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Dalip Singh Chandu Ram and anr. Vs. Mani Ram Gudara and ors. - Court Judgment

LegalCrystal Citation
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ No. 822 of 1967
Reported inAIR1968P& H459
ActsNorthern India Canal and Drainage Act, 1873 - Sections 68; Punjab Northern India Canal and Drainage (Amendment) Act, 1963
AppellantDalip Singh Chandu Ram and anr.
RespondentMani Ram Gudara and ors.
Appellant Advocate Gur Rattan Pal Singh, Adv.
Respondent Advocate C.D. Dewan, Deputy Adv. General and; S.K. Aggarwal, Adv.
DispositionPetition allowed
Cases ReferredBoyd v. United States
.....cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - 4. i have heard counsel for the parties and i am satisfied that this petition of writ deserves to be allowed. under the provisions of section 68, it could have been questioned by appeal or revision but being unanimous, all parties were..........the main plea is that the orders of the deputy collector were very clear and 'the irrigation and power minister only repeated the orders of the deputy collector. no orders were thus passed by the irrigation and power minister, haryana government, as alleged by the petitioners'. it was also stated thatthe decision was taken by the deputy collector as per rules. there is a second affidavit filed by shri hari singh dabra, irrigation and power minister, merely to the effect that the telegram was sent by his predecessor, shri mani ram gudara, who was the irrigation and power minister. 4. i have heard counsel for the parties and i am satisfied that this petition of writ deserves to be allowed. the order of the deputy collector was' admittedly in accordance with law. under the provisions of.....

Tek Chand, J.

1. This is a petition of writ moved by two petitioners, Dalip Singh and Hawa Small, assailing the order of Shri Mani Ram Gudara (respondent No. 1), Minister for Irrigation and Power, Haryana Government. There arc 39 respondents in all, the second respon-dent being the Suprintending Canal Officer, Hissar and the remaining respondents are the residents of village Kirmara wno are interested in the warabandi from the canal outlet R. D 103712-R.

2. The facts of this case are that the petitioners and respondents 3 to 39 are interest-ed in the warabandi which was sanctioned by the Deputy Collector, Fatehabad, vide his order dated 6th of January, 1967 (Annexure R-2), under Section 68 of the Northern India Canal and Drainage Act, 1873. After hearing the objections, the parties had unanimously agreed to an arrangement which was incorporated in the order of the Deputy Collector. The opera-tive part of the order runs as under:--

'Since this arrangement has been unanimously agreed upon, it should work satis-factorily. There being no other technical objection warabandi is sanctioned under Section 68 of the Canal Act No. 21 of 1963, but shall take effect in next crop or on the finalization of other warabandies connected cases whichever is later as certain share holders have objected that the enforcement of this warabandi shall have reciprocal effect much to their disadvantage on other outlets to which they will be shifted but warabandies of these outlets have not been sanctioned. Such an argument is not without force and is accepted'.

In so far as this was a consent order to which all parties concerned had unanimously agreed it was not questioned by any person by appeal to the Divisional Canal Officer under sub-section (5) or in revision under Sub-section (6) presented to Superintending Canal Officer. Orders contemplated under Section 68, unless disturbed by appeal or in revision, are final. The petitioners submitted that order of the Deputy Collector became operative on 16th of April, 1967, and was implemented for three days till 19th of April, 1967. The operation of the order was stayed on receipt of a telegram from respondent No. 1, Shri Mani Ram Gudara, Minister for Irrigation and Power, Haryana, Government. The telegram (Annexure A) is reproduced below:--

'2254/ 19/4S.E./B.C Xen. FBD/D.C./FBDC/P.S. to I.P.M. Cultivators of village Kirmara had an interview with I. P. M. on 19-4 at Hissar. They represented that only W B. of one O/L in their village has been announced whereas there is no announcement for the remaining O/Ls of the village. I P. M. has ordered that W B. may be stayed. Please take action immediately. WB may be framed for all O/Ls of the village and the WB may be announced con-nectively'

It seems that the word 'connectively is an error and the word intended to be used was 'collectively'. The petitioners in consequence of the sudden stoppage of the How of water submitted an application to respondent No. 2, the Superintending Canal Officer, Hissar, requesting that the order of the Minister should be vacated. Respondent No. 2 asked the petitioners to come on 4th of May, 1967 and then again on 10th of May, 1967 On the 10th May, 1967, the respondent No. 2 asked the petitioners 'to go home' Presumably, no order appears to have been passed by respondent, No. 2, the Superintending Canal Officer. In this writ petition, the. petitioners' grievance is that the order passed by the Minister (respondent No. 1) was illegal, mala fide and without jurisdiction and deserves to be quashed. It was also said that this order was passed by him as a political vendetta against the petitioners who helped his opponent Shri Cbaranji Lal at the general elections held in the year 1967. As the petitioners 1 and 2 had opposed respondent No. 1, the latter entertained a grudge against them. On the other hand, respondents Nos. 36 to 39 at whose instance the impugned telegram was sent had helped respondent No. 1 during the general elections. The order passed by the Minister was ex parte, without any jurisdiction, or power, and amounted to an illegal interference with statutory power exercised by the Deputy Collector in accordance with the provisions of Section 68 of the Act .

3. An affidavit has been filed on behalf of the Superintending Canal Officer, Hissar (respondent No. 2). The main plea is that the orders of the Deputy Collector were very clear and 'the Irrigation and Power Minister only repeated the orders of the Deputy Collector. No orders were thus passed by the Irrigation and Power Minister, Haryana Government, as alleged by the petitioners'. It was also stated thatthe decision was taken by the Deputy Collector as per rules. There is a second affidavit filed by Shri Hari Singh Dabra, Irrigation and Power Minister, merely to the effect that the telegram was sent by his predecessor, Shri Mani Ram Gudara, who was the Irrigation and Power Minister.

4. I have heard counsel for the parties and I am satisfied that this petition of writ deserves to be allowed. The order of the Deputy Collector was' admittedly in accordance with law. Under the provisions of Section 68, it could have been questioned by appeal or revision but being unanimous, all parties were satisfied with it and it was not challenged. I cannot help observing that respondent No. 1, Shri Mani Ram Gudara Irrigation and Power Minister, had not even a semblance of power or justification for interfering with a statutory order. sending of a telegram to an Executive Engineer stating 'I. P. M. (Irrigation and Power Minister) has ordered that W. B. (Warabandi) may be stayed. Please take action immediately', is grossly improper and manifest abuse of power which never vested in him. The order of the Deputy Collector was quasi-judicial order passed under Northern India Canal and Drainage Act. This order could only be disturbed on appeal or revision. It is no function whatsoever of a Minister to interfere in this manner by staying the operation of warabandi by telegram. It is tantamount to illegal interference with the provision of a statute, which cannot be countenanced. It is now stated in the affidavit of res pondent No 2 that the order of the Deputy Collector was very clear. If that be so, it called for no clarification, far less from the Minister. It was then said that 'the Irrigation and Power Minister only repeated rhe orders of the Deputy Collector', but this is entirely wrong. The telegram has been reproduced above and it certainly does not repeat the orders of the Deputy Collector Not only, that, it goes counter to the orders of the Deputy Collector, as the Deputy Collector could not have ordered the stay of the warabandi. Even assuming that the intention of the Minister was. that effect be given to the order of the Deputy Collector --which does not seem to be the case--he had no right to telegraphically tell the Executive Engineer that he has ordered that warabandi be stayed. If the Minister felt--and that is not even alleged--that the order of the Deputy Collector was being misconstrued or was not being implemented, he could have then asked the Deputy Collector to get his orders implemented. I cannot help remarking that sending of a telegram, in the circumstances, was an act of transgression on the part of the Minister for which he had no justification or excuse. The due process of law has been interfered with by the Minister. A Minister in a Government should conduct himself as a custodian of the law, rather than to behave, as he was a law unto himself, and his telegraphic command could be a substitute for an order on appeal or revision by a duly constituted authority. Laws have to be protected sometimes even from the law makers and the Ministers. The result of fhis improper interference by telegram with the order of theDeputy Collector was that the Divisional Canal Officer did not dare to pass any order and after calling the petitioners on two occasions, merely 'asked them to go home'. This fact has not been specifically denied in para of the affidavit.

5. The result has been that an order which was in accordance with law and the statute has been interfered with and supplanted by the telegram from the Minister. The direct result of this telegram was that the Canal Officer was demoralised and did not dare even to pass an order on the petitioner's application, one way or the other. The probability is that he was conscious of the illegal interference by the Minister who had no jurisdiction, and yet he dared not displease him by passing the appropriate order. The result was that the implementation of the legal order of the Deputy Collector was stayed with immediate effect. This conduct of the Minister cannot be supported either in law or in right principle. It is wholly unreasonable and arbitrary. The cardinal precept upon which the constitutional safeguards ultimately rest are that there shall be a Government of laws and people's rights laid down by the statute shall not be subject to the mere will of a Minister or an official. When the standing law is supplanted in the manner in which it has been done in this case, the Government ceases to be one of laws and becomes autocratic. The Courts have to be vigilant against the threat of such assaults on the laws of the land Arbitrary power and the rule of law cannot co-exist. These are antagonistic and incompatible forces. Wherever they are brought into conflict, one or the other must perish. The law of the land does not admit of a system of governance by the exercise of arbitrary power Our legal system has to be kept free from the appropriation of unauthorised power by any agency, autocratic or bureaucratic The Courts must strive to secure that the rule of law and its due process does not become a casualty to arbitrary unregulated power outside the law.

6. A similar matter involving the conduct of Minister in improperly interfering with judicial orders was considered by me in a writ petition Pritam Singh v. Financial Commr., C. W. No. 847 of 1960, D/-7-8-1961 (Punj). That was a case arising out of recovery of arrears of rent under the Punjab Security or Land Tenures Act read with the Punjab Tenancy Act in which agricultural tenants had been ordered to be ejected. Therein, it was observed:--

'The learned counsel for the petitioners has adverted to the conduct of the Minister and others in improperly interfering with a judicial, or at least a quasi-judicial order with a view to circumvent the order of ejectment, which had been legally passed and which had become final. Any executive interference in a matter which is essentially judicial in nature cannot but be reprobated'.

'It is lamentable indeed that solemn expression of the will of the Legislature, which within its sphere is supreme, should be violated in deference to the desire of a Minister. The circumvention or subversion of the enacted will of the Legislature cannot be countenanced whether it is by an inconsequential member ofthe public, or, in obedience to the behest of a high dignitary of the Government. Tt is mure distressing, and equally inexcusable, when an infraction of the law emanates from, or is con-nived at by those who, by virtue of their high offices, must uphold and respect the legislative fiat. It is least expected from the executive authority either to interfere with, or to thwart the purpose of an Act of Legislature. No casuistry or sophistical reasoning can be suffered in order to get around the law and no artifice can be tolerated to outwit its clear injunction. II is neither proper nor prudent, neither judicious nor just, to infringe or bypass the rights of a subject as conferred or regulated by law. The executive ought to be so more exigent in securing obedience for the taw than in conniving at their circumvention. What has happened in this case is likely to create an impression that laws are like cobwebs, which may catch small flies, but let wasps and horrnets break through. This belief must be dispelled it the law is to be the guardian of the liberties and the rights of the people Quod principi placuit legis habet vigo-rern -- what pleases the ruler has the force of law, might have been the unworthy precept of Tudor or Stuart period in England. Richard the II might have been heard to say 'the laws of England are in my mouth and often in my own breast', but in a democratic Republic the maxim on which an independent Judiciary must act is Fiat justitia ruat coelum -- let right be done even if the heavens fall. What must count with the Court are principles and not persons, howsoever distinguished. The peculiar circumstances of this case have persuaded me, to refer to the first and fundamental rule of administra-tion of justice, lest it be driven to occupy a secondary place by exigencies of policy or from any ulterior consideration The concept of right which the Courts recognise is the rule of law and give effect to the legislative intent as ascertained in accordance with the rules of inter pretation of statutes'

7. Extension of power by encroachments, petty or insidious, upon the fundamental principles, privileges and immunities must be discountenanced even when invasions on rights are minor The admonition of Mr. Justice Rradley in Boyd v. United States, (1886) 116 US 616 635, is worth citing:--

'It may be that it is the obnoxious thing in its mildest and least repulsive form, hut illegitimate and unconstitutional practices get their first footing in that way, namely, but silent approaches and slight deviations from legal modes of procedure

It is the duty of Courts to be watchful for the constitutional rights of the citizens, and against any stealthy encroachment thereon. There motto should be obsta principiis--with stand the beginnings'

8. The impugned authoritarian act of the respondent Minister was absolutely without the authority of the Saw as he could neither bypass nor nullify the provisions of Section 68 of the Northern India Canal and Drainage Act. Neither constitutional principles nor statute lend support to a fiat or ukase by the Minister. Thetelegraphic injunction dated 19th April, 1967(Annexure A) deserves to be struck down andthe same is, therefore, quashed. The petition isallowed and the petitioners are entitled to theircosts from respondent No. 1, Shri Mani RamGudara, which are fixed at Rs. 200.

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