R.S. Narula, J.@mdashTwo questions relating to the current interpretation and true scope of Rule 42 of the Punjab Chaukidar Rules, 1876 (as
amended up to May, 1960) cal for decision in this petition under Articles 226 and 227 of the Constitution of India in the following circumstances:
Badhu petitioner, a Chowkidar of village Chulkana, tehsil Sonepat, District Rohtak, made a complaint against Shri Chand, Respondent No. 4. who
was the Dafiadar of that village. The Sub-Divisional Officer (Civil). Sonepat, made enquiries into the complaint and by his order dated November
6, 1968, Annexure ''A'' below that Shri Chand was not performing his duties properly but let him off with admonition Shri Chand was allowed to
continue in his post though he was warned to be more careful in future. Against the order of the Sub Divisional Officer, the petitioner preferred an
appeal to the Deputy Commissioner Rohtak. That appeal was allowed by the order. The deputy Commissioner (who was also the Collector of the
district) filled April 28, 1989 (Annuxure ''B'') He held that Shri Chand (sic) lent could not be returned on the post of Dalladar. He accordingly said
the order of the Sub-Divisional Officer and dismissed Shri Chand from the post of Dalladar. I am given to understand that by a subsequent order
the petitioner was appointed as Daffadir in place of Shri Chand. This is being mentioned in order to make it clear that the petitioner had some
actual interest in this litigation though, even otherwise, he would have been entitled to maintain his petition as the proceedings against Shri Chand
had been initiated by him.
Shri Chand respondent who was naturally aggrieved by the order of the Deputy Commissioner filed an appeal to the Commissioner Ambala
Division, Shri R I.N. Ahuja, the Commissioner allowed the appeal by his order dated January 15, 1970 (Annexure ''B'') and set as the order of the
Deputy Commissioner on the solitary ground that the Sub-Divisional Officer had passed his order (Annexure A'') in exercise of powers which had
been delegated to him by the Deputy Commissioner under Rule 11 of the Chaukidar Rule and, having so delegated those powers, the Deputy
Commissioner could not again exercise the powers himself in appeal. On that basis alone, the order of the Deputy Com-missioner (sic) Shri Chand
was set aside a being illegal and voiling and the order of the Sub-Divisional Officer was restored. That order of the Commissioner was impuged in
this petition. The State allowed as Shri Chand have contained petition. Learned counsel to the petitioner has submitted that the Commissioner had
no jurisdiction to pass the impuged order and the order of the Deputy Commissioner was within his (sic), therefore, the Commissioner''s order
suffer from (sic) of law apparent on its face. The answer to both these question or the correct interpretation of Rule 42. Rules 11 and 42 of the
Chaukidara Rules. which have been framed u/s 39A of the Punjab Laws Act, 1892, may be reproduced at this stage
11, The Deputy Commissioner, or the officer duly authorised by him in that behalf, may dismiss any village watchmen or daffadar for any
misconduct or neglect of duty or physical unfitness for the performance of his duties.
42. All orders of the Deputy Commissioner in regard to the fixing of the number of village watchmen, the mode of their remuneration and the
levying of the same, shall be subject to control, re-vision and alteration by the Commissioner to whom he is subordinate but all orders by a
delegated authority shall appeasable to the Deputy Commissioner or to such authority as the Deputy Commissioner may specify.
The learned counsel for the State was not able to defend the impugned order of the Commissioner. Mr. U D Gair. Learned counsel for
Respondent No. 2 who has argued this case with treat ability. However, submitted that though the Commissioner (sic) jurisdiction to interfere with
the order of the Deputy Commissioner because of the limited re-visional jurisdiction vested in the Commissioner by the opening part of Rule 42, I
should decline- to interfere in this case as the result of namely setting aside the order of the Commissioner would be to restore the order of the
Deputy Commissioner which was passed by him without having any jurisdiction to do so, Mr. Gaur was secondly contended that the second part
of Rule 42 which purports to confer on the Deputy Commissioner juriction to hear appeals against orders passed by himself through it(sic) is
invalid and ultra vires. Since the vires of a rule framed by The State (sic) had been questioned by Mr. Gaur, i gave notice of this petition To the
Advocate-General of Haryana who has, in respect to the notice, been heard today.
2. Right of apneal does not exist unless it is conferred by some statute. It is the common case of both- sides that the jurisdiction of the
Commissioner in the matter of interfering with the order of the Deputy Commissioner is confined to the first part of Rule 42. This means that the
Commissioner can revise or alter only such orders of a Deputy Commissioner which relate to the fixing of the number; of watch-men, the mode of
the remuneration of the village watchmen or relate to the levying of same. No revisional or appellate jurisdiction has been conferred on the
Commissioner to interfere with any other kind of order passed by the Deputy Commissioner (or his delegate) under the Punjab Chaukidara hides.
It is plain that the order of the Deputy Commissioner (Annexure''E'') neither related to the fixing of the number of village watchmen nor to the mode
of the remmuneration nor to the matter of levying of the same. The order of the Commissioner is, therefore, clearly without jurisdiction and is liable
to be quashed on that short ground.
3. Relying on the judgment of Sinha J, in Bimal Chand Vs. Chairman, Jiagunj Azimgunj Municipality and Another, Mr. Gaur submitted that(sic)
under Article 221 of the Constitution being discretionary and the extraordinary jurisdiction of this Court under that Article being acquittal one, I
should not exercise the discretion as to set aside an order which is non est if as a result thereof another order without jurisdiction would be vived.
What Mr. Gaur submitted was what though there was no occasion for his client to impugn the validity of the Deputy Commissioner''s order, as he
had succeeded to get it set aside by the Commissioner, the correct Iegal situation had been reached by one order without jurisdiction having been
set aside by another order without jurisdiction. It was on this basis that he submitted that the High Court should not exercise its discretion in
support of such action which sought to uphold the order which had been passed without jurisdiction by the Deputy Commissioner. I would not
have been inclined to disagree with the proposition of law canvassed by Mr. Gaur, if I had found that the order of the Deputy Commissioner was
really without jurisdiction. All the learned counsel appearing before me admitte1 that the scope of the expression ""all orders"" occurring in role 42 is
not confined to the kind of the orders of the. Deputy Commissioner In this view of the matter, there is no doubt that within the plain language of the
second port of Rule 42, which for all practical purposes is a separate self contained rule, an appeal did he to the Deputy Commissioner against the
order of his delegate, the Sub-Divisional Officer (Civil) It has been found by the Commissioner, and is otherwise not disputed that the original
power under Rule 11 is vested in the Deputy Commissioner and it was only because the Deputy Commissioner had authorized the Sub-Divisional
Officer (Civil) in that behalf that the order Annexure ''A'' was passed by the last mentioned authority. This means the Sub-Divisional Officer (Civil)
was acting in exercise of the authority delegated to him by the Deputy Commissioner. According to the plain language of Rule 42, therefore, the
Deputy Commissioner did have jurisdiction to hear and decide the appeal preferred by the petitioner against the order of the Sub-Divisional
Officer.
4. It is to avoid the effect of the above mentioned findings that Mr. Gaur contended that the relevant part of Rule 42 inasmuch as it makes a
provision for appeal to the Deputy Commissioner against the order of his own delegate is ultra vires. In support of this proposition he referred to
the judgment of the Supreme Court in Roop Chand v. State of Punjab A.I. R. 1963 S.C. 1505. The question which came up for decision before
their Lordships of the Supreme Court in Roop Chand''s case was whether in exercise of its jurisdiction u/s 42 of the East Punjab Holdings
(Consolidation and Prevention of Fragmentation) Act (Punjab Act (50 of 1948) the State Government could or could not revise the order of its
delegate passed under Sub-section (4) of Section 21 ''of that Act. Section 21(4) as it then existed authorized the State Government to hear an
appeal against any order of the Settlement Officer (Consolidation) passed under Sub-Section 3 of that Section 41 (1) of the Consolidation Act
empowers the State Government, interaliasa to delegate any of its powers or functions under that Act to any of its officers either by name or
description. In exercise of the power conferred under sub-Section 1 of Section 41, the State Government had delegated its functions and powers
under Sub-section (4) of Section 21 of the Act to the Assistant Director of Consolidation. Section 42 of the Consolidation Act (as it was borne on
the statute book at the relevant time) authorised the State Government to call for and examine the record of any case pending before or decided by
any officer under the Consolidation Act for the purpose of satisfying itself as to the legality or propriety of such an order. The order passed by the
Assistant Director of Consolidation as delegate of the State Government under Sub-section (4) of Section 21 was reversed by the Director of
Consolidation to whom the powers of the State Government u/s 42 had been delegated. Roop Chand having failed to get that order quashed from
the High Court in writ proceedings succeeded in the Supreme Court on the short ground that the order of the Assistant Director u/s 21 (4) was not
his own order as an Assistant Director but was an order passed by him as a delegate of the State Government and could not, therefore, fall within
the scope of the order against which power of revision had been conferred by Section 42. Their Lordships observed that if they had held to the
contrary, it would merely mean that even the order of the Director, who was a delegate of the State Government for exercising the functions u/s 42
of the Act, would again be revisable by another officer to whom the powers u/s 42 might have been delegated and so on and on, with the result
that in this way finality In the matter could never be reached. It was held that it was only an order passed by an officer under the Act in his own
right as such officer which was revisable u/s 42 and not an order passed by an officer as delegate of the State Government, which order would, for
all practical purposes be deemed to be the order of the State Government itself. The pivot of the majority judgment of the Supreme Court was the
phraseology of Section 42. Learned counsel for the petitioner submitted that if Section 42 had stated that the Government may at any time for the
purpose of satisfying itself as to the legality or propriety of any order passed by any officer under this Act ""or passed by any officer to whom the
powers and functions of the State Government u/s 21 (4) have been delegated"" call for and examine the record of any case pending before or
disposed of by any such officer or delegate and may pass such order in reference there to as it thinks fit the Supreme Court would have upheld the
order passed in Roop Chand''s case. I fiud great force in this submission of Mr. Chhokkar. According to the contention of Mr Gaur, it is not open
to the Legislature or to the rule-making authority to provide for an appeal to the principal against the order of its own delegate. I am unable to spell
out any such proposition of law from the judgment of the Supreme Court In Roitp Chand''s case. In fact, the Supreme Court approved of the
dictum of the judgment of the Queen''s Bench Division in Huth v. Clarke L.R. (1890) 25, Q.B. D. 391, L.R. (1890) 25 QBD 391, wherein Wills,
J., observed that the delegation, as the word is generally used, does not imply parting with powers by the person who grants the delegation, but
points rather to the conferring of an authority to do things which otherwise that person would have to do himself. If it is, therefore, correct that the
principal authority does not, by delegating it to a subordinate authority obliterate its own power and jurisdiction, the petitioner must succeed in this
respect. The combined reading of Rules 11 and 42 leads me to think that it would be permissible for the Deputy Commissioner to dtelegate his
power under Rule 11 to a Tahsildar and his functions under role 42 to a Sub-Divisional Officer if he chose to do so. In that event, no jurisdiction
would be left In him to deal with the matter any further But in the instant case, though he had empowered the Sub-Divisional Officer to exercise his
functions under Rule 11, he had kept the appellate authority under Rule 42 with himself. I am unable to see anything abhorring in the procedure
adopted by the Deputy Commissioner. A rule cannot be ultra vires another rule. A rule can be struck down if it is ultra vires some provision of the
statute It is nobody''s case that the relevant part of Rule 42 is ultra vires Section 39-A of the Punjab Laws Act under which the rule has been
framed I am. therefore, unable to find any invalidity in the second portion of Rule 42 and upholding its vires I hold that the order of the Deputy
Commissioner was within his jurisdiction.
5. The only other submission made by Mr. Gaur is that original Section 99-A which existed in the Punjab Laws Act, 1872 as amended in 1875,
having been repealed and the present Section 39. A having been re-enacted in its place by Punjab Laws (Amendment) Act, 1881, the rules
framed under the repealed provision automatically came to an end. This submission is obviously fallacious. Section 4 of the Punjab General
Clauses Act (Act I of 1898) states that unless a different intention appears the repeal of a Punjab Act by another Punjab Act shall not effect the
previous operation of anything duly done or suffered there under. No different intention appears in the repealling Act Section 6 provides that where
any Punjab Act repeals and re-enacts, with or without modifications, any provision of a former enactment, then references in any other enactment
or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-
enacted No provision to the contrary has been pointed out to me. The Punjab Chaukidara Rules, 1876, which were framed under the original
Section 39-A of the Punjab Law Act, 1872 would, accordingly be decemed to have; been passed under the substituted Section 39-A which was
re enacted by Act XXIV of 1881. I am, therefore, unable to find any force in this submission of Mr. Gaur.
6. No other point was argued before me in this case. All the attacks of Mr. Gaur against the Deputy Commisssioner''s order having failed, this
petition must succeed I accordingly allow this petition and quash the impuged order of the Commissioner ( Annexure '' C ) dated January 15,
1970. as being wholly without jurisdiction and uphold the order of the Deputy Commissioner (Annexure ''B'') dated April 28, 1969, as the Deputy
Commissioner had the jurisdiction to pass that order. In the circumstances of the case, the parties are left to be a their own costs.