(1.) THIS is a petition under Article 226 of the Constitution in which the legality and validity of an order made by the Director Consolidation of Holdings, Punjab, on 1513-1956, in the exercise of the powers delegated to him by the State Government has been challenged. The consolidation of holdings in village Seron, Tehsil Tarn taran, District Amritsar, took place in the year 1952-53. A scheme had been framed and duly confirmed in the proceedings for repartition on 18-3-1954 at a general meeting of the right holders in the presence of the Assistant Consolidation officer. Bhan Singh, who is respondent No. 2 in the present petition, expressed a desire that he should be given the entire kalri area in Patti Sheru which had been proposed in the scheme as block No. 4 in lieu of his land of superior quality. No right holder had any objection to this suggestion and it was stated that Bhan Singh wanted to increase his area in that manner. There was a general agreement that the entire kalri area, as proposed, be given to Bhan Singh, and a large number of other right holders agreed. The re-partition was announced on 13-8-1954, and on 30-8-1954, the consolidation Officer heard and decided all the objections which had been preferred by the various right holders. It is common ground that Bhan Singh never filed any objection to the re-partition. This was quite natural as he himself wanted a larger area of inferior land and persuaded the other right holders to agree to the same. It seems, however, that Bhan Singh later on changed his mind and filed some sort of appeal to the Settlement Officer which was dismissed as time barred. It is not known what the grounds of appeal were and what his grievance was and against which order the appeal had been filed. It appears that some complaint was made by Bhan Singh and others to the consolidation authorities and the Consolidation officer, Flying Squad, enquired into the matter and reported that Bhan Singh had not been fully compensated for his area of superior quality. On receipt of this report, it seems, that the Director Consolidation got a report from the Settlement officer with regard to the proposals for redressing his grievance. When his proposal was received, the parties Including the petitioners were heard and on 15-12-1956, the Director made an order, which is being attacked. In this order it was stated that the records had been seen and it was clear that Bhan singh did not receive a fair deal, whereas Fauja Singh, present petitioner No. 1, had received area of (A) Block much in excess of his claim. It was contended by pauja Singh that Bhan Singh etc. , had willingly accepted the area allotted to them, but the Director observed as follows:
". . . . . . . . . . . . . . . but so far as the consent of the applicant is concerned, I do not think he could have agreed willingly to accept area of inferior quality and surrender claim for area of superior quality to the extent of 75 kanals and had it been so he would not have agitated the matter subsequently. " The Director had stated in the earlier part of his order that the shortage to Bhan singh was of 75 kanals standard. He took action under Section 42 of the Act and ordered that Bhan Singh should surrender a total area of 37 kanals and 14 marlas which was to be allotted to Fauja Singh, who was to surrender like area which was to be allotted to Bhan Singh. Fauja Singh and others, who have been affected by the order, have thus moved this Court as stated above, being aggrieved by the order of the Director.
(2.) RESPONDENT No. 1, the Director, Consolidation of Holdings, has filed a return; but respondents Bhan Singh and Bhagwan Singh have not filed any written statement or affidavit in reply. Mr. M. L. Sethi, who appears for the petitioners, has attacked the order of the Director on various grounds. His first contention is that the statement in the order of the Director to the effect that the shortage to Bhan singh was of about 75 kanals standard was not supported by the facts stated in paragraph 3 of the written statement of respondent No. 1. It is stated therein that the respondents got 55 kanals 14 marlas area of the superior quality less than they originally owned. This area given to them was of inferior quality. It is, however, pointed out on behalf of the petitioners that the area which had been allotted according to valuation was almost the same, the difference being only 12 marlas as admitted in paragraph 3 of the written statement. Mr. Sethi contends that the order of the Director is vitiated as he has assumed the shortage in Bhan Singh's land 10 be 75 kanals standard which was wholly incorrect. The second contention of Mr. Sethi is that there is absolutely no material on the record to show that Bhan Singh had not agreed willingly to accept area of inferior quality. No copy of the application made by Bhan Singh to that effect has been produced. Moreover, Bhan Singh, never filed any objections before the consolidation Officer and although he may have tried to reopen the matter at a later stage before the Settlement Officer, he could not be allowed to go back on the agreed re-partition. It is suggested that the Director merely assumed or formed his own opinion without there being any material being placed before him that the settlement effected in March, 1954, was not voluntary. According to Mr. Sethi, this again would vitiate the order being an error apparent on the face of the record. The third submission on behalf of the petitioners is that, according to the scheme as framed, the holdings or the petitioners on consolidation could not be split up into four or five parcels which would be the result of the impugned order. This was alleged in paragraph 7 (ii) of the petition which is supported by an affidavit. In reply to the same it was stated in the written statement that the scheme provisions could not stand in the way of an order under Section 42 of the consolidation Act. This position had been taken to meet the objection that by the order of the Director the holdings of the petitioners would be split up in four or possibly 5 parcels which was contrary to the scheme. It is argued, therefore, that the Director's order is contrary to the scheme and consequently it was illegal and invalid on the face of it.
(3.) ON behalf of the respondents it has been urged that the order challenged by the present petition was not a quasi judicial order, the proceedings under Section 42 of the Act being merely administrative and therefore the order cannot be quashed by means of certiorari. Reliance for this purpose has been placed on the observations of Bishan Narain J. , in Tara Singh v. Director, Consolidation of holdings Punjab, 59 Pun LR 199: (AIR 1958 Punj 302) (A ). In that case it was held that Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 gave independent power to the State government to intervene suo motu at any stage of the consolidation proceedings and the power of the Government to pass any order it thought fit could not be cut down or limited by Section 21 of the Act. It was further observed that the power exercised by the State Government under Section 42 was in the exercise of its executive and administrative functions. In that case the State Government had declared its intention to make a scheme for consolidation of holdings in village Jhander, Tehsil Tarn Taran, District amritsar. There had been some dispute regarding the retention or abolition of a pathway in the course of consolidation proceedings and Tara Singh petitioner moved the Government to interfere in the matter under Section 42 of the Act. The Development Minister, after having inspected the records and after hearing the parties, passed a certain order to which objection was taken by Tara Singh by means of petition under Article 226 of the Constitution. The petitioner's grievance was that the Punjab Government had no original jurisdiction to hear objections of that kind and the Government had acted in excess of its jurisdiction in passing the order for dismantling the existing road. In that connection it was held by the learned Judge that Section 42 gave independent power to the Government to intervene suo motu at any stage of consolidation proceedings. It seems that in the course of arguments a point had been raised that the State Government had not issued any notification under section 41 of the Act delegating its powers under Section 42 to the Develop-ment minister and therefore the Minister had no power to pass, the impugned order. This point was examined at length and observations were made to the effect that under 6. 42 of the Act the State Government acted in exercise of its executive and administrative functions. It was also stated that under the proviso to Section 42 the power which the Government exercised was executive or administrative in nature, although the exercise of that power had to be in a quasi judicial manner, i. e. , impartially and after giving the parties an opportunity of being heard. The real question that arose before Bishan Narain J. , was whether in the absence of any notification under Section 41, the Minister could exercise powers under section 42. The provisions of the Constitution were examined and it was held that under Article 166 (3) of the Constitution the Governor could allocate his business to any Minister he liked and the matter of consolidation having been allotted to the development Minister the latter had jurisdiction to pass orders under Section 42 of the Act. It seems to me that the question whether an order of the nature made as in the present case under Section 42 of the Act can be quashed by certiorari or not was not decided by Bishan Narain J. , and the observations made with regard to the nature of the power under Section 42 of the Act were made in the light of the peculiar facts of the case. It has therefore to be examined whether the impugned order of the Director Consolidation of Holdings, dated 15-12-1956, is of such a nature that it can be quashed by certiorari.;