Dila Ram and Others vs State of Himachal Pradesh

R.S. Pathak, C.J.—On August 3, 1955 a notification was issued by the Hima-chal Pradesh Government u/s 3 of the Himachal Pradesh Consolidation of Holdings Act, 1953 declaring that the village Degsech, District Bilaspur, was to be brought under a scheme of consolidation. Consolidation proceedings were commenced and had reached a certain stage when disputes arose between the Petitioners and other tenure holders in the village, and according to the Petitioners, it was decided to revise the entire basis of the allotment of plots. A number of villagers, including the Petitioners, were aggrieved by the manner in which the consolidation operations were proceeding and they addressed a representation to the Himachal Pradesh Government that action be taken u/s 5(1) of the aforesaid Act for cancellation of the declaration made u/s 3. On September 2, 1971, the Himachal Pradesh Government, in exercise of the powers u/s 5(1) of the aforesaid Act, cancelled the declaration made u/s 3. The Petitioners were then aggrieved by the circumstance that on the cancellation of the declaration the consolidation authorities were not restoring the tenure holders to the position occupied before the declaration u/s 3 was made, and they consequently applied for relief under Article 226 of the Constitution. While the writ petition was pending the Himachal Pradesh Government, it appears, considered the matter further and on December 28, 1972 issued an order rescinding the notification dated September 2, 1971 made u/s 5(1) of the Act. In consequence, the consolidation authorities have now resumed the consolidation operations.

Learned Counsel for the Petitioners contends that when the Himachal Pradesh Government acted u/s 5(1) and cancelled the declaration made u/s 3, the effect in law was to restore the tenure holders to the position obtaining before the village was brought under consolidation operations and accordingly, it is urged, when the order dated December 28, 1972, in turn rescinded the order of cancellation made u/s 5 the consolidation authorities could resume from that initial position only. The contention, in my opinion, proceeds from an erroneous perspective. What has to be ascertained in the first instance is the effect of the order dated December 28, 1972 on the order of cancellation. The order dated December 28, 1972 recites:

The Governor, Himachal Pradesh, is pleased to hereby rescind the notification No. 9-22/69-Rev.II, dated the 2nd September, 1971, issued u/s 5 of the said Act, as if the said notification u/s 5 was never issued, and to revive and restore the original notification No. l-7/63:CH/741, dated the 18th June, 1965.

It is apparent that the order of cancellation made u/s 5 has been rescinded or annulled. The intention clearly is to remove the order made u/s 5 altogether, as completely as if it was never passed at all. There can be no dispute that the power to pass such an order exists in the Himachal Pradesh Government. Reference may be made to Section 20 of the Himachal Pradesh General Glauses Act, which provides:

Where, by any Himachal Pradesh Act, a power to issue notifications or make orders, rules, or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notification, orders, rules, or bye-laws so issued or made.

The result is, that the declaration made u/s 3 and the consolidation operations following it must be considered never to have been disturbed, thus enabling the consolidation authorities to resume the consolidation proceedings from the point reached when the order of cancellation u/s 5 was issued. In view of its rescission it is wholly unnecessary to consider the effect of the order of cancellation, when it was passed, on the pending consolidation proceedings.

It is also urged on behalf of the Petitioners that the order dated December 28, 1972 could not be passed without hearing the Petitioners. Now, it must be remembered that an order made u/s 5 of the Act is an executive order. It is not a quasi-judicial order. The order made u/s 20 of the Himachal Pradesh General Clauses Act partakes of the same nature as the order u/s 5 rescinded by it. It is also executive in nature and not quasi-judicial. Consequently, there is no obligation on the State Government to hear the tenure holders before rescinding an order of cancellation made u/s 5,

The petition fails and is dismissed, but in the circumstances there is no order as to costs.