- (1.) Jiwan Singh and others filed a petition under Articles 226 and 227 of the Constitution of India for the issuance of a writ of certiorari quashing the order of the Additional Director, Consolidation of Holdings, dated July 27, 1967, a copy of which was filed as Annexure 'A' to the writ petition. Written statements were filed on behalf of Puran Singh and Sankar Singh, sons of Sunder Singh, in whose favour the order had been made by the Additional Director, Consolidation of Holdings. The writ petition was allowed by a learned Single Judge of this Court on the ground that the application under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1949 (hereinafter called the Act), had been made beyond the period to six months prescribed by Rule 18 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949 (hereinafter called the Rules), and that the delay in filing the application had been condoned by the learned Additional Director, Consolidation of Holdings, on wholly extraneous grounds. The learned Judge relied on a Division Bench judgment of this Court in Sewa Singh v. State of Punjab and others, 1967 2 ILR(P&H) 89, in support of his decision and refused to go into the merits of the case. Puran Singh has filed the present appeal under clause 10 of the Letters Patent against the judgment of the learned Single Judge.
(2.) The learned counsel for the appellant has argued that Rule 18 of the Rules is ultra vires Section 42 of the Act and in support of his submission reliance has been placed on the judgment of the Delhi High Court (K.S. Hegde, C. J., now a Judge of the Supreme Court), in M.C. Rabhar and another v. Union of India and others,1968 DLT 78. The section under consideration in that case was Section 24 of the Displaced Persons (Compensation and Rehabilitation) Act (44 of 1954), and Rule 104 of the Displaced Persons (Compensation and Rehabilitation) Rules, 1955, which are as under :- "Section 24 (1) The Chief Settlement Commissioner may at any time call for the record of any proceeding under this Act in which a Settlement Officer, an Assistant Settlement Officer, an Assistant Settlement Commissioner, an Additional Settlement Commissioner, a Managing Officer or a Managing Corporation has passed an order for the purpose of satisfying himself as to the legality or propriety of any such order and may pass such order in relation thereto as he thinks fit. x x x x x". "Rule 104. (1) A petition for revision under the Act shall be drawn up and presented in the same manner and within the same period as a memorandum of appeal and shall be accompanied by a copy of the order sought to be revised. x x x x It was submitted before the learned Chief Justice that Rule 104 was ultra vires Section 24 of the Act and this plea prevailed. The reasoning of the learned Judge is contained in para 7 of the report which reads as under :- "Prima facie, the period of limitation prescribed by Rule 104(1) conflicts with the power given to the Chief Settlement Commissioner under Section 24. The rule-making authority had no right to cut down the power conferred on the Chief Settlement Commissioner by that section. That section empowers him to exercise his revisional power 'at any time'. The rule-making authority could not have whittled down that power. The learned Deputy Chief Settlement Commissioner got over that difficulty by saying that Rule 104(1) does not limit the power of the Chief Settlement Commissioner to revise any order at any time, but it only fixes a period of limitation for an aggrieved party to invoke his jurisdiction. No right is conferred under Section 24, to any of the parties to a proceeding to compel the revisional authority to exercise its power. The revisional power is conferred on the Chief Settlement Commissioner. An aggrieved party can only bring his grievance to the notice of the Chief Settlement Commissioner. It is for him to consider whether he should exercise his revisional power or not. The Chief Settlement Commissioner, for properly exercising his power under Section 24, should have access to all sources of information which may bring to his notice the illegality or impropriety committed by his subordinates. It would be a curious reasoning to say that a third party may inform the Chief Settlement Commissioner about the illegality or impropriety of any order made by a subordinate 'at any time', but an aggrieved party cannot do so after the period of thirty days, mentioned in Rule 104. There is no basis for such a classification. Rule 104 undoubtedly places an indirect restriction on the power of the Chief Settlement Commissioner. Therefore, I hold that that rule is ultra vires Section 24 of the Act." Section 42 of the Act is in indentical terms as Section 24 of the Displaced Persons (Compensation and Rehabilitation) Act, and for purpose of comparison, is set out below :- "42. Power to State Government to call for proceedings :- The State Government may, at any time, for the purpose of satisfying itself as to the legality or propriety of any order passed, scheme prepared or confirmed or repartition made by any officer under this Act, call for and examine the record of any case pending before or disposed of by such officer and may pass such order in reference thereto as it thinks fit : Provided that no order or scheme or repartition shall be varied or reversed without giving the parties interested notice to appear and opportunity to be heard except in case where the State Government is satisfied that the proceedings have been vitiated by unlawful consideration." Rule 18 of the Rules is as under :- "18. Limitation for application under Section 42. - An application under Section 42 shall be made within six months of the date of the order against which it is filed : Provided that in computing the period of limitation, the time spent in obtaining certified copies of the orders and the grounds of appeal, if any, filed under sub-section (3) or sub-section (4) of Section 21, required to accompany the application shall be excluded : Provided further, that an application may be admitted after the period of limitation prescribed therefor if the applicant satisfies the authority competent to take action under Section 42 that he had sufficient cause for not making the application within such period." It is thus clear that the same reasoning applies to Section 42 and Rule 18 as was applied by the learned Chief Justice of the Delhi High Court to Section 24 of the Displaced Persons (Compensation and Rehabilitation) Act and Rule 104 of the Displaced Persons (Compensation and Rehabilitation) Rules, 1955. We are in respectful agreement with the reasoning of the learned Chief Justice and, for the reasons given in the judgment cited above, hold that Rule 18 of the Rules is ultra vires Section 42 of the Act.
(3.) In view of the above conclusion, the judgment of learned Single Judge has to be set aside as the writ petition was accepted only on the ground that the application under Section 42 of the Act had been filed beyond the time prescribed under Rule 18 and the matter was not considered on merits. We, therefore, accept this appeal and remand the case to the learned Single Judge for decision on merits. Since the vires of Rule 18 have been settled for the first time, we leave the parties to bear their own costs.;