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Phalgu Dutt v. Shrimati Pushpa Wanti And Others
Judgment Summary — Shamsher Bahadur, J.
Factual and Procedural Background
Parcels of waste land in villages Bherian and Gumthala (about 330 acres) were acquired under the East Punjab Utilization of Lands Act (East Punjab Act No. 38 of 1949) and leased to the petitioner, Phalgu Dutt, for seven years from Kharif 1951. Before that lease expired, the Collector extended the lease term in favour of Phalgu Dutt to twenty years by two orders dated 23rd and 29th February 1956; these extensions were granted on the petitioner's application and without notice to the registered owners (the four respondents: Smt. Pushpa Wanti, Tara Chand, Dina Nath and Jagdish Kumar).
When the lease period expired the respondents applied (on 14th and 24th March 1958) for restoration of their lands. The Collector issued orders on 7th and 14th April 1958 declining restoration because of the earlier 1956 lease-extension orders. The respondents appealed to the Commissioner of Ambala Division; the Commissioner on 6th August 1958 remanded for re-decision by the Collector. The Collector on 21st February 1959, after hearing parties and evidence, restored certain lands to the respondents (noting that they were displaced persons and small land-holders, that Phalgu Dutt did not cultivate the major portion and that sub-tenancy appeared to exist) while allowing the extended lease to subsist over the remaining land. A revision petition to the Commissioner was dismissed on 14th April 1959, the Commissioner upholding the Collector's decision.
The present petition under Article 227 sought to quash the Collector's order of 21st February 1959 and the Commissioner's order of 14th April 1959 on the ground that they contravened the law. Notably, the Collector and the Commissioner were not impleaded as respondents in this petition.
Legal Issues Presented
- Whether the orders of the Collector (21st February 1959) and the Commissioner of Ambala Division (14th April 1959) contravened the provisions of law and were therefore liable to be quashed under Article 227 of the Constitution of India.
- Whether the Collector (or his earlier orders of February 1956) had become final before the amendment (Punjab Act No. 39 of 1956) and therefore whether the Commissioner had jurisdiction to call for records or to revise those matters after the amendment.
- Whether the petition under Article 227 was maintainable where the authorities whose orders were challenged (the Collector and the Commissioner) had not been impleaded as parties.
- Whether an objection to the jurisdiction of the Commissioner could be raised for the first time before the High Court when it was available earlier (i.e., whether such an objection was waived by not raising it before the Commissioner at an earlier stage).
Arguments of the Parties
Petitioner's Arguments (as recorded)
- The orders of the Collector and the Commissioner contravened the provisions of law and should be quashed under Article 227.
- An objection was made that the Collector's earlier order refusing extension of the lease (passed before the amendment by Punjab Act No. 39 of 1956) had become final, and consequently the Commissioner lacked jurisdiction to review those orders after the amendment. This jurisdictional objection formed a principal ground for invoking Article 227.
No other detailed account of the respondents' legal arguments or contentions is provided in the opinion.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Ferris, "Extraordinary Legal Remedies" (1926), para. 175, p. 201 | Parties whose actions are to be reviewed and who hold the records are necessary parties for writ proceedings (necessity of impleading the decision-maker). | The court relied on Ferris to hold that omission to implead the Collector and the Commissioner was a fundamental defect going to the right of the relief sought; thus non-impleading was fatal to the petition. |
| Delite Cinema v. Rameshwar Dyal, A.I.R. 1959 Punjab 189 | Upheld the Ferris principle concerning necessity of making the tribunal whose order is challenged a party. | The court observed that this recent decision upheld Ferris and used it to reinforce the requirement to implead the decision-making authorities in writ proceedings. |
| Sha Devichand Moolchand v. Sha Dhanraj Kantilal, A.I.R. 1949 Madras 53 | It is necessary that the tribunal to be quashed is made a party because without serving notice the records cannot be brought up. | Cited as authority supporting the proposition that failing to make the Collector/Commissioner parties prevents proper issuance and return of the writ and is a ground to reject the petition. |
| The King v. Williams, 1914 I K.B. 608 | Objection to the competence of a court (e.g., interest of a justice) should be raised at the hearing before the court and not first in certiorari. | The court relied on this principle to hold that objections to jurisdiction should be raised at the earliest opportunity before the tribunal whose order is challenged, not raised belatedly before the High Court. |
| Candhinagar Motor Transport Society v. State of Bombay, A.I.R. 1954 Bombay 202 | Before raising a jurisdictional question in a petition under Articles 226/227, the objection must be taken before the tribunal whose order is being challenged. | Applied to conclude that petitioner’s belated jurisdictional objection (not taken before the Commissioner earlier) could not be allowed as grounds for relief under Article 227. |
| Belsund Sugar Co. Ltd. v. The Labour Appellate Tribunal of India, A.I.R. 1958 Cal. 456 | If the objection to jurisdiction was not raised before the lower tribunals and the petitioner contested the matters there, the petitioner should not be allowed to raise it for the first time in writ proceedings. | Used to reinforce that the petitioner, having fought before the tribunal without raising jurisdictional objection, could not raise it for the first time in this petition. |
| Hafiz Mohammud Yusuf v. The Custodian General, Evacuee Properties, New Delhi, A.I.R. 1954 All. 433 | Where there are two orders of the same authority/tribunal, the earlier order is merged in the later one. | The court applied this bench decision to hold that the Collector's earlier order was merged in the Commissioner's subsequent order and therefore the Commissioner's order must be treated as the operative one; neither Commissioner order was in excess of jurisdiction. |
| Waryam Singh v. Amarnath, A.I.R. 1954 S.C. 215 | Article 227 powers of superintendence are to be exercised sparingly and only in appropriate cases, not for correcting mere errors. | Cited to emphasize restraint in exercise of Article 227 and to support refusal to interfere with the subordinate authority's findings where no jurisdictional excess or clear legal error was shown. |
Court's Reasoning and Analysis
The court's analysis proceeds through several linked grounds, each grounded in facts and precedent as recorded in the opinion:
- Failure to implead the decision-making authorities: The court first held that neither the Collector nor the Commissioner—whose orders were the subject of attack—were impleaded as respondents. Relying on the principle stated by Ferris and approved in subsequent Indian decisions, the court observed that those officers are necessary parties because they possess the records, must be given notice, and are the only parties who can make return to the writ. The omission was treated as a fundamental defect that goes to the right of the relief sought.
- Waiver or lateness of jurisdictional objection: The court analysed the contention that the Collector's 1956 order had become final prior to the amendment (Punjab Act No. 39 of 1956) and thus the Commissioner lacked jurisdiction. The court noted that no objection to the Commissioner's jurisdiction had been raised when the Commissioner first remanded the case (order dated 6th August 1958), at which time the amendment was already in force. The petitioner raised the jurisdictional objection for the first time only during the proceedings culminating in the Commissioner's order of 14th April 1959. The court applied authorities (The King v. Williams; Candhinagar Motor Transport; Belsund Sugar) to hold that an objection to jurisdiction should have been taken at the earliest opportunity before the tribunal whose order is challenged, and a petitioner who "sat on the fence" and took a chance of success cannot later invoke that objection in extraordinary writ proceedings.
- Merger of earlier orders in later orders: The court invoked the bench decision in Hafiz Mohammud Yusuf to conclude that where there are two orders of the same authority/tribunal, the earlier order is merged into the later. On that basis the Collector's earlier orders were regarded as merged into the Commissioner's revisional orders; consequently the Commissioner's orders (being revisional and made after the amendment) were operative and not shown to be in excess of jurisdiction.
- Merits of the decision: Turning to the substantive findings, the court noted that both the Collector and the Commissioner had found that Phalgu Dutt had sub-leased portions of the land and had not reclaimed and brought under cultivation fifty per cent as required. The printed lease conditions (referred to in the record) included Condition No. 6 (lessee could not assign, transfer or sublet without Collector's permission), Condition No. 8 (lessee required to reclaim and bring 50% of land under cultivation) and Condition No. 15 (lessee subject to provisions of the East Punjab Utilization of Lands Act as amended). Given these findings and lease conditions, and in light of the Act's created hierarchy of officers and appellate authorities, the court did not find any legal error warranting interference.
- Restraint under Article 227: The court reiterated the principle from Waryam Singh that Article 227's superintendence must be exercised sparingly — to keep subordinate courts within bounds and not to correct mere errors. Applying this standard, the court concluded that neither excess of jurisdiction nor a mistake of law requiring intervention was shown.
Holding and Implications
DISMISSED WITH COSTS.
Direct effect on the parties: The petition under Article 227 was dismissed and the orders of the Collector (as applied and ultimately merged into the revisional order) and the Commissioner of Ambala Division (14th April 1959) stood upheld. The court ordered dismissal of the petition and awarded costs against the petitioner; the opinion records the concluding notation: "Petition dismissed."
Broader implications: The court emphasised (a) the necessity of impleading the officers whose orders are challenged in writ proceedings, (b) the obligation to raise jurisdictional objections at the earliest opportunity before the tribunal concerned, and (c) the principle that Article 227 should be exercised sparingly. The opinion does not advert to the setting of any new legal precedent beyond applying existing authorities and principles to the facts of this case.
Petition dismissed.
Shamsher Bahadur, J.:— In this petition under Article 227 of the Constitution of India, the orders passed by the Collector of Karnal on 21st of February, 1959 and that of the Commissioner of Ambala Division on 14th of April, 1959, are sought to be quashed for the reason that they contravene the provisions of law. I may state at once that the Collector of Karnal and the Commissioner of Ambala Division, whose orders have been questioned in this petition have not been impleaded as respondents and this is one of the grounds for the rejection of this petition. Before I deal with the questions which call for determination, I may briefly set out the facts of the case.
2. Parcels of waste land in village Bherian and Gumthala aggregating about 330 acres were acquired under the East Punjab Utilization of Lands Act (East Punjab Act No. 38 of 1949) and subsequently leased out to the petitioner, Phalgu Dutt, for a period of seven years commencing from Kharif 1951. Before the expiry of the lease period, the Collector had extended the term of the lease in favour of the petitioner Phalgu Dutt to twenty years. The extension in the lease was granted by two orders of the Collector dated 23rd and 29th of February, 1956, both passed on the application of the petitioner and without notice to the owners who are the four respondents in the present petition, Smt. Pushpa Wanti, Tara Chand, Dina Nath and Jagdish Kumar. When the period of lease expired these respondents applied on 14th and 24th Match, 1958 for restoration of the lands belonging to them. It appears that these respondents own only about 46 acres out of the total of 330 acres which had been leased to the petitioner Phalgu Dutt. The Collector passed two separate orders on 7th and 14th of April, 1958 declining to restore the lands as the lease in respect of them had already been extended by the earlier orders of the February 1956. Thereafter the parties went in appeal to the Commissioner of Ambala Division, who passed an order on 6th of August 1958 remanding the matter for a re-decision by the Collector. Thereafter the Collector on 21st of February 1959 made an order in favour of the present respondents after considering the points which had been raised in their petitions. The Collector observed that the respondents, Pushpa Wanti, Tara Chand, Dina Nath and Jagdish Kumar were displaced persons and small land-holders. Phalgu Dutt was not cultivating himself the major portion of the leased land belonging to the respondents. I gather from this order that the Collector taking into account the circumstances of the respondents and the sub-tenancy which does not appear to have been denied made the order restoring the lands to the respondents. With regard to the remaining land the lease was to subsist for twenty years as previously directed. This order was made by the Collector after having heard the parties concerned who had been afforded an opportunity of adducing evidence in respect of their respective claims.
3. A revision petition was again preferred before the Commissioner of Ambala Division who upheld the order of the Collector. An objection was raised before the Commissioner that the order passed by the Collector on 21st of February 1959 was without jurisdiction. As this is one of the principal grounds on which the jurisdiction under Article 227 is invoked, I may briefly set out what the objection is. As the East Punjab Utilization of Lands Act stood in February 1956, the decision by the Collector on any matter under the Act was final, vide sub-section (1) of section 14. An amendment was made in the Act by Punjab Act No. 39 of 1956 on 25th of October 1956 empowering the Commissioner of a Division on his own motion or an application made to him to call for the records of “any proceedings which are pending before or have been disposed of by the Collector for the purpose of satisfying himself as to the legality or propriety of such proceedings……” It was contended before the Commissioner that the order of the Collector refusing the grant of extension of the lease having been passed before the enactment of amending Act No. 39 of 1956, became final. It is, however, worthy of note that no objection was taken to the jurisdiction of the Commissioner when he passed his first order on 6th of August 1958 remanding the proceedings to the Collector. When this order was passed the Amendment Act was in force and the objection with regard to jurisdiction was available to the present petitioner. The Commissioner therefore did not find the objection with regard to jurisdiction to be tenable and dismissed the revision petition on 14th of April 1959.
4. The present petition, in my opinion, should fail on more than one ground. As I have already emphasised, the authorities whose orders are challanged in this petition have not been impleaded. This is not a defect which could be lightly ignored as the Collector and the Commissioner are the appropriate persons to give an answer on the question of jurisdiction. The remedy provided under Article 227 is of an extraordinary nature and as observed by Ferris in the “Extraordinary Legal Remedies” 1926, in paragraph 175, at page 201, “those parties whose act on is to be reviewed and who are interested therein and affected thereby, and in whose possession the record of such action remains, are not only proper, but necessary parties. It is to such parties that notice to show cause against the issuance of the writ must be given, and they are the only parties who may make return, or who may demur. The omission to make parties those officers whose proceedings it is sought to direct and control, goes to the very right of the relief sought”. This proposition is too well-founded to need any authority. Recently, Bishan Narain, J. in Delite Cinema v. Rameshwar Dyal . A.I.R 1959 Punjab 189. at page 190, upheld this view on the authority of Ferris. Similarly, it was held in a bench decision of the Madras High Court in Sha Devichand Moolchand v. Sha Dhanraj Kantilal . A.I.R 1949 Madras 53., that “it is absolutely necessary that the tribunal to quash whose order the application for the issue of a writ of certiorari is taken should be a party because without notice is suing to him, the records of the proceedings cannot be brought up to the High Court”. There is no difference in principle or analogy to the case of a writ under Article 227 which partakes of the essential characteristics of a writ of certiorari which is the subject-matter of Article 226.
5. Regarding the jurisdiction of Commissioner who reversed the order of the Collector, it is to be observed that a party raising such a plea ought to do it at an earliest possible opportunity. The ex-forte orders had been passed as far back as February 1956 and the Collector had refused to interfere with these orders in April 1958. A revision petition was taken before the Commissioner who directed the Collector to go into the matter again after full consideration of the merits. This order was made on 6th of August 1958 and it is significant to note that Phalgu Dutt at that time took no objection to the jurisdiction of Commissioner in entertaining the revision application. It appears that for the first time this objection was raised before the Commissioner on or before the 14th of April 1959 when the final order was passed by him rejecting the revision application of Phalgu Dutt. The grant of relief under Articles 226 and 227 is of a discretionary nature and if the order sought to be impugned is attacked on the ground of jurisdiction such an objection ought to be taken at the time of hearing of the application. It was held in The King v. Williams . 1914 I K.B 608. that where the conviction was sought to be quashed in a writ of certiorari on the ground that one of the justices alleged to have taken part in the conviction was a person interested in the matter giving rise to such a conviction, any objection to the competence of the Court should have been taken at the hearing before the justices. This principle was followed in a Bench decision of the Bombay High Court (Chagla, C.J and Dixit, J.) in Candhinagar Motor Transport Society v. State of Bombay . A.I.R 1954 Bombay 202.. It was held that “before a question of jurisdiction of a tribunal is raised on a petition under Article 226 and 227, objection to jurisdiction must be taken before the tribunal whose order is being challanged”. The reasoning given by Chagla, C.J has been pithily summarised at page 203 in the following words:—
“The Court must tell the petitioner: “It was open to you to raise that point before the tribunal whose orders you are challenging. You have sat on the fence, you have taken a chance of the tribunal deciding in you favour, and it is not open to you now to come to us and ask for a writ.”
6. Sinha, J. in Belsund Sugar Co. Ltd. v. The Labour Appellate Tribunal of India . A.I.R 1958 Cal. 456. stated thus:—
“Where the objection to jurisdiction was neither raised before the Industrial Tribunal nor before the Appellate Tribunal and the petitioner fought out the case in those courts and took the chance of success he ought not to be allowed to raise the point for the first time in an application for issue of writ of certiorari or mandamus.”
7. Where there are two orders of the same authority or tribunal, the earlier one is merged in the latter, and on the authority of the Bench decision of the Allahabad High Court in Hafiz Mohammud Yusuf v. The Custodian General, Evacuee Properties, New Delhi . A.I.R 1954 All. 433., I am of the opinion that the order of the Collector merged in that of the Commissioner who was a revising authority under Act 39 of 1956. Neither of the orders of the Commissioner can be said to be in excess of jurisdiction.
8. Finally, on the merits of the case, I think both the Collector and the Commissioner have arrived at conclusions which are not contrary to law. They have found that Phalgu Dutt had sub-leased the land which had been given to him for development. It has also been found that the major part of the land had not been reclaimed by Phalgu Dutt. Now, according to condition No. 6, of the printed lease deed a copy of which has been made available to me, it appears that the lessee could not assign or transfer or sublet the land without the permission of the Collector. Under condition No. 8, the lessee was bound to reclaim and bring under cultivation fifty per cent of the land leased by him, and finally under condition 15, the lessee subjected himself to “all the provisions of the East Punjab Utilization of Lands Act as amended from time to time.” This would show that the order of the Commissioner which was passed after the enactment of amending Act 39 of 1956 would be binding on the lessee. As observed by the Supreme Court in Waryam Singh v. Amarnath . A.I.R 1954 S.C 215.. “The power of Superintendence conferred by Article 227 is to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors”. The East Punjab Utilization of Lands Act has created its own heirarchy of officers and appellate authorities to administer the law, and I do not find any justification to interfere with these orders in the present proceedings. Indeed the order of the Commissioner appears to be eminently just and reasonable in the circumstances of this cases.
9. I would accordingly dismiss this petition with costs.
Petition dismissed.
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