C.W.P.No.18953 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.18953 of 2009 Date of Decision : December 18, 2009 Shubhinder Singh Brar and another ...Petitioners Versus High Court of Punjab and Haryana and others ...Respondents CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE JORA SINGH Present: Mr. K.S.Bhullar, Advocate, for the petitioners. HEMANT GUPTA, J. The petitioners have sought quashing of notifications dated 28.11.1995 (Annexure P-1) and 1.11.1998 (Annexure P-2) issued by the Punjab and Haryana High Court in exercise of powers vested under Section 30 of the Punjab Courts Act, 1918, conferring powers upon Civil Judges (Senior Division) and Addl. Civil Judges (Senior Division), in respect of the proceedings under the Indian Succession Act, 1865 and Probate and Administration Act, 1881. The short argument raised by the learned counsel for the petitioners is that the Indian Succession Act, 1865 was repealed with the enactment of the Indian Succession Act, 1925 (for short '1925 Act'). Section 392 of 1925 Act repealed the enactments mentioned in Schedule IX to the extent specified in the 3rd column thereof. As per Schedule IX, Indian Succession Act, 1865 and the Probate and Administration Act, 1881 were repealed so much as has not been already repealed. Subsequently, Section 392 was repealed by Act No.XII of 1927. It is, thus, argued that the publication of notifications by this Court to empower subordinate Judicial Officers to exercise jurisdiction in respect C.W.P.No.18953 of 2009 2 of repealed Statutes i.e. Indian Succession Act, 1865 and Probate and Administration Act, 1881, is illegal. Section 30 of the Punjab Courts Act, 1918 reads as under : "30. Exercise by Civil Judges (Senior Division) and Civil Judges (Junior Division) of jurisdiction of District Court in certain proceedings – (1) The High Court may be general or special authorize any Civil Judges (Senior Division) and Civil Judges (Junior Division), to take cognizance of, or any District Judge to transfer to a Civil Judges (Senior Division) and Civil Judges (Junior Division) under his control, any of the proceedings next hereinafter mentioned or any class of those proceedings specified in such order. (2) The proceedings referred to in sub-section (1) are the following namely :- X of 1865 (a) Proceedings under the Indian Succession Act, 1865 and the Probate and Administration Act, 1881 which cannot disposed of by the District Judge." The notifications Annexures P-1 and P-2 have been issued by this Court in exercise of powers conferred by Section 30 of the Punjab Courts Act, 1918. The powers conferred on this Court for authorizing Civil Judges (Senior Division) and Civil Judges (Junior Division) are in respect of proceedings under the Indian Succession Act, 1865 and Probate and Administration Act, 1881. Therefore, though the aforesaid Statutes have been repealed, but the notifications will be deemed to be in terms of the existing Statutes i.e. Indian Succession Act, 1925. It is well settled that where a source of power exists, the exercise of such power is referable only to that source and not to some other source. Even mention of wrong provision or the omission to mention provision which contains the source of power will not invalidate C.W.P.No.18953 of 2009 3 an order where source of such power exists. In P. Balakotaiah Vs. Union of India AIR 1958 SC 232, the Constitution Bench of Hon'ble Supreme Court has held to the following effect : "9. It is argued that when an authority passes an order which is within its competence, it cannot fail merely because it purports to be made under a wrong provision if it can be shown to be within its powers under any other rule, and that the validity of an order should be judged on a consideration of its substance and not its form. No exception can be taken to this proposition..." Later in Lekhraj Sathramdas Lalvani Vs. N.M.Shah, Deputy Custodian-cum-Managing Officer AIR 1966 SC 334, reiterated the same principle holding that : "It is well established that when an authority passes an order which is within its competence, it cannot fail merely because it purports to be made under a wrong provisions if it can be shown to be within its power under any other rule, and the validity of the impugned order should be judged on a consideration of its substance and not of its form. The principle is that we must ascribe the act of a public servant to an actual existing authority under which it would have validity rather than to one under which it would be void. We, therefore, reject the argument of the appellant on this aspect of the case." The Constitution Bench in Union of India and another Vs. Tulsiram Patel AIR 1985 Supreme Court 1416, has held that : "126. ......The omission to mention in the impugned orders the relevant clause of the second proviso or the relevant service rule will not, therefore, have the effect of invalidating the orders and the orders must be read as having been made under the applicable clause of the second proviso to Article 311(2) read with the relevant service rule....." C.W.P.No.18953 of 2009 4 In K.K.Parmar Vs. H.C. Of Gujarat, (2006) 5 SCC 789, the Hon'ble Supreme Court has held that : "21. The superior court exercising its power of judicial review is not concerned as to whether a wrong provision of law has been taken recourse to, but is only concerned with the question as to whether the authority passing the order had the requisite jurisdiction under the law to do so or not. In the event, it is found that the impugned order is not ultra vires or illegal or without jurisdiction, the same would not be interfered with only because it at one point of time proceeded on a wrong premise. A jurisidictional question, in our opinion, can always be permitted to be raised. We, therefore, do not find any substance in the said contention of Mr. Kapur." Thus, it is the well-settled principle that mentioning of wrong provision of law does not vitiate the order passed. Therefore, even though Indian Succession Act, 1865 and the Probate and Administration Act, 1881 have been repealed, but the said notifications shall be deemed to be in respect of Indian Succession Act, 1925 alone. As a matter of fact, it cannot be strictly called mistake in the notifications, as the Punjab Courts Act, 1918, still recites Indian Succession Act, 1865 and the Probate and Administration Act, 1881. Therefore, omission to mention Indian Succession Act, 1925 in the notifications, is wholly inconsequential. In view of the above, we do not find any merit in the present writ petition. The same is dismissed. (HEMANT GUPTA) JUDGE December 18, 2009 (JORA SINGH) Vimal JUDGE