Hiradhar Patel Vs. Lalindra Gand @ Naik and anr. - Court Judgment

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- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - that clearly amounts to review of an order passed under another statute, while dealing with a case under an entirely different statute. strong reliance is placed on a decision of this court in k. by way of reply it is submitted by the petitioner that even if it is conceded that the settlement in favour of the petitioner was bad, yet no relief can be granted to opposite party no. the duty was, therefore, clearly on opposite party no. east elloe rural district council, (1956) ac 736 at page 769 lord redcliffe observed :an order even if not made in good faith is still an act capable of legal consequences. therefore, the declaration to the effect that the order of settlement in favour of the petitioner is bad, is indefensible.a. pasayat, j.1. petitioner calls in question legality of the order passed by the additional district magistrate, sundargarh, declaring that the petitioner has not successfully proved his claim over plot nos. 537/1 and 538/1 measuring 2 acres and was in unauthorised occupation vide his order dated 17-11-1982 in revenue appeal no. 30 of 1980 (annexure-4 to the writ application). the further direction was for restoration of the aforesaid plots to lalindra gand (opposite party no. 1). penalty was imposed on the ground that the petitioner was an unauthorised occupant of the land.2. the background facts are as follows :two plots of land measuring 2 acres bearing plot nos. 537/1 and 538/1 khata no. 71 at village japanga was kalo jagir land. 'kalo' is the local term for village police. by orissa offices ot village police (abolition) act, 1964, (hereinafter referred to as the 'act') all offices of village police in the state of orissa were abolished. under section 3(1) (a) of the act all jagir lands stood resumed and vested in the state government free from all encumbrances. bhimokalo and gokula kalo filed an application for settlement of the disputed lands in their favour. the case was registered as misc. case no. 351 of 1965-66. after considering the claims of the applicants and the writ petitioner, the land was settled in the name of the writ petitioner. a petition was filed by the mother of opp. party. 1 under section 3 of the orissa scheduled areas transfer of immovable property (by scheduled tribes) regulation, 1956 (orissa regulation no. 2 of 1956) (described in short as 'kegulation') for restoration of the land in respect of the two plots. by order dated 10-9-1971, the subdivisional officer, sadar, sundargarh (in short, 'sdo') declared that the settlement was null and void, directed restoration and imposed a fine. on being moved by the petitioner, by order dated 23-9; 1871, he held that the regulation did not apply to the disputed two plots in view of the settlement mode under the act.appeal was preferred by asmati gond (mother of opp. party no. 1). appeal was allowed and the matter was remanded to the sdo, sadar, sundargarh, by order dated 14-8-1973, passed by the additional district magistrate, sundargarh. asmati died on 29-6-1974, and lalindra, opp. party no. 1 was substituted in her place in the proceeding on 12-9-1974. the sdo by order dated 15-3-1980 in misc. case no. 214 of 1970 held that the petitioner was not an unauthorised occupant for the said two plots. the sdo held that the case was not maintainable for the two disputed plots. . for the three undisputed plots he again directed restoration of possession and levied a fine of rs. 250/-. we are not very much concerned with the undisputed plots. lalindra (opp. party no. 1 ) filed revenue appeal no. 31 of 1980 against that part of the order which related to the disputed plots. the same was allowed by the impugned order dated 17-11-1982 (annexure-4).3. the basic question is whether the order of settlement in favour of hiradhar made under the act could be nullified in a proceeding under the regulation, the stand of the petitioner is that the authority who passed the order had jurisdiction to do it and if there was any infirmity in the order, the same could have been challenged by the concerned opposite party in an appropriate forum. that having not been done, it was not open to the authorities under the regulation to decide correctness of the order passed. that clearly amounts to review of an order passed under another statute, while dealing with a case under an entirely different statute.the stand of opp. party no. 1 on the other hand is that order of settlement in favour of hiradhar is void because the authority who passed the order could not have on the facts passed the order and there being inherent lack of jurisdiction, the order was void. strong reliance is placed on a decision of this court in k. sitaram dora and anr. v. v. krishna rao dora and ors.,(36 (1970) clt 636'. with reference to the facts involved in the said case, it was submitted that the court intended to say that if the records did not establish the claim of a person as an intermedia'ry, the collector would have no jurisdiction to deal with his claim under sections 6 and 7 and therefore there was lack of jurisdiction. it is submitted that so far as the facts of the present case are concerned, the question of establishing the claim of hiradhar was not involved in the application filed by bhima kalo and gokula kalo. his status is that of a purchaser and not of a kalo or his co-sharer or his tenant. as sucii he was not entitled to settlement under section 4 of the act. the order was therefore, without jurisdiction and accordingly, was a nullity. if the order is a nullity the competent authority under the regulation who is competent to entertain and decide a claim .under section 3 of the regulation, is competent to ignore the order of the revenue officer. by way of reply it is submitted by the petitioner that even if it is conceded that the settlement in favour of the petitioner was bad, yet no relief can be granted to opposite party no. 1, as the land vested with the state in terms of section 3(1)(e). there was no settlement in favour of opp party no. 1 in terms,of section 4(4), and therefore, opp. party. no. 1 has no focus stand/' to question the settlement.4. as rightly urged by the learned counsel, the only question that needs adjudication is whither the order of settlement in favour of the petitioner, could be set at naught in a proceeding under the regulation. the settlement having created a right in favour of the petitioner, the same is presumed to be valid unless declared otherwise. it is, therefore, for the person assailing its validity to get such a declaration from a proper forum in a proper proceeding. unless this is done, the order remains enforceable. the duty was, therefore, clearly on opposite party no. 1 or his predecessors to raise the plea of illegality of the order of settlement. unless the order is declared invalid at his instance, its enforceability cannot be doubted. a similar view was expressed by the supreme court in shiv chander kappor v. amar bose : air 1990 s c 325.5. in the words of lord diplock, 'the order would be presumed to be valid unless the presumption was rebutted in competent legal proceedings by a party entitled to sue' in wade's administrative law, 6th edition, there is an illuminating discussion of this topic. it has been pointed out that 'void' is meaningless in an absolute sense, and unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders. (see pages 351-353). the order of settlement has at least a de facto operation unless and until it is declared to be void or nullity by a competent body or court. in smith v. east elloe rural district council, (1956) ac 736 at page 769 lord redcliffe observed :'an order even if not made in good faith is still an act capable of legal consequences. it bears no brand of invalidity upon its forehead. unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.'apropos to this principle. prof. wade said :'the truth of the matter is that the court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. the order may be hypothetically a nullity, but the court may refuse to quash it because of the plaintiff's lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. in any such case the 'void' order remains effective and is in reality valid. it follows that an order may be void for one purpose and valid for another, and that it may be void against one person but valid against another.'the above passage was quoted and the principles indicated were approved by the apex court in state of punjab and ors. v. gurdev singh, ashok kumar, air 1991 sc 2219.6. in the case at hand, the original order of settlement was passed by an authority who did not lack jurisdiction to deal with the matter. the question whether somebody would be entitled to settlement or not has absolutely no relation with the jurisdiction of the authority. if an authority with jurisdiction passes an order which is improper or is illegal, the same cannot be treated as void. it remains enforceable until set at naught in an appropriate proceeding by an appropriate authority. in that view of the matter, the authority functioning under the regulation has no jurisdiction to declare that the settlement in favour of the petitioner was a nullity. the same amounted in essence to a review of order passed by another authority in a proceeding under a different statute. such a course is impermissible. the authority under the regulation was not an appellate authority or revisional authority in respect of the order of settlement passed under the act. therefore, the declaration to the effect that the order of settlement in favour of the petitioner is bad, is indefensible. the same is accordingly quashed. consequentially the direction for restoration and penalty imposed are vacated, the appellate order as per annexure-4 is quashed.the writ application is allowed. no costs.k.c. jagadeb roy, j.7. i agree.