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Judgment
R.S. Narula, J.—These five petitions (Nos. 227 and 3493 to 3496 of 1968) under Articles 226 and 227 of the Constitution of India raise questions as to the correct interpretation and true scope of Sub-section (4) of Section 6 of the Manoeuvres, Field Firing and Artillery Practice Act (5 of 1938) (hereinafter called the Act), and of Rule 16 of the Punjab Manoeuvres, Field Firing and Artillery Practice Rules, 1957, framed u/s 13 of the Act. Except for one extra ground which has been pressed in Civil Writ 227 of 1968, both the other grounds are common to all these five cases. All these five petitions have been filed by Colonel His Highness Raja Sir Harinder Singh. Except tor the difference in the description and location of the property, the difference in the particulars of the Army Battalions, and the differences in the relevant dates, there is no other material distinction between any of these cases Learned Counsel for both parties were, therefore, agreed that my decision in this case (Civil Writ 227 of 1968) would seal the fate of the other four cases also so far as the first two points are concerned, though the third point, as already stated, arises in this case alone and does not arise in the other cases. I, therefore, propose to dispose of all these five writ petitions by this common judgment wherein the facts of only the first case are stated
On February 9, 1967, during the course of field firing by a particular battalion of the Indian Army, a forest fire was caused by the explosion of army shells in that para of Bir Ghugiana, tahsil Faridkot, district Bhatinda, which belongs to the Petitioner. The Petitioner''s land on which the manoeuvres were being conducted was within the area which had been duly specified by the State Government u/s 2 of the Act. On February 10, 1967, the Petitioner submitted to the Revenue Officer of the Field Firing Bir Ghugiana, his claim u/s 6 of the Act for the loss caused to him by the said fire Annexure ''A'' to the writ petition is a copy of the claim. Shri Joginder Singh Sandhu Respondent No. 8 who was the Circle Revenue Officer incharge of the Field Firing, Bir Ghugiana, investigated the claim single-handed and gave his award [copy Annexure ''B''), dated April 18. 1937, in favour of the Petitioner for a sum of Rs. 11,217/-. Not satisfied with the award, the Petitioner gave notice, dated April 28, 1967, of his intention to appeal against the same under Sub-section (3) of Section 6 of the Act within the prescribed time. Shri R.C. Kapila, Collector, Bhatinda district, who is Respondent No. 4 in this case, constituted a commission under Sub-section (4) of Section 6 of the Act consisting of (i) himself as the Chairman, (ii) Lieut. M.L. Purohit, Respondent No. 5, a person nominated by the Officer Commanding the forces engaged in the manoeuvres, i.e., nominated by Respondent No. 2, and (iii) and (iv) Shri Sukhdev Singh Dhillon, Chairman; Zila Parishad, Bhatinda, and Shri Mukhtiar Singh, Respondents Nos. 6 and 7 respectively, as the two persons nominated by the Zila Parishad, Bhatinda, for deciding the Petitioner''s appeal. Before the final disposal of the appeal, an objection was taken on * behalf of the Petitioner to the inclusion of Shri Mukhtiar Singh in the commission as a result of which Respondent No. 7 (Mukhtiar Singh) wrote to Respondent No. 4 (Collector/Deputy Commissioner) a letter (copy Annexure ''E'' to the petition) that he wanted to withdraw his name from the commission in view of the objection to his nomination taken by the Advocate for the Petitioner (though he described the objection as being baseless), as he stood for impartiality and did not want any person to feel aggrieved without reason. Thereafter Respondent No. 7 did not take part in the proceedings of the commission which inspected the spot and finally dismissed the appeal by its order dated August 17, 1967 (Annexure ''F''). The appellate order was signed by the Collector (Respondent No. 4), the Army representative (Respondent No, 5) and by the Chairman of the Zila Parishad (Respondent No. 6), but was not signed by Mukhtiar Singh Respondent No. 7. On January 2. 1968, this writ petition was filed for having quashed the appellate order of the commission, date August 17, 1967, and for issuing a direction for rehearing and fresh disposal of the Petitioner''s appeal preferred under Sub-section (3) of Section 6 of the Act "by a lawfully constituted commission in a lawful manner".
The writ petition has been contested on behalf of the State. As the Petitioner has at the hearing of these cases confined himself to two conmon questions in all the petitions and one additional point in Civil Writ 227 of 196S, only that part of the written statement of the Respondents is being referred to by me which is relevant for deciding those contentions. In the Collector''s return it has been admitted that no respectable resident of the locality was associated by Respondent No. 8, the Circle Revenue Officer, in the proceedings for assessment of compensation though such a requirement is provided for in Rule 16 of the l957 Rules. It has, however, been contended that the Petitioner neither took any objection to that effect before the Circle Revenue Officer though the Petitioner was throughout represented before him, nor the Petitioner made any point out of this lapse in his grounds of appeal to the commission. It has been added that the Petitioner was given full opportunity to substantiate his claim. In reply to the allegation of the Petitioner about Respondents Nos. 6 and 7 not having been nominated by the Zila Parishad, Bhatinda, it has been stated by the Collector in his affidavit that Respondents. Nos. 6 and 7 were nominated by the said Zila Parishad. Regardeing the complaint about Mukhtiar Singh Respondent No. 7 not having taken part in the proceedings after he dropped out of the commission, the Collector has stated as below:-
"The Petitioner raised a written objection against the inclusion of Respondent No. 7 as member of the commission on the ground that (Respondent No. 7) being a brother of ex-employee of Petitioner''s estate and that the same ex-employee was dismissed. On this objection Respondent No. 7 withdrew from the membership." It has also been admitted that no other person was appointed on the commission in place of Respondent No. 7 Lieut. Raghvendra Singh his fired a separate affidavit, dated August 24, 1968, on behalf of the Army authorities (Respondent No. 5) on similar lines.
All points other than the following three (which have been mentioned in these writ petitions) have been expressly given up by Mr. K.C. Puri, the learned Counsel for the Petitioner:-
(i) The award of Respondent No. 8 was without Jurisdiction as it had been made by the Circle Revenue Officer without associating with him two assessors required under Rule 16 of the 1937 Rules;
(ii) The appellate commission was not properly constituted in accordance with the provisions of Section 6(4) of the Act, in as much as Respondents Nos. 6 and 7 had not been, nominated on it by the Zila Parished, Bhatinda, by any resolution passed by that Parishad; and
(iii) The appellate decision of the commission was illegal and without authority as no member had been appointed on the commission in place of Mukhtiar Singh Respondent No. 7 after he had withdrawn from the same. The commission could not legally carry on its functions after Mukhtiar Singh had ceased to be its member till any other nominee of the Zila Parishad had been appointed on the commission.
As already indicated, the third point arises only in Civil Writ 227 of 1968, and in no other case.
In order to appreciate the above mentioned contention of Mr. K.C. Puri, it is necessary to set out at this stage some of the relevant provisions of the Act and the rules framed there under. Section 2 of the Act empowers the State Government to authorise the execution of military manoeuvres over any area specified in a notification during a specified period. Section 4 requires the Officer Commanding of the military forcee engaged in the manceuvres to cause all lands used under the powers conferred by Chapter I of the Act to be restored, as soon and as far as parcticable, to their previous condition Section 5 makes the Government liable to pay compensation from the Cefence Estimates for any damage to person or property or interference with right or privileges arising from such manoeuvres. Section 6 contains the method of assessment of compensation and has to be quoted verbatim. The provision reads:-
(1) The collector of the district in which any area utilised for the purpose of manoeuvres is situated shall depute one or more Revenue Officers to accompany the forces engaged in the manoeuvres for the purpose of determining the amount of any compensation payable u/s 5.
(2) The Revenue Officer shall consider all claims for compensation u/s 5 and determine on local investigation and where possible after hearing the claimant, the amount of compensation, if any, which shall be awarded in each case; and shall disburse on the spot to (he claimant the compensation so determined as pavable.
(3) Any claimant, dissatisfied with a refusal of the Revenue Officer to award him compensation or with the amount of compensation awarded to him by the Revenue Officer, may, at any time within fifteen days from the communication to him of the decision of the Revenue Officer, give notice to the Revenue Officer of his intention to appeal against the decision.
(4) Where any such notice has been given, the Collector of the district shall constitute, a commission consisting of himself as chairman, a person nominated by the Officer Commanding the forces engaged in the manoeuvres and two persons nominated by the District Board, and the commission shall decide all appeals of which notice has been given.
The commission may exercise its powers notwithstanding the absence of any member of the commission, and the chairman of the commission shall have a casting vote in the case of an equal division of opinion.
(6) The decision of the commission shall be final and no suit shall lie any Civil Court in respect of any matter decided by the commission.
(7) No fee shall be charged in connection with any claim notice, appeal application or document filed before the Revenue Officer, Collector or the commission under this section.
Section 13 authorieses the State Government to make rules, inter alia, for lor regulating the procedure of the Revenue Officer and commission referred to in Section 6.
In exercise of the powers conferred by Section 13, the Punjab Government framed the Punjab Manoeuvres Field Firing and Artillery Practice Rules, 1957, which were subsequently amended from time time. Rule 6 requires the Revenue Officer to inspect the notified area accompanied by two respectable residents of the locality notified and a person nominated by the Officer Commanding, and prepare a record of the condition of the land and the alterations that are likely to be made on it tor the purposes of the operations on receipt of intimation of the Government u/s 2. Rule 12 states that on the conclusion of operations, the Officer Commanding shall notify to the Revenue Officer that he has restored the lands to their previous condition as far as practicable ; where upon the Revenue Officer shall inspect the land with the two respectable residents who accompanied him in the first inspection under Rule 6, or it their presence cannot be secured due to death, ill-health or any other reason, with two other respectable residents of the locality notified and record his remarks as to the extent to which each land which has not been restored to its previoues condition has suffered damage. Rules 16 and 17 read as follows:-
In deciding the amount of compensation to be awarded the Revenue Officer shall take the assistance of the two respectable residents of the locality who accompanied him in his inspections under rules 6 and 12 and these shall act as assessors. The Revenue Officer shall record and take into consideration the opinions expressed by the assessors on the points at issue in each case but he shall not be bound to accept them.
If any of the persons selected as an assessor-
(a) is not available, or
(b) is a claimant, or
(c) is personally interested in a claim, or
(d) is unwilling to act,
the Revenue Officer shall appoint another person in his place for dealing with that claim.
None of the other provisions of the Act or the rules is relevant for our purposes.
In support of his first point Mr. Puri referred to the judgment of a Division Bench of the Allahabad High Court (Bennet and Harries, JJ.) in Secretary of State v. Mt. Nuran Bibi,1 where the High Court allowed the appeal of the claimant against an award made under the U.P. Town Improvement Act (8 of 1919) on the ground that one of the assessors comprising the Tribunal constituted u/s 59(6) of the U.P. Act had been absent when the evidence was being recorded, and, therefore, the Tribunal had ceased to have jurisdiction to make an award. As to the State''s plea regarding this objection not having been raised before the Circle Revenue Officer or even in appeal, Mr. Puri invited my attention to the authoritative pronouncement of their Lordships of the Supreme Court in the United Commercial Bank Ltd. v. Their Workmen,2. In that case it was held that since one of the Industrial Tribunal had not taken part in the proceedings of the Tribunal, the award made by the remaining two members had to be set aside, as the remaining two members were not a duly constituted Tribunal, and the duty to work and decide was the joint responsibility of all the three members who originally constituted the Tribunal. In that connection it was held that the matter was one of absence of jurisdiction and not a mere irregularity in the conduct of proceedings, and the defect could not be cured by acquiescence or estoppel. Support was also sought from cretain observations of S. R. Das, J. in the State of Punjab v. Ajaib Singh3. In that case it was held that a Tribunal constituted u/s 6 of the Abducted Persons (Recovery and Restoration) Act (1949) to decide the question of restoration of an abducted woman was not properly constituted, and its decision was, therefore, without jurisdiction.
After carefully considering all the submissions made by Mr. Puri this behalf, 1 am unable to annul or quash the award of the Circle Revenue Officer for the following reasons: -
Unlike a Tribunal consisting of more than one members wherein responsibility of acting or deciding is joint of all the members, Rule 16 merely provides for association of two specified assessors with the Circle Revenue Officer. The rule leaves it open to the Circle Revenue Officer to completely discard their opinion. It appears that the association of assessors is provided in that rule for assisting the Circle Revenue Officer to come to an appropriate decision and not for taking part in the decision itself. The authority entitled to make an award under that rule is the Circle Revenue Officer and not a Tribunal consisting of the Officer and the two assessors. Secondly, it may indeed be true that in a civil suit, a litigant may be entitled to succeed by showing that the award under appeal had been made by an irregularly constituted or an incomplete Tribunal (even if it could be held that the award under Rule 16 had to be made by the Revenue Officer had the assessors together) in spite of no objection to the jurisdiction of the Tribunal having been taken before it or even in an appeal against it. But the High Court in exercise of its jurisdiction under Article 223 of the Constitution would be well within its bounds to refuse, in the exercise of its discretion under that provision, to interfere with an award or an appellate order on a ground like this, which does not go to the extent of showing want of inherent jurisdiction in the Tribunal, on the short ground that the writ petition having set on the fence, and not having raised the objection before the Tribunal or the Appellante authority, would not be permitted to attack the same for the first time in writ proceedings. Thirdly, it is significant that not only was the first objection not raised before the Circle Revenue Officer who had associated the Petitioner with him in the proceedings under rule 16 but it was not mentioned before the appellate commission. Even in the specific prayer made in the writ petition itself, it is only the appellate order which has been desired to be quashed, and the direction sought is not against the Revenue Officer to make a fresh award, but only to the appellate authority to redecide the Petitioner''s appeal in accordance with law. For all these reasons, I decline to entertain this objection of the Petitioner against the award of the revenue Officer. Even otherwise, I am inclined to hold that the award made by the Revenue Officer under Rule 16 without associating the assessors with him is neither a nullity which the Petitioner can ignore, nor is it an award by an authority lacking inherent jurisdiction to make the same.
I am also unable to find any force in the second contention of Mr. Puri. This argument is based on a question of fact. The question is whether Respondents Nos. 6 and 7 had in fact been nominated by Zila Parshad or not. The assertion of the Petitioner in that respect has been specifically denied by the Collector in his affidavit. Mr. Puri contended that his specific allegation about no resolution having been passed by the Zila Parshad nominating Respondents Nos. 6 and 7 on its behalf to sit on the commission, has not been denied by the Respondents. In the nature of things, Respondents Nos. 1 to 5 and 8 could not have known about the manner in which Respondents No. 6 and 7 had been nominated by the Zila Parishad. The Zila Parishad itself has not been impleaded as a Respondent in the case. The Petitioner could have shown by summoning the relevant records of the Zila Parishad or of the Collector as to the manner in which Respondents Nos. 6 and 7 had been nominated on the commission. This has not been done. The burden of proving an infirmity of this type lies on the Petitioner which he has not discharged. Moreover, Mr. Puri has not been able to point out to me any provision in the Punjab Panchayat Samitis and Zila Parishads. Act (3 of 1961) which requires the Zila Parishads which have taken the place of District Boards u/s 118 of the 1961 Act, to function only by passing resolutions in their meetings. Official acts are normally presumed to have been done properly and in the absence of definite evidence to the contrary, I am unable to hold on the record of this case that Respondents Nos. 6 and 7 had not been properly nominated by the Zila Parishad Bhatinda, on the appellate commission. In this view of the matter, the factual basis of the second contention of Mr. Puri is non-existent in these cases.
The decision on the above said two points disposes of all the four cases except Civil Writ 227 of 1968. The third objection which is peculiar to this fifth case is also, in my opinion, without merit. Mukhtiar Singh retired from the commission almost under protest, to give way to the written objection of the Petitioner himself. Non-participation by him in the proceedings of the commission after his retirement therefrom did not, in my opinion, vitiate the appellate award because of the specific safeguard contained in Section 6(5) of the Act. The provision has already been quoted in an earlier part of this judgment. It specially authorises the commission to exercise its powers notwithstanding the absence of any member of the commission. No specific provision in the Act or the riles provides for a member being permitted to be absent from the proceedings of the commission on any particular ground. Once Respondent No. 7 had been duly nominated on the commission, his absence from the proceedings after his letter Annexure ''E'' does not, in my opinion, amount to anything more than his absence from the proceedings. Mr. Puri referred to a Division Bench judgment of Andhra Pradesh High Court in J. Ramamurthy Naidu v. State of Andhra Pradesh4. In that case punishment of suspension of a permit issued under the Motor Vehicles Act (1939) was imposed only by two of the members of the Regional Transport Authority, and it was held in a writ petition filed by the permit-holder that in the absence of any provision prescribing a quorum, the matter should have been heard by all the three members and it was not open to two only of them to deal with it. No provision like Sub-section (5) of Section 6 is to be found in the Motor Vehicles Act Moreover, it is significant that even in J. Ramamurthy Naidu''s case (supra), the writ petition was dismissed by the High Court (in spite of its abovementioned finding) on the ground that the permit-holder had not raised any objection to the hearing of the matter by two only of the members, a conduct which disentitled the Petitioner to any relief under Article 226 of the Constitution. I have, therefore, no hesitation in repelling even this additional ground urged by the learned Counsel for the Petitioner in Civil Writ 227 of 1968.
No other point was urged by counsel in these cases. None of the points pressed by Mr. Puri having succeeded, all the five writ petitions fail and are accordingly dismissed. In the circumstances of these cases, however, I direct that the parties shall bear their costs as incurred by them.