TMI Blog1962 (10) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... undamental rights under Part III of the Constitution. The question raised by this petition depends on a construction of certain provisions of the Act which we shall later quote. A general idea of some of the purposes and provisions of the Act will however be useful for deciding that question and may be given now. Shortly put, one of the objects of the Act appears to be to pool together the entire lands held by different persons in a village and redistribute the same among them on a more utilitarian basis in accordance with a scheme framed for the purpose. The final result that the Act achieves is that instead of his original holding a person is given some other holding. Section 14 gives the State Government the power to declare by notification its intention to frame a scheme for the consolidation of holdings in any area and thereupon to appoint a Consolidation Officer who is to prepare the scheme. Section 19 provides for the publication of the draft scheme prepared by the Consolidation Officer and for objections thereto being made by the persons likely to be affected. It also provides that the Consolidation Officer will submit the scheme with the objections and his suggestions w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner thereafter went up in appeal under s. 21(4) against the order of the Settlement Officer. Now, s. 21(4) provided for an appeal to the State Government but the petitioner s appeal was heard by Shri Brar, Assistant Director, Consolidation of Holdings, Ambala to whom the Government s powers and functions concerning the appeal had been delegated under s. 41 (1) which is in these terms : S. 4-1(1) : The State Government may for the administration of this Act, appoint such persons as it thinks fit, and may by notification delegate any of its powers or functions under this Act to any of its officers either by name or designation. Shri Brar allowed the petitioner s appeal. As a result of his decision the petitioner became entitled to retain plots Nos. 635 and 636 which he originally owned and Hari Singh, respondent No. 2, to this petition who had on the repartition been given by the Consolidation Officer those plots along with some more adjacent lands, was to be deprived of them. Hari Singh being dissatisfied with the order of Shri Brar moved the Government under s. 42 of the Act and the impugned order was thereupon made. That order set aside the order of Shri Brar and r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, for example, to entertain and decide an appeal under s. 21 (4) to an officer and the officer pursuant to such delegation hears the appeal and makes an order, is the order an order of the officer or of the Government ? We think it must be the order of the Government. The order is made under a statutory power. It is the statute which creates that power. The power can, therefore, be exercised only in terms of the statute and not otherwise. In this case the power is created by s. 21 (4). That section gives the power to the Government. it would follow that an order made in exercise of that power will be the order of the Government for no one else has the right under the statute to exercise the power. No doubt the Act enables the Government to delegate its power but such a power when delegated remain,; the power of the Government, for the Government can only delegate the power given to it by the statute and cannot create an independent power in the officer. When the delegate exercises the power, he does so for the Government. It is of interest to observe here that Wills, J., said in Huth v. Clarke (1) that the word delegate means little more than an agent . An agent of course exerc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection can be exercised repeatedly. This will appear clearly if we take an illustration. Suppose delegate officer A makes an order under s. 21 (4). This order can be interfered with by the Government under s. 42. Now suppose the Government delegates its power under s. 42 to officer B and officer B then makes an order under s. 42 as delegate of Government. That would be an order made by a delegate officer and capable-of being interfered with under s. 42. This exercise of power would be in respect of an order of officer B and therefore not in respect of the same order in respect of which power under s. 42 had been once exercised, namely, the order by officer A. Now assume this time delegate officer C exercises Government s power under s. 42. Again the order made by him would be interfered with under s. 42. Repeated exercise of power would be in respect of successive orders and never in respect of the same order. In this way finality in the matter can never be reached. We must reject an interpretation which prevents finality being reached. On the interpretation that we have suggested the matter would be finally decided; the power under s. 42 cannot be exercised more than once in re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... words under this Act in s. 41 of the Act before them which corresponds to s. 42 of our Act, referred to the word Officer and not to the word order . But we do not think that that view solves the problem. The question is not whether the officer is one under the Act. which perhaps means mentioned in or appointed under the Act, but whether the order is by him in his own right as such officer? We may point out that the Act does not expressly say that an officer to whom Government may delegate its power under s. 40 (1) has to be an officer under the Act . Falshaw, J., thought that the words any order passed by any officer under this Act in s. 41 of the Act before him should be read as any order passed under any provision of the Act by any officer having power to pass any order under the Act . If they are so read, we think they would mean that the officer had power under the Act to Pass the order in his own right and not as delegate of he Government. The learned Advocate-General said that when power is delegated to an officer under s. 40(1), he does not cease to be an officer and therefore an order passed by him is an order passed by an officer within s. 42. It seems to us that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 60 it had before it the decision in Lakha Singh s case (1) and as it did not expressly provide to the contrary, it must be deemed to have approved of the interpretation put upon the section r to s. 42 by that case. He referred us to a passage in Ramnandan Prasad Narayan Singh v. Mahanath Kapildeo Ram (1) in support of this contention. In that case a somewhat obscure text in a Bihar. Statute had been interpreted by the High Court of Patna consistently from the beginning, that is, from a time soon after its enactment, in a certain way and this Court held in view of the obscurity in the text and the inaction of the legislature over a number of years that it could be legitimately inferred that the High Court had correctly interpreted the intention of the legislature. Without being understood as saying that such all inference must always be made, we would like to.point out that the present is all entirely different case. Here there is no unanimity of opinion as regards the interpretation of the, statute- concerned. At least one judge. namely Grover, J., was unable to accept the view that was adopted in Lakha Singh s case (1). That learned judge said, The use of the expression officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er s. 42 with other orders. Even on the interpretation that we suggest all necessary chain reactions might be given effect to. This reasoning does not assist the respondents at all. We therefore think that the order impugned in this case which was made on July 21, 1956 under s. 42 was entirely without jurisdiction and must be treated as a nullity. No effect can be given to it and the petitioner is entitled to an order quashing it. Then it is said that even so, no writ can be issued quashing the order as it cannot be said to affect the petitioner s right to property. The contention in short is that the order affects no fundamental right and therefore no petition under Art. 32 is maintainable. This objection to the petition is also without foundation. From what we have earlier said about the provisions of the Act it would appear that the object of the scheme is to give to a person affected by it right in the lands allotted to him under the repartition made pursuant to the scheme in the place of his right in lands which were pooled and which he previously held. Now under ss. 23, 24 and 25 taken together, the original right to lands come to an end and a right to the substituted l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ercised under s. 21(4) by the State Government or its delegate to whom power is delegated under s. 41 the State Government cannot exercise the power of control contained in s. 42 of calling for the record and correcting the errors of its officers. According to the respondents submission the two powers of appeal and control are separate and distinct powers and if they are delegated to two different officers as they were in the present case then the exercise of one power (under s. 21(4)) does not exhaust the Government s power or that of its delegate under s. 42 of the Act. In order to resolve the controversy it is necessary to refer to some of the provisions and the objects of the Act. As the long title of the Act shows the underlying object of the Act is the consolidation of holdings and prevention of fragmentation and thus to improve agriculture in the State. By a series of partitions since the founding of the various villages in the State the holdings had become fragmented and uneconomic for the purpose of efficient cultivation. The Act provides the remedy for this by means of consolidation of holdings. In order to effectuate that object, the Act has created a machinery which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act the scheme shall be deemed to have come into force. Provision is then made in regard to encumbrances of the landowners and tenants. Provision is also made for apportionment of compensation. Now we shall deal with 1 Chapter V which is headed General . For the administration of the Act s. 41 empowers the State Government to appoint such persons as it thinks fit and it may by notification delegate any of its powers under the Act to any of its officers either by name or designation. Section 42 confers power on the State Government to call for the proceedings i. c. any order passed, scheme, prepared or confirmed or repartition made under the Act by any officer acting, under the Act to satisfy itself as to the legality and propriety of orders passed by its officers and to pass such orders as it thinks fit. Section 43 provides that except as provided in the Act no appeal or revision shall lie from any order passed under the Act and under s. 44 no civil suit is entertainable in respect of any matter which the State Government or any other officer is empowered to determine, decide or dispose of under, tile Act and under s. 45 no suit is maintainable in respect of the exercise of any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aring the appellant pass such order as he considers proper. The effect of this section is to give a right to every person who is aggrieved by any order passed either at the time of the repartition or by the order of the Consolidation Officer or by the order of the Settlement Officer to object and get relief, The reason for this is that the order passed by the Consolidation Officer in favour of a person who applies under s. 21(2) may start a chain reaction which may affect the rights of others, like any other ordinary partition proceedings may do, and therefore any person aggrieved has been given the right to take objection under the various provisions of s. 21. When the appellate power of the State Government is exercised by an officer to whom powers are delegated under s. 41 which provides :- S. 41 (1) The State Government may for the administration of this Act, appoint such persons as it thinks fit, and may by notification delegate any of its powers or functions under this Act to any of its officers either by name or designation. 2) A Consolidation Officer or a Settlement Officer (Consolidation) may, with the sanction of the State Government, delegate any of its powers or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elegate as to any other order improperly obtained. The Government has necessarily to act through its officers and as consolidation has to take place in several villages, where the rights of a large number of landowners are affected, it cannot always appoint as a final appellate authority, persons who correspond to a Financial Commissioner under the Land Revenue Act of the Punjab; and as the orders of such officers become immune from challenge in courts and can in certain cases affect the whole scheme the State Government has been given the power of overall control over all actions of its officers and at all stages. In the present case the officer who exercised the appellate power was Mr. Avtar Singh Brar, Assistant Director, Consolidation of Holdings, Ambala. Naturally the Government had to appoint an officer of a higher status to see that no improper or illegal order was passed and for that purpose its powers under s. 42 were delegated to the Director of Consolidation of Holdings. The language of s. 42 shows that an overall control is given to the State Government over all consolidation proceedings and at all stages. In that section are mentioned firstly any order passed ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
