no order passed by a quasi-judicial authority could be challenged in a petition under Article 227 of the Constitution of India. In order to repel the preliminary objection of Sh. Bhardwaj, learned Counsel, it is useful to refer to the decisions of the various High Courts and Apex Court on this point.

In Jodhey and Others Vs. State, the learned Single Judge had dealt with the question whether the High Court could exercise its power of superintendence over proceedings or any order passed by the Panchayati Adalat under U.P. Panchayat Raj Act, under Article 227 of the Constitution of India. The learned Single Judge has observed as under (para-14):

A reading of the entire Article 227 of the Constitution of India in the light of the antecedent law on the subject leads one to the irresistible conclusion that the purpose of the constitution makers was to makes the High Court responsible for the entire administration of justice and to vest in the High Court an unlimited reserve of judicial power which could be brought into play at any time that the High Court considered it necessary to draw upon the same. Surprisingly as it does from the Constitution, which is the parent of all Acts and Statutes in India, the fact that the judgment or order of a Court or tribunal has been made final by an Act or the fact that the body performing judicial functions is a special tribunal constituted under a Statute cannot be set-up as a bar to the exercise of this power by the High Court. The prohibited area is to be found within the four corners of the constitution itself and nowhere else. The fact that these unlimited powers are vested in the High Court should, however, make the High Court more cautious in its exercise The self-imposed limits of these powers are established and laid down by the High Courts themselves.

In Hari Chand Khimta v. Sh. Karam Chand and Anr. 1983 Sim. L.C. 204 , it was held that the order passed by the Deputy Commissioner in Election Petition under the Himachal Pradesh Panchayat Raj Act, 1968 could be challenged by the aggrieved party under Article 227 of the Constitution of India. In Hari Vishnu Kamath Vs. Syed Ahmad Ishaque and Others, it was held that the Election Tribunals are subject to the superintendence of the High Courts under Article 227 of the Constitution and that superintendence is both judicial and administrative In Nagendra Nath Bora and Another Vs. The Commissioner of Hills Division and Appeals, Assam and Others, the Supreme Court was dealing with the powers of supervision and control by High Court under Articles 226 and 227 of the Constitution of India over the orders passed by the authorities under Eastern Bengal and Assam Excise Act and it was held that the powers of judicial interference under Article 227 with orders of judicial or quasi-judicial nature are not greater than the powers under Article 226. Under Article 226, the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record But under Article 227 the power of interference is limited to seeing that the tribunal functions within the limits of its authority. In Waryam Singh and Another Vs. Amarnath and Another, a question was raised before the apex Court whether the Rent Controller and District Judge acting under "East Punjab Urban Rent Restriction Act" were under the power of superintendence of the Judicial Commissioner of Himachal Pradesh under Article 227 of the Constitution of India and Hon''ble Mr. Justice S. R. Das, J., speaking for the Court said in para 12 as under;-

The Court of the Judicial Commissioner of Himachal Pradesh exercises jurisdiction in relation to the whole of the territories of Himachal Pradesh. The Rent Controller and the District Judge exercising jurisdiction under the Act are certainly Tribunals, if not Courts, and they function within the territories of Himachal Pradesh. Therefore, Article 227(1) read with Article 241 confers on the Court of the Judicial Commissioner power of superintendence over such Tribunals. The words "in relation to which" obviously qualify the word "territories" and not the words "Courts and Tribunals".

In Jaswant Sugar Mills Ltd., Meerut Vs. Lakshmichand and Others, two preliminary questions fell for consideration before the apex Court were (i) whether the direction made by the Conciliation Officer under the U.P. Indastrial Disputes Act, 1947 was a ''determination'' or an ''order'' and (ii) whether the Conciliation Officer was a ''tribunal'' within the meaning of the Act. The Court answered the questions in paragraphs 18 and 19 of the report in the following terms:

The essential characteristics of a ''tribunal'' within the meaning of Article 136 were examined by Mahajan J., in the The Bharat Bank Ltd., Delhi Vs. Employees of the Bharat Bank Ltd., Delhi and The Bharat Bank Employees'' Union, Delhi, and it was observed that, "tribunals which do not derive authority from the sovereign power cannot fall within the ambit of Article 136. The condition precedent for bringing a tribunal within the ambit of Article 136 is that it should be constituted by the State. Again a tribunal would be out side the ambit of Article 136 if it is not invested with any part of the judicial functions of the State but discharges purely administrative or executive duties" This view was adopted by the Court in Durga Shankar Mehta Vs. Thakur Raghuraj Singh and Others, where Mukherjee J., observed:

It is now well settled by the majority decision of this Court in the case of The Bharat Bank Ltd., Delhi Vs. Employees of the Bharat Bank Ltd., Delhi and The Bharat Bank Employees'' Union, Delhi, that the expression "Tribunal" as used in Article 136 does not mean the same thing as "Court" but includes within its ambit, all adjudicating bodies provided they are constituted by the State and are invested with judicial as distinguished from purely administrative or executive functions.

(19) The duty to act judicially "imposed upon an authority by statute does not necessarily clothe the authority with the judicial power of the State. Even administrative or executive authorities are often by virtue of their constitution, required to act judicially in dealing with question affecting the rights of citizens Boards of Revenue, Customs Authorities, Motor Vehicles Authorities, Income Tax and Sales-tax Officers are illustration prima facie of such administrative authorities, who though under a duty to act judically, either by the express provisions of the statutes constituting them or by the rules framed thereunder or by the implication either of the statutes or the powers conferred upon them are still not delegates of the judicial power of the State. Their primary function is administrative and not judicial. In deciding whether an authority required to act judicially when dealing with matters affecting rights of citizens may be regarded as a tribunal, though not a court, the principal incident is the investiture of the "trappings of a court"-such as authority to determine matters in cases initiated by parties, sitting in public, power to compel attendance of witnesses and to examine them on oath, duty to follow fundamental rules of evidence (though not the. strict rules of the Evidence Act), provision for imposing sanctions by way of imprisonment, fine, damages or mandatory or prohibitory orders to enforce obedience to their commands. The list is illustrative; some though not necessarily all such trappings with ordinarily, make the authority which is under a duty to act judicially a ''tribunal''.

In- State of Gujarat etc. Vs. Vakhtsinghji Sursinghji Vaghela and Others etc., the question posed before the Supreme Court was whether the High Court could exercise its supervisory jurisdiction under Article 227 of the Constitution and revise a misconceived decision of the Revenue Tribunal in the matter of awarding compensation under "Bombay Taluqdari Tenure Abolition Act," and it was held that it was not correct to say that the High Court could not interfere with the Tribunal''s decision since u/s 12 of the Act it was final and conclusive. The power of superintendence over all courts and tribunals which the High Court has under Article 227 of the Constitution cannot be limited by any Act of the State Legislature. The supervisory jurisdiction extends to keeping the subordinate tribunals within the limits of their authority and to seeing that they obey the law. Similar observations were made in The Maharashtra State Road Transport Corporation Vs. Babu Goverdhan Regular Motor Service and Others, and Jijabai Vithalrao Gajre Vs. Pathankhan and Others, .

In Sukhbir Narain (Dead) by Lrs Vs. Deputy Director of Consolidation, a petition under Article 227 of the Constitution was instituted by the Petitioner wherein he challenged the revisional orders passed by the Deputy Director Chakbandi, Uttar Pradesh, for correction of the entries in the revenue records The petition was of course dismissed on merits and appeal carried to the Supreme Court was also dismissed. But the fact remains that the order of Consolidation authorities was challenged before the Allahabad High Court in proceedings filed under Article 227 of the Constitution of India.

In Bardakanta Misra v. Shri Bhimsen Dixit AIR 1972 Supreme Court 2466, the Supreme Court was dealing with the question whether the Commissioner of Hindu Religious Endowments acts as a quasi-judicial authority and is subject to the superintendence of the High Court under Article 227 of the Constitution was answered in the following terms:

Under Article 227 of the Constitution, the High Court is vested with the power of superintendence over the courts and tribunals in the State. Acting as a quasi-judicial authority under the Orissa Hindu Religious Endowments Act, the Appellant was subject to the superintendence of the High Court....

(emphasis supplied).

Again in Manmohan Singh Jaitla Vs. Commissioner, Union Territory of Chandigarh and Others, it was observed as under:

Where in the writ petition under Article 227, the order of statutory authorities approving the order of termination of service of teachers in aided High School was challenged, the petition would be maintainable. The authorities were quasi-judicial authorities and, therefore, will be comprehended in the expression ''Tribunal'' as used in Article 227 of the Constitution which confers power of superintendence over all courts and tribunals by the High Court throughout the territory in relation to which it exercises jurisdiction.

In Sunka Ram v. Gram Panchayat Pattt and Ors. ILR 1984 HP 250, the Petitioner therein field a Petition under Article 227 of the Constitution of India, challenging the order of penalty passed by the Gram Panchayat and affirmed by the Appellate Authority, this Court entertained the Petition and passed the judgment that penalty could not be imposed in anticipation of the breach.

Relying upon the settled proposition of law, in the catena of judgments referred to above, the Additional Director of Consolidation, whose order is challenged in the present petition under Article 227 of the Constitution of India, is undoubtedly a quasi-judicial authority and, therefore, will be comprehended in the expression ''Tribunal'' as used in Article 227 of the Constitution and, therefore, it is under the power of superintendence of this Court and thus, the present petition would be maintainable. The judgments cited by the learned Counsel for 2nd and 3rd respondents are not applicable in the facts and circumstances of the present case, in the light of the judgments of the Supreme Court relied upon in the earlier part of this judgment.

Mr. H.K. Bhardwaj learned Counsel has also contended that if the impugned order dated 3-7-1997 passed by the Additional Director of Consolidation is set-aside, the result will be that the authority shall have to review its earlier order dated 17-8-1986 and this power is specifically barred under 55 of the Consolidation Act. In support of his submissions, he has placed reliance upon Full Bench judgment of the Punjab and Haryana High Court. In Deep Chand and Ors. v. Additional Director Consolidation of Holdings, Punjab and Anr. AIR 1964 P&H 249.

It is not in dispute that Section 55 of the Act prohibits filing of appeal and application for review, reference of revision against any order passed under the provisions of the Act except as provided by or under the Act, but setting aside the order does not amount to review of the earlier order. The first respondent is not right in holding that if the application under Order 9, Rule 13 read with 151 CPC filed by the Petitioner was to be allowed, it would amount to re-calling and reviewing the order passed by the Consolidation authorities right from ACO to the State Government. This reasoning of the first Respondent is not sustainable.

In Grindlays Bank Ltd. Vs. Central Government Industrial Tribunal and Others, the question posed before the apex Court was whether the Tribunal under the Industrial Disputes Act was competent to set-aside its ex-parte award and whether in doing so, the order would amount to review. The Supreme Court said that in a case in which the Tribunal of other body made an ex-parte award, the provisions of Order 9, Rule 13 of the Code are clearly attracted. It logically followed that the Tribunal was competent to entertain an application set-aside and ex-parte award.

u/s 50(1) of the Consolidation Act, the Settlement Officer (Consolidation), Consolidation Officer and Assistant Consolidation Officer have been provided of such powers and rights and privileges as are vested in a Civil Court on the occasion of any action in respect of the matters contained therein. Under sub-section 5, it has been provided that unless otherwise expressly provided by or under this Act, the provisions of the Code of Civil Procedure, 1908 shall apply to all proceedings including appeal and application under this Act Therefore, the provisions of Order 9, Rule 13 of the Code are clearly attracted in the present case. The Hon''ble Judges of the Supreme Court have clearly held in the case of Grindlays Bank Lid (supra) that setting aside an ex parte award does not amount to review of the award since the Tribunal does not become functus officio provided application is filed within 30 days of publication of award.

Applying the well settled law of the Supreme Court in the present case, the reasoning of the first Respondent that allowing of the application of the Petitioner for setting aside the ex parte order passed in case No. 245/95, will amount to review of the revisional order, is wholly untenable, illegal and unsustainable.

This petition has been disposed of only on the aforesaid two points and without going into the merits of the case which has to be dealt with and decided by the first Respondent after decision is recorded in the application filed by the Petitioner under Order 9, Rule 13 read with Section 151, Code of Civil Procedure

In the result, for the aforesaid reasons, the petition is allowed and the impugned order dated 3-7-1997 (Annexure P-3) passed by the first Respondent dismissing the applications of the Petitioner under Order 9, Rule 13 read with Section 151, C. P. C is hereby quashed and set-aside. The first Respondent shall restore the application on the record by assigning it the original number and dispose of the same as early as possible on or before February 28, 1998 in accordance with law.

The parties are directed to appear before the Additional Director of Consolidation, H.P. , Shimla on December 3.0, 1997. Costs on parties.