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2014 DIGILAW 1630 (PNJ)

Balkar Singh v. Sub Divisional Magistrate, Dhuri

2014-11-26

PARAMJEET SINGH

body2014
JUDGMENT Mr. Paramjeet Singh, J.:- Instant writ petition under Articles 226/227 of the Constitution of India has been filed for quashing the order dated 06.08.2001 (Annexure P-3) passed by respondent No.2 – Additional Deputy Commissioner, Sangrur and for restoration of the order dated 05.04.2001 (Annexure P-1) passed by respondent No.1 – Sub Divisional Magistrate, Dhuri, while exercising the powers of Deputy Commissioner. 2. Brief facts of the case are that to fill up the vacancy caused on account of death of Narang Singh, Chowkidar of village Jakhlan, applications were invited from interested persons through proclamation done by way of beat of drum in the village. In response thereto, Tehsildar, Dhuri received only two applications i.e. from petitioner – Balkar Singh son of Narang Singh and respondent No.4 – Kahan Singh son of Gurdev Singh. After verifying the credentials of both the candidates, Tehsildar, Dhuri vide report dated 11.12.2000 recommended the name of Balkar Singh for appointment as Chowkidar. However, respondent No.1 vide order dated 15.01.2001 returned the case file back to respondent No.3 – Tehsildar, Dhuri for the reason that the name of respondent No.4 – Kahan Singh was inadvertantly shown as Kahar Singh. As such respondent No.3 was directed to make fresh recommendation after making enquiry. In his subsequent report dated 12.03.2001, Tehsildar, Dhuri, recommended the name of respondent No.4 – Kahan Singh for appointment as Chowkidar in place of petitioner – Balkar Singh. Respondent No.1 – Sub Divisional Magistrate after hearing both the parties, appointed petitioner as Chowkidar of the village Jakhlan vide order dated 05.04.2001 (Annexure P-1). Feeling aggrieved against the order dated 05.04.2001, respondent No.4 filed appeal before the Deputy Commissioner, which was allowed and respondent No.4 was appointed Chowkidar of the village vide order dated 03.07.2001. Petitioner preferred a review application for recalling the order dated 03.07.2001 and for hearing the appeal afresh on merits. The application was allowed and appeal was re-heard on merits, however, appeal was allowed and respondent No.4 was appointed Chowkidar of the village Jakhlan vide order dated 06.08.2001 (Annexure P-3). Against the order dated 06.08.2001, petitioner preferred appeal before the Commissioner, which has been dismissed vide order dated 17.04.2002 (P-5). Hence, this writ petition. 3. In pursuance of the notice, respondent No.4 filed reply averring that respondent No.1 was not competent to pass order dated 05.04.2001 (Annexure P-1) as he was authorized by the Deputy Commissioner on 31.05.2001. Against the order dated 06.08.2001, petitioner preferred appeal before the Commissioner, which has been dismissed vide order dated 17.04.2002 (P-5). Hence, this writ petition. 3. In pursuance of the notice, respondent No.4 filed reply averring that respondent No.1 was not competent to pass order dated 05.04.2001 (Annexure P-1) as he was authorized by the Deputy Commissioner on 31.05.2001. Thus, the order dated 05.04.2001 has rightly been set aside by respondent No.2 vide impugned order dated 06.08.2001 holding that the order dated 05.04.2001 has been passed beyond jurisdiction and, therefore, non-est in the eyes of law. 4. I have heard learned counsel for the parties and perused the record. 5. Learned counsel for the petitioner contended that order dated 05.04.2001 (Annexure P-1) was passed by respondent No.1 while exercising the powers of Deputy Commissioner, Sangrur. He was duly authorized to do so. The order dated 05.04.2001 was passed by respondent No.1 in delegated capacity and there is no remedy of appeal or revision against this order. The said order has been wrongly set aside by the Additional Deputy Commissioner, a subordinate of the Deputy Commissioner exercising the powers of Deputy Commissioner in appeal. Learned counsel for the petitioner further contended that petitioner had preferred a review application for recalling the order dated 03.07.2001 passed by the Additional Deputy Commissioner and for re-hearing the appeal afresh on merit. On re-hearing respondent No.4 was again appointed as Chowkidar of village Jakhlan vide impugned order dated 06.08.2001 (Annexure P-3). Learned counsel for the petitioner further submitted that as per Rule 6 of the Punjab Chaukidara Rules, 1876 (hereinafter referred to as ‘the Rules’) opinion of the majority of village headmen (Lambardars) shall prevail with respect to appointment of Chowkidar. Rule 6 of the Rules has not been taken care by the authorities; as such the impugned order is contrary to the provisions of law. No special reasons have been recorded for appointment of respondent No.4 as Chowkidar. 6. On the other hand, learned counsel for respondent No.4 contended that order dated 06.08.2001 (Annexure P-3) passed by respondent No.2 is just and legal. On the date of passing the impugned order dated 05.04.2001, SDM was not authorised to pass such order. Therefore, order dated 05.04.2001 has rightly been set aside and respondent No.4 has been appointed as Chowkidar by the Additional Deputy Commissioner. On the date of passing the impugned order dated 05.04.2001, SDM was not authorised to pass such order. Therefore, order dated 05.04.2001 has rightly been set aside and respondent No.4 has been appointed as Chowkidar by the Additional Deputy Commissioner. Learned counsel for respondent No.4 further contended that even the review application was not maintainable before the Additional Deputy Commissioner as there is no specific provision in this regard, although Additional Deputy Commissioner has maintained his earlier order dated 03.07.2001. Learned counsel for respondent No.4 further contended that under Rule 42 of the Rules, Deputy Commissioner has power to hear the appeal against the orders passed by a delegated authority. As such the writ petition is liable to be dismissed. 7. I have given my anxious thought to the contentions raised by learned counsel for the parties. 8. Following points arise for consideration in the present writ petition: - “1. Whether appointing authority of the Chowkidar is required to strictly comply with Rule 6 of the Rules? 2. Whether Deputy Commissioner or authority specified by Deputy Commissioner has power to hear appeal under Rule 42 of the Rules? 3. Whether Deputy Commissioner/specified authority has power to review?” 9. Before I deal with the issues raised hereinabove, it would be appropriate to reproduce the relevant provisions of law. Rules 6, 11 and 42 of the Rules read as under: - “6. The nomination to the post of village watchman or of Daffadar shall be made by the village headman, and where there are more village headmen than one, the opinion of the majority in number (unless there is some special provision to the contrary in the village administration paper) shall prevail. Where a village watchman or daffadar is to be appointed for a beat comprising more than one village, the opinion of the majority in number of the village headmen in such beat shall prevail. 11. The Deputy Commissioner, or the officer duly authorised by him in that behalf, may dismiss any village watchmen or daffadar for any misconduct or neglect of duty or physical unfitness for the performance of his duties. 42. 11. The Deputy Commissioner, or the officer duly authorised by him in that behalf, may dismiss any village watchmen or daffadar for any misconduct or neglect of duty or physical unfitness for the performance of his duties. 42. All orders of the Deputy Commissioner in regard to the fixing of the number of village watchmen, the mode of their honorarium and the levying of the same shall be subject to control, revision and alteration by the Commissioner to whom he is subordinate but all orders by a delegated authority shall be appealable to the Deputy Commissioner or to such authority as the Deputy Commissioner may specify.” 10. It would be apposite to mention that Rules have been framed under Section 39-A of the Punjab Laws Act, 1872. Re: point No.1 11. Bare reading of Rule 6 makes it clear that village headman/headmen make(s) nomination to the post of village watchman (Chowkidar) and opinion of the majority of the Lambardars of the village is determining factor for nominating watchman (Chowkidar) if they are more than one. In the present case, the order passed by Sub Divisional Magistrate, exercising the powers as delegatee of Deputy Commissioner, neither reveals that opinion of the village headman/headmen (Lambardar/s) was sought nor any special reasons have been recorded for appointing Chowkidar. Thus, it is clear that Rule 6 of the Rules has not been complied with by the authorities. As such I find force in the contention of the learned counsel for the petitioner and accordingly the impugned order is held to be not sustainable in the eyes of law. Point No.1 is answered accordingly. Re: point No.2 12. Perusal of Rule 42 of the Rules reveals that this Rule is divided in two parts. First part provides “all orders of the Deputy Commissioner in regard to the fixing of the number of village watchmen, the mode of their honorarium and the levying of the same shall be subject to control, revision and alteration by the Commissioner to whom he is subordinate”. As per second part “all orders by a delegated authority shall be appealable to the Deputy Commissioner or to such authority as the Deputy Commissioner may specify”. Second part of Rule 42 which for all practical purposes is a separate self-contained rule provides that an appeal lies to the Deputy Commissioner against the order of his delegatee. As per second part “all orders by a delegated authority shall be appealable to the Deputy Commissioner or to such authority as the Deputy Commissioner may specify”. Second part of Rule 42 which for all practical purposes is a separate self-contained rule provides that an appeal lies to the Deputy Commissioner against the order of his delegatee. The original power under Rule 11 of the Rules is vested in Deputy Commissioner and Deputy Commissioner can authorize Sub Divisional Officer in that behalf. It means that Sub Divisional Officer acts in exercise of the authority delegated to him by the Deputy Commissioner. In this regard I find support from the judgment of this Court in Badlu v. The State of Haryana and others, 1971 PLJ 1 wherein this Court held as under: - “Relying on the judgment of Sinha, J., in Bimal Chand v. Chairman, Jaigunj Azimgunj Municipality and another, AIR 1954 Calcuta 285, Mr. Gaur, submitted, that relief under Article 226 of the Constitution being discretionary and the extraordinary jurisdiction of this Court under that Article being equitable one, I should not exercise the discretion so as to set aside an order which is non est if as a result thereof another order without jurisdiction would be revived. What Mr. Gaur submitted was that though there was no occasion for his client to impugn the validity of the Deputy Commissioner’s order, as he had succeeded to get it set aside by the Commissioner, the correct legal situation had been reached by one order without jurisdiction having been set aside by another order without jurisdiction. It was on this basis that he submitted that the High Court should not exercise its discretion in support of such Action which sought to uphold the order which had been passed without jurisdiction by the Deputy Commissioner. I would not have been inclined to disagree with the proposition of law canvassed by Mr. Gaur, if I had found that the order of Deputy Commissioner was really without that the scope of the expression “all orders” occurring in Rule 42 is jurisdiction. All the learned counsel appearing before me admitted not confined to the kind of the orders of the Deputy Commissioner which are revisable by the Commissioner. Gaur, if I had found that the order of Deputy Commissioner was really without that the scope of the expression “all orders” occurring in Rule 42 is jurisdiction. All the learned counsel appearing before me admitted not confined to the kind of the orders of the Deputy Commissioner which are revisable by the Commissioner. In this view of the matter, there is no doubt that within the plain language of the second part of Rule 42, which for all practical purposes is a separate self-contained rule, an appeal did lie to the Deputy Commissioner against the order of his delegate, the Sub- Divisional Officer (Civil). It has been found by the Commissioner, and is otherwise not disputed that the original power under Rule 11 is vested in the Deputy Commissioner and it was only because the Deputy Commissioner has authorised the Sub-Divisional Officer (Civil) in that behalf that the order Annexure ‘A’ was passed by the last mentioned authority. This means the Sub-Divisional Officer (Civil) was Acting in exercise of the authority, delegated to him by the Deputy Commissioner. According to the plain language of Rule 42, therefore, the Deputy Commissioner did have jurisdiction to hear and decide the appeal preferred by the petitioner against the order of the Sub-Divisional Officer.” 13. As regards specifying power of Deputy Commissioner to hear appeal against the orders passed by delegated authorities is concerned, second part of Rule 42 of the Rules, which reads as “but all orders by a delegated authority shall be appealable to the Deputy Commissioner or to such authority as the Deputy Commissioner may specify” makes it crystal clear that all the orders passed by a delegated authority shall be appealable to the Deputy Commissioner or to such authority as the Deputy Commissioner may specify. Thus, the Deputy Commissioner has power to entrust appeal against the order of a delegated authority of the Deputy Commissioner to any other authority, Additional Deputy Commissioner in the present case. It is obvious that the authority specified by Deputy Commissioner to hear appeal in such cases should be senior in hierarchy of designation to the delegated authority against whose order the appeal is filed. 14. In view of the observations of this Court in Badlu (supra) issue No.2 has to be and is answered in the affirmative. Re: point No.3 15. 14. In view of the observations of this Court in Badlu (supra) issue No.2 has to be and is answered in the affirmative. Re: point No.3 15. So far as the power of review is concerned, this can only be exercised when there is specific provision in a statute and in the absence of any such power in the Statute, the authorities do not have any such power of review. This issue is no more res integra. A full Bench consisting of five Judges’ of this Court in Deep Chand and another v. Additional Director, Consolidation of Holdings, Punjab, 1964 PLR 318 has held as under: - “To concede such a wide power of review would, in my opinion, introduce into judicial and quasi-judicial decisions, disconcerting element of permanent uncertainty and unpredictability tending to given an impression of quasijudicial lawlessness, which I cannot persuade myself to uphold. If Courts do not possess such a wide and sweeping power, it is difficult to concede such a wide power in statutory judicial or quasi-judicial Tribunals.” 16. Power of review can be exercised only if statute specifically provides so. Perusal of the Rules reveals that there is no provision of review in Rules and so Deputy Commissioner/specified authority has no power of review. In view of this, issue No.3 is answered accordingly. 17. In view of above, impugned order dated 06.08.2001 is aside and the case is remanded to Sub Divisional Magistrate, Dhuri for passing fresh order. Parties through their counsel are directed to appear before the Sub Divisional Magistrate on 05.01.2015. The needful shall be done within a period of six months from the date of appearance. In the meantime, respondent No.4 shall continue to work as Chowkidar of the village. 18. Disposed of.