Pirthi Singh vs Raghbir Singh and others

Pritam Singh Pattar, J.—This is an appeal filed by Pirthi Singh defendant against the judgment dated 21st March, 1967, of the Additional District Judge, Gurgaon, camp at Nanaul, accepting the appeal of the Plaintiff Raghbir Singh and decreeing the suit of the plaintiff with no order as to costs.

The facts of this case are that during the consolidation of holdings in village Bhurjat, tehsil and district Mohindergarh, plot No. 106, measuring 2 Marlas was allotted to Rohtas Singh and Pirthi Singh defendants Nos. 1 and 2, by the Settlement Officer, Consolidation. Raghubir Singh plaintiff and his brother Randhir Singh defendant No. 3, filed a revision petition against that order u/s 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, (hereinafter called the Act) which was heard by the Additional Director of Consolidation, Punjab, Rohtak and he accepted the same and ordered that plot No. 106 should be given to Raghubir Singh and Randhir Singh while defendants Nos. 1 and 2, should be given plot No. 108-A instead of Plot No. 106 Defendants Nos. 1 and 2 after that filed a review application before the Additional Director who reversed his first order and directed that plot No. 106 be given to defendants Nos. 1 and 2 Raghubir Singh then filed this suit for a declaration that he and defendant No. 3, were owners of plot No. 106 and the order of the Additional Director, Consolidation of Holdings, dated 25th September, 1963, by which he reallotted this plot to defendants Nos. 1 and 2, was illegal without jurisdiction and null and void.

The suit was contested by defendant Nos. 1 and 2. They pleaded that the parties had appointed Hazari Singh and Mehtab Singh as arbitrators who gave the verdict in their favour that plot No. 106 should be allotted to them, that this fact was not brought to the notice of the Additional Director of Consolidation when he passed the first order and therefore they made an application for review and he passed the impugned order which was valid and legal. They alleged that the Civil Court had no jurisdiction to try the suit On these pleadings of the parties the following issues were framed by the trial Court:--

Whether the order of the Additional Director Consolidation, is illegal, ultra vires inoperative and not binding on the plaintiff? If so, its effect ?

Whether the plaintiff is the owner of plot No. 106 as detailed in the plaint ?

Whether this Court has no jurisdiction to try this suit ?

Whether the suit is collusive ?

Whether the plaintiff has got no locus standi to file this suit ?

Whether the plaintiff is estopped from bringing this suit ?

Relief.

The Subordinate Judge held that the impugned order of the Additional Director was legal and valid and decided issues Nos. 1 and 2, against the plaintiff. He decided issue No. 3, against the defendants. Issues Nos. 4, 5 and 6, were not pressed before the trial Court by the defendants. As a result the plaintiff''s suit was dismissed with costs. Feeling aggrieved the plaintiff filed an appeal in the Court of the District Judge, Gurgaon, which was accepted by the Additional District Judge, and he decreed the suit. Pirthi Singh defendant filed the present second appeal.

The main point for determination in this case is whether the order dated 25th September, 1963, passed on review by the Additional Director Consolidation of Holdings, is illegal, ultra vires and without jurisdiction. In Harbhajan Singh Vs. Karam Singh and Others, , it was held as under:--

There is no provision in the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act granting express power of review to the State Government with regard to an order made u/s 42 of the Act. In the absence of any such express power, the Director, Consolidation of Holdings, cannot review his previous order of dismissing the application of the petitioner u/s 42 of the Act. Hence, the subsequent review order of the Director is ultra vires and without jurisdiction. The High Court is right in quashing that order by the grant of a writ under Article 226 of the Constitution.

The Division Bench of this High Court in Sadha Singh v. The State of Punjab 1967 Cur. L.J. 817, held as under:--

That it is undisputed that an Additional Director has no power of review except on some specified grounds, for example, correction of clerical or arithmetical errors or mistakes arising from accidental slip or omission etc.

To the same effect was the law laid down in Lakhi v. Additional Director Consolidation of Holdings (1967) 69 P.L.R. 62 (D.B.) and by the Full Bench in Deep Chand v. Additional Director Consolidation of Holdings, Punjab, Jullundur (1964) 66 P.L.R 318. Therefore according to these authorities the order of the Additional Director dated 25th September, 1963 is illegal, without jurisdiction and null and void and the decision of the Additional District Judge is correct.

As against this the learned counsel for the defendant appellant quoted Division Bench decision of this Court in State of Punjab v. Sarmukh Singh 1972 P.L.J. 82 wherein it was held as under:--

Once an order is passed u/s 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, by the Additional Director, he does not become functus officio and can subsequently replace it by another order at the instance of a person who was not a party to the proceedings which culminated in the previous order, the subsequent order does not amount to review of the former order and as such is not without jurisdiction.

This authority does not help the appellant because in the instant case the application for review before the Additional Director was not made by a third person who was not a party to the proceedings which culminated in the previous cider. The application for review was made by Pirthi Singh appellant and his brother Rohtas Singh against whom the first order had been made consequently this authority does not help the appellant. The decision of the lower appellate Court on issue No. 1 is correct and is affirmed.

It was next contended that according to section 44 of the Act, the Civil Court had no jurisdiction to entertain the suit. Section 44 of the Act lays down that no civil Court shall entertain any suit instituted or application made, to obtain a decision or order in respect of any matter which the State Government or any officer is, by this Act, empowered to determine, decide or dispose of. In Lal Beg v. Pohlu (1968)70 P.L.R. 163 it was held as under:--

That u/s 44 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act the jurisdiction of the civil Court is barred only where the State Government or the officer concerned acts within the provisions of the Act, and not where he acts illegally or in contravention of the mandatory provisions of the Act, or in excess of the powers conferred by it. Where the special Tribunal or Authority acts ultra vires or illegally, the civil Court has, by virtue of section 9, Civil Procedure Code, power, to interfere and set matters right. Similar was the law laid down in Chet Ram v. Balbir Singh 1969 Rev. L.R. 52.

In Mohla v. Maya Chand 1968 CrI. L.J. 940, it was held as under:--

That in order to determine whether the suit is entertainable by the Civil Court or not, the Court has to see whether the suit relates to a decision or order in respect of any matter which the different authorities under the Act have the power to determine and not whether any order passed under the Act, is wrong or against the provisions of he Act.

In the instant case, according to the aforesaid authorities of this Court and the Supreme Court, the Additional Director had no power to review his previous order dismissing the petition of the plaintiff and his brother u/s 42 of the Act, and therefore his order dated 25th September, 1963, passed on review was illegal and without jurisdiction and consequently the civil Courts had jurisdiction to entertain the suit. Section 44 of the Act bars the jurisdiction of the civil Courts only where the State Government or the officer concerned acts within the provisions of that Act and not when he acts illegally and in contravention of the mandatory provisions of the Act. If the authority acts in excess of the powers conferred on it then the civil Courts have jurisdiction to entertain the suit u/s 9 of the Code of Civil Procedure. It is held that the civil Court, in the instant case, had jurisdiction to try this suit and the contention of the counsel for the appellant is rejected as devoid of force. There is no force in this appeal and the same is dismissed with costs.