Siranja Singh and another vs State of Punjab

S.P. Goyal, J.

This writ petition under Articles 226/227 of the Constitution of India was admitted to a Division Bench as the RespondentState has challenged the correctness of the decision of S.S. Kang, J. in Civil Writ Petition No. 3290 of 1973, Gura Singh etc. v. State of Punjab, etc. decided on January 15, 1980.

Siranja Singh and Jit Singh were allotted land in dispute from the surplus area of Tarlok Singh in village Tirpari Saidan, Tehsil and District Patiala, under the Pepsu Utilisation of Surplus Area Scheme, 1960, (hereinafter called the Scheme). A complaint was made against them to the Government that the allotment had been secured on the basis of fabricated record, which was forwarded to the Collector for enquiry and necessary action. The Collector marked the complaint to the NaibTehsildar Agrarian, who found that the allotment had been secured by tampering with the record and, therefore, cancelled the same. This order was challenged by way of writ petition under Articles 226/227 of the Constitution, which was allowed and the Prescribed Authority was directed to decide the matter after hearing the parties concerned. The Prescribed Authority again passed an order cancelling the allotment on March 19, 1971. This order was, however, set aside by the Financial Commissioner and the case remanded for passing a fresh order after scrutiny of the revenue record. Finding the petitioners not eligible the Prescribed Authority passed an order on March 19, 1976, cancelling the allotment in their favour. Their appeals and revisions having failed, they have come up to this Court by way of this writ petition under Articles 226/227 of the Constitution of India.

A similar order as the one under attack was quashed by S.S. Kang, J. in Civil Writ Petition No. 3290 of 1973 (supra) on two grounds. Firstly, that the Naib Tehsildar Agrarian, was not competent to pass an order under the Scheme as it was only the Assistant Collector of either Grade, who was the Prescribed Authority and not the NaibTehsildar, and secondly, that there was no power of review with the Prescribed Authority when the order of allotment was passed and this power was only introduced later on by notification dated June 4, 1965, which was not retrospective in operation.

So far as the first ground is concerned, it appears that the notification No. 730 dated November 1, 1887, whereby all Naib Tehsildars were conferred with the power of Assistant Collector 2nd Grade was not brought to the notice of the learned Judge. The fact that the authority passing the order described himself as Naib Tehsildar would be of no consequence, if he also enjoyed the power of the Assistant Collector 2nd Grade. This principle was first enunciated by the Supreme Court in L. Hazari Mal v. I.T. Officer, A.I.R. 1961 S.C. 200. and recently reiterated in M.R. Singh v. Chief Commissioner, Manipur, A.I.R. 1976 S.C. 2581, in the following terms:

"That if power can be traced to a valid power the fact that the power is purported to have been exercised under nonexisting power, does not invalidate the exercise of the power."

Thus, the view of S.S. Kang, in Gura Singh''s case (supra) that the order passed by the NaibTehsildar was without jurisdiction as it was not passed by him as Assistant Collector 2nd Grade, cannot be sustained and is, therefore, overruled.

As regards the second ground, it is not disputed that the Prescribed Authority had no power to review the order when the same was passed by him. This power was introduced as already noticed above in the year 1965. It also could not be disputed that the power of review conferred is prospective in nature and not retrospective. However, it was urged that as fraud vitiates all actions, the Prescribed Authority would be competent to set aside its earlier order of allotment on its basis. The argument is wholly misconceived. Any action may be avoided through proper proceedings on grounds of fraud, but an order cannot be reviewed for any such reasons if the authority passing it did not enjoy the power of review. We are fortified in this view by an earlier decision of D.B. of this Court in Rulia Singh v. State, 1971 Punjab Law Journal 464, wherein it was held :

"The Additional Director, Consolidation of Holdings, has no jurisdiction to review his previous order given on merits, on the ground that a fraud was committed by the successful petitioner in changing the date in the order under revision and thus indicating that the petition before the Additional Director was within time."

Lastly, it was contended that even if there was no power of review with the Prescribed Authority, this Court may not interfere with the impugned orders as no injustice has been caused to the petitioners because it has been found by all the Revenue Authorities that they had secured the allotment by fraud and tampering with the record. We are unable to subscribe to this view. Once it is found that the order is without jurisdiction, it would be a nullity and has to be set aside. Moreover, the State Government has ample remedy against the order of allotment under the statute as it can always be set aside by the Financial Commissioner in the exercise of his revisional powers. For this reason also, it is not a fit case where this Court should refuse to quash the impugned orders on the grounds urged.

For the reasons recorded above, this petition is allowed and the impugned orders (Annexures P.1, P.3, P.5 and P.7) are hereby quashed qua Siranja Singh only as Jit Singh had already withdrawn from the petition. In the circumstances of the case we make no order as to costs.