Punjab-Haryana High Court
Gurnam Kaur vs State Of Punjab Etc. on 22 October, 1992
Equivalent citations: (1992)102PLR746
Bench: Ashok Bhan, H.S. Bedi
JUDGMENT A.L. Bahri, J.
1. At the time of admission of the aforesaid writ petition the Division Bench doubted correctness of the decision of the earlier Division Bench rendered in C.W.P. No. 2232 of 1970 (Hardial Singh v. The State of Haryana and Ors., C. W. P. 2232 of 1970), decided on December 24, 1970, and referred the matter to the larger Bench that is how the matter is before the Full Bench for reconsideration of the rule laid down in Hardial Singh's case (supra).
2. The Collector, Agrarian, Nabha, on January 24, 1983, decided surplus area case of Smt. Gurnam Kaur wd/o of Ishar Singh. It was held that she did not have any- surplus area. Annexure P. 1 is the copy of the order An appeal was taken to the Commissioner filed by the Collector of the district (Additional District Collector) through Naib Tehsildar, Agrarian. The commissioner, vide his order dated October 3, 1984 accepted the appeal. Gurnam Kaur petitioner moved the Financial' Commissioner in revision against the order of the Commissioner. The revision was accepted on March 18, 1986 and the case was remanded to the Commissioner. On remand the Commissioner vide his order dated October 27, 1986, recommended to the Financial Commissioner in the exercise of powers of revision to set aside the order of the Collector Annexure P. 1. The Financial Commissioner on May 11, 1987 accepted the recommendation made by the Commissioner and set aside the order of the Collector dated January 24, 1983 and remanded the case to him for deciding the surplus area case of Gurnam Kaur afresh in accordance with law and after taking into consideration relevant entries in the Khasra Girdawaris which throw ample Sight on the aspect of classification of the land in dispute. It is this order of the Financial Commissioner which is impugned by the petitioner in this writ petition.
3. After notice of motion was issued reply was filed on behalf of the respondents by the Collector, Agrarian. It was argued before the Division Bench at the time of admission of the writ petition that in view of the rule of law laid down in Hardial Singh's case (supra), the Financial Commissioner could not legally treat the recommendation of the Commissioner as a revision petition as the Collector of the district through Nalb Tehsildar, Agrarian, was not competent to file the appeal before the Commissioner and secondly the appeal was timebarred. Such an appeal could not be treated as a revision which was not filed by the competent person and hence the same could not be treated as an action taken suo motu for revision of the order of the Collector, Agrarian, dated January 24, 1983 Hardial Singh's case was under the Punjab Co-operative Societies Act. 1951. On a complaint made by one Shiv Sihgh the Managing Committee of the Shahabad Farmers Co operative Marketing cum-Processing Society Ltd , Shahabad Markanda, considered the matter and passed Resolution No. 9 on January 7, 1969 placing Hardial Singh under suspension on charges of shortage of stocks and mis-appropriation of funds. A show cause notice was served upon Hirdial Singh on the report of the Sub-Committee by the Registrar, Co-operative Societies. A reply to the show cause notice was sent and ultimately Hardial Singh was dismissed from service. An appeal was filed under Rule 36 of the Rules framed under the Act which was partly accepted. Hardial Singh was ordered to be re-instated However, a penalty of four increments with cumulative effect was imposed. During the period of suspension which was to be treated on duty Hardial Singh was held entitled to 50% of the pay. Dissatisfied with the aforesaid order the Society filed a petition under Section 9 of the Act which was ultimately heard by the Minister and was allowed. Hardial Singh was reverted to an inferior post This order was challenged in the writ petiton filed by Hardial Singh. The Society also challenged the aforesaid order in a separate Writ petition. It was argued on behalf of Hardial Singh that the order passed by the Minister was without jurisdiction as no revision lay under Section 69 of the Act, After making reference to provision of Section 69 of the Act, it was held as under :.....
"This section gives revisional powers to the State Government in cases where no appeal lies under Section 68 of the Act and the power is exercisable either suo motu or on the application of a party to a reference. There is no dispute that the State Government did not act suo motu but passed the impugned order on the application of the Manager, From the plain reading of this section it is clear that such an application could be filed only by a party to a reference. In the instant case, admittedly there was no question of the reference of any dispute for decision to any authority under the Act. The Society or the Manager were not parties to any such reference. It was a simple case where the petitioner Society took disciplinary action against the Manager (petitioner) who filed an appeal under Rule 36 of the Rules on which the joint Registrar passed an order on 5th March, 1970 (Copy Annexure 'B' to the petition) ... ... ... ... ...
In an effort to support the impugned order, it was contended by Mr. Mittal, learned counsel for the State that the impugned order was not liable to be qushed as it should be deemed to have been passed in exercise of the suo motu powers of the State we are unable to agree with the learned counsel as addmittedly the impugned order has been passed on the revision filed by the Society under Section 69 of the Act.
In the impugned order it is nowhere said that the action was being taken suo motu. If we accept the contention of the learned counsel for the State, then no difference would remain in the action taken by appropriate authority suo motu and the one taken on the application of an aggrieved party. It could never be the intention of legislature to treat both on the same footing. Thus we are of the considered view that no revision lay under Section 69 of the Act to the State Government, against the order of the Joint Registrar dated 5th March, 1970, and that, the impugned order of the Minister is obviously without jurisdiction. The result is that the petition filed by Hardial Singh deserves to be allowed."
The Division Bench in its order dated December 17, 1987 while referring the matter to the Full Bench observed as under :--
"..................it is rare that the revisional authority would come to know of the orders passed by the lower authority of its own. The occasion to exercise the suo motu power can, therefore, arise only when an aggrieved person brings the order to the notice of the authorities. Also, there is nothing in the statute which debars an aggrieved person from moving the revisional authority to invoke its suo motu powers. The moment it is accepted that an aggrieved person can move for invoking the suo motu 'powers of the revisional authority, it would not matter whether it is stated in the order or not that suo motu powers are invoked for passing the order because it is well established that if there is power with the authority, the order passed can always be ascribed to it even though there is no mention that the same is being passed in exercise of that power."
4. We have given due consideration to the respective arguments addressed by the counsel for the parties and we are of the view that Hardial Singh's case does not lay down correct position of law with respect to interpretation of Section 69 of the Co-operative Societies Act which is reproduced as under :-
"69. Revision - The Government may suo motu or on the application of a party to a reference, call for and examine the record of any proceedings in which no appeal lies to the Government under Section 68 for the purpose of satisfying itself as to the legality and propriety of any decision or order passed and if in any case it shall appear to the Government that any such decision or order should be modified, annulled or revised, the Government may pass such order thereon as it may deem fit."
5. The revisional power as contemplated under Section 69 of the Co-operative Societies Act or any other statute generally is to send for the records of the case pending or decided by the Subordinate Authorities to examine the same and to pass appropriate orders modifying, annulling or reversing the same. Such power can be exercised when the Revising Authority come; to know about, the legality or propriety of passing such orders. Farther, this knowledge can be acquired either at the instance of the Revising Authority itself or at the instance of aggrieved or interested party. The opening word of Section 69 reproduced above with respect to "suo motu" or "on application of the parties to the reference" arc explanatory in nature. They are neither superfluous nor redundant. Even in the absence of phraseology used the remaining context of the provision referred to above still would clothe the Revisional Authority to exercise the power as would be seen from such like provisions in different statutes, reference to which would be made later. It is immaterial when revisional power is exercised as to whether, the action was initiated at the instance of interested party or suo motu. The order passed would be within jurisdiction. This exercise of powers is not dependent on the action of the party concerned. The view expressed in Hardial Singh's case (supra) that since action was not initiated by the competent party concerned the same could not be treated valid exercise of jurisdiction under Section 69 of the Act, reproduced above, is not tenable in law. Even if the action was taken by a party who was not aggrieved, in other words not a person competent, the exercise of powers in modifying, annulling or revising the order of the subordinate authority will not be without jurisdiction. The Supreme Court in Everest Apartments Co-operative Housing Society Ltd., Bombay v. State of Maharashtra, A.I.R. 1996 S.C. 1449, considered the scope of Section 154 of the Maharashtra Co-operative Societies Act, I960, which reads as under :-
"154. Power of State Government and Registrar to call for proceedings of subordinate officer and to pass orders thereon.-The State Government and the Registrar may call for and examine the record of any inquiry or the proceedings of any other matter of any officer subordinate to them, except those referred to in sub-s. (9) of Section 149 for the purpose of satisfying themselves as to the legality or propriety of any decision or order passed, and as to the regularity of the proceedings of such officer. If in any case, it appears to the State Government, or the Registrar, that any decision or order proceedings so called for should be modified, annulled or reversed, the State Government or the Registrar, as the case may be, may after giving persons affected thereby an opportunity of being heard pass such order thereon as to it or him may seem just."
In para 5 of the judgment it was observed as under :-
"There is no doubt that Section 154 is potential but not compulsive. Power is reposed in Government to intervene to do justice when occasion demands it and of the occasion for its exercise, Government is made the sole judge."
... ... ... ... ... ... ... It was further observed :-
'It is, of course, true that the words "on an application of a party" which occur in Section 150 of the Act and in similar enactments in other Acts, are also not to be found. But that does not mean that a party is prohibited from moving Government. As Government is not compelled to take action, unless it thinks fit, the party who moves Government cannot claim that he has a right of appeal or revision. On the other hand, Government should welcome such applications because they draw the attention of Government to cases in some of which, Government may be interested to intervene. In many statutes, as for example the two major procedural Codes, such language has not only not inhibited the making of applications to the High Court, but has been considered to give a right to obtain intervention, although the mere making of the application has not clothed a party with any rights beyond bringing a matter to the notice of the Court. After this is done it is for the Court to consider whether to act or not. The extreme position does not obtain here because there is no right to interference in the same way as in a judicial proceeding. Government may act or may not act; the choice is of Government. There is no right to relief as in an appeal or revision under the two Codes. But to say that Government has no jurisdiction at all in the matter is to err. and that is what Government did in this case."
6. The Privy Council in the Commissioner of Income Tax, West Punjab v. The Tribune Trust, Lahore, (1948) 16 I. T. R. 214 (P. C.), considered the scope of Section 33 of the Income-tax Act, 1922 which also provided for exercise of revisional jurisdiction by the Commissioner of his own motion. It was observed as under :-
"It is possible that there might be a context in which words so inapt for that purpose would create a duty But in the present case there is no such context. On the contrary Section 33 follows upon a number of sections which determine the rights of the assessee and is itself, as its language clearly indicates, intended to provide administrative machinery by which a higher executive officer may review the acts of his subordinates and take the necessary action upon such review, It appears that as a matter of convenience a practice has grown up under which the Commissioner has been invited to act 'of his own motion' under the section and where this occurs a certain degree of formality lias been adopted. But the language of the section does not support the contention, which lies at the root of the third question and is vital to the respondent's case, that it affords a claim to relief."
7. From perusal of the judgments referred to above; one of the Supreme Court in Everest Apartments' case (supra) and that of the Privy Council in the Tribune Trust's case (supra), it is quite clear that action to exercise rcvisional jurisdiction could be initiated either by the party concerned or by the authority of his own. Even if the party concerned moves the revisional authority, it is left to the revisional authority to examine the records and then to pass the appropriate order. Similar course could be adopted even if the matter had come to the notice of the revisional authority otherwise. The aforesaid two cases were noticed subsequently in The Amritsar Central Co-operative Bank Ltd, Amritsar v. The State of Punjab, 1971 P. L. J. 572, by the Single Judge of this Court and the Judge found himself bound by the ratio of the decision in Hardial Singh's case (supra).
8. The present is a case under the Punjab Land Reforms Act, 1972 and in view of Section 18 of the Act the provisions in regard to appeal, review and revision, under this Act are the same as provided under Sections 80, 81, 82, 83 and 84 of the Punjab Tenancy Act. Section 84 provides for revisional jurisdiction and reads as under : -
"84. Power to call for, examine and revise proceedings of Revenue Officers or Revenue Courts : -(1) The Financial Commissioner may at any time call for the record of any case pending before, or disposed of by any Revenue Officer or Revenue Court subordinate to him;
(2) A Commissioner or Collector may call for the record of any case pending before, or disposed of by any Revenue Officer or Revenue Court under his control ;
(3) If in any case in which a Commissioner or Collector has called for a record he is of opinion that the proceedings taken or the order or decree made should be modified or reversed, he shall submit the record with his opinion on the case for the orders of the Financial Commissioner ;
(4) If after examining a record called for by himself under Sub-section (1) or submitted to him under Sub-section (3), the Financial Commissioner is of opinion that it is in-expedient to interfere with the proceedings of the order of decree, he shall pass an order accordingly ;
(5) If after examining the record, the Financial Commissioner is of opinion that it is expedient to interfere with the proceeding on the order or decree on any ground on which the High Court in the exercise of its revisional jurisdiction may under the law for the time being in force interfere with the proceedings or an order or decree of a Civil Court, he shall fix a day for hearing the case, and may on that or any subsequent day to which he may adjourn the hearing or which he may appoint in this behalf, pass such order as the things fit in the case ;
(6) Except when the Financial Commissioner fixes under Sub section (5) a day for hearing the case, no party has any right to be heard before the Financial Commissioner when exercising his powers under this section."
9. A perusal of Section 84 reproduced above would show that in two contingencies revisional jurisdiction could be exercised by the Financial Commissioner. Under Subsection (1) of Section 84 the Financial Commissioner could himself call for the records of any case pending or disposed of by any of the Revenue Officers or Courts subordinate to him. Under Sub-section (2) of Section 84 similar power is given to the Commissioner. Sub-section (3) of Section 84 further provides that Commissioner by going through such records, if comes to the opinion that the order of the Subordinate Revenue Officer or Court, required modification or reversal, then he was to submit the records with his opinion for the orders of the Financial Commissioner. Under Sub-section (4) of Section 34 the Financial Commissioner is given the revisional power in both contingencies i.e. (1) where he himself had called for the records of the Subordinate Revenue Officer or Court and (2) on receipt of recommendation of the Commissioner and to pass appropriate orders after affording opportunity of hearing as required under Sub-section (5) of Section 84. The aforesaid provision does not specifically mention that such powers could be exercised by the Commissioner or by the Financial Commissioner suo motu or at the instance of the interested or the aggrieved parties. In the absence of use of such phraseology, it cannot be said that the Financial Commissioner or the Commissioner could not act under the provision aforesaid. Rather the statute is to be interpreted in such a manner that it fulfils the object for which the same is framed As and when the Financial Commissioner acts under Section 84 referred to above, he would be acting in the exercise of revisional jurisdiction. It would be immaterial whether he was moved by the department or by any person uninterested, interested or aggrieved. The fact cannot be lost sight of that the object of the Act providing for determination of surplus area is a social legislation as such and surplus area is to be utilised for rehabilitating the tenants or landless persons. As and when the case of declaration of surplus area of a land owner is decided, if the land owner feels aggrieved, obviously, he can go in appeal or revision If the State is aggrieved, or the matter otherwise comes to the knowledge of the authorities that the order passed in the case of declaration of surplus area was either illegal or against the provisions of the Act such authorities could bring the matter to the notice of the revisional authorities for passing appropriate orders as required under the Act. In considering an extreme case as an illustration that when a landlord after getting entries in the revenue records fabricated or otherwise in collision with the authority under the Act succeeds in getting an order declaring that there was no surplus area with him, obviously such an owner is not expected to move in appeal or revision Likewise the officer who had passed the order may also be not interested. If ultimately his successor or any other authority under the Act comes to know of the illegality of the order so passed it could not be said in such circumstances that such an illegal order could not be corrected to bring it in accordance with law. In that sense the procedural provisions prescribed under the Act are to be so interpreted that the object of the Act is achieved. Revisional powers are as provided in the statute referred to above in the nature of inherent powers for passing appropriate legal orders contemplated by the statute and if any error had been committed by the subordinate authorities in passing orders under the Act to correct the same.
10. As would be seen from the facts of the present case that an appeal was filed before the Commissioner by the CoHector of the District through Naib Tehsildar, Agrarian, against an order of the Collector, Agrarian. After remand of the case the Commissioner did not decide the appeal as such but came to the opinion that the order of the Collector, Agrarian, was illegal and required modification that he referred the case to the Financial Commissioner in exercise of revisional jurisdiction. The contention of S. Sarjit Singh, Sr. Advocate, appearing on behalf of the petitioner that the appeal was incompetent as not having been filed by a proper person or the same was time barred needs no consideration for the simple reason that the Commissioner as well as the Financial Commissioner exercised revisional jurisdiction under Section 84 of the Punjab Tenancy Act, referred to above. The action of the Commissioner or the Financial Commissioner ultimately reversing the order of the Collector, Agrarian, cannot be held to be without jurisdiction. The Financial Commissioner was well within his rights when a case was referred by the Commissioner to decide the revision. The appeal filed before the Commissioner was not sine quo non for action to be taken in the exercise of revisional jurisdiction. It is immaterial how the matter came before the Commissioner that he decided to refer the matter to the Financial' Commissioner to take action under the revisional jurisdiction and to quash or modify order of the Collector, Agrarian. The order of the Financial Commissioner passed in the present case thus cannot be questioned for want of jurisdiction on the basis of the decision of the Division Bench in Hardial Singh's case. .
11. To conclude, it is held that the decision in Hardial Singh's case does not lay down the law correctly, in the exercise of revisional jurisdiction it would be imtniterial as to whether action was taken suo motu or at the instance of aggrieved or concerned party. If the revisional authority comes to the conclusion after going through the records of the case pending or decided by the subordinate authority that such order needed modification or annullment and hence modifies or annuls such an order and passes appropriate order, the same would be within jurisdiction.
For decision of the writ petition on merits the matter will be listed before the Single Judge.