- (1.) THE question for determination is whether the State Government could by notification dated 12-2-1958 delegate its powers which it exercises under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation)Act, 1948, to the Additional Director Consolidation with effect from a prior date, namely, 17-6-1957.
(2.) THE facts are not in dispute. The proceedings relating to consolidation of holdings started in village Amlasinghwala, District Sangrur, on 25-11-1954 under the Pepsu Holdings (Consolidation and Prevention of Fragmentation) Act, 2007 Bk. (which will be referred to as the Pepsu Consolidation Act ). On 17-4-1955 a draft scheme was published. The tenants raised certain objections which were dismissed, and the scheme was duly confirmed. The holdings were repartitioned according to the provisions of the scheme. The boundaries were demarcated on the shajra which was published on 19-9-1955 and possession of the new holdings was transferred to the petitioners in June 1956. A notice had been published on 19-9-1955 by which objections were invited against the repartition. On 26-9-1955 the tenants filed their objections which were dismissed by the consolidation Officer. An appeal was preferred by the tenants under Section 20 (3)of the Pepsu Consolidation Act against the order of the Consolidation Officer This appeal was dismissed on 25-5-1956 by the Settlement Officer. Against the order of the Settlement Officer the tenants filed an appeal before Shri Balvindar Singh, settlement Officer, Faridkot, to whom powers had been delegated of hearing appeals under Section 20 (4) of the Pepsu Consolidation Act. The said officer made a reference to the Settlement Commissioner who exercised the powers of the state Government under Section 41 of that Act. The Settlement Commissioner remanded the case to the Settlement Officer for making an enquiry on the spot. On 7-2-1957 the Settlement Officer. Faridkot, submitted a report to the Director Consolidation of Holdings, Punjab. The Punjab holdings (Consolidation and Prevention of Fragmentation) Act (which for the sake of brevity will be referred to as the Punjab Consolidation Act), was extended to the territories comprised in the erstwhile State of Pepsu by the Punjab Laws (Extension No. 1) Act, 1957, in April, 1957. On 21-7-1957 the Additional Director, Consolidation of Holdings, Punjab, made an order in exercise of powers under Section 42 of the Punjab Consolidation Act by which he revoked the scheme which had been previously confirmed and directed that the proceedings should be taken afresh from the evaluation stage. He made certain other directions as well. Admittedly on 21-7-1957 the aforesaid officer could exercise powers of the State Government under Section 21 (4) of the Punjab consolidation Act only, as the same had been delegated to him, but was not competent to exercise the powers under Section 42. A petition under Article 226 of the Constitution was filed by Shivdev Singh and others, Biswedars of village Amlasinghwala, on 11-11-1957 in which the aforesaid order dated 21-7-1957 was challenged inter alia on the ground that the Additional director had not been empowered to exercise the powers of the State Government under section 42 and his order was without jurisdiction and void. This petition was admitted to a hearing on 19-11-1957 and further proceedings were stayed. On 122- 1953 the following notification was issued: "no. 283-DIV-5s (CH)/1167. In exercise of the powers conferred by sub-section (1) of Section 41 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, the Governor of Punjab is pleased to notify that with effect from 17-6-1957 the powers of the state Government under Section 42 of the Act have also been delegated to the Additional Director, Consolidation of Holdings, Punjab, p. S. MULTANI under Secretary to Government Punjab, forests and Game Preservation Department. " The State did not file any written statement prior to 12-2-1958 and it was only after the notification had been issued that it was filed. The position taken up by the State was that the Additional Director had been delegated the powers of the state Government under Section 42 with effect from 12-6-1957 and that this order of 21-7-1957 was perfectly legal and valid. On behalf of the petitioners it is maintained that such a delegation of powers cannot be made so as to have retrospective operation resulting in the validation of an order which was a nullity when it was made.
(3.) IT is necessary to set out the relevant provisions of the Punjab Consolidation act. Section 42 runs as follows: "the State Government may at any time for the purpose of satisfying itself as to the legality or propriety of any order passed 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 shall be varied or reversed without giving the parties interested notice to appear and opportunity to be heard except in cases where the State Government is satisfied that the proceedings have been vitiated by unlawful consideration. " Section 41, which deals with delegation of powers, is as follows: "41 (1) The State Government may for the administration of this Act, appoint such persons as it thinks fit, and may by notification delegate any of its powers or functions under this Act to any of its officers either by name or designation. (2) A Consolidation Officer or a Settlement Officer (Consolidation) may, with the sanction of the State Government, delegate any o its powers or functions under this Act to any person in the service of the State Government. " When the State Government delegates the powers which it can exercise under section 42, the act of delegation is executive or administrative in its nature. By no stretch of reasoning can it be said that such a delegation involves any exercise of subordinate legislative functions. The distinction between exercise of legislative and executive functions is well-known and needs no discussion. The reason why this distinction has to be borne in mind is that it is only open to a sovereign legislature to enact laws which may have retroactive or retrospective operation. Parliament alone possesses the power to legalise past illegality (Wade and Phillips' constitutional Law, 5th Edition, page 39 ). Even when the Parliament enacts retrospective laws, such laws are -- in the words of Willes J. in Phillips v. Eyre, (1871) 40 LJ QB 28 at p. 37- "no doubt prima facie of questionable policy, and contrary to the general principle that legislation by which the conduct of mankind is to be regulated ought, when introduced for the first time, to deal with future acts, and ought not to change the character of past transactions carried on upon the faith of the then existing law. " Thus, the rule has been firmly established that the Courts will not ascribe retrospective force to new laws affecting rights unless by express words or necessary implication it appears that such was the intention of the legislature. The parliament can delegate its legislative powers within recognised limits and when we speak of delegated legislation the term is used of (a) the exercise of a legislative power delegated by Parliament, or (b) the rules or regulations passed as the result of the exercise of a delegated legislative power (Wade and Phillips constitutional Law, 5th Edition p. 351 ). Where any rule or regulation is made by any person or authority to whom such powers have been delegated by the legislature it may or may not be possible to make the same so as to give retrospective operation. In Civil Writ No. 53 of 1951, D/-28-9-1951 by Khosla and falshaw JJ. , it was observed as follows by Khosla J. : "it seems to me that the rule-making power is in the nature of legislative power within certain limits and as long as the rule is framed within limits it can be made to take effect retrospectively. " in Civil Writ No. 191 of 1951, decided by Weston C. J. , and Harnam Singh J. , on 13-5-1952 a doubt was expressed with regard to the power of the rule-making authority to make a rule which could be given retrospective effect. Weston C. J. was of the following view: "i must confess that I can see no justification for the proposition that an authority to whom rule-making powers have been given can proceed to make rules and to direct that the operation of those rules shall have effect not from the time they are made but for all previous time whether or not earlier rules have up to that time been in force. " In Modi Food Products v. Commissioner Sales Tax, AIR 1956 All 35, and M. L. Bagga v. Murhar Rao, (S) AIR 1956 Hyd 35, there are certain observations which support the view of Weston G. J. But it appears that there is also authority for the view that if a clear intention is expressed in a rule it can operate retrospectively (See American Jurisprudence, Vol. 42, Section 101 ). In the instant case, no question arises of any rule having been made with retrospective effect and it is unnecessary to decide which view is correct.;