Rachpal Singh vs The State of Punjab and Others

Shamsher Bahadur, J.—Though a number of points have been raised in this petition under Articles 226 and 227 of the Constitution of India by S. Rachpal Singh, a resident of Naushahra Panuan, it can be disposed of on the short ground that the proceedings taken by the second respondent, Director of Consolidation of Holdings, Punjab u/s 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 19(sic)8 (hereinafter called the Act) must be held to be without Jurisdiction in consequence of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Second Amendment and Validation Act, Act No. 25 of 1962.

For the first time, the consolidation proceedings were started in village Naushahra Panuan in Amritsar district in the year 1956 and the petitioner was allotted a plot of 45 Karals and 16 marlas at his second major portion in Patti Umarshah. Eventually, an order was passed by the Assistant Director, Consolidation of Holdings, "with powers of Provincial Government" on 22nd of September, 1959, by which an appeal preferred by Shrimati Ishar Kaur was allowed. The order of the Settlement Officer on 21st of November, 1957, was set aside and according to the final order, ''the old allotments of the parties are restored". It seems that the third respondent has filed a petition u/s 42 of the Act to the State Government and the petitioner had been asked to defend the appellate order of the Assistant Director passed on 22nd of September, 1959. Mr. Wasu says that their Lordships of the Supreme Court in Roop Chand Vs. State of Punjab, [S.C.], have held that where the power of the Government is delegated under the provisions of the Act to an officer and that officer in pursuance of such delegation hears an appeal and makes an order, the order of the officer is the order of the Government and the Government cannot interfere with it u/s 42 of the Act. A brief reference may be made to the provisions of section 21 which deals with the objections to repartition and the appeals which may be filed. Under sub-section (1) of section 21, the Consolidation Officer has to carry out repartition in accordance with the scheme of consolidation of holdings as confirmed u/s 20. Sub-section (2) says that any person aggrieved by the repartition may file objection which may be disposed of by the Consolidation Officer after hearing the objector. A person aggrieved by the order passed by the Consolidation Officer under sub-section 2) may file an appeal to the Settlement Officer (Consolidation) who after hearing the appellant shall pass such order as he considers proper. A further appeal may be made by an aggrieved party to the State Government. It was under this provision that the appeal was decided by the Assistant Director, Consolidation, "with powers of Provincial Government". Under the ruling of the Supreme Court, no further revision can be preferred u/s 42 of the Act which say that:

The State Government may at any time for the purpose of satisfying itself as to the legality or propriety of any order passed, scheme prepared or confirmed or repartition made by any officer under this Act, call for and examine the record of any case pending before or disposed of by such officer and may pass such order in reference thereto as it thinks fit.

The appellate order under sub-section (4) of section 21 being of the State Government, no further revision is manifestly entertainable according to the ruling of the Supreme Court. The decision which was given by their Lordships of the Supreme Court on 10th of October, 1962. was followed by the Punjab Act No. 25 or 1952 which is called the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Second Amendment and Validation Act. What is validated by clause (a) of section 11 of the Amending Act, is an order passed before 13th of December, 1962, by the State Government or an officer; to whom powers of the Stale Government were delegated, u/s 42 against an order of the Assistant Director of Consolidation passed by him under sub-section (4) of section 21 of the principal Act as a delegate of the State Government, and such validation has been given retrospective operation as the words employed are:

The order u/s 42 shall be, and shall be deemed always to have been valid and shall not be questioned on the ground that it could not be made under that section against the order of the delegate of the State Government.

It is rightly contended by Mr. Wasu that the protection by way of validation is given only to such orders passed by the State Government u/s 42 as are directed against the appellate orders passed by the Assistant Director as a representative of the Government under sub-section (4) of section 21. An order u/s 42 not having been passed in this case before 13th of December, 1962, the benefit of validation cannot be given. The Amending Act grants protection only to those orders which were passed before the 13th of December, 962. It does look strange that when protection has been given to an order passed u/s 42 of the Act reversing the appellate order of the Assistant Director before 3th of December, 1962, the appellate order of the Assistant Director which is a subject-matter of a petition u/s 42 on 13th of December, 1962, should be regarded as final. There may be a lacuna in the Act but as observed by Pandit J. in Jit Singh v. The State of Punjab (1964) 63 P.L.R. 383, while all orders passed by the delegate of the State Government u/s 42 before 13th December. 962, have been validated an order made after that date is not saved under the provision. No provision, in the opinion of Pandit J., has been made with regard to appeals which already stood decided by the delegate of the State Government u/s 21(4) of the Act before enforcement of the Amending Act. It the appellate orders passed under sub-section (4) of section 2 have not been set aside u/s 42, before 13th of December, 1962, they assume a finality.

In this view of the matter, this petition is allowed and the action of the second respondent (the Director of Consolidation of Holdings) in re-starting the proceedings has to be held to be without jurisdiction and in consequence all proceedings taken in pursuance thereof would be set aside. In the circumstances, I would leave the parties to bear their own costs.