Case: Roop Chand Vs. State of Punjab &amp; Another

This petition under Art. 32 of the Constitution asks for a writ quashing an order purported to have been made under s. 42 ofthe East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act,. It is said that the order was entirely without jurisdiction and if allowed to stand, it would deprive the petitioner of certain lands and so wrongfully affect his fundamental rights under Part III of the Constitution.

Reasoning:
We think that this is the correct position, and we wish to make it clear that we are not basing ourselves on the concession made by the learned Advocate- General. We feel no doubt that an order passed by an officer of the Government cannot be an order passed by the Government itself.The question then arises, when the Government delegates its power, 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 GovernmentAn agent of course exercises no powers of his own but only the powers of his principal. Therefore, an order passed by an officer on delegation to him under s. 41 (1) of the power of the Government under s. 21 (4), is for the purposes of the Act an order of the Government. If it were not so and it were to be held that the order had been made by the officer himself and was not an order of the Government-and of course it had to be one or the other-then we would have an order made by a person on whom the Act did not confer any power to make it. That would be an impossible situation. There can be no order except as authorised by the Act. What is true of s. 21 (4) would be true of all other provisions in the Act conferring powers on the Government which can be delegated to an officer under s. 41 (1). If we are wrong in the view that we have taken, then in the case of an order made by an officer as delegate of the Governments power under s. 21 (4) we would have an appeal entertained to and decided by one who had no power himself under the Act to do either. Plainly, none of these things could be done.Again, if an order passed by an officer to whom a power had been delegated by the Government under s. 41(1) was an order passed by the officer then an order made by an officer to whom power under s. 42 had been delegated would be an order by an officer within the meaning of s. 42. That order would then be liable to be interfered with by the Government under s. 42 and if such interference is again not by the Government itself but by another officer as its delegate, then in that way the process of interference might be repeated for ever. Obviously an interpretation leading to such, a; result cannot be correct. It is of some interest to point out here that in the present case the order tinder s. 42, that is, the impugned order had not been made by the Government itself but by the Director, Consolidation of Hol- dings, to whom the Governments power under that section had been delegatedWe will assume that power can be exercised in respect of the same order only once. But even so it seems to us that if the order by a delegate officer is an order within s. 42, then the power under that section 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 Governments 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 respect of the same matter.We think there are other reasons leading to the view that the order contemplated by s. 42 is an order made by an officer in his own right. The words "The State Government may...... call for and examine the record of any case pending before or disposed of by such officer" in the section clearly indicate that the records are not in the possession of the Government but are in the possession of somebody else in his own right and therefore it is that the Government is given power to "call for" those records. It would not be necessary to give the Government expressly the power to call for records if the records were with the Governments delegate, for such delegate would be even without such express power, within the control of the Government. The records with the delegate would really be records in the possession of the Government. Furthermore, the expression "call for" the records is one familiar to courts of law. It occurs in s. 115 of theCode of Civil Procedurewhere a superior court which therefore, is a different court, is given the power to call for the records of a subordinate court. It may reasonably be presumed that by using the familiar words " call for" the records, the legislature indicated that the officer whose order was to be interfered with under s. 42 was an officer exercising independent powers and therefore a subordinate officer and not an officer exercising powers delegated by the GovernmentWe 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 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 not contemplate all orders whatsoever made under the ActThis 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 petitioners 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 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 possession being so given. Immediately upon such delivery of possession the petitioners original right to his lands would disappear. Therefore it seems to us/that the inevitable result of the order is to affect the petitioners 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 petitioner will be entitled to the costs of this petition.