# ROOP CHAND v. STATE OF PUNJAB - **Citation:** [1963] Supp. 1 S.C.R. 539 - **Court:** Supreme Court of India - **Decided:** 1963 - **Case number:** Writ Petition No. 77 of 1957 - **Bench:** S. K. Das, J. L. Kapur, A. K. Sarkar, M. Hiday.A.Tullar, R.Aghubar Dayal - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/roop-chand-v-state-of-punjab-2727 - **Pages:** 25 ## Headnote Consolidation of Holdings-Appeal to State GovcrnmentPwtr.to hear appeal delegatd to o.fficer-Dtcision of such ojficu-- Rwi1ion of decision by State Government-Ltgality of-Funwmtntal right.-lf infringed by illegal ortier of State GovunrnrntEut Punjab Holdings (Comolidation and Prevention of Fragmtnta,tion) Act, J,948 (Punj. 50 of 1948), ss, 21 (4), 41 (/), i2Conatitution of India, Art. 32. Under the E. P. Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, a scheme for consolidation of holdings was framed for the petitioner's village and a repartition of the lands was proposed. The petitioner objected to the repartition and contended that under the scheme he was entitlet1 to retain his plots Nos. 635 and 636 and to get some more land adjacent to them in exchange for other lands belonging to him This contention was rejected by the Consolidation Officer The petitioner filed an appeal before the Settlement Office< 1!02 ·\f/s. BhikusiJ Jilm111.t Kah:.ib'iV4 v Stm~amntr A~tJ{& Taluk• Bitii Xcm:or U11U11 Sh property. Per Kapur and Hidayatullah,JJ.-The State Government had jurisdiction to revise the order made by Shri Brar. Under s. 42 the Government had over-all control at all stages of the Cunsoli property. Per Kapur and Hidayatullah,JJ.-The State Government had jurisdiction to revise the order made by Shri Brar. Under s. 42 the Government had over-all control at all stages of the Cunsolin of HoMings, Punjab(') to which we were referred was correctly decided. There Falshaw, J., (I) A.I.Jl, ,1159) Paill• 157. L • • I 1 S.C.R. SUPREME COURT REPORTS 54'9 with whom Dua, J., agreed, approved of an earlier decision by Bishan Narain, J., where the latter said that "under s. 40 (I) the Government can delegate its powers or functions only to one of its officers. It, therefore, follows that the Government's delegate under s. 20 (4) is an Officer and as he is appointed under this Act and has to perform duties relating to administration of this Act, he must be held to be an Officer under this Act." Falshaw,J., as also Bishan Narain, J., were dealing with the Pepsu Holdings (Consolidation and Prevention of Fragmentation) Act. This Act however contained the same provisions as the Act now before us though the sections were numbered differently. Apparently, the learned Judges were of the view that the words "under this Act" ins. 41 of tke Act before them which corrt"sponds 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 und('r the Act to pass the order in his own right and not as delegate of the 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 this is not at all 1962 1'92 RM JC/uJnd v. Stole of Puajab 550 SUPREME COURT REPORTS [1963] SUPP. determinative. lf the officer does not cease to be an officer because Government had delegated power to him, neither does he cease to be a delegate of the Government because he is an officer. The real question is different. It is whether the order made by the officer was made as a delegate of the Government or in his own right. Then it was pointed out that the order in this case was the order of an officer and not of the Government at all, for if it had been the order of the Government it would have been made in the name of the Governor as required by the rules of the executive business framed under Art. 166 of the Constitution. But it seems to us that the form in which the order wa:i made is immaterial. The order was not in fact made by the Government but by somebody else in exercise of the power which lay vested in the Government alone. We are not aware that such an order has to be in the name of the Governor. The question is, in whose right has an order to be made so that it may be interfered with under s. 42 ? It is of no help in answering that question to consider the form in which the order was made. The learned Advocate-General then said that the words "under the Act" in the section referred to the word "order" only and not to the word "officer" and therefore the order contemplated by i~ may be one made by an officer to whom power was delegated by the Government for that would be an order contemplated by the Act and therefore an order "under the Act". We think that this is a pointless contention. When the Act permits an order to be made, it must at the same time indicate, as the present Act does, who is to make the order. Obviously, a man in the street cannot make an order under the Act. Therefore the question that has arisen in the present case: cannot be . answered simply by r~ I S.C.R. SUPREME COURT REPORTS 551 saying that the words "under the Act" refer to the word "order" alone. It cannot be that an order under the Act can be made by any officer whatsoever. If the contention of the learned Advocate-General was right, then even an order made by the Government itself under s. 21(4) would be liable to interference under s. 42, but as already stated he concedes that this cannot be done. Quite clearly s. 42 does pot contemplate all orders whatsoever made under the Act. The learned Advocate-General further said that when the legislature amended s. 42 by Act 27 of 1960 it had before i( the decision in Lakha Singh's case (') and as it did not expressly provide to the contrary, it must be deemed to have approved of the interpretation put upon the section similar to s. 42 by that case. He referred us to a passage in Ramnandan Prasad Narayan Singh v. Mahanth Kapildeo Ram ( 2 ) 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 unders~ood as saying that such an inference must always be made, we would like to point out that the present is i\ll 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" by necessary implication means that the officer should have exercised power as such and not by virtue of the delegation made by the State Government!' : see (I) A.I.R. (1959) l'wlj. 157. (2) (11161) a.a.R. 138, Ht, 1962 Roop Clo .. i v. Stott •f P,.,joi s.,,.,,,, J. 1962 RM; Oh«na v. Stai. •J Punjc/J Sarksr, J. 552 SUPREME COURT RE.PORTS [1963] SUPP. La~hr.! Singh's case. (1) p. 159. With this view we entirely agree. Furthermore, the present petition was pending in this Court when the Act was amended and the legislature might have thought that it was unnecessary to amend the statute to indicate that the view in Lakha Bingh's case(1) was. wrong forthis Court would correct that error. It was lastly said that it may so happen that an order under s. 21( 4) might give rise to a chain of reactions which can only be coped with by an order made under s. 42. The precise contention is not very. clear to us. This contention appears to have been accepted by Bishan Narain, J., in the judgment on which Lakhr.! Singh's case(') is based where he said, "The changes in allotments in consolidation proceed· ings otten produce a claim (sic) of reactions and affect a number of persons and the rights of parties cannot always be satisfactorily adjusted in an appeal under s. 20(4). In such cases s. 41 is the only provision which can be utilised to achieve this object." Section 41 referred to by the learned Judge corresponds as we have earlier said to s. 42 of our Act. Suppose the position is that in view of the chain reactions started the order made under s. 21(4) was better recalled. Now suppose the order under s. 21(4) is made by the Government itself, then admittedly nothing can be done about it under s. 42 to give effect to any chain reactions. There is no reason to think that if that order happens to be made by an officer to whom Government's powers under s. 21(4) are delegated that should make any difference. The harm, if any in each case would be the same, and there is no reason why the legislature should have provided for a remedy in one case and not in .the other. It might however be reasonably thought that when an appeal is being heard under s. 21(4) either by the Government or by an officer, the authority concerned will before making the order in the appeal consider the chain reactions that the order might cause and then decide not to flt A.LR. 119) l'lm,I. 117, 1 S.C.R. SUPREME COURT REPORTS 553 make the order at all or to make the order and give effect to the chain reactions by interfering under 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 lands spring up uPon possession being delivered of the new allotments as mentioned in these sections. It is not necessary to refer to the provisions of these sections in detail for this, it is agreed, is the substance of them. It may be that possession has not yet been delivered in terms of the Act and, therefore, in a manner of speaking, the petitioner's original right to land has not yet come to an end nor has his new right come into existence. But it is obvious that if the impugned order is allowed to stand, then it is the intention of the respondent State and the respondent Hari Singh to carry it into effect. If the impugned order stands, Hari Singh 1962 Roop Chand v. Stale of Pun}ab SarAar, J. 1962 Roop Chand v. Sta!1 oj Punjab s~·kar, J. Kapur, J. 554 SUPREME COURT REPORTS [1963] SUPP. would be entitled to ask for delivery of possession of the lands given to him under that order and the respondent State would be bound to give him such possession. The petitioner would have no means of opposing yossession being ;o given. l~1:nediately upon s~ch dehv~ry of possession t~1e petitioner's origmal nght to his lands would disappear. Therefore it seems to us that the inevitable result of the order is to affect the petitioner's right to property illegally. It may be that just now the right has not been affected and there is only a threat that it will be affected. But we think that the threat is sufficiently serious and the petitioner is not bound to wait till his right has actually been affected more particularly as it is not disputed that it would inevitably be affected. In the result we would allow the petition and issue a writ quashing the order purported to be made by the Director, Consolidation of Holdings, Punjab on July 21, 1956, · under s. 42 of the Act. The peti· tioner will be entitled to the costs of this petition . .KAPUR, J.-The decision of this case depends upon the construction of two provisions of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, (Punj. 50of 1948), hereinafter termed "the Act"; those provisions are ss. 21(4) and 42. The former section confers on the State Government appellate powers and the latter the power to call for "proceedings" for the purpose of satisfying itself as to the legality and propriety of any order passed under the Act by any officer acting under the Act. The respective submissions of the parties before us are these: according to the petitioner once the power of appeal in regard to an order of the Settlement Officer is exercised 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 1 S.C.R. SUPREME COURT REPORTS 555 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 pro· visions 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 provides for putting all the holdings in a village in hotch·potch evaluating each holding and then repartitioning in accordance with that evaluation with a provision for compensation to equalise the values. Chapter III deals with consolidation of holdings. Under that Chapter first the State Government declares its intention to make a scheme for consolidation of holdings and then a scheme is prepared by the Consolidation Officer after obtaining the advice of the landowners of the state. Under s. 15 the scheme has to provide for compensation. After the scheme is prepared it can be objected to by any landowner and is liable to be amended by the Consolidation Officer and the Settlement Officer who is a higher official. The scheme as finally drafted has to be confirmed by the Settle· ment Officer. After the scheme is prepared and con· firmed and published, the land is put in hotch-potch and repartitioned in accordance with the scheme of consolidation and with the advice of the landowners. 1962 Roop Chand v. Stafr of Punjab /tapur, J. 1962 Roop Chand v. Stal4 oj Punjab Kapur, J, 556 SUPREME COURT REPORTS [1963] SUPP. Here comes the hierarchy of officers who are empowere~ to look into the grievances of any aggrieved person m regard to repartition and that is provided in s. 21 of the Act. An objection can be lodged in the first instance by any person aggrieved by the repartition before the Consolidation Officer and any person aggrieved by the order of the Consolidation Officer can appeal to the Settlement Officer (Consolidation) and if any person is aggrieved by his order he can take the appeal within the time specified to the State Government and there the machinery for appeals stops and subject to that appellate order the order of the Settlement Officer is final. After repartition has been finally sanctioned under the provisions of the Act and has been effected a new record of rights has to be prepared and then if all the land·owners agree to enter into possession in accordance with the scheme of repartition the possession is given to the land owners and if they do not agree to enter into possession then possession is to be taken by the landowners at the commencement of the agricultural year following the date of the publica· tion of the final scheme and they have to be put into physical possession of the holdings and would be entitled to the standing crop on payment of such compensation as may be determined. Under s. 24 as soon as possession is taken in accordance with the provisions of the Act the scheme shall be deemed to have come into force. Provision is then made in regard to encumberances of the landowners and tenants. Provision is also made for apportionment of compensation. Now we shall deal with Chapter V which is headed "General". For the administration of the Acts. 41 empowers the State Government to appoint such p<'rsons 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 l S.C.R. SUPREME COURT REPORTS 557 confers power on the State Government to call for the proceedings i. e. 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 dfrpose of under the Act and under s. 45 no sui l is maintainable in respect of the exercise of any power or discretion conferred by the Act or against any public servant or person duly appointed or authorised under the Act in respect of anything done in good faith or purporting to be done under the Act and s. 4tl is the rule making power. This, in short, is the scheme of the Act. It is to be noticed that the Act provides under s. 42 an over-all control of the State Government at all stages of consolidation proceedings. It is the State Government which has to specify the estate for the purposes of the Act and it has the power to determine and revise at any time the standard areas under s. 5 of the Act. The scheme for consolidation of holdings has Lo )le finally sanctioned by the State Government or by its delegate and after the scheme is sanctioned repartition is to take place so as to allot lands to the people in accordance with the value of their original holdings with such compensation as mav be necessary and if any person is dissatisfied with the repartition he can appeal first to the Consolidation Officer, then to the Settlement Officer and thereafter to the State Government but the appeals are not confined to the person aggrieved by the repartition scheme; any person who may be aggrieved by the order of Consolidation Officer may, under s. 2l(:l) of the Act appeal to the Settlement Officer under s. 2113) 1962 Roop C/umd v. State of Punjab Kapur, J. 1962 !loo; C/iand v. St.11 ef Punjab Kcpur, J. 558 SUPREME COURT REPORTS[l963] SUPP. and any person who is aggrieved by that order, who may not necessarily be the person who started the proceedings , before the Consolidation . Officer can appeal to the State Government. Section 21 reads as follows: "S. 21 (1) The Consolidation Officer shall after obtaining the advice of the landownets of the estate or estates concerned, carry out r«?Partition in accordance with the sclieme of consolidation confinned under section 20, and the boundaries of the holdings as demarcated shall be shown on the shajra which shall be publish· ed in the prescribed manner in the estate or estates concerned. (2) Any person aggrieved by the repartition may file a written obiection within fifteen days of the publication before the Consolidation Officer who shall after hearing the objector pass such orders as he considers proper confinning or modifying the scheme. (3) Any person aggrieved by the order of the Consolidation Officer under sub-section (2) may within one month of that order file an appeal before the Settlement Officer (Con· solidation) who shall after hearing the appellant pm such order as he considers proper." The effect of thiq section is to give a right to every person who is aggrieved by any order i>aaed either at the time of the repartition or by the order of the 1.:onsolidation Officer or by the order of the Settlement Officer to object amt get relief, The reuoo for this 1 S;C.R. SUPREME COURT REPORTS 559 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.