Tek Chand, J.
1. These are four Letters Patent appeals Nos. 177, 175, 167 and 178 of 1961, which may be conveniently disposed of by one judgment as they involve a point common to all cases which has been referred for disposal by the Full Bench. The question mainly concerns the scope, legality and constitutionality of Section 36 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter called the Act).
2. Four writ petitions had been filed in this Court under Article 226 of the Constitution praying for the issuance of an appropriate writ, order, or direction quashing the order of Director of Consolidation of Holdings. Facts are different in each case, but the differences are immaterial and all the writ petitions pivot upon the point relating to the vires of Section 36 and the violation of rule of natural justice.
3. The facts as alleged in the writ petition, which has given rise to L. P. A. 177 of 1961, are that the consolidation operations started in village Atohan in Tehsil Palwal of Gurgaon district in 1954-55. The petitioners are the proprietors and landowners in the village. The scheme of consolidation as envisaged under Section 24 of the Act came into force in June, 1957 and the landowners were put into possession of their new plots which had been assigned to them by the Consolidation authorities, after the estate had been repartitioned in accordance with the consolidation scheme. The Consolidation operations had concluded in 1957.
In 1958, the Settlement Officer disposed of all the appeals which had been preferred by the allottees of the new plots. From the order of the Settlement Officer, one person had preferred an appeal to the Assistant Director which was disposed of in 1958-59. Some applications had been filed to the Director of Consolidation of Holdings (respondent) under Section 42 of the Act for the modification OF revocation of the consolidation scheme. It is said that the predecessor of the present Director personally went to the village and disposed of the said applications making necessary changes in the scheme. The consolidation authorities in 1958 acted upon the changes. It is stated that the consolidation work in the said village, for all intents and purposes, was completed and the Settlement Officer with respect to this village had become functus officio.
4. On 23rd February, 1960, the Director of Consolidation of Holdings passed an order by which he directed the Settlement Officer, Gurgaon, to act under Section 36 of the Act and modify the consolidation scheme of the said village on the lines as indicated in his order. The petitioners alleged that Director of Consolidation of Holdings, or the Settlement Officer, had no power or jurisdiction to pass the said order and to modify or revoke the consolidation scheme.
5. The facts in writ petitions in L. P. A. 167, and 178 of 1961, are very similar to the writ petition in L. P. A. 177 of 1961.
6. In the written statements filed on behalf of the respondents, in all these three cases, it is admitted that the consolidation work had been completed, but it is contended that it did not affect the jurisdiction of the consolidation authorities and their powers under Section 36 of the Act could be exercised at any time. Inter alia, it was stated that whenever a recourse was had to vary or revoke the scheme of consolidation, due consideration was given to all the circumstances and improvements if made by the rightholders, after their having been put in possession of their holdings after consolidation. It was said that cases often arose where serious irregularities and instances of injustice were detected at later stages and in such cases it was desirable to vary or revoke the scheme to the extent necessary,
7. Facts in the writ petition in L. P. A. 175 of 1961 are somewhat different and they may be summarised here. The petitioners in this case are owners of land in village Ladiaka, Tehsil Palwal, district Gurgaon. Consolidation proceedings had started in this village in 1955-56 and the scheme was confirmed by the Settlement Officer on 4th May, 1956. The repartition proceedings under Section 21 of the Act were completed in 1957 and the landowners had been put in possession of their respective plots which had been allotted to them during the consolidation proceedings and they were actually cultivating the same. It was alleged that after the completion of the entire consolidation work, including repartition proceedings, the revenue records were deposited in the Tehsil and the village again came under the revenue authorities and was released from the charge of the consolidation authorities. The petitioners alleged that they had considerably improved the respective plots which had been allotted to them and some of them had sunk pucca wells on their lands and built houses. Some of the plots had been sold for valuable consideration to third parties and some of the petitioners had planted gardens after putting in considerable labour and expense. On account of the improvements so affected, the value of land had greatly increased since repartition.
On 23rd February, 1960, the Director of Consolidation of Holdings, Punjab, Jullundur (respondent No. 2), without notice to the petitioners and at their back wrote a memo to the Settlement Officer suggesting the taking of action under Section36 of the Act and desired that the order of the Settlement Officer dated 4th May, 1956, may be suitably amended. On 3rd June, 1960, an ex parte order was passed by the Settlement Officer (respondent No. 3) amending the scheme which had already been confirmed on 4th May, 1956. In pursuance of the order of the Settlement Officer, dated 3rd June, 1960, the Consolidation Officer (respondent No. 4) started consolidation proceedings de novo and the petitioners feared that steps to dispossess them from their existing allotments which had fallen to their share during repartition proceedings in 1957 were being taken. It was alleged that respondents Nos. 3 and 4 did not gay any regard to the improvements which had taken place during the last four years when repartition proceedings took place in 1957 after the confirmation of the scheme.
The power of respondent No. 2 was challenged and the provisions of Section36 were assailed as ultra vires. It was alleged that this section deserved to be struck down as it gave unlimited and arbitrary power to the consolidation authorities to vary or revoke the scheme even after the landowners had been put into possession of their new holdings and the consolidation proceedings had come to an end. The impugned orders, it was said, were passed a long time after the completion of the repartition and after the appeals had been disposed of under sections 21 (1) (2) (3) and 43 of the Act. The impugned orders, it was said, were passed at the motion of one landowner Badan s/o Dalu, after his appeal under Section21 and his petition of revision under Section42 of the Act had been dismissed. . The impugned orders were also alleged to be mala fide.
8. In the written statement filed on behalf of respondents Nos. 1 to 4, it was admitted that the scheme was confirmed in the first instance on 4th May, 1956, and the proceedings of repartition under Section21 (1) were completed on 13th July, 1956, and the possessions were also transferred immediately thereafter. Record of rights was prepared as required by the Act and the record was consigned to the record room on 6th February, 1957. after completing the consolidation work in the village. This is true of all these four cases. Allegations regarding improvements were styled as vague and indefinite. It was said that the matter which led to taking of action under Section 36 of the Act had been examined by the Director of Consolidation of Holdings, respondent No. 2, and was also discussed with the Minister in charge and with the latter's verbal approval the Settlement Officer had been advised to take action under Section 36 by memorandum dated 23rd February, 1960. It was then said that the Settlement Officer under Section 36 had varied the scheme. The order of variation of the scheme was published and objections received against the varied scheme were also disposed of by the Settlement Officer and that varied scheme was confirmed on 25th August, 1960 and then repartition proceedings were again published on 24th September, 1960.
9. All these four petitions were heard by Grover, J., and were dismissed, but the parties were left to bear their own costs.
10. Before considering the arguments which have been addressed to us, a brief resume of the salient features of this Act may be given in order to appreciate the policy and plan of the Act.
11. The Act came into force on 14th December, 1948, and so far it has been amended fourteen times. The Act was passed to
'provide for the compulsory consolidation of agricultural holdings and for preventing the fragmentation of agricultural holdings in the State of Punjab (and for the assignment of reservation of land for common purposes of the village)':
The words in brackets were added to the preamble by Punjab Act 27 of 1960, which further provided that they would be 'deemed always to have been so added'. Thus, the main purpose of the Act is consolidation of agricultural holdings and the reservation of land for common purposes of the village. Section 2 (b) defines consolidation of holdings to mean 'amalgamation and redistribution of all or any of the lands in an estate or sub-division of an estate so as to reduce the number of plots in the holdings'.
12. Chapter III, headed 'Consolidation of Holdings' beginning with Section 14 and ending with Section 36, contains the principal operative provisions. Section 14 enables the State Government either suo motu or on application made to it to declare by notification its intention to make a claim for the consolidation of holdings in such estate or estates or part thereof as may be specified. On such publication, a consolidation Officer is appointed who, after consulting the persons interested, that is, the landowners, non-proprietors and the Gram Panchayat, prepares a scheme for the consolidation of holdings. Section 15 requires that a. Consolidation Officer shall provide in the scheme for the payment of compensation to any owner who is allotted a holding of less market rate. Under Section 18, the Consolidation Officer may reserve certain areas for common purposes. The Consolidation Officer after preparing his draft scheme is required to publish it, and Section 19 further provides that a person who is likely to be affected by such scheme may communicate his objections to the Consolidation Officer who after considering the objections, submit the scheme with such amendments as he may consider necessary together with his remarks on the objections, to the Settlement Officer (Consolidation). The amended scheme is also required to be published.
'Under Section 20 the Settlement Officer after considering the objections, if any, may confirm the scheme with or without modifications or refuse to confirm it. In the latter event, the Settlement Officer shall return the draft scheme with such directions as may be necessary to the Consolidation Officer for reconsideration and resubmission. The scheme as confirmed is required to be published in the prescribed manner in the estate or estates concerned. Under Section 21, the Consolidation Officer is required to carry out repartition in accordance with the scheme as confirmed. Any person aggrieved by the repartition may file written objections before the Consolidation Officer within fifteen days of the publication. The Consolidation Officer, alter giving a hearing to the objector, may pass appropriate orders confirming or modifying the repartition. Sub-section (3) allows a person dissatisfied with the order of the Consolidation Officer to file an appeal before the Settlement Officer who, after giving a hearing to the appellant, may pass such orders as he considers appropriate. Under Sub-section (4), right of appeal is given from the order of the Settlement Officer to the State Government.
Under Section 22 the Consolidation Officershall cause to be prepared a new record of rightsfor the area under consolidation giving effect tothe repartition as finally sanctioned as provided inSection 21. Section 23 (1) determines the rightto possession of new holdings where all personsconcerned agree to enter into possession of the holding allotted to them by the scheme as finally confirmed. The Consolidation Officer may allow themto enter into such possession forthwith or fromsuch date as he may specify. Sub-section (2) provides for a contingency where there is no agreement as to entry into possession. In such a case,the owners or tenants are entitled to possessionof the holdings and tenancies allotted to them fromthe commencement of the agricultural year nextfollowing the date of publication of the schemeunder Section 20 (4), or, as the case may be, ofthe preparation of the new record of rights underSection 22 (I). If necessary, the ConsolidationOfficer shall put them in physical possession at theholding to which they are so entitled. Sub-section(3) and Sub-section (4) deal with the disposal ofstanding crops and provide for recovery of compensation.
Under Section 23-A, the management and control of lands for common purposes vests in the Panchayat. Section 24 provides that after the rightholders have entered into possession of the holdings allotted to them, the
'scheme shall be deemed to have come into force and the possession of the allottees affected by the scheme of consolidation, or, as the case may be by repartition shall remain undisturbed until a fresh scheme is brought into force or a change is ordered in pursuance of provisions of Sub-sections (2), (3) and (4) of Section 21, or an order passed under Section 36 or Section 42 of this Act.'
Thus, under this provision, after coming into force of scheme, the possession of the new allottees shall remain undisturbed subject to the contingencies of a fresh scheme or a change ordered as a result of acceptance of objections or appeal, in pursuance of Section 21, Sub-sections (2), (3) and (4), or an order passed under Section 36 or 42.
Section 25 recognises the title of the right-holders, the new allottees, as they had in the original holdings or tenancies. Section 27-A provides that no decree for possession of land against a judgment-debtor whose land has been included in a scheme for consolidation of holdings shall be executed except after repartition as finally confirmed under Section 21 and against land allotted to him in pursuance of such repartition. The temporary suspension of the execution in the case of decrees for possession was necessitated to avoid confusion during the transitional period when consolidation was going on. For similar reasons Section 30 forbids transfer of the original holding during consolidation proceedings without the sanction of Consolidation Officer. Under Section 30-A, the cutting of trees, erection of buildings or other structures, is forbidden. Section 36, which is the last provision under Chapter III, is reproduced below in extenso --
'36. A Scheme for the consolidation of holdings confirmed under this Act may, at any time, be varied or revoked by the authority which confirms it subject to any order of the State Government that may be made in relation thereto and a subsequent scheme may be prepared, published and confirmed in accordance with the provisions of this Act.'
13. Chapter IV deals with other powers of Consolidation Officer which are of ancillary nature, and Chapter V commences with Section 41 and is styled 'General'. Section 42 confers additional power on the State Government and it reads --
'42. 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, scheme or repartition 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 46 enables the State Government to make statutory rules.
14. Rule 4 of the East Punjab Holdings (Consolidation and Prevention of Fragmention) Rules, 1949, requires the Consolidation Officer to visit the estates concerned, to constitute village committee, and to prepare a draft scheme of consolidation. Rule 5 requires, inter alia, that every scheme of consolidation shall contain certain particulars, that is, a statement of classification of land, a statement of valuation of land, wells, trees, etc. Rule 7 requires the Consolidation Officer, after obtaining the advice of the landowners, to carry out repartition in accordance with the scheme as confirmed.
15. Arguments on behalf of the appellants in these cases have been addressed by Shri D.S. Tewatia and by Shri H.L. Sarin; and Shri L.D. Kaushal has replied for the respondents. .
16. I may first dispose of the argument of the learned counsel for the appellants to the effect that in Section 36 the words 'and a subsequent scheme may be prepared, published and confirmed in accordance with the provisions of this Act'. introduce uncertainty and vagueness as the word 'may' should be taken to mean unguided and uncanalised discretion leaving the matter open to the option of the authority which confirms the scheme to prepare, publish and confirm the scheme in accordance with the provisions of the Act, or, not. In other words, it gives arbitrary power to the Settlement Officer (Consolidation) to follow the provisions of this Act in relation to a subsequent scheme or decline to do so. The question revolves round the meaning of the word 'may' in the above phrase whether it is used in the enabling sense or leaves a discretion when 'may' be said also to mean 'may not'.
It is true that ordinarily the auxiliary verb 'may' is used in permissive or discretional sense, as opposed to mandatory or imperative direction. The particular sense in which the word 'may' has been used has to be gathered from the context. Ordinarily, it is not a word of command, but imports power or potentiality in the facultative sense. In certain context, it is interchangeable with 'can'; though sometimes it is also synonymous with 'shall'. It is a well-known principle of interpretation of statutes that when an Act casts a duty on the person on whom the power is conferred to exercise that power, then the word is used in the imperative sense. In this sense, it seems that when the authority which confirms a scheme, revokes it and decides upon a subsequent scheme, it is incumbent upon it to have the scheme 'prepared, published and confirmed in accordance with the provisions of this Act'. It does not mean that the authority is at liberty to do so in one case and forbear in the other. In this case, it becomes the duty of the Settlement Officer to prepare, publish and confirm a subsequent scheme as required by the Act. In this sense, the Legislature cannot be intended to have granted a mere discretion, but rather to have imposed a positive and absolute duty. In this context the word 'may' does not signify mere faculty or power, but an obligation. As observed by Lord Blackburn in Julius v. Lord Bishop of Oxford, (1880) 5 A. C. 214,
'The enabling words are construed as compulsory whenever the object of the power is to effectuate a legal right.'
Coleridge, J., in Queen v. Tithe Commissioners, (1849) 14 QB 459 at p. 474 said,--
'The words undoubtedly are only empowering; but it has been so often decided as to have become an axiom that in public statutes words only directory, promissory, or enabling, may have a compulsory force where the thing to be done is for the public benefit or in advancement of public justice.'
It is a well settled rule of interpretation that where a statute confers an authority to do a judicial or quasi-judicial act in a certain case, it is imperative on that authority to exercise the authority when such a case arises and its exercise is duly applied for by a party interested, or is required under the statute. Courts have to determine the legislative intent which sometimes is not clearly conveyed by the auxiliary verb 'may'. The use of the words 'may' and 'shall' or other cognate expressions helps in discovering the intention of the Legislature. These words often admit of flexibility, and the plain intention of the Legislature, wherever it can be spelled out, cannot be disregarded because of an inept use of a particular word. By themselves the words 'may' and 'shall' may be treated as indicative, but not decisive, of discretion or mandate. I read the auxiliary verb 'may' in Section 36 to mean that it is discretional with the authority confirming the scheme to vary it or revoke it subsequently, but if the matter has been reopened then it is not discretional upon the authority not to prepare, publish, or confirm the subsequent scheme in accordance with the provisions of this Act in certain cases and not in others.
The word 'may' though facultative, does not imply in this context an option to refrain from adhering to the prescribed procedure. Once he has decided upon to reopen the matter, a subsequent scheme has to be prepared, published, and confirmed as required, and there can be no departure from it. It could not have been the intention of the Legislature to leave the matter of preparation, publication, confirmation, etc., of the subsequent scheme to the subjective pleasure of the authority. I cannot, therefore, persuade myself to entertain the contention of the appellants' learned counsel that the last 'may' after the words 'subsequent scheme' is discretional and, therefore, Section 36 is bad. On this ground. Section 36 cannot be struck down. Here, in the matter of variation or revocation of schemes, third persons are interested and the facultative power conferred upon the officer must be exercised in accordance with the procedure indicated with no liberty to deviate.
17. The next expression used in Section 36, which calls for scrutiny, is 'at any time'. According to the learned counsel for the appellants, these words relate to the pendency of the consolidation proceedings. The terminus a quo is the preparation of the draft scheme after the Government has declared its intention for consolidating the holdings under Section 14, and the terminus ad quern is the delivery of possession on the preparation of record of rights under Sections 22 and 23. According to the learned counsel for the State, the words 'at any time' admit of no limitation and the phrase is to be construed to mean 'at all times', and even 'from time to time'. Learned counsel for the appellants maintained that if the interpretation placed upon these word's by the respondents is to be accepted, then Section36 deserves to be struck down as ultra vires the Constitution, as it contravenes the fundamental rights under Articles 14 and 19 (1) (f), and it confers unfettered and arbitrary power for varying or revoking the scheme.
18. The phrase 'at any time' is frequently used in the statutes and its meaning has to be gathered from the context in which it is used. The phrase has been understood differently having regard to the intention manifested in the Act or in the particular provision. Depending upon the circumstances of its use, the phrase 'at any time' has a variety of meanings. Among others, it sometimes means 'within reasonable time', 'after a certain time', 'after the fulfilment of a certain condition', or 'subject to the restrictions in the Act', 'at all times', 'at any one time', or 'from time to time'. Sometimes it may be construed to import perpetuity, and at others, only a reasonable time or even immediacy, in the sense of 'at once. If the phrase is given its literal construction and is torn out of the context, it would give a right to the authority to vary or revoke a scheme in perpetuity or more than once, I that is, as often as it may please the Settlement Officer. In this sense, there may be a terminus a quo, the starting point, of the exercise of this power but no terminus ad quem, beyond which the power is not exercisable.
I think, the phrase cannot be construed is the abstract and a reasonable construction has to be put on the words 'at any time' and some limitation requires to be put beyond which the power of variation and revocation cannot be exercised, otherwise title of a rightholder may be in a perpetual state of flux and instability. The principal object of the Act is to consolidate the scattered areas' belonging to individual owners and to avoid fragmentation. After this object is achieved and repartition is effected and possession accordingly changed, and also the land for common purposes of the village is reserved, the Act achieves its object and the cycle is completed. The rightholders thenceforward are entitled to exercise the various rights of ownership. If, in future, in consequence of transfers or succession, the areas consolidated become disintegrated into small fragments, it is open to the Government to start consolidation of holdings de novo by declaring its intention to make a scheme as contemplated by Section 14 and then let the matter run the whole course of the process and procedure provided by the Act.
Consolidation of holdings cannot be intended to be a continuous process without an end and without any finality, or even, continual in the sense of periodic intermittency. Rights of ownership and possession will become extremely precarious if the intention was to keep them in a state of flux liable to be disturbed at the subjective will, whim, or caprice of a particular authority. The result will, therefore, be that there will be no guarantee of tenure even in the case of an absolute owner to exercise the well-known and varied rights of ownership over his property, and there can be no impetus to make any improvements. In most cases. the process of consolidation may result in introducing an element of uncertainty which would make the enjoyment of a particular property extremely precarious resulting in unintended insecurity. It could not conceivably be the object of the Act to confer power on any authority which may be exercised to the detriment of the object of the Act and result in uncertainty to the fightholders whose possession could thus be frequently shifted to the detriment of most. The power under Section 36 cannot be unrestricted unbridled or limitless and there has to be a terminus ad quem, that is, a point after which the power of variation or revocation terminates and is no longer exercisable. For determining the two terminii, the starting point and the culminating point, of the exercise of the power under Section 36, we must look for guidance to the provisions of the Act.
19. The power to vary or revoke a scheme contemplates the existence of the scheme. While the scheme is at the draft stage, it could be- varied or amended on submission of objections to the Consolidation Officer under Section 19. The Consolidation Officer, after considering the objections, is required to submit the scheme with such amendments as he considers to be necessary together with his remarks on the objections to the Settlement Officer (Consolidation). The next step is when the Consolidation Officer publishes the scheme as amended. The scheme is then confirmed by the Settlement Officer with or without modifications. If the Settlement Officer refuses to confirm the scheme he returns the draft scheme to the Consolidation Officer for reconsideration and resubmission (Section 20). Then repartition proceedings take place under Section 21 and a party aggrieved by the repartition is enabled to file written objections before the Consolidation Officer and a right of appeal is provided before the Settlement Officer, and then a further right of appeal to the State Government may also be exercised.
The Act contemplates several stages through which a scheme passes, namely, preparation, publication, confirmation and enforcement. Section 24 refers to the time when the scheme comes into force and that is after the persons entitled to possession of holdings allotted to them under the scheme have entered into such possession. Disturbance of this possession is contemplated by Section 24 (1) when 'a fresh scheme is brought into force or change is ordered in pursuance of provisions of Sub-sections (2), (3) and (4) of Section 21 or an order passed under Section 36 or 42 of this Act'. From the above it can safely be gathered that the power to vary or revoke the scheme under Section 36 becomes exercisable after a scheme has come into force.
20. The next question is, till what time can the authority which confirms the scheme, that is, the Settlement Officer (Consolidation) retain the power of varying or revoking the scheme? After the scheme is finalished and confirmed, it comes into force and the result of its enforcement is that a new record of rights in accordance with the Punjab Land Revenue Act, 1887, Chapter IV, has to be prepared for the area which has come under consolidation giving effect to the repartition consequent upon the scheme. Possession has also to be delivered in accordance with the scheme of consolidation. Under Sub-section (1) of Section 23, if all the persons concerned, owners and tenants, affected by the scheme agree to enter into possession of the holdings allotted to them, the Consolidation Officer may allow them to enter into such possession forthwith or from a specified date. Sub-section (a) contemplates the situation where the rightholders do not agree 'to enter into possession, and in that event they shall be entitled to possession of the holdings and tenancies allotted to them from the commencement of the agricultural year next following the date of the publication of the scheme under Section 20 (4) or, as the case may be, of the preparation of the new record of rights under Section 22 (I).
The question that calls for examination is what, if any, powers are left with the Settlement Officer (Consolidation) after the scheme is confirmed and full effect has been given to it including the entry into possession and the preparation, of the new record of right? That stage is reached after the consolidation is completed. After the consolidation proceedings are over, the Settlement Officer becomes functus officio. The round which started with the notification of the Government's intention under Section 14 is completed and the purpose of the Act is fully given effect to. The inhibition against execution of decrees for possession of land against the land allotted on repartition is also lifted. Section 27-A places a ban on execution of a decree for possession of land against a judgment-debtor except after repartition as finally confirmed under Section 21. After the completion of the consolidation proceedings, the new rightholder is at liberty to dispose of his land as he likes or even to change its complexion in consequence of improvements.
The allotted land may change several hands either as a result of the execution of decrees for possession or in consequence of voluntary transfers or on succession on intestacy or under the will. The important question which arises is whether it is still open to the Settlement Officer after the conclusion of the consolidation proceedings to vary or revoke the scheme, which, in a large number of cases, will seriously unsettle the possessory and proprietary rights. Learned counsel for the appellants have rightly urged that chaotic conditions will prevail if schemes confirmed after the hearing of objections and appeals can be varied or revoked not only several years after their enforcement but also from time to time. Such a state of affairs is bound to put an end to any finality, and this cannot be said to be the intention or the object of the Act. The phrase 'at any time' in this context, therefore, cannot be construed as unlimited in point of duration, unregulated in point of intermittency, and unguided in point of frequency. The power to vary or revoke a scheme 'at any time' must be read to mean 'during the consolidation proceedings.' It was also rightly urged that the Act deals with consolidation and is not concerned with what happens afterwards. The title or possession after consolidation is not intended to be disturbed,
21. In a well considered judgment of a Division Bench in Jiwan Singh v. Consolidation Officer, 1962 (64) Pun I,R 668, several provisions of East Punjab Act 50 of 1948 were subjected to detailed scrutiny with a view to construe its meaning. Mahajan, J., felt that certain provisions, in particular Sections 20, 21 and 24, were not happily worded and were conflicting. From the drift of the Act and the intention of the Legislature, though without any attempt to reconcile the provisions, it was concluded that Section 22, which referred to preparation of records of rights, contemplated repartition after all the objections, appeals and further appeals have been finally disposed of and there can be no transfer of possession in pursuance of a 'finally confirmed' scheme within Section 23 (1) till the objections etc., are decided, as possession in case of parties not in agreement can only be transferred after the preparation of new record of rights. Mahajan, J., remarked -
'If, on the other hand, possession in case of repartition can only be transferred after the preparation of the record of rights and the record of rights can only be prepared after, objections, etc., to the repartition as provided in Section 21 have been disposed of, the provisions of Section 24 (1) would become redundant, because Section 24 (1), contemplates transfer of possession before the objections, appeals and further appeals contemplated by Section 21 have been decided. Therefore, what emerges from the combined reading of Sections 20, 21 and 22 is that a scheme is finally confirmed when it has passed the stage of Sub-section (3) of Section 20 and a repartition is finally confirmed when all objections appeals and further appeals against its confirmation have been disposed of. It is in the background that the question in dispute has to be approached. Whatever interpretation is placed on Section 23 (2), it is bound to come in conflict with either Sections 20, 21, 22 or Section 24,'
View was also expressed that record of rights is prepared after all disputes are settled and objections, appeals, etc., disposed of and no other situation can be countenanced. It was said that -
'The object of the Act is to consolidate the holdings and then transfer possession of the consolidated holdings on to the owners and tenants entitled to the same. The object is not to keep on shifting their possession from time to time on the exigencies of the decisions of the appeals under Sub-sections (3) and (4) of Section 21.'
22. These observations do lend support to the proposition which we have to tackle. The main purpose of the Act is to finalise consolidation of holdings. When this is done, all objections and appeals have been disposed of, and possession has changed hands, and record of rights is prepared. It is no longer within the province of the consolidation authorities to do anything further to comply, with any other requirement of the Act. Any reshuffling has now to be done by starting the entire process de novo as the wheel has now run its full circle. The only difficulty which I find is created by the words in Section 24 (1) which provides that after the coming into force of the scheme, it shall remain undisturbed until a fresh scheme is brought into force or order is passed under Section 36 or 43 of the Act.
This language perhaps does suggest that even after finality is reached the scheme can still be varied and revoked under Section 36. Despite the rather unhappy language which is not very easy, to reconcile, Section 36 cannot be so construed as to vest in the authority confirming the scheme a residue of power to amend or end the scheme after any length of time and even recurrently. The Legislature could not have intended to confer upon the Settlement Officer power of exercising a substantive discretion whereby rights and title to property could be left in constant state of precariousness with resultant insecurity and instability. On this assumption the very purpose of the Act will be defeated and the result would be not consolidation, which is the manifest intention of the statute, but indetermination and fluctuation. A statutory provision must be construed to effectuate the declared intention of the Act rather than to hinder it from its known purpose and such a drastic provision ought, therefore, to be construed narrowly and strictly.
23. Again, the language of Section 36 needs to be compared to that of Section 42, the scope of which is wider. Under Section 36, the power conferred upon the authority which confirms a scheme refers to varying or revoking a scheme of consolidation confirmed under the Act; This power is not exercisable prior to confirmation of a scheme and avails in respect of a scheme. Section 42 which is broad-based enables the Government to satisfy itself as to the legality or propriety of 'any order passed, scheme prepared or confirmed or repartition made by any officer under this Act.' Under Section 36, no power can be exercised to check the legality or propriety of any order passed, scheme prepared but not confirmed or repartition made. If repartition is to be disturbed, the Settlement Officer cannot do so under Section 36. That can be done by the State Government only. This also is a pointer that power under Section 36 may be exercised before repartition and not later. As the Settlement Officer can only interfere with a scheme, this power cannot be exercised after the completion of the consolidation proceedings.
24. It was also urged that the powers of the Settlement Officer come to an end on repartition which has to be carried out by the Consolidation Officer, and the Settlement Officer's power is confined to hearing appeals under Sub-section (3) of Section 21 from the order of the Consolidation Officer under Sub-section (2). No further function is assigned to the Settlement Officer by the Act. After repartition, it is the Consolidation Officer who is called upon to prepare a new record of rights and it is he who has to see to the change of possession either in the event of agreement or otherwise. The allotment of encumbrances under Section 26 is then determined by the Consolidation Officer according to the rules. Under Section. 30 transfer of property during consolidation proceedings can only be allowed with the sanction of the Consolidation Officer and under Section 30-A the Consolidation Officer alone can sanction the cutting of trees and erection of buildings or other structures after notification under Section 14 (1).
The amount of compensation payable under the Act has to be assessed by the Consolidation Officer and, where there is a dispute in the respect of apportionment, the Consolidation Officer may refer the dispute to the decision of the Civil Court. Chapter IV, beginning with Section 37, deals with Consolidation Officer's other powers. Thus it will be seen that after the appellate powers are exercised by the Settlement Officer from the order of the Consolidation Officer in matters of repartition, there is no further duty which the Settlement Officer may now perform. He thus becomes functus officio. The phrase 'at any time' in Section 36, therefore, cannot be extended to a period after the Settlement Officer has ceased to function.
25. The next question is whether Section 36 transgresses any constitutional inhibition if the phrase 'at any time' is to be given unrestricted meaning and is to be construed to mean 'at all times' without any terminus ad quem or culminating point. Despite the terminal point having reached and the proceedings of consolidation, having ended, can the Settlement Officer still exercise his authority and then even after the passage of several years, or, theoretically, even after decades, without violating the appellant's fundamental rights. Under this head, reference will also be made to other lacunae in the provisions of Section 36 which make it vulnerable on ground of its being violative of principles of natural justice. It is said that this section gives unfettered discretion to the Settlement Officer to vary or revoke a scheme not only at all times and from time to time, but also arbitrarily, his discretion being unfettered and uncanalised. It is said that Section 36 vests un-guided discretion in the authority uncontrolled by any safeguards. The powers are completely unregulated.
The other objectionable feature of Section 36 is that the Settlement Officer may vary or revoke scheme without giving opportunity to the party affected to object to the proposal, be he an owner, tenant, a judgment-creditor, or a transferee. It is further said that the exercise of this power is not subject to any revision or appeal. The Settlement Officer exercises unguided and arbitrary powers enabling him to discriminate and no policy or purpose is disclosed for clothing him with such an absolute authority. There is no test or criterion laid down in the provision or in any other part of the Act and no guiding principle is indicated and no circumstances or conditions are suggested when the Settlement Officer may vary or revoke a scheme under Section 36.
26. There is no provision for giving a hearingto the parties to be affected in consequence of thevariation or revocation contemplated. Whereas inother parts of this Act there are ample provisionsfor filing and hearing objections and for taking thematter up in appeal or revision, but in the case ofaction taken under Section 36 the persons concerned have no say in the matter and they haveto face a fait accompli which is irreversible andunremediable. It is claimed that the nature of thepower conferred under Section 36 is drastic, unguided, unfettered and uncontrolled so far as interference with an already confirmed scheme is concerned. The implications of variation and revocation are very serious. Thus the authority confirming a scheme can, by reopening it, not only interfere with and override rights to property, butcan also completely upset them and this it can toat its sweet will and pleasure.
27. It has been canvassed before us that such an unrestricted power constitutes an unreasonable inroad on the fundamental right to hold and dispose of property under Article 19 (1) (f) of the Constitution. A rightholder, after finalisation of the consolidation proceedings, might have expended large sums of money for making improvements on his estate or he might have changed its complexion by raising buildings or might have prepared it for a different user after making large investments and despite lapse of a long time he might one morning discover that by a stroke of pen the Settlement Officer has deprived him of his holding by revoking the scheme pursuant to which the rightholder, who had been lulled into a sense of false security, had put in a large outlay. This happens despite the fact that the scheme which has now been revoked under Section 36 has passed through a number of screening processes and has remained inviolate up to appellate or revisional stage. It is also to be remembered that considerable areas also vest in the Gram Panchayat for several beneficent purposes and the vested rights of the Panchayat are equally liable to be interfered with, curtailed, or taken away in respect of particular units or parcels; It was said that a further element of uncertainty is introduced when the process of variation and revocation can be repeated ad libitum.
28. The stand taken by the Punjab State that the power conferred under Section 36 admits of 10 limitation in matter of time and is exercisable repeatedly, as often as the authority may like to interfere, has been, resisted on the ground that Section 36 is a sweeping measure which extinguishes title, disturbs possession, unsettling everything abruptly without notice or opportunity, and without assigning any reason; and therefore this provision was said to be drastic and undefined.
29. Mr. Lachhman Dass Kaushal for the respondents, in refutation of the above criticism, has stated that the provision does not suffer from the alleged infirmities. He has drawn our attention to the words occurring in Section 36 to the effect that the power is exercisable 'subject to any order of the State Government that may be made in relation thereto'. He says that there is no arbitrariness as the State Government has the controlling voice. The appellants, however, contend that the authority concerned is no doubt subject to any order of the State Government provided there is such an order. In the absence of an order of the State Government, a scheme can be varied or revoked at the will of the authority. It was contended that the words 'subject to any order of the State Government' can refer to an order existing at the time of variation or revocation of the scheme. Thus, to be an effective check, the order of the State Government must precede the variation or revocation and cannot follow it.
Mr. Kaushal also urged that the provision cannot be struck down on the ground that it vests unguided discretion in the authority as that guidance is to be received from the purpose and the policy of the Act as can be gathered from the preamble and from other provisions. He also said that mere possibility of abuse of power is not the lest of unreasonableness. He also maintained that a safeguard was provided as a subsequent scheme, after, the earlier scheme had been varied or revoked, was required to be prepared, published and confirmed in accordance with the provisions of this Act which contemplated the hearing of objections and also conferred the right of appeal and revision.
30. This argument ill-conceals the underlying fallacy that the right to object to a subsequent scheme is an ex post facto opportunity of raising objections to a subsequent scheme. No opportunity was provided for defending the original scheme and for saving it from variation or revocation. In other words, the rightholder had no opportunity to contend that the scheme had already been properly screened at various stages and ought not to be varied or revoked. They are not being given any opportunity to show that no variation or revocation of the scheme is called for and that it should be left intact and not interfered with, They are interested in the preservation of their rights resultant on the confirmation of the scheme as already framed. This right of theirs' is not suitably protected by refusing them the right of hearing at the stage of variation or revocation, and by next telling them that when the subsequent scheme is prepared they may then utilise the opportunity for raising objections, etc., as provided under the Act. What the rightholders are being, denied is the right to apprise the Settlement Officer that the scheme as already confirmed is to their benefit and its reversal would be to their detriment. By being deprived of this opportunity the audi alteram partem rule is thus infringed.
31. The arguments referred to above raise two-matters which must be examined and disposed of independently of each other. The first question is whether Section 36 is to be struck down on the ground that it is violative of fundamental rights-mentioned in Articles 14 and 19 (1) (f) of the Constitution. The second matter which calls for consideration is whether independently of the rights conferred by the abovementioned Articles, Section 36 is bad because it infringes the rule of natural justice which is a pervading principle of universal equity -
' Le principe que nul ne doit etre condamne ou prive de ses droits sans etre entendu, et surtout sans avoir meme recu avis qtte ses droits seraient mis on jeu est dune equite universelle, (the principle that no one ought to be condemned or deprived of his rights without a hearing and especially without having received notice that his rights would be imperilled is one of universal equity), (per Rinfret, C. J., in L'Alliance Des Professurs Catholique De Montreal v. Labour Relations Board, 1953-2 Canadian LR (SCR) 140 (154)' -- (to be discussed later).
32. Taking up the first point, it was urged on behalf of the respondents that if it be assumed that Section 36 infringes or takes away any of the rights conferred by Articles 14, or 19, the provision is saved nevertheless by Article 31A. The relevant portion of this Article is reproduced below -
'31A. (i) Notwithstanding anything contained in Article 13, no law providing for -
(a) the acquisition by the State of any rights therein or the extinguishment or modification of any such rights, or
(b) * * *(c) * * * (d) * * *(e) * * * shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14, Article 19 or Article 31;
Provided that where such law is a law made by the Legislature of a State, the provisions of this Article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent. (2) * * *'
It was urged for the respondents that under Section 36 the authority modifies or extinguishes the rights in any estate of the rightholders by exercising its powers under Section 36 and such an extinction or modification cannot be assailed on the ground that it would tantamount to taking away or abridging the rights conferred by three specified Articles, namely, Articles 14, 19 and 31. Mr. Harbans Lal Sarin could not seriously contend that Article 31A(1)(a) did not apply to the instant case.
33. The Act provides for the extinguishment and modification in an estate and the provisions of Article 31A would apply unless it was possible to ontend that the proviso was inapplicable. It was urged that the proviso to Clause (1) covered the case and the provisions of this Article did not apply as the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act (50 of 1948) and Punjab Act 20 of 1953 which amended Section 36 in the form in which it is at present did not receive the assent of the President. The original Act, 50 of 1948, had received the assent of the Governor-General of India on 7th December, 1948, and Section 36 then stood without the words 'the authority which confirms it subject to any order of the State Government that may be made in relation thereto and'. By the amending Act 20 of 1953 these words were inserted and now Section 36, as amended, reads --
'36. A scheme for the consolidation of holdings confirmed under this Act may, at any time, be varied or revoked by (the authority which confirms it subject to any order of the State Government that may be made in relation thereto and) a subsequent scheme may be prepared, published and confirmed in accordance with the provisions of this Act.'
The amending Act was not reserved for the consideration of the President and consequently did not receive his assent. It received the assent of the Governor of Punjab on 28th April, 1953.
After Punjab Act 20 of 1953, the parent Act was amended on ten occasions, though no changes were brought about in Section 36. Out of the subsequent amending Acts, Punjab Act 22 of 1953 and Punjab Act 39 of 1954 had received the assent of the Governor of Punjab but not of the President. The first Amending Act which received the assent of the President was Punjab Act 40 of 1954. This Act had added a new Section 25A. The next amending Act, Punjab Act 7 of 1955, had received the assent of the Governor of Punjab and by this, Section 14 was amended. This was followed by another amending Act, Punjab Act 46 of 1956, which received the assent of the President on 25th October, 1956. It amended Section 24 of the parent Act by substituting Sub-section (1) as it stands at present. The next amending Act, Punjab Act 15 of 1959, added a new Sub-section (3) to Section 14. This Act had received the assent of the Governor. Punjab Act 20 of 1959 received the assent of the President. It added new Sections 16A, 27A and 43A. Certain other provisions were also amended.
In 1960 the Act was amended twice, once by 'Punjab Act 12 of 1960 which added a new Section 30A and then by Punjab Act 27 of 1960 which amended the long title, added a new Section 23A and also amended Section 42 and brought about other minor changes. The last two Acts had received the assent of the President. For the last time, East Punjab Act 50 of 1948 Was amended by Punjab Act 12 of 1962 and it received the assent of the President. By this amending Act, Sub-sections (2) and (3) of Section 20 were substituted by what they are in the present form.
34. The argument on behalf of the appellants is that Section 36 was amended for the first and last time by Punjab Act 20 of 1953 and, not having been reserved for the consideration of the President, had not received his assent but only that of the Governor and, therefore, the provisions of Article 31A(1)(a) are not attracted: This raises two important questions : firstly, whether the parent Act, East Punjab Act 50 of 1948, is 'a law made by the Legislature of a State', and, secondly, whether in view of subsequent amending Acts In which the assent of the President had been received, can it not be said that the President did not assent to the entire law as it was embodied in the Act at the time of giving his assent? The appellant's counsel, however, contended that assent of the President is deemed to have been given to the amending Acts only, which were placed before him for his consideration and not to the law as it was prior to the amendment.
On the basis of this argument it is contended that as the only amending Act which amended Section 36. namely, Punjab Act 20 of 1953, had received the assent of the Governor and not of the President, its provisions remain unaffected by what is contained in Article 31A(1)(a). It has to be remembered that proviso to Article 31A refers to 'laws made by the Legislature of a State' and ex vi termini this cannot refer to laws made by Legislatures of 'Provinces' as the term was known in pre-Constitution period. The 'States' have been created by the Constitution and the proviso does not refer to pre-Constitution laws and, therefore, the Proviso cannot refer to the parent Act, East Punjab Act 50 of 1948, in which Section 36 occurred in its unamended form.
35. Article 316 is not dependent upon Article 31A and cannot be treated as illustrative of the rule laid down in Article 31A. Article 316 validates with retrospective effect Acts enumerated in the Ninth Schedule and Punjab Act 50 of 1948 is not one of them. The objectionable portions in Section 36 which are said to be violative of the fundamental rights have been existing from the very commencement of the Act. From the point of view of inconsistency with the fundamental rights, it is Section 36 ab initio which transgresses the protection guaranteed by Part III of the Constitution. The subsequent amendment brought about by Punjab Act 20 of 1953 in Section 36 is, from this point of view, inconsequential, in so far as, it does not affect the fundamental rights. The provisions of Section 36 as contained in the parent Act do not, however, come within the protection of Article 316 as the Act is not among those specified in the Ninth Schedule. No advantage can be gained by the appellants by reason of Punjab Act 20 of 1953 not having received the assent, of the President because, if anything. Section 36 as amended has limited the power of the authority confirming the scheme in sq far as variation or re-vocation was made subject to 'any order of the State Government''. The features. of the section which confer an arbitrary, unguided, and unfettered power and which thereby take away or abridge the rights conferred by Articles 14 and 19 were there from the very inception. If the assent of the President had not been received in respect of Section 36 as amended by Punjab Act 20 of 1953. that did not matter.
36. The argument on behalf of the State which, to my mind, is difficult to overcome, is that subsequent to 1953, the Act has been amended in some other respects on several occasions and those amending Acts have received the President's assent (vide Punjab Acts 40 of 1954, 46 of 1956, 20 of 1959, 12 of 1960, 27 of 1960 and 12 of 1962). When an amending Act which had been reserved for the consideration of the President has received his assent, then the principal Act incorporating all previous amendments is also deemed to have received his assent. It is true that the amending Act which is being considered by the President and to which he is giving his assent refers to specific amendments only. As the Amendments are going to be embodied in the parent Act, the President can withhold his assent if, in his view, the Act contains features which should lead him not to give his assent. Reference in this connection, may be made to certain observations in Sankarasana Eamanuja Dass v. State of Orissa, (S) AIR 1957 Orissa 96, and Smt. Lila Vati Bai v. State of Bombay, (S) AIR 1957 SC 521.
In the Orissa case, (S) AIR 1957 Orissa 96 the Orissa Estate Abolition Act, 1951 (1 of 1952), was introduced as a Bill in the Orissa Legislative Assembly on 17th January, 1950 and was passed by the Assembly on 28th September, 1951. The Governor of Orissa reserved it for the consideration of the President who gave his assent on 23rd January, 1952. Since then the Act underwent several amendments and the one with which the High Court was concerned was the amendment made on 24th December, 1954, by which the definition of the expression 'estate' was enlarged. Article 31A was inserted in the Constitution oil 18th June, 1951. The question was that the President's assent to the Act having already been given under Article 201 all the consequences as described in Article 31, Clauses (3) and (4), and in the proviso to Article 31A, would necessarily follow. In this connection the following observations were made by Narasimham C. J. -
'Hence as a matter of construction it must be held that the words 'law providing for acquisition' occurring in Article 31A(1) would include not only the parent Act providing for acquisition but also the amending Act which should be deemed to have been incorporated in the parent Act even though the amending Act, in express terms, provides only for textual amendment of certain clauses. The amending Act cannot stand isolated and must be held to have been read by the President, as forming part of the parent Act, when he gave his assent to it.'
In Smt. Lila Vati Bai's case. (S) AIR 1957 SC 521 the Bombay Land Requisition Act (33 of 1948) which when passed was good law. It was not covered by the provisions of Article 31 (6) but by the saving clause, namely, Clause 5 (a) being an existing law other than a law to which the provisions of Clause (6) apply. This Act was not invalid even after the commencement of the Constitution. It was amended by Act 39 of 1950 which, only made explicit what had been left to be gathered from the whole tenor of the Act. The argument advanced at the bar was that the amending Bombay Acts, 2 of 1950 and 39 of 1950, required assent of the President under Article 31 (3). This argument was rejected as without force inasmuch as the Acts were merely an extension or explanatory of the main Act passed in its substantive form in April 1948. The following observations of the Supreme Court are in point -
'The argument that the amending Acts, 2 of 1950 and 39 of 1950, required the assent of the President under Clause (3) of Article 31 has, therefore, no force. Act 2 of 1950, in so far as it affects the present controversy, only extended the life of the Act by two years and Act 39 of 1950 only made explicit what was not so in the Act as originally passed, and are not such laws as come within the purview of Clause (3) of Article 31 inasmuch as those Acts are merely an extension or explanatory of the substantive Act which is an existing law within the meaning of the Constitution. Clause (3) of Article 31 in terms applies to a law made by the legislature of a State, after the commencement of the Constitution; whereas the Act had been passed in its substantive form in April 1948. Hence there is no difficulty in holding that the Act which was good law before the commencement of the Constitution did not become void under Article 13 of the Constitution because there was nothing in the Act which was inconsistent with the provisions of Part III of the Constitution. If the Act was good law after the commencement of the Constitution, it follows that the amendments aforesaid made in 1950, were equally good law even though the assent of the President had not been obtained.'
The above, case of Smt. Lila Vati Bai, (S) AIR 1957 SC 521 was cited in order to show that an amending Act which is explanatory of the provisions of the main Act does not become bad for want of President's assent. In the instant case, however, President's assent had been received in the case of a number of Acts. When an amending Act goes to the President for his assent, the President, while assenting to it. is presumed to consider the provisions of law both before and after the amendment. If, on consideration, the President were of the view that Section 36 transgressed the fundamental rights under the Constitution, he could have withheld his assent. Apart from the fact that the amending Act 20 of 1953, which introduced certain changes in Section 36 of an inconsequential kind, those changes were in the nature of imposition of some limitation or fetters in the matter of variation or revocation of the scheme. I am therefore of the view that both the original Act and the subsequent Acts, which from time to time, incorporated amendments in it, are not vulnerable for the reason that certain provisions were inconsistent with, or take away, or abridge, any of the fundamental rights conferred by Articles 14, 19 and 31 of the Constitution. In this view of the matter.
I would hold that any infirmity in Section 36 of East Punjab Act 50 of 1948, by reason of taking away or by abridging the rights conferred under. Articles 14, 19 or 31 is covered by proviso to Article 31A, and on this ground Section 36 is not liable to be impugned as ultra vires the Constitution.
37. The next main question is whether these four Letters Patent appeals deserve to succeed on the ground that the wider principles of natural justice had been transgressed.
38. The two well-known principles embodied in the rules of natural justice, which are requited by English law to be observed, place emphasis on an unbiased tribunal and on adequate notice and opportunity to be heard. They are embodied in the maxims -- nemo debet esse judex in propria causa (no one should be judge in his own cause) and audi alteram partem (hear the other side). The principle audi alteram partem, or as differently put by continental jurists, audiatur et alters pars, meaning, -- also hear the other party, has been treated as of fundamental nature laying down the norm which is to be implemented even by the international tribunals in their proceedings (vide Bin Cheng's General Principles of Law as applied by International Courts and Tribunals, Chapter XIV.) In the realm of private international law, foreign judgments which transgress the principles of natural justice cannot be enforced and the Courts do not countenance deviation from the wholesome maxim audi alteram partem which is deemed to be of universal application.
This may happen in two ways, when the party litigating does not receive adequate notice of the foreign proceedings, or, though present, at the proceedings, is not given the facility of presenting his case to the Court (vide Cheshire's Private International Law, 5th Ed. p. 643). The concept of natural justice is bound up with this maxim. The cardinal characteristic of a judicial or quasi-judicial process is the impartiality of the tribunal giving rise, as a corollary, to juridical qualities between the parties before it, and the latter is apt to be gravely imperilled when one of the parties has not been given opportunity to appear before it thus disturbing the equilibrium between them. The essence of the rule is notice, adequate opportunity to be heard, consideration and solemn judgment. It was pithily put by Sir Edward Coke (i) vocate, (ii) interrogate, and (iii) judicat, that is to say, call, question and adjudicate. The principle is of very ancient lineage and was known to the early Greeks and the Romans besides being enshrined in the scriptures, (vide Judicial Review of Administrative Action by De Smith p. 102). Seneca, the statesman, philosopher and writer, who died in A. D. 65, in his tragedy Medea 11 199 expressed the rule in the following words -
Qui statuit, aliqua parte inaudita altera, aequum licet statuerit, haud aequus fuit, -- (He who comes to a conclusion, when the other side is unheard, may have been just in his conclusion. but yet has not been just in his conduct'.
These lines have been cited with approval in several reported decisions by early English Judges, vide inter alia, Boswell's case (1605) 6 Co. Eep. 48 b at 52a : 77 E. R. 326 (331); Bagg's case, (1615) 11 Co. Rep. 93 b at 99 a : 77 E. R. 1271 (1280); R. v. Archbishop of Canterbury, (1859) 1 E and E 545 (559) : 130 ER 1014 (1019); Wood v. Woad, (1874) 9 Ex 190 (196, 197); and Smith v. R., (1878) 3 AC 614 (624). In (1874) 9 Ex 190 Kelly C. B. adopted what Seneca had said above and then observed -
'This rule is not confined to the conduct of strictly legal tribunals but is applicable to every tribunal or body of persons invested with authority to adjudicate upon matters involving Civil consequences to individuals.'
and he quoted with approval the observations to similar effect of Bayley B., in Capel v. Child, (1832) 2 Cr and J 558 (579) : 149 ER 235 (244), and of Parke B., in the case of In re Hammersmith Rent Charge,' (1849) 4 Ex 87 (96).
39. A brief digression into the genesis, development, and culmination of the rule of natural justice may not be altogether unwarranted. From the turn of seventeenth century, eminent Judges of the time maintained the supremacy of natural justice over the statutory law of Parliament. In Calvin's case, (1608) 7 Co. Rep. 1 a (12) : 77 ER 377 (391 392), the relevant portion of the judgment reads as under -
'* * * secondly, that the law of nature is part of the law of Eng5and: thirdly, that the law of nature was before any judicial or municipal law: fourthly, that the law of nature is immutable. The law of nature is that which God at the time of the creation of the nature of man infused into his heart, for his preservation and direction; and this is lex aeterna (eternal law), the moral law, called. also the law of nature. And by this law, written with the finger of God in the heart of Man, were the people of God a long time governed, before the law was written by Moses, who was the first reporter of writer of law in the world.'
Again at p. 14a (p, 393 of ER) it was said -
'The Parliament could not take away that protection which the law of nature given unto him.'
In Dr. Bonham's case, (1610) 8 Co. Rep. 107a (118a) : 77 ER 638 (652), it was said -
'The common law will control Acts of Parliament and sometimes adjudge them to be utterly void; for when an Act of Parliament is against common right and reason or repugnant or impossible to be performed the common law will control it, and adjudge such act to be void.'
Four years later, in Day v. Savadge, (1614) 80 ER 235, it was said -
'Even an Act of Parliament made against natural equity, as to make a man judge in his own cause, is void in itself: for jura naturae sunt immuteabillia (the laws of nature are immutable) and they are leges legum (law of the laws).'
Similar views were expressed by Holt C. J., in City of London v. Wood (1701) 12 Mood. Rep. 669 (687). In 1723, Fortescue, J., in R. v. Chancellor of Cambridge, (1723) I Strange 557 : 93 ER 698 (704), commonly known as Dr. Bentely's case, said -
'The laws of God and man both give the party an opportunity to make his defence, if be has any. I remember to have heard it observed by a very learned man upon such an occasion, that even God himself did not pass sentence upon Adam, before he was called upon to make his defence. Adam (says God) where art thou? Hast thou not eaten of the tree, whereof I commanded thee that thou shouldst not eat? And the same question was put to Eve also.'
To the later generations, the above view is bound to appear as fanciful, but even then it is indicative of the sanctity attached to the principle of audi alteram partem, and this is an illustration of a divine invocation in support of the principle. The last attempt to uphold the supremacy of natural law over Acts of the Legislature was made in 1824 by Best, J., in Forbes v. Cochrane, (1824) 2 B and C 448 : 107 ER 450. The subject was slavery and citing from Blackstone's Commentaries Vol. I p. 42 that
'if any human law should allow or injoin us to commit an offence against the divine law we are bound to transgress that human law'. Best, J., proceeded -
'Now if it can be shown that slavery is against the law of nature and the law of God it cannot be recognised in our Courts.'
The other Judges did not express concurrence with the view of Best, J. The early doctrine of be supremacy of natural law over the law made by Parliament was perhaps not altogether unconnected from the fact that in Stuart times Judges held office during Royal pleasure and not during good behaviour and the stage of Parliamentary sovereignty was only incipient. Subsequent to 1824, the supremacy of natural law abruptly ended. Then followed a long catena of decisions upholding that law made by parliament was supreme even against divine law and this view has been established beyond any question for much over a century. In 1842, the Judicial Committee of the Privy Council said -
'As to what has been said of an Act of Parliament not binding if it is contrary to reason,that can receive no countenance from any Courtof justice whatever. A Court of Justice cannotset itself above the Legislature', (vide Logan v.Burslem, (1842) 4 Moo PC 284 (293) : 13 ER312).
In 1871 Willes,. J., observed -
'If an Act of Parliament has been obtained improperly, it is for the Legislature to correct it by repealing it; but so long as it exists as law the Courts are bound to obey it. The proceedingshere are judicial, not autocratic, which they, would be if we could make laws instead of administering them', (vide Lee v. Bude and Torrington Junction Railway Co., (1871) 6 CP 576 (582) : 19 WR 954).
Holker, L. J., in 1882 said -
'Acts of Parliament are omnipotent, and are not to be got rid of by declaration of Courts of law or equity''. (vide Gibbs v. Guild, (1882) 9 QBD 59 (74)).
Lord Hannen, delivering the judgment of the Judicial Committee of the Privy Council in Labradors Co. v. E., 1893 AC 104 (123), said -
'The Courts of law cannot sit in judgment on the Legislature, but must obey and give effect to its determination'.
Vaughan Williams, L. J., in R. v. Local Govt. Board, Ex parte Arlidge, 1914-1 KB 160 (175), said -
'Of course an act of Parliament may be so worded as expressly to authorise a procedure inconsistent with the principles of justice recognised by the common law of England, Parliament is omnipotent.'
Again, when that case was heard in appeal before the House of Lords, Lord Moulten said -
'Their authority was purely statutory, and if the statute had authorised them to do these acts without giving any appeal, the legislation might be considered to be unwisely drastic, but it would have to be recognised and enforced by the Courts, and no such question as to whether or not it was 'contrary to natural justice' could possibly be considered by the Courts.' (Local Govt. Board v. Arlidge, 1915 AC 120 (150) ).
40. The rules of natural justice require that a person or a body exercising judicial or quasi-judicial functions must act in good faith, listen fairly to both sides, give fair opportunity to the parties litigating to present their case. Earl of Selborne in Spackman v. Plushtead Board of Works, (1885) 10 AC 229, used the phrases 'the substantial requirements of justice' and at another place 'the essence of justice' to mean natural justice, when he observed -
'No doubt, in the absence of special provisions as to how the person who is to decide is to proceed, the law will imply no more than that the substantial requirements of justice shall not be violated. He is not a judge in the proper sense of the word; but he must give the parties an opportunity of being heard before him and stating their case and their view. He must give notice when he will proceed with the matter, and he must act honestly and impartially and not under the dictation of some other person or persons to whom the authority is not given by law. There must be no malversation of any kind. There would be no decision within the meaning of the statute if there were anything of that sort done contrary to the essence of justice.'
The following observations of Lord Wright in General Council of Medical Education v. Spackman, 1943-2 All ER 337 (344), may be quoted with advantage -
'In Alridge's case, 1915 AC 120, Hamilton, L. J., is quoted, at p. 130, as describing the phrase 'contrary to natural justice' as 'an expression sadly lacking in precision'. So it may be and perhaps it is not desirable to attempt to force it into any Procrustean bed. But the statements which I have quoted may at least be taken to emphasise the essential requirements that the tribunal should be impartial and that the medical practitioner who is impugned should be given a full and fair opportunity of being heard. These are conditions of the validity of any decision enunciated by the council.'
41. There are a large number of cases requiring the application of audi alteram partem rule in a quasi-judicial determination. It is the duty of a body exercising judicial or quasi-judicial functions to act in good faith, to listen fairly to both sides, and to give fair opportunity to the parties in the controversy adequately to present their case and to correct or controvert any relevant statement prejudicial to them. The procedure of every such tribunal need not be the same as that followed in a Court stricto sensu, vide II Halsbury 3rd Ed. paragraph 122 pp. 65, 66, where there is a reference to a number of cases supporting the above proposition, including Cooper v. Wandsworth Board of Works, (1863) 14 CB (NS) 180, Board of Education v. Rice, 1911 AC 179 (182), 1915 AC 120 (supra), K. v. City of Westminster Assessment Committee Ex parte Grosvenor House (Park Lane) Ltd., 1941-1 KB 53, Errington v. Minister of Health, 1935-1 KB 249 Frost v. Minister of Health, 1935-1 KB 286, Urban Housing Co. v. Oxford City Council, 1940 Ch. 70 (85).
42. In most of such cases, the problem was really one of interpretation of the statute as it was not the practice of legislative draftsmen either to place or delimit obligations to follow the rules of natural justice 'since to do so would be in truth a most difficult drafting task in view of the elasticity of the rules and the variety of circumstances in which they may be relevant, the work of construction must often be largely creative. A decision as to whether or not the rules apply may depend on ascertainment of the solution that would best accord with the purposes of the legislation as a whole', (vide Administrative Law-Natural Justice-Eight of a Hearing, 1954 Cambridge Law Journal p. 16). Lord Parmoor, while delivering the judgment of the Privy Council remarked -
'The particular form of inquiry must depend on the conditions under which the discretion is exercised in any particular case, and no general rule applicable to all conditions can. be formulated.' (vide De Verteuil v. Knaggs, 1918 AC 557 (560) : (AIR 1918 PC 67 at p. 68) ).
Where the exercise of the power involves the destruction or demolition of the property, the principle has been freely applied, (vide (1863) 14 CB (NS) 180 : 143 ER 414). It has been felt that where the powers of conclusive condemnation are conferred, this principle ought not to be departed from. The earlier Judges definitely thought so. Lord Kenyon, C. J., said -
' * * * every man ought to have an opportunity of being heard before he is condemned; and I should tremble at the consequences of giving way to this principle.'
43. 1911 AC 179 (182) is an important landmark. The tendency had long manifested to impose upon departments and officers of State the duty of deciding questions of various kinds. Lord Loreburn said -
'In tile present instant, as in many others, what comes for determination is sometimes a matter to be settled by discretion involving no law. It will, I suppose, usually be of an administrative kind; but sometimes it will involve matters of law as well as matters of fact or even depend Upon matters of law. In such cases, the Board of Education will have to ascertain the law and also to ascertain facts. I need not add that in doing either they must act in good faith and fairly listen to two sides, for, that is a duty lying upon anyone who decides anything. But I do not think they are bound to treat such a question as though it were a trial.'
This decision upholds the principles that a statutory power conferred upon a Government department must be exercised strictly in accordance with the terms of the statute or otherwise the Court would declare it invalid.
44. Four years later, the House of Lords decided the case of 1915 AC 120. In this case, the borough council had made a closing order in respect of a house which appeared to it to be unfit for human habitation. The owner of the house, Arlidge, appealed to the Local Government Board in accordance with the procedure prescribed under the Public Health Act, 1875. After holding a public local enquiry, the Minister dismissed the appeal. The validity of the Minister's decision was challenged on several grounds, inter alia, that the plaintiff did not have an opportunity of being heard orally by that official, that he was not permitted to see the report of the inspector. The Court of appeal held that it was contrary to natural justice for the Minister to dismiss the appeal without disclosing the contents of the inspector's report to the appellant and without giving him a chance of being heard. The appeal was allowed. The House of Lords reversed the decision of the Court of Appeal holding that the plaintiff had no right to object to the Minister's order on this ground.
Lord Haldane, L. C., observed, during thecourse of his speech, that when the duty of deciding an appeal was imposed
'those whose duty it is to decide must act judicially. They must deal with the question referred to them without bias and they must give to each of the parties the opportunity of adequately meeting the case made against them. The decision must be given in the spirit and with the sense of responsibility of a tribunal whose duty it is to meet out justice.'
Lord Haldane, however, expressed the view that the procedure of other tribunals need not follow the same lines and may vary according to the nature of the tribunal and it may follow its own particular methods of procedure and without following the methods adopted by: the Courts. The Government department could carry out its judicial function in free and informal manner but consistent with the elementary ideas of justice, and unfettered by conventional restrictions. No restriction was imposed except to comply with the requirements of natural justice which, whatever else they may include, certainly required that a decision must be arrived at after hearing the parties concerned.
45. In 1935-1 KB 249, a clearance order had been made by the Corporation and it was submitted for confirmation to the Minister in the ordinary course. The property owners raised objections. The Minister who was under a statutory obligation to cause a public local enquiry to be held, discussed the situation with the officers and councillors. This was done in the absence of the owners or their representatives, who raised a contention that the Minister had thus acted improperly. The Court of Appeal expressed the view that if no objections are made to the closing order, the Minister is at liberty to make a confirmation in a ministerial' or administrative capacity and he may make whatever investigations he thinks necessary to inform himself as to whether the order is in public interest; but where objections are taken to the order, the Minister is exercising quasi-judicial functions in performing which he heard evidence from one side in the absence of the other without giving the owners an opportunity to contend against the contentions which the Minister was inclined to accept. The Minister had thereby offended against the principles of natural justice and the confirming order passed by him was consequently quashed. Maugham, L. J., at p. 273 said -
'My conclusion is that although the act affirming a clearance area order is an administrative act, the consideration which must proceed the doing of that is of the nature of a quasi-judicial consideration, and the Minister is bound to the extent mentioned by the House of Lords in 1911 AC 179.'
The Court of Appeal thus affirmed the principle that if a dispute exists between the local authority and a private citizen, the Minister must act according to the principles of natural justice. In the absence of any such dispute, he is at liberty to act as he pleases so long as he does not exceed his powers.
46. Regarding the efficiency of the principle of natural justice, the following thought-provoking observations of Dr. Robson are not without interest. He said -
'The rules of natural justice are unquestionably valuable, both subjectively and objectively. If they are violated, injustice may be done and the parties may have a psychological sense of grievance. But even if they are observed with the utmost zeal, injustice may still be done. In short, natural justice is not merely enough. The rules it indicates do little to ensure satisfactory decisions in the complex world of public administration in which we live.' (Justice and. Administrative Law, p. 409).
He counselled some form of appeal from the decisions of administrative tribunals at least in more important cases.
47. At this stage I may also refer to The Donnoughmore Report. (Cmd. 4060) issued in 1932 by the Committee on Ministers' Powers appointed by Lord Sankey, L. C., in 1929 to consider the powers exercised by or under the direction of (or by persons or bodies appointed specially by) Ministers of the Crown by way of (a) delegated legislation and (b) judicial or quasi-judicial decisions, and to report what safeguards were desirable or necessary to secure the constitutional principles of the sovereignty of Parliament and the supremacy of law. The Committee consisted of seventeen eminent lawyers and jurists, including. Prof. Sir William Holdsworth, Sir Leslie Scott, later Scott, L. J., and Mr. Gavin Simonds, later known as Viscount Simonds, L. C. The statement of the law as contained in this Report has not the same binding force and effect as that of a judgment in a decided case; but the opinions expressed in this Report have been treated with greatest respect as the principles contained therein have been subscribed to by eminent jurists, and the findings have been cited with approval in reported cases in England. Views have been often expressed that the conception of natural justice must be regarded as belonging to the field of, moral or social principles and not as having passed into the category of substantive law so as to make every act obnoxious to its canons a transgression of a legal rule recognised and enforced as such by the Courts (vide H. H. Marshall on Natural Justice p. 120). On this matter the authors of the Report expressed themselves as under -
'But although 'natural justice' does not fall within those definite and well-recognised rules of law which English Courts of law enforce, we think it is beyond doubt that there are certain canons of judicial conduct to which all tribunals and persons who have to give judicial or quasi-judicial decisions ought to conform. The principles on which they rest are we think, implicit in the rule of law. Their observance is demanded by our national sense of justice; and it is, we think, the desire to secure safeguards for their observance, more than any other factor, which has inspired the criticisms levelled against the executive and against Parliament for entrusting judicial or quasi-judicial functions to the executive,' (p. 76 of the Report).
The Committee laid down four principles, but the first two only have been considered authoritative, namely, (i) 'that a man may not be a Judge-in his own cause', and (ii) 'no party ought to be condemned unheard; and if his right to be-heard is to be a reality, he must know in good time the case he is to meet.' These principles are exercisable when a tribunal is called upon to give a judicial or a quasi-judicial decision. The Report draws out a distinction between decisions which are judicial and those which are quasi-judicial. The best translation of the word 'quasi' in this context, according to the authors of the Report is 'not exactly'. A quasi-judicial decision is one which has some of the attributes of a judicial decision but not all. According to the Report
'a true judicial decision presupposes an existing dispute between two or more parties and then involves four requisites :
'(i) The presentation (not necessarily orally) of their case by the parties to the dispute,
(2) if the dispute between them is a question of fact, the ascertainment of the fact by means of evidence adduced by the parties to the dispute and often with the assistance of argument by or on behalf of the parties on the evidence;
(3) if the dispute between them is a question of law, the submission of legal argument by the parties; and (4) a decision which disposes of the whole matter by a finding upon the facts in dispute and an application of the law of the land to the facts so found, including where required a ruling upon any disputed question of law.
A quasi-judicial decision equally presupposes an existing dispute between two or more partiesand involves (i) and (2), but does not necessarily involve (3), and never involves (4). The place of (4) is in fact taken by administrative action, theCharacter of which is determined by the Minister's free choice.' (p. 73).
At p. 75, the Report proceeds as under -
' * * 9 a judicial element is involved in quasi-judicial as well as in judicial functions; and at has been, truly said that, however much a Minister in exercising such functions may depart from the usual forms of legal procedure or from the common law rules of evidence, he ought not to depart from or offend against 'natural justice'.'
The Committee was of the view that there should be vigilant observance of the principles of natural justice by Ministers or ministerial tribunals to whom the function of adjudicating is assigned. He must act judicially and come to the decisions in the spirit and with the sense of responsibility of a tribunal whose task it is to mete out justice. But his procedure need not be identical with that of law Courts.
48. The Lord Chancellor in 1955 constituted a Committee on Administrative Tribunals and Public Enquiries under the chairmanship of Sir Oliver Franks. The Committee had to consider and make recommendations on the constitution and working of tribunals other than ordinary Courts of law. The reference is to tribunals constituted under a Parliamentary Act by a Minister of the Crown or for purposes of a Minister's functions. The Committee had also to report on the working of such administrative procedures as including, the holding of an enquiry or hearing by or on behalf of a Minister on an appeal, or, as the result of objections, representations, and other rallied, matters. Franks Committee's report was published in 1957 (Cmd. 218). The Committee recommended that the proceedings of the tribunals when engaged in adjudication should be characterised by 'openness, fairness and impartiality'. It also recommended that an appeal on points of law should be competent to the Courts and recommended the desirability of establishing an Advisory Council. These recommendations have been materially incorporated in an English statute.
49. The Tribunals and Enquiries Act, 1958, which received the Royal assent on August 1, 1958, is a measure of reform which ensures the minimum requirements of the rule of natural justice, making them compatible as far as possible with the administrative exigencies. A statute on similar lines, if enacted in India, may go a long way in introducing a uniform procedure in quasi-judicial matters, when a controversy before an administrative tribunal awaits disposal, giving effect to the requirements of natural justice while maintaining in fact the basic needs of executive despatch. The principles of natural justice to which great sanctity was attached in early decisions of English Courts have been eroded in relation in administrative tribunals by many statutes. This tendency has now been checked by the welcome provisions of the Tribunals and Enquiries Act, 1958. Till such time that an analogous Act is forged on the legislative anvil in India, a detailed reference to the provisions of the English statute will be otiose.
49a. Before dealing with the principles of natural justice as adopted in India, a reference to their reception in other jurisdictions, where justice is administered under somewhat similar conditions, will be of some advantage.
50. In 1953-2 Canadian LR (SCR) 140, the appellant-association called a strike of its members who were teachers in violation of the Public Services Employees Disputes Act, which forbids such action from the employees of a school corporation. The respondent-Board, thereupon without notice to the appellant, cancelled its certificate. Rinfret, C. J., held that having acted as a judicial tribunal, the Board must be assimilated to a Court of inferior jurisdiction. The learned C. J., expressed the view that an express declaration from the Legislature is required to prevent he application of the principle that no person can be condemned or deprived of his rights without being heard. Regarding the applicability of the rule of audi alteram partem, the learned Chief Justice observed -
'Le principe que nul ne doit etre condamne ou prive de ses droits sans etre entendu, et surtout sans avoir meme recu avis que ses droits seraient mis en jeu est d'une 'equite' universelle et ce nest pas le silence da la loi qui devrait etre invoque pour en priver quelqu'un. A mon avis, il ne fudrait rien mains qu'une declaration expresse du legislator pour mettre de cote cette exigence quis applique a tous les tribunaux et a tons lei corps oppeles a rendre une decision qui aurait pour effect d'annular un droit possede par un individu.' (p. 154).
This means, that: the principle that no one ought to be condemned or deprived of his rights without being heard, and especially without having received a notice as to his rights at stake, is of universal equity. In my view it would need nothing less than an express legislative declaration to put aside this requirement which applies to all tribunals and to all bodies which are required to make a decision which would have the effect of annulling the right possessed 'by an individual.'
A little, earlier, the learned Chief Justice stated the principle in the following, words.
'En pareil cas, la reglegle est que la partiedont le droit est en jeu doit etre entendue et que1'opportunite lui soit fournie de se defendre. Surce point, il existe une jurisprudence abondante.'(P. 152)
(In such a case, the rule is that the party whose rights are at stake ought to be heard and given an opportunity to make his defence.) On this, point there exists abundant jurisprudence.'
Kerwin, J., said -
'With respect I think the true view is that since the 'Legislature must be presumed to know that notice is required by the general rule, it would be necessary for it to use explicit terms in order to absolve the Board from the necessity of giving notice.' (p. 157)
One among several reasons on which the action was maintained before the trial Court was -
'II est contraire aux principles fondamentaux de la justice qu'une decision judiciaire ou quasi-judiciaire soit endue, sans audition des parties --(P- 159)
(It is contrary to the fundamental principles of justice that a judicial or quasi-judicial decision could be given without hearing the parties.')
Rand, J., observed -
'The second objection is that before revoking the certificate for cause, the Board must hear the party to be affected by that action. Audi alteram partem is a pervading principle of our law, and is peculiarly applicable to the interpretation of statutes which delegate judicial action in any form to inferior tribunals : in making decisions of a judicial nature they must hear both sides, and there is nothing in the statute here qualifying the application of that principle.
'The only answer suggested to this is that the Board, being an 'administrative body', can, in effect, act as it pleases. But in this we are too much the prisoners of words. In one sense of administration, in the enactment of subordinate legislation or quasi-legislation, the principle has a limited application; but in the complexity of governmental activities to-day, a so-called administrative board may be charged not only with administrative and executive but also with judicial functions, and it is these functions to which we must direct our attention. When of a judicial character, they affect the extinguishment or modification of private rights or interests. The rights here, some recognised and others conferred by the statute, depend for their full exercise upon findings by the Board; but they are not created by the Board nor are they enjoyed at the mere will of the Board; and the Association can be deprived of their benefits only by means of a procedure inherent in judicial process'. (p. 161)
In the above case, the Supreme Court of Canada cited with approval the observations of Judicial Committee of the Privy Council in Appointee v. L'Association de Bienfaisance et de retraite de la Police de Montreal, (1906) A. C. 535 (540) -
'They are bound in the exercise of their functions by the rule expressed in the maxim audi alteram partem that no man should be condemned to consequence resulting from alleged misconduct unheard, and without having the opportunity of making his defence. This rule is not confined to the conduct of strictly legal tribunals, but is applicable to every tribunal or body of persons invested with authority to adjudicate upon matters involving civil consequences to individuals'. (152p.)
51. In Delta Properties Pvt. Ltd. v. Brisbane City Council, (1956) 95 C. L. R. 11, the Supreme Court of Australia expressed the view that an implied condition of the validity of an expression of opinion by a tribunal is that before forming the opinion it should give to the person whose property was in question, a full and fair opportunity of placing his case before it.
52. Douglas J., of the Supreme Court of U. S. A. said -
'Notice and opportunity to be heard are fundamental to due process of law. ........Notice and opportunity to be heard are indispensable to a fair trial whether the case be criminal or civil. ............The rudiments of justice as weknow it call for notice and hearing -- an opportunity to appear and to rebut the charge.' (Jt. Anti-Fascist Refugee Committee v. McGrath, (1950) 341 US 123, 178).
Courts in America have been of the view that where the exercise of a statutory power adversely affects certain valuable rights, e.g. property rights, the requirement of notice and hearing, where the statute was silent, was deemed implied (vide Wong Yang Sung v. McGrath, (1949) 339 US 33).
53. Courts in India have been acting as vigilant sentinels on the qui vive to see that the principles of natural justice, as discussed above, are not violated by a judicial or quasi-judicial authority. In the case of the latter, the requirements of natural justice vary according to the provisions and intendment of the particular provisions. One of the broad principles of natural justice is that a quasi-judicial authority cannot make any decision against a party without giving him an effective opportunity of meeting the allegation made against him. This requires that a person whose civil right is affected must have a reasonable notice of the case he is to meet and, further, to have a reasonable opportunity of being heard in his defence. Of course, opportunity of being heard does not necessarily mean an oral hearing in per-son or by a lawyer. There, however, are exceptional cases where a public interest may be of such an imperative nature either by reason of a sudden and unforeseen emergency corning into existence or because of some other pressing exigency of the State which may weigh against such an opportunity being granted. In this connection it is not necessary to refer to the other principle of natural justice a consideration of which does not arise here.
54. A recent decision of the Supreme Court in Board of High School and Intermediate Education, U. P. v. Ghanshyam Das Gupta, AIR 1962 SC 1110, is in point. This was a case where no opportunity whatever was given to the examinees to give an explanation and present their case before the examination committee and the committee had decided to cancel their results and to debar them from appearing at the next examination. A petition for writ was filed by the respondents in the Allahabad High Court contending that no opportunity had been afforded to them to rebut the allegations made against them and that they were hot informed about the nature of the unfair means they were alleged to have employed. The act of the committee was assailed as violative of audi alleram partem rule of natural justice. A learned Single Judge of that Court held that no duty was cast upon the committee to act judicially and it was not obliged to give an opportunity to every examinee to be heard. The petition was rejected.
When the matter came up in Letters Patent Appeal before two learned Judges of that Court, there was a disagreement between them on certain matters and, therefore, a reference to the third learned Judge was called for. The two learned Judges were in agreement to the extent that no duty was cast on the committee to act judicially. The third learned Judge dealt with the case on the basis that the committee was acting merely administratively. On that assumption also, the learned Judge expressed the view that the examinees were entitled to a hearing. The appeal, in accordance with the opinion of the third learned Judge, was allowed. The Board of High School then took up the matter to the Supreme Court. The Supreme Court expressed its agreement with the principles which had been summarised by Dass J., (as he then was), in the case of Province of Bombay v. Khushal Das, AIR 1950 SC 222(260), in the following words:
'The principles, as I apprehend them are: (i) that if a statute empowers an authority, not being a Court in the ordinary, sense, to decide disputes arising out of a claim made by one party under the statute which claim is opposed by another party and to determine the respective rights of the contesting parties who are opposed to each other, there is a lis and prima facie and in the absence of anything in the statute to the contrary it is the duty of the authority to act judicially and the 'decision of the authority is a quasi-judicial act; and
(ii) that if a statutory authority has power to do any act which will prejudicially affect the subject, then although there are not two parties apart from the authority and the contest is between the authority proposing to do the act and the subjectopposing it, the final determination of the authority will yet be a quasi-judicial act provided the authority is required by the statute to act judicially.
In other words, while the presence of two parties besides the deciding authority will prima facie and in the absence of any other factor impose upon the authority the duty to act judicially, the absence of two such parties is not decisive in taking the act of the authority out of the category of quasi-judicial act if the authority is nevertheless required by the statute to act judicially.'
These principles have been acted upon in later cases by the Supreme Court, vide Nagendra Nath v. Commissioner of Hills Divn. AIR 1958 SC 398, Radheshyam Khare v. State of Madhya Pradesh, AIR 1959 SC 107, G. Nageswara Rao v. Andhra Pradesh State Road Transport Corporation, AIR 1959 SC 308. Shivji Nathubhai v. Union of India, AIR 1960 SC 606 and AIR 1962 SC 1110.
55. In AIR 1959 SC 107, Dass C. J. cited with approval the celebrated definition of quasi-judicial body given by Atkin L. J. in Rex v. Electricity Commrs., 1924-1 KB 171, which still holds the field, namely,;
'Whenever any body of persons having legal authority to determine questions affecting rights of subjects, and having the duty to act judicially act in excess of their legal authority they are subject to- the controlling jurisdiction of the King's Bench Division exercised in these writs.'
This definition has been accepted as correct both in England and in India. Referring to this definition Dass C. J. said:
'It will be noticed that this definition insists on three requisites each of which must be fulfilledin order that the act of the body may be quasi judicial act, namely, that the body of persons (1) must have legal authority, (2) to determine questions affecting the rights of parties, and (3) must have the duty to act judicially. Since a writ of certiorari can be issued only to correct the error of a Court or a quasi-judicial body, it would follow that the real and determining test for ascertaining whether an act authorised by a statute is quasi-judicial act or an administrative act, is whether the statute has expressly or impliedly imposed upon the statutory body the duty to act judicially as required by the third condition in the definition given by Atkin L. J.'
Dass C. J. expressed the view that even where an action to be taken was administrative in character, the ordinary rules of fair play had nevertheless to be observed. On the facts found in Radheshyam's case, AIR 1959 SC 107 the appellants had been given more than fair play. Bhagwati J., also thought that the appellants had notice of the charges levelled against them and they had been given an opportunity to render full explanation in regard to the same and that the principles of natural justice-had been complied with. Bhagwati J., however, refrained from expressing an opinion on the vexed question as to whether an act performed by the State Government was quasi-judicial or administrative in character.
S. K. Dass J., while agreeing generally with the conclusions reached by the learned Chief Justice and the reasons on which those conclusions were founded, was of the view that in that case, in arriving at its decision, the statutory body had only to consider policy and expediency and at no stage had before it any form of lis. The function under Section 53-A of the C. P. and Berar Municipalities Act was purely administrative and, therefore, such an action was not amenable to a writ of certiorari, The learned Judge, however, expressed the view that at the enquiry no real opportunity of meeting the charges had been given. Kapur J., was of the view that order under Section 53-A was in the nature of an emergency action and had a limited duration. He thought that there was no duty, in the circumstances, cast on the State Government to act judicially. The matter involved expediency and policy on which the State Government was the sole judge assuming that it was acting in good faith. According to the language of the section, the objective approach or judicial or quasi-judicial process was negatived. He was also of the view that there was a proper enquiry. K. Subba Rao J., wrote a dissenting judgment.
56. In this case it is pointless to go into the question whether the requirements of the rule of natural justice have any place where the order is purely administrative and the officer in authority is required to give his decision not on any judicial or quasi-judicial footing but by subjective determination in accord with a particular policy. On the facts and circumstance of these cases, the determination under Section 36 is of a quasi-judicial character involving the review of property rights and other civil rights in respect of areas allotted to the individual proprietors, the consideration of the claims of their creditors and tenants and also of certain rights vesting in the Gram Panchayat with respect to particular areas with reference to a scheme of consolidation of holdings which is already in operation. The proceedings under the Act, with a view to affect consolidation of holdings and determine ancillary matters, the procedural provisions touching the preparation of the draft scheme, the filing of objections, appeals and revisions, in their essential nature partake of judicial character.
The objections and the conduct of the various enquiries contemplated under the Act are meant to meet not only a triangular situation with two contesting private parties before the officer concerned, but in several cases a multi-angular situation with a large number of contestants asserting their individual rights against one another. Neither expressly nor by necessary implication, the functions of the authority can be said to be purely administrative. Essentially, they are of a judicial nature and can, therefore, fitly be styled as quasi-judicial requiring the .observance of rules of natural justice. The authority is not entrusted with an unfettered discretion permitting it to transgress the principles underlying audi alteram partem rule. The consolidation proceedings are unlike matters where the obligation to give notice and a hearing can obstruct the taking of prompt preventive or remediable action as happens in cases of emergency where the requirements of notice and hearing by themselves defeat the very purpose of an emergent situation.
This is not even a case where the duty to give notice or opportunity to be heard to a party can be obviated by the conduct of a litigant. The applicability of the operation of the maxim cannot be brushed aside on the ground that monetary value of the interest at stake is too trivial to justify an implication that opportunity to be heard need not be afforded. All those circumstances and situations, which may justify the avoidance of the audi alteram partem rule, here, are absent. In the case of proceedings taken under the Act, the principle underlying audi alteram partem rule, apart from its ancient lineage and impressive ancestry, has acquired a special sanctity, and has been uniformly considered to be of a pivotal character for dispensation of justice.
57. Nothing contained in the provisions of Section 36, read singly or along with the cognate provisions, can lend support to a construction in favour of the exclusion of the rule of natural justice by necessary implication. The legislative draftsmen never expressly insert in the provisions of an Act that rules of natural justice, pertaining to notice or opportunity to be heard, are to specifically apply -- for they always apply, except where clearly excluded. It will be a dangerous proposition, destructive of the most cherished rights of a citizen, to hold that unless the basic and fundamental rights are expressly saved in a particular provision they are to be treated as having been taken away by mere omission.
58. The argument which has been pressed into service on behalf of the respondents is, that Section 42 of the Act provides that the State Government, when it calls for proceedings, shall not vary or reverse any order, scheme, or repartition without giving the parties interested an opportunity to be heard, except in cases where the proceeding have been vitiated by unlawful consideration. The contention is that, while framing Section 42, the legislative draftsmen were aware of the desirability of providing an opportunity for a hearing after giving notice to appear and when such a provision is not reiterated while framing Section 36, it should be understood that the Legislature did not want to give such an opportunity for purposes of Section 36. In support of this contention reliance was placed upon the following observations of Dass C. J., in Radheshyam Khare's case, AIR 1959 SC 107:
'The sole question is, does the statute require the State Government to act judicially. There need not be any express provision that the State Government must act judicially. It will be sufficient if this duty may be implied from the provisions of the statute. The mere fact that a question of fact has to be determined as a preliminary condition before action can be taken under the statute by itself does not carry that implication. There must be some indication in the statute as to the manner or mode in which the preliminary fact is to be determined. I find nothing in Section 53-A which in terms imposes any duty on the State Government to act judicially. No form of procedure is laid down or even referred to from which such a duty could be inferred. On the contrary, one finds a significant omission of any provision like that embodied in Sub-section (5) of Section 57 which requires that no order under that section shall be passed until reasonable opportunity has been given to the committee to furnish an explanation. It is also material to note that whereas an order under Section 57 is of a permanent character the one to be made under Section 53-A is to be of a limited duration, i.e., for such period not exceeding 18 months as may be specified in such order. Further, Section 53-A contemplates swift action and a judicial hearing may easily frustrate the very purpose contemplated by Section 53-A, for a judicial act will be subject to the powers of superintendence of the superior Courts and the operation of the order under Section 53-A may be postponed, as it has been done in this very case by taking the matter from Court to Court until it is set at rest by this Court.' (p. 118)
Other considerations relevant to the facts of that case which are not analogous to the facts of this case were taken into consideration for determining whether the provisions of Section 53-A of that Act contemplated purely administrative determination. Kapur, J., (paragraph 44) was impressed by the fact that Section 57 of the statute requires that the explanation of the Committee be called for before a particular action is taken by the State Government and in others no such requirement is prescribed. That was construed as a clear indication of the intention of the Legislature that an opportunity was to be given in one case and not in the other or that a quasi-judicial approach was intended in one case and administrative in the other. From these observations, it is a long way to deduce that in all cases from the silence in a particular provision of an enactment, the omission of audi alteram partem rule is to be necessarily implied. On the facts of that case, inference in favour of exclusio from omission was drawn, but omission in all cases cannot be deemed to be an unfalterable guide indicating conscious exclusion.
59. The Supreme Court in AIR 196.2 SC 1110 (1113), after expressing approval of the principles as stated by Dass J., in Khushal Das's case, AIR 1950 SC 222, to which reference has already been made, observed:
'Now it may be mentioned that the statute is not likely to provide in so many words that the authority passing the order is required to act judicially; that can only be inferred from the express provisions of the statute in the first instance in each case and no one circumstance alone will be determinative of the question whether the authority set up by the statute has the duty to act judicially or not. The inference whether the authority acting under a statute where it is silent has the duty to act judicially will depend on the express provisions of the statute read along with the nature of the rights affected, the manner of the disposal provided, the objective criterion if any to be adopted, the effect of the decision on the person. affected and other indicia afforded by the statute. A duty to act judicially may arise in widely different circumstances which it wilt be impossible and indeed inadvisable to attempt to define exhaustively.'
While making the above observations, Wanchoo J-, referred to the judgment of Parkar J., in R. v. Manchaster Legal Aid Committee, 1952-2 QB 413.
60. The serious effect following a decision whether an examinee had committed fraud was also a factor which was taken into consideration as causing a duty on the Committee to act judicially and also that it had to decide objectively certain facts which might seriously affect the rights and Careers of examinees. In the other case, arising out of Stamp Act, Board of Revenue U. P. v. 'Vidyawati, AIR 1962 SC 1217, it was also observed:
'The question whether an authority, like the Board of Revenue, acts judicially is to be gathered from the express provisions of the Act in the first instance. Where, however, the provisions of the Act are silent, the duty to act judicially may be inferred from the provisions of the statute or may be gathered from the cumulative effect of the (nature and the rights affected, the manner of the Disposal provided, the objective criterion to be adopted, the phraseology and other indicia afforded by the statute.'
Despite the fact that there was no provision for a hearing by the Board of Revenue, when it was dealing with a matter under Section 56(2) of the Stamp 'Act, it was held that a duty was imposed upon the authority to act judicially.
61. The principles mentioned in the last two decisions of the Supreme Court when applied to the provisions of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, provide sufficient indicia for treating the question of variation or revocation of a confirmed scheme as a determination of' a judicial nature, inter alia, for the reason that interference with that scheme would result in far reaching con-sequences of a serious character for the right-holders resulting in insecurity and expense.
62. The maxim expressio unius (personae vel rei), est exclusio alterious -- the express mention of a (person or thing) is the exclusion of another--, is not a rule of universal application and has to be applied with great caution depending upon the legislative intention and, in the case of an instrument or transaction, resting upon the intention of the parties concerned. In some cases, it will be calamitous to apply the maxim as that would exclude the operation of the basic rights universally recognised by the audi alteram partem rule. In the passage cited earlier from the judgment of Rinfret C. J., in 1953-2 Canadian LR (SCR) 140, it was observed that laws' silence ought not to be invoked or appealed to for depriving a person of his rights without being heard;
'ce n'est pas le silence da la loi qui devrait etre invoque pour en priver quo Iqu 'un.'
Where a statute contemplates interference wish property or civil rights and is silent on the question of giving the notice and providing a hearing, the Courts is England in earlier cases have invoked 'the justice of the common law' to 'supply the omission of the Legislature'.
63. About the maxim expressio unius (personaevel rei), cst exclusio altcrius, Courts have warnedthat great caution is necessary in dealing with therule underlying it. In Colquhoun v. Brooks, (1887)19 QBD 400(406) Wills J., referring to the maxim,said:
'I may observe that the method of construction summarised in the maxim 'expressio unius exclusio alterius' is one that certainly requires to be watched. Perhaps few so-called rules of interpretation have been more frequently misapplied and stretched beyond their due limits. The failure to make the 'expressio' complete very often arises from accident, very often from the fact that it never struck the draftsman that the thing supposed to be excluded needed specific mention of any kind; and the application of this and every other technical rule of construction varies so much under differing circumstances, and is open to so many qualifications and exceptions, that it is rarely that such rules help one to arrive at what is meant.'
When this case was taken up before the Court of Appeal: Colquhoun v. Brooks, (1888) 21 QBD 52 (65), Lopes L. J. said:
'The maxim 'expressio unius, exclusio alterius,' has been pressed upon us. I agree with what is said in the Court below by Wills J., about this maxim. It is often a valuable servant, but a dangerous master to follow in the construction of statutes or documents. The exclusio is often the result of inadvertence or accident, and the maxim ought not to be applied, when its application, having regard to the subject-matter to which it is to be applied, leads to inconsistency or injustice.
I think a rigid observance of the maxim in this case would make other provisions of the statute inconsistent and absurd, and result in injustice. I cannot, therefore, permit it to govern my decision.'
Again in Lowe v. Dorling and Son, (1906) 2 KB 772 (785), Farwell L.J., citing the above observations with approval, said:
'It is not enough that the express and the tacit are merely incongruous; it must be clear that they cannot reasonably be intended to co-exist.'
64. In the particular circumstances of this case, the maxim audi alteram partem has to be enforced, as, the Legislature has neither expressly nor by necessary implication, enacted that the rule should not apply; and, further, there are no exceptional circumstances which can. justify not giving effect to this principle. Under Section 36 of the Act, the effect of the exercise of the power upon the rights of individuals may involve serious consequences to them in respect of the areas over which they may have made extensive improvements. In such cases especially, the rule of natural justice is applicable by implication and also because of its general universality. Any tendency whereby public bodies or authorities can dispose of valuable rights of a citizen, without granting him an adequate hearing to present his case in the absence of express statutory provision, deserves to be restrained, for, public policy demands that ends of justice ought not to be frustrated by taking away the protection of the audi alteram partem rule. It is, therefore, imperative that provisions purporting to exclude the right of hearing should be construed strictly, and a general duty to comply with this rule should not be deemed to be dispensed with 'because of omission.
65. The above discussion leads me to the following conclusions:
(1) The provisions of Article 31A of the Constitution are attracted, and the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act (50 of 1948) in general, or Section 36 in particular, cannot be deemed void on the ground that it is inconsistent with, or takes away, or abridges any of the rights conferred by Articles 14, 19 or Article 31.
(2) The power to vary or revoke a scheme of consolidation partakes of a judicial nature and is not exclusively administrative.
(3) When exercising powers under Section36, it is incumbent upon the authority to give a prior notice to the parties concerned and an opportunity to present their case for its consideration. The hearing may not necessarily be oral.
(4) The phrase 'at any time' in Section36 of the Act means at any time after preparation of the draft scheme but before repartition which takes place after all objections, appeals, etc., are disposed of. The power under Section36 cannot be exercised after the new record of rights comes into force.'
66. I am, therefore, of the view that as proceedings under Section36 of the Act are quasi-judicial and the authority has revoked the scheme of consolidation without notice to the respective appellants, who are the parties interested, and without giving any opportunity to them to submit their objections against the proposed change, and long after they had entered into possession in accordance with the new scheme and after the preparation of the new record of rights, their respective appeals deserve to succeed. The result is that the proceedings taken under Section36 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act (50 of 1948) are quashed as also any proceedings taken in pursuance of the orders of the Director, Consolidation of Holdings, dated 23rd February, 1960. I would, therefore, allow all these four appeals with costs.
Dua, J.
67. I have had the privilege of going through the exhaustive judgment of my learned brother Tek Chand, J. in which every point canvassed at the bar has been discussed at length with his usual thoroughness.
68. The functions to be performed by the officers concerned with the consolidation of holdings under Section 36 of the Act appear to be quasi-judicial, for, the ratio of the Supreme Court decisions in AIR 1962 SC 1217 clearly lends support to this view.
69. So far as the expression 'at any time' used in Section 36 is concerned, though of the widest amplitude, these words clearly seem to me, in their context, to call for some limitation in them, in point of time. It is true that the Act in question is by no means an example of ideal or perfect draftsmanship and one has to strain hard to discern the precise legislative intent, but the difficulty of the task should not discourage the Court from attempting to perform its duty to discover the intention of the law-giver from all legitimate sources. Here, it has to be admitted that the complexities of a modern democratic welfare State like ours, governed by the rule of law, have made the task of the Legislature somewhat difficult, but then this difficulty of the task only serves to demand greater attention by the lawgiver. Strictly speaking, it is the language used in Section 24 of the Act, as construed in the light of the ratio of the decision in Jiwan Singh's case, 1962 (64) Pun LR 668, the correctness of which has not been seriously questioned, which appears to me to provide some argument (not wholly without basis) that action under Section 36 might be intended to be possible even after the possession has passed under the scheme or as a result of 'repartition, as the case may be. But then in that case it is not easy to fix any other outside limit, in point of time, for the action under Section36.
At the same time, to concede to the Settlement Officer the power of varying or revoking the scheme 'at any time' without any limitation seems to me to be more objectionable, and such a construction may perhaps expose this provision to a more serious constitutional challenge, for, it would clearly expose the title to the holding to a permanent uncertainty -- a result not in accord with the fundamentals of our Republican jurisprudence and, therefore, not readily agreeable to our instincts. I am unable to persuade myself to hold that the Settlement Officer appointed merely for the purpose of consolidating holdings under the Consolidation of Holdings Act could have been intended by the Legislature to retain the unrestricted power of varying or revoking the scheme even after the purpose of consolidating the holdings is finally accomplished under the Act. As to when this purpose cart be deemed to be finally accomplished under the Act is again a question which does not seem to be quite patent.
I, however, think that the expression 'at any time' used in Section 36 calls for a construction in harmony with the purpose or subject-matter of the whole Act guided by reasoning and judgment in the light of the constitutional guarantees, and not on bald literalness, for, though words have meaning in and of themselves, they invariably get colour and content from their context, and the fundamental principles of our jurisprudence. Of the two rival contentions canvassed at the bar, therefore, I would, as at present advised, prefer, on the whole, to adopt the one approved by my learned brother Tek Chand J., though I must confess that I am doing so, not without a certain degree of hesitation. With these observations, I would agree with this conclusions and broadly with his reasoning.
H.R. Khanna, J.
70. I have gone through the judgment proposed to be pronounced by my learned brother Tek Chand, J. and the concurrent note of learned brother Dua J. I agree that the word 'may' in Section 36 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, hereinafter to be referred to as the Act, does not indicate that an option is given to the Settlement Officer whether or not to prepare the subsequent scheme in accordance with the Act, and that Section 36 cannot be struck down because of the use of the word 'may'. I also agree that the constitutionality and legality of Section 36 cannot be questioned in view of the provisions of ArticleI 31A of the Constitution. I further agree that the power to vary or revoke a scheme of consolidation is quasi judicial in nature and that while exercising that power it is incumbent upon the authority to give notice to the parties concerned and an opportunity to present their case for consideration. I have, however, not been able to persuade myself to agree with the interpretation which is sought to be placed upon the words 'at any time' in that Section.
71. The words 'at any time' in Section 36 have been incorporated, in my opinion, with a view to provide for those eventualities wherein a scheme confirmed under the Act is found subsequently to be defective or not subserving the main object of consolidation. Such a defect may be detected immediately after the formation of the scheme or may come to light on the expiry of some months or even years. The language of Section 36 shows that the Legislature wanted that the Consolidation Authority should not be helpless when it discovers a lacuna or a defect in a scheme already confirmed and for that purpose provided that the Consolidation Authority can vary or revoke the scheme at any time. To restrict the exercise of such power within a particular period would be not only abridging the wide power conferred upon the Authority but would also be going against the plain words of the section which provides that scheme can be varied or revoked at any time. There is nothing in the section or the Act to warrant the proposition that the words 'at any time' should not receive their literal meaning, and, in my opinion, the Courts would not 'be justified in assuming that though the Legislature stated in the section that the scheme could be varied or revoked at any time, the Legislature in fact intended that such variation or revocation could only be made during consolidation proceedings before repartition and not subsequently. Such an Interpretation is also not warranted by the words of subsection (1) of Section 24 of the Act, which reads as under:
'(1) As soon as the persons entitled to possession of holdings under this Act have entered into possession of the holdings, respectively allotted to them, the scheme shall be deemed to have come into force and the possession of the allottees affected by the scheme of consolidation, or, as the case may be, by repartition, shall remain undisturbed until a fresh scheme is brought into force or a change is ordered in pursuance of provisions of subsections (2), (3) and (4) of Section 21 or an order passed under Section 36 or 42 of this Act.'
72. The above provision of law goes to show that possession of holding delivered under the scheme can be disturbed in pursuance of an order passed kinder Section 36 of the Act. According to a Division Bench case, 1962 (64) Pun LR 668, upon which reliance has been placed by the appellants, possession can be delivered only after the new record of rights is prepared. Section 22 of the Act shows that the new record of rights is prepared giving effect to the repartition as finally sanctioned under Section 21 of the Act. Sub-section (1) of Section 24, therefore, clearly indicates that an order under Section 36 can be passed after the record of rights has been prepared and possession delivered. In order to ensure harmonious construction of Section 36 and Sub-section (1) of Section 24, it cannot, in my view, be held that variation or revocation of a scheme can only be made before repartition and the preparation of new record of rights.
To hold otherwise and to place a limited interpretation sought to be placed on the words 'at any time' would be going not only against the plain meanings of those words, it would also be not possible to reconcile such an interpretation with Sub-section (1) of Section 24 of the Act which contemplates the exercise of power under Section 36 even after the delivery of possession subsequent to the repartition and preparation of record of rights. It is a well established canon of interpretation of statutes that a statute should be construed as a whole and in case of doubt one part should be construed by reference to another part. Reference in this connection may be made to observations on page 93 of Craies on Statute Law, 5th edition, which read as under:
'The office of a good expositor of an Act of Parliament, said Coke in Lincoln College's case, (1595) 3 Co. Rep. 58b is to make construction on all parts together, and not of one part only by itself--Nemo enim aliquam partem recte intelligere potest antequam totum iterum atque iterum perlegerit. (No one can properly understand a part until he has read the whole.) And again, in 1 Inst. 381b, he says: 'It is the most natural and genuine exposition of a statute to construe one part of a statute by another part of the same statute, for that best expresseth the meaning of the makers * * * * and this exposition is ex visceribus actus' (of the very essence). Further on page 95, it is observed as under:
'In Colquhoun v. Brooks, (1889) 14 AC 493, Lord Herschell said: 'It is beyond dispute, too, that we are entitled and indeed bound, when construing the terms of any provision found in a statute, to consider any other parts of the Act which throw light on the intention of the Legislature, and which may serve to show that the particular provision ought not to be construed as it would be alone and apart from the rest of the Act'. And Lord Davey in Canada Sugar Refining Co. v. R. (1898) AC 735, said: 'Every clause of a statute should be construed with references to the context and other clauses in the Act, so as, as far as possible, to make a consistent enactment of the whole statute or series of statutes relating to the subject-matter'.'
73. Argument is advanced on behalf of the appellants that if variation or revocation of a scheme is permitted at any time, it would create an uncertainty of title. In this respect, I am of the view that consolidation of holdings to some extent always involves an uncertainty of title. If despite that the Legislature has made provisions for consolidation for the ultimate good, there is no reason why it cannot also provide that a scheme of consolidation, which has been subsequently found to be defective, should not be substituted by a better scheme. Consolidation was described as a boon to the tenure holders of a village by their Lordships of the Supreme Court in Attar Singh v. State of U.P., AIR 1959 SC 564 wherein an attempt was made to assail the constitutionality of U. P. Consolidation of Holdings Act. The Act was held not to offend Articles 14 and 31(2) of the Constitution.
In a Pull Bench case of this Court, Jagat Singh v. State of Punjab, 1962 (64) Pun LR 241 : (AIR 1962 Punj 221) (FB) wherein the vires of the East Punjab Holdings (Consolidation and Prevention of 'Fragmentation) Act, 1948, were questioned, the Act was held to be not ultra vires of the Constitution and was described to be a measure designed, to promote agrarian reform. If consolidation of holdings is a beneficial measure for the good of the tenure holders and no objection can be taken to it, it is riot clear, as to how consistently with that, objection can be entertained to the variation or revocation of a scheme in order to have a better scheme. The other argument that variation or revocation would affect the rights of persons who make improvement upon their holdings, is also not well founded because Section36 provides that subsequent scheme is to be prepare3 in the same manner as a new scheme and Section 15 provides for compensation to an owner, who is allotted a holding of less market value than, that of his original holding.
74. The above remaks would go to show that the idea underlying Section 36 is to remedy defects and lacunae, which are found subsequently in a scheme of consolidation and it is a wholesome piece of legislation. Assuming that the provisions of the Act can in some case cause hardship as the language used in it is plain, it is not the province of the Court to scan its wisdom and policy. It is also not permissible for the Courts to curtail their operation by holding that they do not carry their plain and natural meaning for this would obviously be an attempt at modification of the statute. Reference in this connection may be made to observations at page 4 of Maxwell on the Interpretation of Statutes, 11th edition, which read as under:
'When the language is not only plain but admits of but one meaning, the task of interpretation can hardly be said to arise It is not allowable says Vattel, to interpret what has no need of interpretation. Absoluta sententia expositore non-indiget. (Plain words require no explanation.) Such language best declares, without more, the intention of the lawgiver, and is decisive of it. The rule of construction is 'to intend the legislature to have meant what they have actually expressed'. It matters not, in such a case, what the consequences may be. Where by the use of clear and unequivocal language capable of only one meaning, anything is enacted by the Legislature, it must be en-forced, even though it be absurd or mischievous. The underlying principle is that the meaning and intention of a statute must be collected from the plain and unambiguous expression used therein rather than from any notions which may be entertained by the Court as to what is just or expedient. The words cannot be construed, contrary to their meaning, as embracing or excluding cases merely because no good reason appears why they should be excluded or embraced. However unjust, arbitrary or inconvenient the meaning conveyed may be, it must receive its full effect When once the meaning is plain, it is not the province of a Court to scan its wisdom or its policy. Its duty is not to make the law reasonable, but to expound it as it stands, according to the real sense of the words.'
On page 64 of the book, Craies on Statute Law, 5th edition, it is observed as under:
'The cardinal rule for the construction of Acts of Parliament is that they should be construed according to the intention of the Parliament which passed them. The tribunal that has to construe an Act of a Legislature, or, indeed any other document, has to determine the intention as expressed by the words used. And in order to understand these words it is natural to inquire what is the subject-matter with respect to which they are used and the object in view'. If the words of the statute are themselves precise and unambiguous, then no more can be necessary than to expound those words in their ordinary and natural sense. The Words themselves alone do in such a case best declare the intention of the lawgiver.
'Where the language of an Act is clear and explicit, we must give effect to it. Whatever may be the consequences, for in that case the words of the statute speak the intention of the Legislature'.
Again on page 68, it is said as follows:
'In other words, the language of Acts of Parliament, and more especially of modern Acts, must neither be extended beyond its natural and proper limits, in order to supply omissions or defects, nor strained to meet the justice of an individual case. 'If said Lord Brougham, in Gwynne v. Burnell, (1840) 7 Cl. and F. 572, 'we depart from the plain and obvious meaning on account of such views (as those pressed in argument on 43 Geo. 3, C. 99), we do not in truth construe the Act, but alter it. We add words to it, or vary the words in which its provisions are couched. We supply a defect which the Legislature could easily have supplied, and are making the law, not interpreting it. This becomes peculiarly improper in dealing with a modern statute, because the extreme conciseness of the ancient statutes was the only ground for the sort of legislative interpretation frequently pot upon their words by the Judges. The prolixity of modern statutes, so very remarkable of late, affords no grounds to justify such a sort of interpretation'.'
Further on page 86, are reproduced the following observations:
''No doubt', said Willes J., 'the general rule is that the language of an Act is to be read according to its ordinary grammatical construction unless so reading it would entail some absurdity, repugnancy, or injustice, . . . But I utterly repudiate-the notion that it is competent to a Judge to modify the language of an Act in order to bring it in accordance with his views of what is right or reasonable'.'
75. Keeping the above observations in view, I am of the opinion that the words 'at any time' should carry their plain meaning and it is not open to the Court to circumscribe or restrict their operation.
76. I agree with the final order proposed to be passed about the acceptance of the appeals but only on the ground that the schemes of consolidation were ordered to be revoked and varied without notice to the respective appellants, who were parties interested and without giving any opportunity to them to submit their objections about the proposed change.