TMI Blog1963 (1) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... tion operations started in village Atohan in Tehsil Palwal of Gurgaon district in 1954-55. The petitioners are the proprietors and landowners in the village. The scheme of consolidation as envisaged under Section 24 of the Act came into force in June, 1957 and the landowners were put into possession of their new plots which had been assigned to them by the Consolidation authorities, after the estate had been repartitioned in accordance with the consolidation scheme. The Consolidation operations had concluded in 1957. In 1958, the Settlement Officer disposed of all the appeals which had been preferred by the allottees of the new plots. From the order of the Settlement Officer, one person had preferred an appeal to the Assistant Director which was disposed of in 1958-59. Some applications had been filed to the Director of Consolidation of Holdings (respondent) under Section 42 of the Act for the modification OF revocation of the consolidation scheme. It is said that the predecessor of the present Director personally went to the village and disposed of the said applications making necessary changes in the scheme. The consolidation authorities in 1958 acted upon the changes. It is s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gain came under the revenue authorities and was released from the charge of the consolidation authorities. The petitioners alleged that they had considerably improved the respective plots which had been allotted to them and some of them had sunk pucca wells on their lands and built houses. Some of the plots had been sold for valuable consideration to third parties and some of the petitioners had planted gardens after putting in considerable labour and expense. On account of the improvements so affected, the value of land had greatly increased since repartition. On 23rd February, 1960, the Director of Consolidation of Holdings, Punjab, Jullundur (respondent No. 2), without notice to the petitioners and at their back wrote a memo to the Settlement Officer suggesting the taking of action under Section36 of the Act and desired that the order of the Settlement Officer dated 4th May, 1956, may be suitably amended. On 3rd June, 1960, an ex parte order was passed by the Settlement Officer (respondent No. 3) amending the scheme which had already been confirmed on 4th May, 1956. In pursuance of the order of the Settlement Officer, dated 3rd June, 1960, the Consolidation Officer (responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scheme was published and objections received against the varied scheme were also disposed of by the Settlement Officer and that varied scheme was confirmed on 25th August, 1960 and then repartition proceedings were again published on 24th September, 1960. 9. All these four petitions were heard by Grover, J., and were dismissed, but the parties were left to bear their own costs. 10. Before considering the arguments which have been addressed to us, a brief resume of the salient features of this Act may be given in order to appreciate the policy and plan of the Act. 11. The Act came into force on 14th December, 1948, and so far it has been amended fourteen times. The Act was passed to provide for the compulsory consolidation of agricultural holdings and for preventing the fragmentation of agricultural holdings in the State of Punjab (and for the assignment of reservation of land for common purposes of the village) : The words in brackets were added to the preamble by Punjab Act 27 of 1960, which further provided that they would be deemed always to have been so added . Thus, the main purpose of the Act is consolidation of agricultural holdings and the reservation of land ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay pass appropriate orders confirming or modifying the repartition. Sub-section (3) allows a person dissatisfied with the order of the Consolidation Officer to file an appeal before the Settlement Officer who, after giving a hearing to the appellant, may pass such orders as he considers appropriate. Under Sub-section (4), right of appeal is given from the order of the Settlement Officer to the State Government. Under Section 22 the Consolidation Officer shall cause to be prepared a new record of rights for the area under consolidation giving effect to the repartition as finally sanctioned as provided in Section 21. Section 23 (1) determines the right to possession of new holdings where all persons concerned agree to enter into possession of the holding allotted to them by the scheme as finally confirmed. The Consolidation Officer may allow them to enter into such possession forthwith or from such date as he may specify. Sub-section (2) provides for a contingency where there is no agreement as to entry into possession. In such a case, the owners or tenants are entitled to possession of the holdings and tenancies allotted to them from the commencement of the agricultural year next ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , at any time, be varied or revoked by the authority which confirms it subject to any order of the State Government that may be made in relation thereto and a subsequent scheme may be prepared, published and confirmed in accordance with the provisions of this Act. 13. Chapter IV deals with other powers of Consolidation Officer which are of ancillary nature, and Chapter V commences with Section 41 and is styled 'General'. Section 42 confers additional power on the State Government and it reads -- 42. 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 : Provided that no order, scheme or repartition shall be varied or reversed without giving the parties interested notice to appear and opportunity to be heard except in cases where the State Government is satisfied that the proceedings have been vitiated by unlawful consideration. Section 46 enables the State Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that when the authority which confirms a scheme, revokes it and decides upon a subsequent scheme, it is incumbent upon it to have the scheme prepared, published and confirmed in accordance with the provisions of this Act . It does not mean that the authority is at liberty to do so in one case and forbear in the other. In this case, it becomes the duty of the Settlement Officer to prepare, publish and confirm a subsequent scheme as required by the Act. In this sense, the Legislature cannot be intended to have granted a mere discretion, but rather to have imposed a positive and absolute duty. In this context the word may does not signify mere faculty or power, but an obligation. As observed by Lord Blackburn in Julius v. Lord Bishop of Oxford, (1880) 5 A. C. 214, The enabling words are construed as compulsory whenever the object of the power is to effectuate a legal right. Coleridge, J., in Queen v. Tithe Commissioners, (1849) 14 QB 459 at p. 474 said,-- The words undoubtedly are only empowering; but it has been so often decided as to have become an axiom that in public statutes words only directory, promissory, or enabling, may have a compulsory force where the thing to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to the learned counsel for the appellants, these words relate to the pendency of the consolidation proceedings. The terminus a quo is the preparation of the draft scheme after the Government has declared its intention for consolidating the holdings under Section 14, and the terminus ad quern is the delivery of possession on the preparation of record of rights under Sections 22 and 23. According to the learned counsel for the State, the words at any time admit of no limitation and the phrase is to be construed to mean at all times , and even from time to time . Learned counsel for the appellants maintained that if the interpretation placed upon these word's by the respondents is to be accepted, then Section36 deserves to be struck down as ultra vires the Constitution, as it contravenes the fundamental rights under Articles 14 and 19 (1) (f), and it confers unfettered and arbitrary power for varying or revoking the scheme. 18. The phrase at any time is frequently used in the statutes and its meaning has to be gathered from the context in which it is used. The phrase has been understood differently having regard to the intention manifested in the Act or in the particul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The result will, therefore, be that there will be no guarantee of tenure even in the case of an absolute owner to exercise the well-known and varied rights of ownership over his property, and there can be no impetus to make any improvements. In most cases. the process of consolidation may result in introducing an element of uncertainty which would make the enjoyment of a particular property extremely precarious resulting in unintended insecurity. It could not conceivably be the object of the Act to confer power on any authority which may be exercised to the detriment of the object of the Act and result in uncertainty to the fightholders whose possession could thus be frequently shifted to the detriment of most. The power under Section 36 cannot be unrestricted unbridled or limitless and there has to be a terminus ad quem, that is, a point after which the power of variation or revocation terminates and is no longer exercisable. For determining the two terminii, the starting point and the culminating point, of the exercise of the power under Section 36, we must look for guidance to the provisions of the Act. 19. The power to vary or revoke a scheme contemplates the existence of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on (1) of Section 23, if all the persons concerned, owners and tenants, affected by the scheme agree to enter into possession of the holdings allotted to them, the Consolidation Officer may allow them to enter into such possession forthwith or from a specified date. Sub-section (a) contemplates the situation where the rightholders do not agree 'to enter into possession, and in that event they shall be entitled to possession of the holdings and tenancies allotted to them from the commencement of the agricultural year next following the date of the publication of the scheme under Section 20 (4) or, as the case may be, of the preparation of the new record of rights under Section 22 (I). The question that calls for examination is what, if any, powers are left with the Settlement Officer (Consolidation) after the scheme is confirmed and full effect has been given to it including the entry into possession and the preparation, of the new record of right? That stage is reached after the consolidation is completed. After the consolidation proceedings are over, the Settlement Officer becomes functus officio. The round which started with the notification of the Government's intenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was concluded that Section 22, which referred to preparation of records of rights, contemplated repartition after all the objections, appeals and further appeals have been finally disposed of and there can be no transfer of possession in pursuance of a finally confirmed scheme within Section 23 (1) till the objections etc., are decided, as possession in case of parties not in agreement can only be transferred after the preparation of new record of rights. Mahajan, J., remarked - If, on the other hand, possession in case of repartition can only be transferred after the preparation of the record of rights and the record of rights can only be prepared after, objections, etc., to the repartition as provided in Section 21 have been disposed of, the provisions of Section 24 (1) would become redundant, because Section 24 (1), contemplates transfer of possession before the objections, appeals and further appeals contemplated by Section 21 have been decided. Therefore, what emerges from the combined reading of Sections 20, 21 and 22 is that a scheme is finally confirmed when it has passed the stage of Sub-section (3) of Section 20 and a repartition is finally confirmed when all obj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he manifest intention of the statute, but indetermination and fluctuation. A statutory provision must be construed to effectuate the declared intention of the Act rather than to hinder it from its known purpose and such a drastic provision ought, therefore, to be construed narrowly and strictly. 23. Again, the language of Section 36 needs to be compared to that of Section 42, the scope of which is wider. Under Section 36, the power conferred upon the authority which confirms a scheme refers to varying or revoking a scheme of consolidation confirmed under the Act; This power is not exercisable prior to confirmation of a scheme and avails in respect of a scheme. Section 42 which is broad-based enables the Government to satisfy itself as to the legality or propriety of any order passed, scheme prepared or confirmed or repartition made by any officer under this Act. Under Section 36, no power can be exercised to check the legality or propriety of any order passed, scheme prepared but not confirmed or repartition made. If repartition is to be disturbed, the Settlement Officer cannot do so under Section 36. That can be done by the State Government only. This also is a pointer that p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and then even after the passage of several years, or, theoretically, even after decades, without violating the appellant's fundamental rights. Under this head, reference will also be made to other lacunae in the provisions of Section 36 which make it vulnerable on ground of its being violative of principles of natural justice. It is said that this section gives unfettered discretion to the Settlement Officer to vary or revoke a scheme not only at all times and from time to time, but also arbitrarily, his discretion being unfettered and uncanalised. It is said that Section 36 vests un-guided discretion in the authority uncontrolled by any safeguards. The powers are completely unregulated. The other objectionable feature of Section 36 is that the Settlement Officer may vary or revoke scheme without giving opportunity to the party affected to object to the proposal, be he an owner, tenant, a judgment-creditor, or a transferee. It is further said that the exercise of this power is not subject to any revision or appeal. The Settlement Officer exercises unguided and arbitrary powers enabling him to discriminate and no policy or purpose is disclosed for clothing him with such an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of particular units or parcels; It was said that a further element of uncertainty is introduced when the process of variation and revocation can be repeated ad libitum. 28. The stand taken by the Punjab State that the power conferred under Section 36 admits of 10 limitation in matter of time and is exercisable repeatedly, as often as the authority may like to interfere, has been, resisted on the ground that Section 36 is a sweeping measure which extinguishes title, disturbs possession, unsettling everything abruptly without notice or opportunity, and without assigning any reason; and therefore this provision was said to be drastic and undefined. 29. Mr. Lachhman Dass Kaushal for the respondents, in refutation of the above criticism, has stated that the provision does not suffer from the alleged infirmities. He has drawn our attention to the words occurring in Section 36 to the effect that the power is exercisable subject to any order of the State Government that may be made in relation thereto . He says that there is no arbitrariness as the State Government has the controlling voice. The appellants, however, contend that the authority concerned is no doubt subject to any ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deprived of this opportunity the audi alteram partem rule is thus infringed. 31. The arguments referred to above raise two-matters which must be examined and disposed of independently of each other. The first question is whether Section 36 is to be struck down on the ground that it is violative of fundamental rights-mentioned in Articles 14 and 19 (1) (f) of the Constitution. The second matter which calls for consideration is whether independently of the rights conferred by the abovementioned Articles, Section 36 is bad because it infringes the rule of natural justice which is a pervading principle of universal equity - Le principe que nul ne doit etre condamne ou prive de ses droits sans etre entendu, et surtout sans avoir meme recu avis qtte ses droits seraient mis on jeu est dune equite universelle, (the principle that no one ought to be condemned or deprived of his rights without a hearing and especially without having received notice that his rights would be imperilled is one of universal equity), (per Rinfret, C. J., in L'Alliance Des Professurs Catholique De Montreal v. Labour Relations Board, 1953-2 Canadian LR (SCR) 140 (154) -- (to be discussed later). 32 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amended, reads -- 36. A scheme for the consolidation of holdings confirmed under this Act may, at any time, be varied or revoked by (the authority which confirms it subject to any order of the State Government that may be made in relation thereto and) a subsequent scheme may be prepared, published and confirmed in accordance with the provisions of this Act. The amending Act was not reserved for the consideration of the President and consequently did not receive his assent. It received the assent of the Governor of Punjab on 28th April, 1953. After Punjab Act 20 of 1953, the parent Act was amended on ten occasions, though no changes were brought about in Section 36. Out of the subsequent amending Acts, Punjab Act 22 of 1953 and Punjab Act 39 of 1954 had received the assent of the Governor of Punjab but not of the President. The first Amending Act which received the assent of the President was Punjab Act 40 of 1954. This Act had added a new Section 25A. The next amending Act, Punjab Act 7 of 1955, had received the assent of the Governor of Punjab and by this, Section 14 was amended. This was followed by another amending Act, Punjab Act 46 of 1956, which received the assen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;Provinces' as the term was known in pre-Constitution period. The 'States' have been created by the Constitution and the proviso does not refer to pre-Constitution laws and, therefore, the Proviso cannot refer to the parent Act, East Punjab Act 50 of 1948, in which Section 36 occurred in its unamended form. 35. Article 316 is not dependent upon Article 31A and cannot be treated as illustrative of the rule laid down in Article 31A. Article 316 validates with retrospective effect Acts enumerated in the Ninth Schedule and Punjab Act 50 of 1948 is not one of them. The objectionable portions in Section 36 which are said to be violative of the fundamental rights have been existing from the very commencement of the Act. From the point of view of inconsistency with the fundamental rights, it is Section 36 ab initio which transgresses the protection guaranteed by Part III of the Constitution. The subsequent amendment brought about by Punjab Act 20 of 1953 in Section 36 is, from this point of view, inconsequential, in so far as, it does not affect the fundamental rights. The provisions of Section 36 as contained in the parent Act do not, however, come within the protection o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate was enlarged. Article 31A was inserted in the Constitution oil 18th June, 1951. The question was that the President's assent to the Act having already been given under Article 201 all the consequences as described in Article 31, Clauses (3) and (4), and in the proviso to Article 31A, would necessarily follow. In this connection the following observations were made by Narasimham C. J. - Hence as a matter of construction it must be held that the words 'law providing for acquisition' occurring in Article 31A(1) would include not only the parent Act providing for acquisition but also the amending Act which should be deemed to have been incorporated in the parent Act even though the amending Act, in express terms, provides only for textual amendment of certain clauses. The amending Act cannot stand isolated and must be held to have been read by the President, as forming part of the parent Act, when he gave his assent to it. In Smt. Lila Vati Bai's case. (S) AIR 1957 SC 521 the Bombay Land Requisition Act (33 of 1948) which when passed was good law. It was not covered by the provisions of Article 31 (6) but by the saving clause, namely, Clause 5 (a) being an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law both before and after the amendment. If, on consideration, the President were of the view that Section 36 transgressed the fundamental rights under the Constitution, he could have withheld his assent. Apart from the fact that the amending Act 20 of 1953, which introduced certain changes in Section 36 of an inconsequential kind, those changes were in the nature of imposition of some limitation or fetters in the matter of variation or revocation of the scheme. I am therefore of the view that both the original Act and the subsequent Acts, which from time to time, incorporated amendments in it, are not vulnerable for the reason that certain provisions were inconsistent with, or take away, or abridge, any of the fundamental rights conferred by Articles 14, 19 and 31 of the Constitution. In this view of the matter. I would hold that any infirmity in Section 36 of East Punjab Act 50 of 1948, by reason of taking away or by abridging the rights conferred under. Articles 14, 19 or 31 is covered by proviso to Article 31A, and on this ground Section 36 is not liable to be impugned as ultra vires the Constitution. 37. The next main question is whether these four Letters Patent appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed the rule in the following words - Qui statuit, aliqua parte inaudita altera, aequum licet statuerit, haud aequus fuit, -- (He who comes to a conclusion, when the other side is unheard, may have been just in his conclusion. but yet has not been just in his conduct . These lines have been cited with approval in several reported decisions by early English Judges, vide inter alia, Boswell's case (1605) 6 Co. Eep. 48 b at 52a : 77 E. R. 326 (331); Bagg's case, (1615) 11 Co. Rep. 93 b at 99 a : 77 E. R. 1271 (1280); R. v. Archbishop of Canterbury, (1859) 1 E and E 545 (559) : 130 ER 1014 (1019); Wood v. Woad, (1874) 9 Ex 190 (196, 197); and Smith v. R., (1878) 3 AC 614 (624). In (1874) 9 Ex 190 Kelly C. B. adopted what Seneca had said above and then observed - This rule is not confined to the conduct of strictly legal tribunals but is applicable to every tribunal or body of persons invested with authority to adjudicate upon matters involving Civil consequences to individuals. and he quoted with approval the observations to similar effect of Bayley B., in Capel v. Child, (1832) 2 Cr and J 558 (579) : 149 ER 235 (244), and of Parke B., in the case of In re Hammer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re he was called upon to make his defence. Adam (says God) where art thou? Hast thou not eaten of the tree, whereof I commanded thee that thou shouldst not eat? And the same question was put to Eve also. To the later generations, the above view is bound to appear as fanciful, but even then it is indicative of the sanctity attached to the principle of audi alteram partem, and this is an illustration of a divine invocation in support of the principle. The last attempt to uphold the supremacy of natural law over Acts of the Legislature was made in 1824 by Best, J., in Forbes v. Cochrane, (1824) 2 B and C 448 : 107 ER 450. The subject was slavery and citing from Blackstone's Commentaries Vol. I p. 42 that if any human law should allow or injoin us to commit an offence against the divine law we are bound to transgress that human law . Best, J., proceeded - Now if it can be shown that slavery is against the law of nature and the law of God it cannot be recognised in our Courts. The other Judges did not express concurrence with the view of Best, J. The early doctrine of be supremacy of natural law over the law made by Parliament was perhaps not altogether unconnected from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y be considered by the Courts. (Local Govt. Board v. Arlidge, 1915 AC 120 (150) ). 40. The rules of natural justice require that a person or a body exercising judicial or quasi-judicial functions must act in good faith, listen fairly to both sides, give fair opportunity to the parties litigating to present their case. Earl of Selborne in Spackman v. Plushtead Board of Works, (1885) 10 AC 229, used the phrases the substantial requirements of justice and at another place the essence of justice to mean natural justice, when he observed - No doubt, in the absence of special provisions as to how the person who is to decide is to proceed, the law will imply no more than that the substantial requirements of justice shall not be violated. He is not a judge in the proper sense of the word; but he must give the parties an opportunity of being heard before him and stating their case and their view. He must give notice when he will proceed with the matter, and he must act honestly and impartially and not under the dictation of some other person or persons to whom the authority is not given by law. There must be no malversation of any kind. There would be no decision within the mean ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the rules apply may depend on ascertainment of the solution that would best accord with the purposes of the legislation as a whole , (vide Administrative Law-Natural Justice-Eight of a Hearing, 1954 Cambridge Law Journal p. 16). Lord Parmoor, while delivering the judgment of the Privy Council remarked - The particular form of inquiry must depend on the conditions under which the discretion is exercised in any particular case, and no general rule applicable to all conditions can. be formulated. (vide De Verteuil v. Knaggs, 1918 AC 557 (560) : (AIR 1918 PC 67 at p. 68) ). Where the exercise of the power involves the destruction or demolition of the property, the principle has been freely applied, (vide (1863) 14 CB (NS) 180 : 143 ER 414). It has been felt that where the powers of conclusive condemnation are conferred, this principle ought not to be departed from. The earlier Judges definitely thought so. Lord Kenyon, C. J., said - * * * every man ought to have an opportunity of being heard before he is condemned; and I should tremble at the consequences of giving way to this principle. 43. 1911 AC 179 (182) is an important landmark. The tendency had long manifested ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the case made against them. The decision must be given in the spirit and with the sense of responsibility of a tribunal whose duty it is to meet out justice. Lord Haldane, however, expressed the view that the procedure of other tribunals need not follow the same lines and may vary according to the nature of the tribunal and it may follow its own particular methods of procedure and without following the methods adopted by: the Courts. The Government department could carry out its judicial function in free and informal manner but consistent with the elementary ideas of justice, and unfettered by conventional restrictions. No restriction was imposed except to comply with the requirements of natural justice which, whatever else they may include, certainly required that a decision must be arrived at after hearing the parties concerned. 45. In 1935-1 KB 249, a clearance order had been made by the Corporation and it was submitted for confirmation to the Minister in the ordinary course. The property owners raised objections. The Minister who was under a statutory obligation to cause a public local enquiry to be held, discussed the situation with the officers and councillors. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in 1932 by the Committee on Ministers' Powers appointed by Lord Sankey, L. C., in 1929 to consider the powers exercised by or under the direction of (or by persons or bodies appointed specially by) Ministers of the Crown by way of (a) delegated legislation and (b) judicial or quasi-judicial decisions, and to report what safeguards were desirable or necessary to secure the constitutional principles of the sovereignty of Parliament and the supremacy of law. The Committee consisted of seventeen eminent lawyers and jurists, including. Prof. Sir William Holdsworth, Sir Leslie Scott, later Scott, L. J., and Mr. Gavin Simonds, later known as Viscount Simonds, L. C. The statement of the law as contained in this Report has not the same binding force and effect as that of a judgment in a decided case; but the opinions expressed in this Report have been treated with greatest respect as the principles contained therein have been subscribed to by eminent jurists, and the findings have been cited with approval in reported cases in England. Views have been often expressed that the conception of natural justice must be regarded as belonging to the field of, moral or social principles and not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (4) a decision which disposes of the whole matter by a finding upon the facts in dispute and an application of the law of the land to the facts so found, including where required a ruling upon any disputed question of law. A quasi-judicial decision equally presupposes an existing dispute between two or more parties and involves (i) and (2), but does not necessarily involve (3), and never involves (4). The place of (4) is in fact taken by administrative action, the Character of which is determined by the Minister's free choice. (p. 73). At p. 75, the Report proceeds as under - * * 9 a judicial element is involved in quasi-judicial as well as in judicial functions; and at has been, truly said that, however much a Minister in exercising such functions may depart from the usual forms of legal procedure or from the common law rules of evidence, he ought not to depart from or offend against 'natural justice'. The Committee was of the view that there should be vigilant observance of the principles of natural justice by Ministers or ministerial tribunals to whom the function of adjudicating is assigned. He must act judicially and come to the decisions in the spi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opted in India, a reference to their reception in other jurisdictions, where justice is administered under somewhat similar conditions, will be of some advantage. 50. In 1953-2 Canadian LR (SCR) 140, the appellant-association called a strike of its members who were teachers in violation of the Public Services Employees Disputes Act, which forbids such action from the employees of a school corporation. The respondent-Board, thereupon without notice to the appellant, cancelled its certificate. Rinfret, C. J., held that having acted as a judicial tribunal, the Board must be assimilated to a Court of inferior jurisdiction. The learned C. J., expressed the view that an express declaration from the Legislature is required to prevent he application of the principle that no person can be condemned or deprived of his rights without being heard. Regarding the applicability of the rule of audi alteram partem, the learned Chief Justice observed - Le principe que nul ne doit etre condamne ou prive de ses droits sans etre entendu, et surtout sans avoir meme recu avis que ses droits seraient mis en jeu est d'une 'equite' universelle et ce nest pas le silence da la loi qui devra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls : in making decisions of a judicial nature they must hear both sides, and there is nothing in the statute here qualifying the application of that principle. The only answer suggested to this is that the Board, being an 'administrative body', can, in effect, act as it pleases. But in this we are too much the prisoners of words. In one sense of administration, in the enactment of subordinate legislation or quasi-legislation, the principle has a limited application; but in the complexity of governmental activities to-day, a so-called administrative board may be charged not only with administrative and executive but also with judicial functions, and it is these functions to which we must direct our attention. When of a judicial character, they affect the extinguishment or modification of private rights or interests. The rights here, some recognised and others conferred by the statute, depend for their full exercise upon findings by the Board; but they are not created by the Board nor are they enjoyed at the mere will of the Board; and the Association can be deprived of their benefits only by means of a procedure inherent in judicial process . (p. 161) In the above ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out giving him an effective opportunity of meeting the allegation made against him. This requires that a person whose civil right is affected must have a reasonable notice of the case he is to meet and, further, to have a reasonable opportunity of being heard in his defence. Of course, opportunity of being heard does not necessarily mean an oral hearing in per-son or by a lawyer. There, however, are exceptional cases where a public interest may be of such an imperative nature either by reason of a sudden and unforeseen emergency corning into existence or because of some other pressing exigency of the State which may weigh against such an opportunity being granted. In this connection it is not necessary to refer to the other principle of natural justice a consideration of which does not arise here. 54. A recent decision of the Supreme Court in Board of High School and Intermediate Education, U. P. v. Ghanshyam Das Gupta, AIR 1962 SC 1110, is in point. This was a case where no opportunity whatever was given to the examinees to give an explanation and present their case before the examination ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority proposing to do the act and the subject opposing it, the final determination of the authority will yet be a quasi-judicial act provided the authority is required by the statute to act judicially. In other words, while the presence of two parties besides the deciding authority will prima facie and in the absence of any other factor impose upon the authority the duty to act judicially, the absence of two such parties is not decisive in taking the act of the authority out of the category of quasi-judicial act if the authority is nevertheless required by the statute to act judicially. These principles have been acted upon in later cases by the Supreme Court, vide Nagendra Nath v. Commissioner of Hills Divn. AIR 1958 SC 398, Radheshyam Khare v. State of Madhya Pradesh, AIR 1959 SC 107, G. Nageswara Rao v. Andhra Pradesh State Road Transport Corporation, AIR 1959 SC 308. Shivji Nathubhai v. Union of India, AIR 1960 SC 606 and AIR 1962 SC 1110. 55. In AIR 1959 SC 107, Dass C. J. cited with approval the celebrated definition of quasi-judicial body given by Atkin L. J. in Rex v. Electricity Commrs., 1924-1 KB 171, which still holds the field, namely,; Whenever any body ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Judge, however, expressed the view that at the enquiry no real opportunity of meeting the charges had been given. Kapur J., was of the view that order under Section 53-A was in the nature of an emergency action and had a limited duration. He thought that there was no duty, in the circumstances, cast on the State Government to act judicially. The matter involved expediency and policy on which the State Government was the sole judge assuming that it was acting in good faith. According to the language of the section, the objective approach or judicial or quasi-judicial process was negatived. He was also of the view that there was a proper enquiry. K. Subba Rao J., wrote a dissenting judgment. 56. In this case it is pointless to go into the question whether the requirements of the rule of natural justice have any place where the order is purely administrative and the officer in authority is required to give his decision not on any judicial or quasi-judicial footing but by subjective determination in accord with a particular policy. On the facts and circumstance of these cases, the determination under Section 36 is of a quasi-judicial character involving the review of proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a pivotal character for dispensation of justice. 57. Nothing contained in the provisions of Section 36, read singly or along with the cognate provisions, can lend support to a construction in favour of the exclusion of the rule of natural justice by necessary implication. The legislative draftsmen never expressly insert in the provisions of an Act that rules of natural justice, pertaining to notice or opportunity to be heard, are to specifically apply -- for they always apply, except where clearly excluded. It will be a dangerous proposition, destructive of the most cherished rights of a citizen, to hold that unless the basic and fundamental rights are expressly saved in a particular provision they are to be treated as having been taken away by mere omission. 58. The argument which has been pressed into service on behalf of the respondents is, that Section 42 of the Act provides that the State Government, when it calls for proceedings, shall not vary or reverse any order, scheme, or repartition without giving the parties interested an opportunity to be heard, except in cases where the proceeding have been vitiated by unlawful consideration. The contention is that, while frami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... administrative determination. Kapur, J., (paragraph 44) was impressed by the fact that Section 57 of the statute requires that the explanation of the Committee be called for before a particular action is taken by the State Government and in others no such requirement is prescribed. That was construed as a clear indication of the intention of the Legislature that an opportunity was to be given in one case and not in the other or that a quasi-judicial approach was intended in one case and administrative in the other. From these observations, it is a long way to deduce that in all cases from the silence in a particular provision of an enactment, the omission of audi alteram partem rule is to be necessarily implied. On the facts of that case, inference in favour of exclusio from omission was drawn, but omission in all cases cannot be deemed to be an unfalterable guide indicating conscious exclusion. 59. The Supreme Court in AIR 196.2 SC 1110 (1113), after expressing approval of the principles as stated by Dass J., in Khushal Das's case, AIR 1950 SC 222, to which reference has already been made, observed: Now it may be mentioned that the statute is not likely to provide in s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gmentation) Act, 1948, provide sufficient indicia for treating the question of variation or revocation of a confirmed scheme as a determination of a judicial nature, inter alia, for the reason that interference with that scheme would result in far reaching con-sequences of a serious character for the right-holders resulting in insecurity and expense. 62. The maxim expressio unius (personae vel rei), est exclusio alterious -- the express mention of a (person or thing) is the exclusion of another--, is not a rule of universal application and has to be applied with great caution depending upon the legislative intention and, in the case of an instrument or transaction, resting upon the intention of the parties concerned. In some cases, it will be calamitous to apply the maxim as that would exclude the operation of the basic rights universally recognised by the audi alteram partem rule. In the passage cited earlier from the judgment of Rinfret C. J., in 1953-2 Canadian LR (SCR) 140, it was observed that laws' silence ought not to be invoked or appealed to for depriving a person of his rights without being heard; ce n'est pas le silence da la loi qui devrait etre invoque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y be intended to co-exist. 64. In the particular circumstances of this case, the maxim audi alteram partem has to be enforced, as, the Legislature has neither expressly nor by necessary implication, enacted that the rule should not apply; and, further, there are no exceptional circumstances which can. justify not giving effect to this principle. Under Section 36 of the Act, the effect of the exercise of the power upon the rights of individuals may involve serious consequences to them in respect of the areas over which they may have made extensive improvements. In such cases especially, the rule of natural justice is applicable by implication and also because of its general universality. Any tendency whereby public bodies or authorities can dispose of valuable rights of a citizen, without granting him an adequate hearing to present his case in the absence of express statutory provision, deserves to be restrained, for, public policy demands that ends of justice ought not to be frustrated by taking away the protection of the audi alteram partem rule. It is, therefore, imperative that provisions purporting to exclude the right of hearing should be construed strictly, and a general ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Act appear to be quasi-judicial, for, the ratio of the Supreme Court decisions in AIR 1962 SC 1217 clearly lends support to this view. 69. So far as the expression at any time used in Section 36 is concerned, though of the widest amplitude, these words clearly seem to me, in their context, to call for some limitation in them, in point of time. It is true that the Act in question is by no means an example of ideal or perfect draftsmanship and one has to strain hard to discern the precise legislative intent, but the difficulty of the task should not discourage the Court from attempting to perform its duty to discover the intention of the law-giver from all legitimate sources. Here, it has to be admitted that the complexities of a modern democratic welfare State like ours, governed by the rule of law, have made the task of the Legislature somewhat difficult, but then this difficulty of the task only serves to demand greater attention by the lawgiver. Strictly speaking, it is the language used in Section 24 of the Act, as construed in the light of the ratio of the decision in Jiwan Singh's case, 1962 (64) Pun LR 668, the correctness of which has not been seriously questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oldings (Consolidation and Prevention of Fragmentation) Act, 1948, hereinafter to be referred to as the Act, does not indicate that an option is given to the Settlement Officer whether or not to prepare the subsequent scheme in accordance with the Act, and that Section 36 cannot be struck down because of the use of the word may . I also agree that the constitutionality and legality of Section 36 cannot be questioned in view of the provisions of ArticleI 31A of the Constitution. I further agree that the power to vary or revoke a scheme of consolidation is quasi judicial in nature and that while exercising that power it is incumbent upon the authority to give notice to the parties concerned and an opportunity to present their case for consideration. I have, however, not been able to persuade myself to agree with the interpretation which is sought to be placed upon the words at any time in that Section. 71. The words at any time in Section 36 have been incorporated, in my opinion, with a view to provide for those eventualities wherein a scheme confirmed under the Act is found subsequently to be defective or not subserving the main object of consolidation. Such a defect may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indicates that an order under Section 36 can be passed after the record of rights has been prepared and possession delivered. In order to ensure harmonious construction of Section 36 and Sub-section (1) of Section 24, it cannot, in my view, be held that variation or revocation of a scheme can only be made before repartition and the preparation of new record of rights. To hold otherwise and to place a limited interpretation sought to be placed on the words at any time would be going not only against the plain meanings of those words, it would also be not possible to reconcile such an interpretation with Sub-section (1) of Section 24 of the Act which contemplates the exercise of power under Section 36 even after the delivery of possession subsequent to the repartition and preparation of record of rights. It is a well established canon of interpretation of statutes that a statute should be construed as a whole and in case of doubt one part should be construed by reference to another part. Reference in this connection may be made to observations on page 93 of Craies on Statute Law, 5th edition, which read as under: The office of a good expositor of an Act of Parliament, said C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IR 1962 Punj 221) (FB) wherein the vires of the East Punjab Holdings (Consolidation and Prevention of 'Fragmentation) Act, 1948, were questioned, the Act was held to be not ultra vires of the Constitution and was described to be a measure designed, to promote agrarian reform. If consolidation of holdings is a beneficial measure for the good of the tenure holders and no objection can be taken to it, it is riot clear, as to how consistently with that, objection can be entertained to the variation or revocation of a scheme in order to have a better scheme. The other argument that variation or revocation would affect the rights of persons who make improvement upon their holdings, is also not well founded because Section36 provides that subsequent scheme is to be prepare3 in the same manner as a new scheme and Section 15 provides for compensation to an owner, who is allotted a holding of less market value than, that of his original holding. 74. The above remaks would go to show that the idea underlying Section 36 is to remedy defects and lacunae, which are found subsequently in a scheme of consolidation and it is a wholesome piece of legislation. Assuming that the provisions of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rstand these words it is natural to inquire what is the subject-matter with respect to which they are used and the object in view'. If the words of the statute are themselves precise and unambiguous, then no more can be necessary than to expound those words in their ordinary and natural sense. The Words themselves alone do in such a case best declare the intention of the lawgiver. Where the language of an Act is clear and explicit, we must give effect to it. Whatever may be the consequences, for in that case the words of the statute speak the intention of the Legislature . Again on page 68, it is said as follows: In other words, the language of Acts of Parliament, and more especially of modern Acts, must neither be extended beyond its natural and proper limits, in order to supply omissions or defects, nor strained to meet the justice of an individual case. 'If said Lord Brougham, in Gwynne v. Burnell, (1840) 7 Cl. and F. 572, 'we depart from the plain and obvious meaning on account of such views (as those pressed in argument on 43 Geo. 3, C. 99), we do not in truth construe the Act, but alter it. We add words to it, or vary the words in which its provisions a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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