Gurbhagat Singh vs Superintending Canal Officer

J.M. Tandon, J.—The petitioners own land in village Madhar Kalan, Tehsil Muktsar, District Faridkot and they are shareholders of outlet No. RD111010 L, Faridkot Rajbaha getting irrigation from Sirhind Canal. The Division Engineer, Lining Division of the Punjab State Tubewell Corporation Limited, Faridkot, purporting to exercise the powers of Divisional Canal Officer under the Northern India Canal and Drainage Act, 1873, (hereafter the Act) prepared and published a scheme under Sections 30A and 30B thereof for the lining of the water course getting irrigation from outlet RD111010L. The petitioners claim that they did not get any notice of the scheme and that they learnt about it when the actual work of lining was started. The scheme was, however, approved vide order dated July 7, 1976, (P.3). The petitioner filed an appeal against the order P.3, which was dismissed by the Superintending Canal Officer vide order dated March 3, 1978, (P.6). The petitioners have assailed P.3 and P.6 in the present writ.

It is not disputed that the proceedings under sections 30A and 30B of the Act were taken by Mr. G.S. Brar, Divisional Engineer, Punjab State Tubewell Corporation Limited, Faridkot, and the impugned order dated July 7, 1976, (P.3) approving the scheme was also passed by him. Mr. G.S. Brar was appointed Divisional Canal Officer under the Act vide notification dated September 20, 1976, (P.2). The Government issued another notification dated November 2, 1977 (P.3) appointing Mr. G.S. Brar as Divisional Canal Officer with effect from May 1, 1975. The notification dated November 2, 1977, was obviously issued to validate the actions of Mr. G.S. Brar which he had taken under the provisions of the Act before September 20, 1976.

The learned counsel for the petitioners has argued that Mr. G.S. Brar was not a validly appointed Divisional Canal Officer when he initiated the proceedings under sections 30A and 30B of the Act and further passed the impugned order dated July 7, 1976., (P.3). His appointment as Divisional Canal Officer vide notification dated November 2, 1977, with effect from May 1, 1975, will not validate this actions under the Act taken before September 20, 1976. Reliance has been placed on The Income Tax Officer, Alleppey v. I.M.C. Pounoose and others, A.I.R 1970 S.C. 385. The impugned order p.3 being ultra vires is liable to be set aside. The contention of the learned counsel for the petitioners must prevail.

It has been held in I.M.C. Pounoose''s case (supra) that by issuing notification in exercise of the powers conferred under section 2(44) (ii) of the IncomeTax Act, the State Government cannot invest the Tehsildar with the powers of a Tax Recovery Officer with effect from a date prior to the date of the notification. Consequently, attachment of shares belonging to assessee in order to recover arrears, by the Tehsildar, prior to the date of notification empowering him as a Tax Recovery Officer, is invalid . Their Lordships of the Supreme Court further observed :

"The exercise of the power under subclause (ii) of clause (44) of section 2 of the Act is more of an executive than a legislative Act. It becomes, therefore, all the more necessary to consider how such an act which has retrospective operation can be valid in the absence of any power conferred by the aforesaid provision to so perform it as to give it retrospective operation. In Strawboard Manufacturing Co. Ltd v Gutta Mill Workers'' Union, 1953 S.C.R. 439 an industrial dispute had been referred by the Governor to the Labour Commissioner or a person nominated by him with the direction that the award should be submitted not later than April 5, 1950. The award however, was made on April 13, 1950. on April 26, 1950, the Governor issued a notification extending the time upto April 30. It was held that in the absence of a provision authorising the State Government to extend from time to time the period within which the Tribunal or the adjudicator could pronounce the decision, the State Government had no authority to extend the time and the award was, therefore, one made without jurisdiction and a nullity. This decision is quite opposite and it is difficult to hold in the present case that the Taluka Tehsildar could be authorised by the impugned notification to exercise powers of a Tax Recovery Officer with effect from a date prior to the date of the notification".

Section 4 of the Act reads:

"Power to appoint officers The State Government may from time to time declare by notification in the official Gazette the officer of the State Government or of the Punjab State Tubewell Corporation Limited by whom and the local limits within which all or any of the powers or duties hereinafter conferred or imposed shall be exercised or performed ......"

The notification issued in terms of section 4 of the Act is an executive and not legislative function. The Legislature can legislate prospectively as well as retrospectively. The proposition does not hold good qua executive actions like the notification under section 4 of the Act. The notification dated November 2, 1977 (R.3) appointing Mr.G.S. Brar as Divisional Canal Officer under the Act with effect from May 1, 1975, will not have the effect of validating his actions taken by him before September 20, 1976. Mr. G.S. Brar was first appointed. Divisional Canal Officer vide notification dated September 20, 1976. (P.2). The impugned order P.3 was passed by Mr. G.S. Brar on July 7, 1976, when he was not duly appointed Divisional Canal Officer. The impugned order P.3 being ultra vires is liable to be set aside. The Superintending Canal Officer wrongly maintained the order P.3 in appeal vide order dated March 3, 1978, (P.6). For this reason the order P.6 also cannot be sustained.

In view of the discussion above, the writ petition is allowed and the impugned orders P. 3 and P. 6 set aside. It will be open for the competent authority to take appropriate action afresh according to law. No order as to costs.