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TMI Blog1957 (12) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... ted to increase his area in that manner. There was a general agreement that the entire kalri area, as proposed, be given to Bhan Singh, and a large number of other right holders agreed. The re-partition was announced on 13-8-1954, and on 30-8-1954, the Consolidation Officer heard and decided all the objections which had been preferred by the various right holders. It is common ground that Bhan Singh never filed any objection to the re-partition. This was quite natural as he himself wanted a larger area of inferior land and persuaded the other right holders to agree to the same. It seems, however, that Bhan Singh later on changed his mind and filed some sort of appeal to the Settlement Officer which was dismissed as time barred. It is not known what the grounds of appeal were and what his grievance was and against which order the appeal had been filed. It appears that some complaint was made by Bhan Singh and others to the consolidation authorities and the Consolidation Officer, Flying Squad, enquired into the matter and reported that Bhan Singh had not been fully compensated for his area of superior quality. On receipt of this report, it seems, that the Director Consolidation got ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thi contends that the order of the Director is vitiated as he has assumed the shortage in Bhan Singh's land 10 be 75 kanals standard which was wholly incorrect. The second contention of Mr. Sethi is that there is absolutely no material on the record to show that Bhan Singh had not agreed willingly to accept area of inferior quality. No copy of the application made by Bhan Singh to that effect has been produced. Moreover, Bhan Singh, never filed any objections before the Consolidation Officer and although he may have tried to reopen the matter at a later stage before the Settlement Officer, he could not be allowed to go back on the agreed re-partition. It is suggested that the Director merely assumed or formed his own opinion without there being any material being placed before him that the settlement effected in March, 1954, was not voluntary. According to Mr. Sethi, this again would vitiate the order being an error apparent on the face of the record. The third submission on behalf of the petitioners is that, according to the scheme as framed, the holdings or the petitioners on consolidation could not be split up into four or five parcels which would be the result of the impu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order for dismantling the existing road. In that connection it was held by the learned Judge that Section 42 gave independent power to the Government to intervene suo motu at any stage of consolidation proceedings. It seems that in the course of arguments a point had been raised that the State Government had not issued any notification under Section 41 of the Act delegating its powers under Section 42 to the Development Minister and therefore the Minister had no power to pass, the impugned order. This point was examined at length and observations were made to the effect that under 6. 42 of the Act the State Government acted in exercise of its executive and administrative functions. It was also stated that under the proviso to Section 42 the power which the Government exercised was executive or administrative in nature, although the exercise of that power had to be in a quasi judicial manner, i.e., impartially and after giving the parties an opportunity of being heard. The real question that arose before Bishan Narain J., was whether in the absence of any notification under Section 41, the Minister could exercise powers under Section 42. The provisions of the Constitution were ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocess which a judicial or a quasi judicial tribunal alone can employ. The words "legality" & "propriety" and the words "order" and "case" occurring in Section 42 clearly use such terminology and phraseology as are employed in identical provisions occurring in other statutes which have given revisional powers to judicial or quasi-judicial tribunals. The proviso occurring in Section 42 has to be read along with the substantive part of the section and it makes it incumbent that parties should not only be given an opportunity to appear but that there should be an opportunity to be heard as well, which again are the attributes of Judicial process. In the Administration of Evacuee Property Act, 1950, Section 27 gave power of revision to the Custodian General in the following terms: "27. The Custodian-General may at any time, either on his motion or on application made to him in this behalf call for the record of any proceeding in which any Custodian has passed an order for the purpose of satisfying himself as to the legality or propriety of any such order and may pass such order in relation thereto as he thinks fit. Provided that the Custo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. 6. In Province of Bombay v. Khushaldas, AIR 1950 SC 222 (D), Kania C. J., observed at page 226. "It seems to me that the true position is that when the law under which the authority is making a decision, itself requires a judicial approach, the decision will be quasi-judicial. Prescribed forms of procedure are not necessary to make an inquiry Judicial, provided in coining to The decision the well-recognised principles of approach are required to be followed." Mahajan J., at page 232 referred to the classic definition of the term "judicial" as given by May C. J., in the following terms in The Queen v. Corporation of Dublin, (1878) 2 Ir Rule 371 (E): "It is established that the writ of certiorari does not lie to remove an order merely ministerial, such as a warrant, but it lies to remove and adjudicate upon the validity of acts judicial. In this connection the term 'judicial' does not necessarily mean acts of a Judge or legal tribunal sitting for the determination of matters of law, but for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is in pari materia, act in a quasi-judicial capacity. I am, therefore, of the opinion that the order made in the present case can be challenged by a writ of certiorari. 9. The next question that arises is whether any grounds have been made out for interference by certiorari. The submission of Mr. Sethi as has already been noticed is that there is wrong assumption of facts with regard to the shortage to Bhan Singh as also the excess which had been received by the petitioners and with regard to the question of the previous consent of Bhan Singh to the re-partition. 10. In the New Parkash Transport Co, Ltd. v. The New Suwarna Transport Co. Ltd., (1957) SCA 178: ( (S) AIR 1917 SC 232) (P), it was observed by Sinha J., at page 183 (of SCA): (at p. 235 of AIR) that error apparent on the face of the record in the context of the case must mean an assumption of facts which were not borne out by the record. 11. It is clear from the written statement of respondent No. 1 that the statement about shortage to Bhan Singh of about 75 kanals and of the excess with regard to the petitioners which the Director of Consolidation made was apparently based on wrong assumption of facts and it has not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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