Himachal Pradesh High Court
Mohan Mehta vs State Of H.P. And Other on 10 August, 2018
Bench: Sanjay Karol, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.981 of 2018 .
Decided on: 10.08.2018
Mohan Mehta ...Petitioner.
Versus
State of H.P. and other ...Respondents.
Coram
The Hon'ble Mr. Justice Sanjay Karol, Acting Chief Justice The Hon'ble Mr.Justice Ajay Mohan Goel, Judge Whether approved for reporting? Yes. For the petitioner: Mr.Ajay Sharma, Advocate.
For the respondents: Mr.Ashok Sharma, Advocate General with Mr.Ajay Vaidya, Senior Additional Advocate General, Mr.Adarsh K. Sharma Mr.Ranjan Sharma, Ms.Ritta Goswami and Mr.Nand Lal Thakur, Additional Advocate Generals, for the respondent- State.
Mr.Vijay Singh Thakur, Advocate, for respondent No.4.
Mr.B.C. Negi, Senior Advocate, with Mr.Nitin Thakur, Advocate, for respondent No.6.
Sanjay Karol, Acting Chief Justice (Oral) Without going into the question as to whether the Authority had jurisdiction to pass the impugned order dated 27th April, 2018, passed by Additional Registrar (Administration), Cooperative Societies, Himachal Pradesh, Shimla, in Revision Petition under Section 94(2) (b) of the H.P. Cooperative Societies Act, 1968, titled as Dharam Singh vs. The Distt. Audit Officer-
::: Downloaded on - 14/08/2018 22:59:08 :::HCHP 2cum-Registration Officer & another (Annexure P-6), leaving all issues open, we dispose of the present petition, solely on the .
ground that the order supplied to the writ petitioner, annexed as Annexure P-6, is totally different and distinct from what we find to be there in the record of proceedings maintained by the officer in the very same case, which we have perused in Court. It may not be a case of interpolation, but the manner in which, Capt. R.S. Rathore, Additional Registrar (Administration), Cooperative Societies, H.P., conducted the proceedings, to say the least, is absolutely illegal and shocking. We find his conduct to be most unbecoming that of a quasi judicial officer and in our considered view, he is absolutely unfit to discharge any such functions.
2. In State of Orissa v. Dr. (Miss) Binapani Dei & Ors., (1967) 2 SCR, 625, the Hon'ble Supreme Court held as under:
"........The deciding authority, it is true, is not in the position of a Judge called upon to decide an action between contesting parties, and strict compliance with the forms of judicial procedure may not be insisted upon. He is however under a duty to give the person against whom an enquiry is held an opportunity to set up his version or defence and an opportunity to correct or to controvert any evidence in the possession of the authority which is sought to be relied upon to his prejudice. For that purpose the person against whom an enquiry is held must be ::: Downloaded on - 14/08/2018 22:59:08 :::HCHP 3 informed of the case he is called upon to meet, and the evidence in support thereof. The rule that a party to whose prejudice an order is intended to be passed .
is entitled to a hearing applies alike to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our constitutional setup that every citizen is protected against exercise of arbitrary authority by the State or its officers. Duty to act judicially would therefore arise from the very nature of the function intended to be performed; it need not be shown to be super- added. If there is power to decide and determine to r the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the essentials of justice be ignored and an order to the prejudice of a person is made, the order is a nullity.
That is a basic concept of the rule of law and importance thereof transcends the significance of a decision in any particular case."
In A.K. Kraipak and others vs. Union of India and
3. others, 1969 (2) SCC 262, the Hon'ble Supreme Court observed as under:
"13. The dividing line between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated. For determining whether a power is an administrative power or a quasi-judicial power one has to look to the nature of the power conferred, the person or persons on whom it is conferred, the framework of the law conferring that power, the consequences ::: Downloaded on - 14/08/2018 22:59:08 :::HCHP 4 ensuing from the exercise of that power and the manner in which that power is expected to be exercised. Under our Constitution the rule of law .
pervades over the entire field of administration.
Every organ of the State under our Constitution is regulated and controlled by the rule of law. In a welfare State like ours it is inevitable that the jurisdiction of the administrative bodies is increasing at a rapid rate. The concept of rule of law would lose its vitality if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just manner. The requirement of acting judicially in essence is nothing but a r requirement to act justly and fairly and not arbitrarily or capriciously. The procedures which are considered inherent in the exercise of a judicial power are merely those which facilitate if not ensure a just a fair decision....."
4. In Union of India and others vs. K.K. Dhawan, (1993) SCC 56, the Hon'ble Supreme Court held as under:
"28. Certainly, therefore, the officer who exercises judicial or quasi-judicial powers acts negligently or recklessly or in order to confer undue favour on a person is not acting as a Judge. Accordingly, the contention of the respondent has to be rejected. It is important to bear in mind that in the present case, we are not concerned with the correctness or legality of the decision of the respondent but the conduct of the respondent in discharge of his duties as an officer. The legality of the orders with reference to the nine assessments may be questioned in appeal or revision under the ::: Downloaded on - 14/08/2018 22:59:08 :::HCHP 5 Act. But we have no doubt in our mind that the Government is not precluded from taking the disciplinary action for violation of the Conduct .
Rules. Thus, we conclude that the disciplinary action can be taken in the following cases:-
(i) Where the officer had acted in a manner as would reflect on his reputation for integrity or good faith or devotion to duty;
(ii) if there is prima facie material to show recklessness or misconduct in the discharge of his duty.
(iii) if he has acted in a manner which is unbecoming of a Government servant;
r (iv) if he had acted negligently or that he omitted the prescribed conditions which are essential for the exercise of the statutory powers;
(v) if he had acted in order to unduly
favour a party;
(vi) if he had been actuated by corrupt
motive, however small the bribe may be because Lord Coke said long ago "though the bribe may be small, yet the fault is great".
5. In Namit Sharma vs. Union of India, (2013) 1 SCC 745, the Hon'ble the Supreme Court observed as under:-
"75. "Quasi-judicial" is a term which may not always be used with utmost clarity and precision. An authority which exercised judicial functions or functions analogous to the judicial authorities would normally be termed as "quasi-judicial". In Advanced ::: Downloaded on - 14/08/2018 22:59:08 :::HCHP 6 Law Lexicon (3rd Edn., 2005) by P. Ramanatha Aiyar, the expression "quash judicial" is explained as under:
"Quasi-Judicial.-Of, relating to, or .
involving an executive or administrative official's adjudicative acts. Quasi-judicial acts, which are valid if there is no abuse of discretion, often determine the fundamental right of citizens. They are subject to review by courts. (Black's 7th Edn. 1999) 'Quasi-judicial is a term that is... not easily definable. In the United States, the phrase often covers judicial decisions taken by an administrative agency- the test is the r nature of the tribunal rather than what it is doing. In England quasi-judicial belongs to the administrative category and is used to cover situations where the administrator is bound by the law to observe certain forms and possibly hold a public hearing but where he is a free agent in reaching the final decision. If the rules are broken, the determination may be set aside, but it is not sufficient to show that the administration is based in favour of a certain policy, or that the evidence points to a different conclusion....' {George Whitecross Paton, A Textbook of Jurisprudence 336 (G.W. Paton & David P. Derham, Eds., 4th Edn.,1972.} Describing a function that resembles the judicial function in that it involves deciding a dispute and ascertaining the facts and any relevant law, but differs in that it depends ultimately on the exercise of ::: Downloaded on - 14/08/2018 22:59:08 :::HCHP 7 an executive discretion rather than the application of law (Oxford Law Dictionary, 5th Edn., 2003).
When the law commits to an officer the duty .
of looking into certain facts not in a way which it specially directs, but after a discretion in its nature judicial, the function is quasi-judicial.
Of or relating to the adjudicative acts of an executive or administrative official.
Sharing the qualities of an approximating to what is judicial; essentially judicial in character but not within the judicial power or function nor belonging to the judiciary as constitutionally defined. {Section 128(2)(i), CPC (5 of 1908).}
76. This Court in State of H.P. v. Mahendra Pal, 1995 Supp.(2) SCC, 731, held that the expression "quasi-judicial" has been termed to be one which stands midway a judicial and an administrative function. If the authority has any express statutory duty to act judicially in arriving at the decision in question, it would be deemed to be quasi-judicial.
Where the function to determine a dispute is exercised by virtue of an executive discretion rather than the application of law, it is a quasi-judicial function. A quasi-judicial act requires that a decision is to be given not arbitrarily or in mere discretion of the authority but according to the facts and circumstances of the case as determined upon an enquiry held by the authority after giving an opportunity to the affected parties of being heard or wherever necessary of leading evidence in support of their contention."::: Downloaded on - 14/08/2018 22:59:08 :::HCHP 8
6. As such, we direct the Chief Secretary to the Government of Himachal Pradesh, to forthwith withdraw such .
powers exercised by the said officer under the provisions of H.P. Cooperative Societies Act, 1968. However, if this officer stands transferred to any other place, in future, he shall not be assigned the duty of discharging functions, under any statute, wherever he is required to pass an order which is in the nature of quasi judicial.
7. to For the aforesaid reasons, we quash and set aside the impugned order dated 27th April, 2018, passed by Additional Registrar (Administration), Cooperative Societies, Himachal Pradesh, Shimla, in Revision Petition under Section 94(2) (b) of the H.P. Cooperative Societies Act, 1968, titled as Dharam Singh vs. The Distt. Audit Officer-cum-Registration Officer & another (Annexure P-6), reviving the Revision Petition filed by the private respondent herein, with further direction to the parties to appear before the said Authority on 20.08.2018. We further direct the said Authority to decide the petition on merits, including the question of its maintainability, within a period of two weeks thereafter. We clarify that we have not expressed any opinion on the merits of the matter and quashed the order on a limited ground.
::: Downloaded on - 14/08/2018 22:59:08 :::HCHP 98. On 14.5.2018, we had passed the following order:-
"Notice to respondent No.6 has not yet been issued.
.
Issue notice to him for 19 th June, 2018, on taking steps within two days.
On having heard this matter at length in the light of the given facts and circumstances and also the provisions contained under the H.P. Cooperative Societies Act as well as Rules framed thereunder, prima facie, the Registration Officer, who, in the present case, is respondent No.5, under item No.3(3) of Appendix 'A' to the rules, was final authority in the rmatter of publication of final voter list. The said respondent, as per order Annexure P-5, has published the final voter list with 32 members Co-operative Societies as voters for election to the Board of Directors of respondent No.4. We leave it open to be considered on completion of the records that against the finalization of voter list, Annexure P-5, the revision petition was maintainable or the matter after the election should have been agitated in any other proceedings including the election petition. The Revisional Authority, i.e. 2nd respondent, vide interim order, Annexure P-6, has allowed the Solan District Marketing and Consumer Federation Limited, which as per order, Annexure P-4, was a defaulter, hence, not a voter to participate in the election process. Consequently, the operation of order Annexure P-6 and further proceedings in revision petition before the 2nd respondent shall remain stayed. Though, subject to final outcome of the writ petition, we allow the election of respondent No.4-Federation to be conducted as per schedule i.e. on 17.05.2018, however, the result of 32 voter societies as per list, ::: Downloaded on - 14/08/2018 22:59:08 :::HCHP 10 Annexure P-5, shall be sealed in a separate parcel and that of respondent No.6, the delegate of Solan District Co-operative Marketing and Consumer .
Federation Limited, Solan, in a separate cover. The result shall not be declared and produced in a sealed cover in this court on the next date."
9. Under these circumstances, we direct the result be declared without counting the votes of private respondent herein.
However, declaration of such result shall be subject to the outcome of the Revision Petition or any other remedy which the party aggrieved may pursue.
With the aforesaid observations, we dispose of the present petition alongwith pending application(s), if any.
( Sanjay Karol) Acting Chief Justice ( Ajay Mohan Goel ) Judge August 10, 2018 ( vt ) ::: Downloaded on - 14/08/2018 22:59:08 :::HCHP