P.D. Desai, C.J.
1. Rule. To be heard to-day.
2. The learned Advocate General waives service of the Rule on behalf of the respondents.
3. The petitioner is a society registered under the Societies Registration Act, I860 (Act No. 21 of 1860). The petitioner claims to be the owner in possession of three buildings along with the land appurtenant (hereto situate in a locality known as 'Moti Tibba in the town of Dalhousie which falls within the revenue limits of District Chamba. Adjacent to the said property is situate a property belonging to the StateGovernment (first respondent) in which a Government High School is being run since long. In or about Sept. 1981, the petitioner as well as the school authorities made an application to the competent authority under Section 107, Sub-section (1) of the Himachal Pradesh Land Revenue Act, 1954 (hereinafter referred to as 'the Act') for defining the limits or boundaries between the property owned by the petitioner and that owned by the first respondent. The competent authority demarcated the boundaries on Oct. 19, 1981 in the presence of the representatives of the parties as per the copy of the proceedings produced at Annexure-B. The demarcation made accordingly disclosed that Order 3590 acre of land forming part of the petitioner's property was encroached upon and formed part of the first respondent's property in possession of the school authorities. Pursuant to the demarcation made as aforesaid, separate khasra numbers were, given to the properties in question and tatimas were also prepared.
4. It is the case of the petitioner that thereafter boundary pillars were erected-to define the limits but barbed wire fencing was not done at the request of the school authorities in order to enable them to use a portion of the property belonging to the petitioner as play-ground till the petitioner took up the construction of a superstructure and till alternative arrangements were made by the school authorities. Later on. the Director of Education, Himachal Pradesh. issued directions to the school authorities on July 30, 1983 (Annexure-C) to hand over possession of the encroached land to the petitioner who needed the same for the construction of a Satsang Hall. The school authorities, in compliance with such directions, handed over actual possession of the encroached land to the petitioner on Aug 8, 1983 (Annexure-D). After physical possession of the land was accordingly handed over, ihe petitioner applied to the municipality for the sanction of plan for the construction of the Satsang Hall on Aug. 15, 1983 (Annexure-E). The plan was duly sanctioned and the sanction was conveyed under the letier dated Jan 5, 1984 issued by the Secretary of theMunicipal Committee, Dalhousie, (Annexure-H). Be it stated at this stage that the second respondent (Collector-/S. D. O. (C), Dalhousie, District Chamba) is also the Administrator of the Dalhousie Municipal Committee. After the petitioner actually started construction of the Satsang Hall and while the construction was in progress, the impugned order dated May 9, 1984 (Annexure-1) was issued and served upon the petitioner containing a direction 'to stop the construction work forthwith till proper demarcation is given afresh by the Competent Revenue Authority'. Hence the present writ petition.
5. Section 4 of the Act defines certain words and expressions. The definition of the words 'estate', 'holding', 'Revenue Officer' and 'survey-mark' given in Clauses (5), (7), (17) and (19) respectively and, reproduced hereinbelow, is material for the present purposes :
'(5) 'estate' means any area : --
(a) for which a separate record-of-rights has been made, or
(b) which has been separately assessed to land revenue, or would have been so assessed if the land revenue had not been released,compounded for or redeemed, or
(c) which the State Government may, by general rule or special order, declare to be an estate ;
(6)xxx xxxx xxx xxx
(7) 'holding' means a share or portion of an estate held by one land-owner or jointly by two or more land-owners;
(8) to (16) xxx xxxx xxxx xxxx
(17) 'Revenue Officer' in any provision of this Act, means a Revenue Officer having authority under this Act to discharge the functions of a Revenue Officer under that provision;
(18) xxx xxx xxx xxx
(19) 'survey-mark' includes boundary-mark'.
6. Section 7 classifies Revenue Officers into different categories. One of the officers referred to in the said section is the Assistant Collector of the second grade.
7. Section 12 deals with superintendence and control of Revenue Officers and reads as under:
'12. Superintendence and control of Revenue Officers. -
(1) The Financial Commissioner shall be subject to the control of the State Government.
(2) The general superintendence and control over all other Revenue Officers shall be vested in, and all such officers shall be subordinate to the Financial Commissioner.
(3) Subject to the general superintendence and control of the Financial Commissioner, a Commissioner shall control all other Revenue Officers in his division.
(4) Subject as aforesaid and to the control of the Commissioner, a Collector shall control all other Revenue Officers in his district'.
8. Section 17 deals with the power to call for, examine and revise proceedings of Revenue Officers and it reads as under :
'17, Power to call for, examine and revise proceedings of Revenue Officers
(1) The Financial Commissioner may at any time call for the record of any case pending before or disposed of by any Revenue Officer subordinate to him.
(2) A Commissioner or Collector may call for the record of any case pending before, or disposed of by, any Revenue Officer under his control.
(3) If in any case in which a Commissioner or Collector has called for a record he is of opinion that the proceedings taken or order made should be modified or reversed, he shall report the case with his opinion thereon for the orders of the Financial Commissioner.
(4) The Financial Commissioner may in any case called for by himself under Sub-section (1) or reported to him under Sub-section (3) pass such order as he thinks fit;
Provided that he shall not under this section pass an order reversing or modifying any proceeding or order of a subordinate Revenue Officer and affecting any question of right between private persons without giving those persons an opportunity of being heard.'
9. Section 107 confers power on Revenue Officers to define boundaries and it reads as under:
'107. Power of Revenue Officers to define boundaries.-- (1) A Revenue Officer may, forthe purpose of framing any record or making any assessment under this Act or on the application of any person interested, define the limits of any estate, or of any holding, field or other portion of an estate, and may, for the purpose of indicating those limits, require survey-marks to be erected or repaired.
(2) In defining the limits of any land under Sub-section (1) the Revenue Officer may, cause survey-marks to be erected on any boundary already determined by, or by order of any court. Revenue Officer or Forest Settlement Officer, or restore any survey-marks already set up by or by order of any Court or any such Officer.'
10. It would be pertinent to point out that the learned Advocate General stated to the Court during the course of hearing that the powers conferred on the Revenue Officers under Section 107 are exercisable by the Assistant Collector of the second grade in view of the orders made in regard thereto by the State Government in exercise of the powers conferred under Section 11 and/or Section 13 of the Act.
11. Against the background aforesaid, it is apparent that the Assistant Collector of the second grade is constituted the competent authority to exercise the statutory power of defining the limits of any estate or holding, that is to say, any area (i) for which a separate record-of-rights has been made, or (ii) which has been separately assessed to land revenue, or (iii) would have been so assessed if the land revenue had not been released, compounded for or redeemed, or (iv) which the Slate Government has, by general rule or special order, declared to be an estate, or for any share or portion of such estate. The proceedings of the Revenue officer in a case defining the limits of any estate or holding are indubitably subject to revision under Section 17 of the Act but the exercise of such revisional power is subject to the conditions and limitations prescribed in the Section.
12. Now, the impugned order has a twofold effect; first, to restrain the petitioner from carrying on construction work on that piece or parcel of land which forms a part of its property by virtue of the demarcation of the boundaries made, in 1981; and, secondly, to order fresh demarcation to be made by the competent authority, that is to say, by theAssistant Collector of the second grade, by setting aside the proceedings relating to the previous demarcation. The learned Advocate General fairly stated to the Court that the second respondent had no power, authority and jurisdiction to issue the first direction and to restrain the petitioner from carrying on construction. So far as the second direction is concerned, however, the learned Advocate General submitted that since the superintendence and control over all Revenue Officers in the district vests in the Collector under Section 12 of the Act, the second respondent was entitled in law to issue the impugned direction relating to fresh demarcation on his having been satisfied that the previous delimitation of boundaries was not proper. Alternatively, according to the learned Advocate General, such power could have been exercised by the second respondent under Section 17. The only question which, therefore, survives for consideration is whether, on the facts and in the circumstances of the case, the second respondent had the power, authority and jurisdiction to issue the concerned direction.
13. It is true that under Section 12, Sub-section (4), subject to the limitations therein laid down, the Collector has the 'control' over all other Revenue Officers in his district. However, such control is apparently administrativ in character and it does not extend to or encompass quasi-judicial or statutory functions specially vested in an inferior Revenue Officer. In other words, the power of control cannot be construed as empowering the Collector to interfere with a case pending before or disposed of by a subordinate Revenue Officer in exercise of the quasi-judicial or statutory powers and functions conferred upon such Revenue Officer. The scheme of the statute under consideration leaves no room for doubt or debate on this aspect. Chapter II of the Act, which consists of Sections 7 to 28, deals with several matters under different headings. Sections 7 to 11 are grouped under the heading 'Revenue Officers' and sub-heading 'Class and powers'. Sections 12 and 13 find place under the heading 'Administrative Control'. Sections 14 to 17 occur under the heading 'Appeal, Review and Revision'. Sections 18 to 23 form a fasciculus under the heading 'procedure'. Sections 24 to 28 are clubbed together under the heading 'Supplemental Provisions'. The arrangementof these various sections under different headings and the conferment of distinct powers thereunder on different authorities and, more particularly, the placement of Sections 12 and 13 under the heading 'Administrative Control' and Sections 14 to 17 under the heading 'Appeal, Review and Revision', bring out the legislative intention of maintaining a clear demarcation between the different powers exercisable by superior Revenue Officers over inferior Revenue Officers in varying context, circumstances and situations and of separately categorising those powers according to their nature, character and content. It is manifest that whereas the powers under Sections 12 and 13 are administrative or executive in character, those under Sections 14 to 17 are quasi-judiciai in nature. By and large, the same set of superior Revenue Officers are conferred with supervisory power over Revenue Officers placed lower in hierarchy under the various sections grouped together under these two different headings. However, there is a basic and essential distinction between the nature and character of such supervisory power and the occasions and conditions for its exercise are governed by different prescriptions. If this distinction is borne in mind, it would become manifest that the Collector, in exercise of the powers conferred by Section 12, is not competent to interfere with a case which is pending or which has been disposed of by a competent Revenue Officer in exercise of the statutory powers conferred upon him by Section 107 of the Act, Be it realised that a Revenue Officer exercising powers under Section 107 of the Act is a statutory authority exercising powers and discharging functions entrusted to him under the enactment and that the powers so vested are exercisable by him and none other. If the Revenue Officer has acted without or in excess of jurisdiction or has committed an illegality or irregularity in the exercise of his jurisdiction, such excess, error or irregularity is curable in exercise of revisional powers conferred by Section 17 of the Act but any attempt to do so in the purported exercise of powers conferred by Section 12 will be wholly lacking in power, authority and jurisdiction. It is, therefore, not possible to uphold the submission of the learned Advocate General that the impugned direction ordering fresh demarcation on the basis that the previous delimitation was not proper could have been issued by the second respondent in exercise of the powers vested in him under Section 12 of the Act.
14. The question, then, is whether the impugned direction could have been issued by the second respondent in exercise of the powers conferred by Section 17. As earlier stated, the true effect of the impugned direction is that the second respondent has set aside the proceedings in the case relating to the boundary demarcation concluded in 1981. Apart from the fact that the very act of ordering the fresh demarcation implies the setting aside of the proceedings in the previous case, the affidavit in reply sets' out in clear terms that upon a 'thorough examination' of the record and proceedings of the case relating to the previous demarcation,' respondent No. 2 was convinced that all was not well with the demarcation and that it required re-checking' and that, therefore, the said respondent directed the competent authority to take up and complete the process of fresh demarcation. The question posed above requires examination against the aforesaid background.
15. Now, in the first place, under Sub-section (2) of Section 17, the Collector is indubitably empowered to call for the record of any case pending before or disposed of by any Revenue Officer under his control. The second respondent must, therefore, be taken to have acted within the four corners of powers conferred upon him under the said sub-section in calling for the record and proceedings of the case relating to the demarcation of boundaries, which was disposed of in 1981. The same cannot be said, however, with regard to his consequential action in setting aside the previous demarcation and ordering fresh delimitation of boundaries. Under Sub-section (3) of Section 17, the only power which is vested in the Collector in relation to a case the record whereof has been called for is to report such case together with his opinion for the orders of the Financial Commissioner, if, in his opinion, the proceedings taken or orders made in such case required to be modified or reversed. The Financial Commissioner alone is empowered in such a case to pass such orders as he thinks fit under Sub-section (4) of Section 17. In the instant case, therefore, even if the second respondent was of the opinion, upon perusal of the record, that the proceedings in the previous demarcation case were not legal and proper and that they were required to be quashed and set aside and that a fresh, demarcation was required to beordered, all that he could have done was to have reported the case with his opinion thereon for the orders of the Financial Commissioner. Instead of following the procedure prescribed by law, the second respondent himself passed the final orders in the case by issuing the impugned direction. The impugned direction, therefore, is clearly ultra vires.
16. In the next place, in any case, any direction touching or affecting the previous demarcation, even if it could have been validly issued in exercise of any statutory authority, could not have been given by the second respondent without affording to the petitioner an opportunity of being heard with regard to the proposed action. Be it recalled in this connection that the previous demarcation was made on the application of the petitioner as well as of the school authorities. The boundaries were demarcated in the presence of the representatives of the parties. As a result of the demarcation, a part of the property in possession of the school authorities, which was found to be forming a part of the petitioner's property but encroached upon by the school authorities, was placed back in the possession of the petitioner pursuant to the orders made by the Government at an appropriate level. Under such circumstances, an order setting aside the previous demarcation and ordering fresh delimitation of boundaries on the ground that the previous demarcation was not proper, could not have been made, even if it was duly authorised, except in due compliance with the rules of natural justice. That apart, the second respondent could not have made even a report to the Financial Commissioner under Sub-section (3) of Section 17 of the Act together with his opinion with regard to the alleged irregularity in the previous demarcation save and except after affording an opportunity of being heard to the person(s) likely to be affected by his action. It is true that an action taken by the Collector under Sub-section (3) of Section 17 does not of its own force affect the rights of the parties acquired pursuant to the proceedings taken or order made by a Revenue Officer in any case. It is also true that there is an express provision in Sub-section (4) of Section 17 requiring the Financial Commissioner to give an opportunity of being heard to the parties before passing an order reversing or modifying any proceeding or order of any subordinate Revenue Officer and affecting any question of right between privatepersons and that, therefore, before any final action setting aside the previous demarcation and ordering fresh delimitation of boundaries is taken in a case like the present, the petitioner and other persons likely to be affected thereby will have to be afforded an opportunity of being heard by the Financial Commissioner. However, the provision made in Sub-section (4), conferring the right of hearing, does not by implication rule out the applicability of audi alteram partem rule when the Collector exercises the power under Sub-sections (2) and (3) of Section 17. The expression 'may call for the record of any case' has acquired a well defined meaning in legal parlance. The expression conveys the exercise of revisional powers. No action pursuant to the exercise of such revisional power can be taken except in accordance with the rules of natural justice. Even though the Collector has no power to arrive at a final decision in a case like the present and his only power is to make a report to the Financial Commissioner along with his opinion, it is essential for the purposes of the formation of a well-informed opinion to afford a hearing to the concerned parties. In the very process of the formation of such an opinion is inherent the requirement of affording a hearing. Besides, upon the formation of such an opinion, the case will be reported to the Financial Commissioner who will, thereupon, become seized of the case in exercise of the powers of revision conferred by Sub-section (4). The parties concerned would, thus, be subjected to a revisional proceeding before a higher authority. There is no reason why before such an order is made the parties affected should not be afforded an opportunity of being heard so as to dissuade the Collector from adopting such course in the light of the facts and circumstances of the case. For the foregoing reasons, in our opinion, before the Collector can exercise the power under Sub-section (3), it would be essential for him to issue a show cause notice and to afford to the interested parties an opportunity of being heard.
17. As a result of the foregoing discussion, we hold that the direction contained in the impugned order ordering fresh delimitation of boundaries requires to be quashed and set aside. As earlier pointed out, so far as the first direction is concerned, it has been fairly conceded by the learned Advocate General that the second respondent had no power,authority and jurisdiction to issue the said direction and to restrain the petitioner fromcarrying on construction.
18. In the result, the writ petition succeeds and it is allowed. The impugned order is quashed and set aside. The decision will not, however, prevent the second respondent from taking fresh action in accordance with law and in the light of the observations made in the course of this judgment.
19. Rule made absolute accordingly with no order as to costs.