Uttarakhand High Court
State Of Uttarakhand And Another vs Diwakar Chamoli And Another on 11 July, 2018
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UNTHE HIGH COURT OF UTT AAAIIaJIANJ]))
AT NA][NUT AlL
Special Appeal No. 373 of20Jl7
State ofUttarakhand and another ...... AppelJants.
Versus
Diwakar Chamoli and another ...... Respondents.
Present:
Mr. Kumar Kartikey, Advocate along with Mr. Rakib Khan, Advocate for the appellants.
Mr. V.B.S. Negi, Senior Advocate assisted by Mr. Vivek Shukla, Advocate for the respondents.
Judgment Reserved.: 25.05.2018
Judgment Delivered :.l.l.'.9:1.'h.<?.1.5
JUDGMlENT
Coram: lHioDJ'ble lK.M. Joseph, CJ.
lHioHl'lblle ShaIl'ad! ]K:unmaIl' SllnaIl'mlll, J.
SlHIAlRAJI} JKJUMAR SlHlARMA.., J.
The present Special Appeal has been preferred by the C1. : respondents /appellants, whereby, the appellants have questioned the correctness of the judgment rendered by the learned Single Judge on 5th September, 2017, by which he has allowed the Writ Petition and set aside the impugned order under challenge in the Writ petition dated 8th June, 2017, by virtue of which, the State, while exercising power under Section II (2-A) of Shri Badrinath and Kedamath Temples Act, 1939 (hereinafter to be referred as '1939 Act') had dissolved the Committee.
2. The respondents /petitioners to the Writ Petition had filed Writ Petition claiming themselves to be the Members of the Badrinath and Kedarnath Temple Committee (lI11eIl'eulIlllllfaeIl'Il'ef<l!Il'Il'ed!ao lll9 allne 'Committee'), as being its constituent members in terms of Section 5 of 1939 Act. It is an admitted case of the respondents/petitioners that the principle intention of 1939 Act is aimed to achieve an effective 2 I management of the Temples and the prime consideration is to ! safeguard the interest of the Shrines covered under 1939 Act.
3. Admittedly, according to the respondents. / petitioners themselves, the Committee, thus, contemplated under Section 5 of 1939 Act is vested with the powers of administration and governance of the Temple and all the funds of the Temples would be vested with the committee, the configurations of which, is contained under Section 5 of 1939 Act.. Unqer Section 7 of 1939 Act, the Committee has been it' given a legal status as being a Body Corporate and would have a perpetual succession and a common seal and may in its name sue and be sued., According to the petitioners, as per Section 8 of the Act, the .' terms of the office of President, Vice-President and its Members would be three years but with a rider attached to it that the period would be subject to the restriction imposed by Sections 10 read with Section 11 of 1939 Act. However, the life of the President, Vice-President and its Members would be for three years' period from the date of issuance of the Notification under Section 5 (3) of 1939 Act. The basic issue agitated by respondents/petitioners while giving challenge to the impugned order in the Writ Petition was that there was none of the ingredients available as contemplated under Section 10 of the Act to the State to remove the President and Members of the Committee and as such, the Resolution by invoking Section 11 (2-A) was illegal.
4. The contention of respondents / petitioners was that the removal of the President, Vice-President or Members of the Committee could be resorted to only when the condition given under Subcsection (I) of Section 10 are existing for the -State to remove the office bearers or the Members of the Committee. Respondents / petitioners would submit that in the absence of there being availability of any disqualification provided under Section 10 of the Act, under the garb of powers of dissolution under Section 11 (2-A), Committee cannot be dissolved. Another submission of the learned counsel for the : 'j 3 respondents/petitioners is that the order impugned is wi~hout assigning any reason because on the earlier occasion too' when the order was passed, which was put to challenge in Writ Petition No. 730 of 2017, this Court by the judgment dated 30th May, 2017, has quashed the order dissolving the Committee and remitted the matter back to the State Government to proceed further and to take fresh action, if needed, but only after assigning reasons, Para 14 of the said judgment dated 30,05.20}7 reads as under :-
"14. Another argument of the learned Advocate General is that even if the reasons have not been assigned that will not cause any prejudice to the petitioners. This argument is not tenable. Once it is made in the statute itself that the reasons " , have to be assigned before passing the order for dissolution of the Committee, it is not a question whether any prejudice has been caused to the petitioners or not. Admittedly prejudice has '.' been caused in law to the petitioners inasmuch as they are now not in a position to rebut or counter the grounds on which such dissolution has been made. This is clearly in violation of principles of.natural justice and fair play."
) '\.' 5. The Writ Petition was contested by the appellants / State by filing a counter affidavit and thereby arguing that the powers under Section 10 of the Act for removal of the President, Vice-President and Members of the Committee on the conditions existing therein is altogether different and distinct as the powers contained under Section 11 (2-A) of the Act is altogether a distinct p~wer vested with the Act which gives ample power with the State to dissolve a Committee for the grounds referred under Section 11 (2-A) of the Act.
6. Appellants are the respondents in the writ petition. The writ petition was filed by two persons claiming to be the members of Sri Badrinath and Sri Kedarnath Temple Committee. They challenged the validity of Annexure -2 order dated 08.06.2017 by which the 4 Committee stood dissolved invoking provisions under Section 11(2- A) of the V.P. Shri Badrinath and Kedarnath Temples Act, 1939 (hereinafter after to be referred as 1939 Act). There were ancillary reliefs sought against interference in the functioning of the Committee. Besid~s, they also sought a mandamus directing the State Government to initiate process of election of three members of Legislative Assembly and four members of the respective Zila Panchayat forthwith, who are supposed to be the constituent members of the Committee under Section 5 of the Act (as amended from time to time by Amendment Actl8 of 2002 w.e.f. 21.12.2000).
7. The learned Single Judge allowed the writ petition. Following is the reasoning of the learned Single Judge:
"6. Admittedly, the State Government ,has' powers to dissolve the Committee either under sub~section (1) or sub-section (2-A) of Section 11 of the Act. The distinction between the two provisions is that whereas under sub-section (1) of Section 11 of the Act, the Committee can be dissolved by the State Government only "after due enquiry", this restriction does not exist under the powers given to the State Government 'under sub-section (2-A) of Section 11 of the Act but even under this provision, the Committee can only be dissolved "if on being satisfied that it is necessary in the interest of the Temple and its efficient management". In other words, plausible reasons must be assigned by the State Government before taking extreme measures for dissolving the duly constituted Committee. The reason given by the State Government for dissolution of the Committee is that the four members of Zila Panchayat have not been appointed. This cannot 'be a reason for dissolution of the Committee as it was always open for the State Government to appoint such members. If four members of Zila Panchayat have not been appointed as members of the Committee, the Committee cannot be said to be at fault, as it is the State Government which has to make these appointments. The dissolution of the Committee is not the answer. The other ground for the !iissolution of the Committee is that seven special invitees have been nominated. This again cannot be ~ ground for dissolving the Committee as it was alway~ l':
, , 0 open for the State Government to stop these members , 0 from functioning as members of the Committee."
8. As regards to the nature of complaint of the appellant that 0 the Committee itself was never properly constituted as required under Section 5 (3) of the V.P. Shri Badrinath and Shri Kedarnath Temples Act, 1939, the learned Single Judge rejected the same on the ground that it does not constitute the basis for passing the impugned order under challenge in writ petition. Learned Single Judge also reasoned the judgment by an analogy that if the Committee was never constituted of requisite constituent members, then there was no ,roo occasion to dissolve such a fractured Committee. He also found that there was evidence to show that the Committee was constituted way back in November, 2016, and even if there has been, no formal notification, the State Government is always at liberty to make such a notification.
9. The learned Single Judge, therefore, allowed the writ petition and quashed the impugned order.
10. We have heard Mr. Kunwar Kartikey, learned counsel appearing on behalf of the appellants and Mr. V.B.S. Negi, learned Senior Counsel assisted by Mr. Vivek Shukla, learned counsel for the writ petitioners.
11. The power to dissolve the Committee has been exercised under Section 11(2-A) of the Act. The same reads as under:
"n. Dissolllltion lllDlid sll.!lPell"sessioDll olf iCommBttee.-(1) (2)
(2-A) Without prejudice to the power of the State 0 Government under sub-section (1) the State Government may, on being satisfied that it is necessary in the interest of the Temple and its efficient management, by a notification dissolve, the Committee and direct the reconstitution of another Committee in accordance with the provisions of this Act.
12. Section 5 of the Act deals with constitution of the Committee. It reads as follows:
"5. The Committee.- (I) The administration and the governance of the Temple and the Temple fund shall vest in a committee which shall be comprised as follows:-
(a) omitted
(b) two persons to be elected by the Hindu members of the Uttar Pradesh Legislative Assembly and one person to be elected by the Hindu members of the Uttar Pradesh Legislative Council;
(c) one person residing in the district of Garhwal to be elected by the Hindu members of the Zila Parishad of that district;
(d) one person residing in the district of Tehri Garhwal to be elected by the Hindu members of the Zila Parishad of that district' f (e) one person residing in the district of Chamoli to be elected by the Hindu members of the Zila Parishad of Chamoli and for so long as there is no Zila Parishad in Chamoli to be nominated by the Collector of that district;
(f) one person residing in the district of Uttar Kashi to be elected by the Hindu members of the Zila Parishad to Uttar Kashi and for so long as there is no Zila Parish ad in Uttar Kashi to be nominated by the Collector of that district; and
(g) the President of the Committee and seven members to be nominated by the State Government. (2) The State Government may appoint any member of the Committee as Vice-President thereof. The Vice President shall exercise such powers as may, with the ~..:
") previous approval of the State Government, be delegated to him by the President;
(3) The Constitution of the Committee shall be notified by the State Government in the official Gazette:
Provided that the State Government may notify the Constitution of the Committee at any time after the President and not less than eight members of the Committee have been elected or nominated, as the case may be, and the Committee so constituted shall be deemed to be a constituted Committee. (4) No person who is subject to any disqualification referred to in sub-section (I) of section 10 shall be eligible for membership or for the office of the President or Vice-President of the Committee."
13. We may also advert to Section 8, which provides for the term of the Committee:
"8. Terms of office of lP'll"esndelllltt 1Illl1ldl membell"s.-
The President, the Vice President or any other member of ;. ':J the Committee shall, subject to the provisions of section 10 and 11, hold office for a term ending with the expiration of three years from the date of notification under sub-section (3) of section 5:
Provided that the State Government may by notification in the Gazette, extend the term of the President, Vice-President and other members of the Committee, whether it has already expired or not, for a period not exceeding three months at a time and six months in the aggregate." ,:
14. For deciding the present Appeal, we cannot lose sight of the fact that there was an earlier litigation. As earlier too the Committee had been dissolved by the Government, the same came to be challenged in Writ Petition (MS) No. 730 of 2017. The said dissolution of Committee was also done by invoking Section II (2-A) of the 1939 Act. We may notice the following discussion of the learned Single Judge contained in Paragraphs 8, 9 and 13 of the judgment for attributing reasons for interference with the impugned order of dissolution of the Committee:
"8. In fact, the main thrust of the argument of the learned Advocate General is that there are two ,methods given under the law for dissolving a Committee. The first is contained in sub-sections (1) & (2) of Section II and the other is contained in Section 11 (2-A). Both are independent and different provisions. In the first provision i.e. under Section 11 (I) & (2) if in the opinion of the State Government the Committee is not competent to perform or has persistently made default in performing its duties or it has abused the power, then the State Government, after a due enquiry by a notification can dissolve or supersede the Committee and direct the reconstitution of another Committee but before doing so, the State Government must communicate the grounds to the Committee on which it proposes to take such an action i.e. action for dissolving the Committee. In other words, under the first method for dissolution of a Committee, principles of natural justice and fair play have to be adopted i.e. a notice and opportunity of hearing has to be given before dissolution of the Committee but under the second method which is contained in Section 11 (2-A) of the Act, there is no such provision. Therefore, the learned Advocate General would '.
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argue that in the present case it is the second method which ., has been adopted where there is no requirement to follow I .J the principles of natural justice and fair play and there is l to nothing wrong in the same.
9.. Having heard the learned Senior Counsel for the petitioners, Mr.V.B.S. Negi assisted by Mr. Vivek Shukla, Advocate and Mr. S.N. Babulkar, learned Advocate General of the State assisted by Mr. Paresh Tripathi, learned Chief Standing Counsel, this Court is of a considered view that although the principle of natural justice and fair play, as far as notice and opportunity of hearing is concerned, is not given in Section I I (2-A) of the Act but even here the Legislature has been cautious enough to incorporate that a dissolution order can only be passed on satisfaction of the Government under Section I I ',:# (2-A) of the Act. The Government must therefore record ,r' its satisfaction. This satisfaction has to be recorded in the order. itself as recording the reasons for dissolving the .•..~ .. Committee if done on a note sheet or tile and not communicated to the' concerned persons solves no purpose. The purpose of recording the reason is that it enables the person concern to prepare the grounds of challenge, in case he has to challenge the order. Moreover, by now it is again settled that principles of natural justice and fair play are not merely the two principles of '.'bias" and "audi alterem partem" but the third principle would also be where an administrative authority is duty bound "to assign reasons".
Assigning reasons in the order is the third principle of Administrative Law. This being the third principle of natural justice and fair play, which has been specifically ''':''r''~ incorporated by the Legislature has clearly been violated.
13. It is possible that in a given case Communication of the reasons may not be necessary, but when the matter is before the Court, the Court can always ask the State to reveal the reasons as to why they were not communicated to the persons concerned. In the present case, the reasons assigned are that the State Government had inducted members in violation of law. In case this was so, such members could have been removed or atleast even if the Committee' was to be dissolved, such reasons could have been easily stated in the impugned order itself. Withholding of the reasons altogether from the petitioners is clearly in violation of principles of natural justice and fair play."
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i) l 15. The learned Single Judge at that stage too did not agree with the stand of learned Advocate General that if assigning of ! reasons is not done, it will not cause any prejudice to the petitioners and it was, accordingly, that the earlier order dated 01.04.2017 was quashed, but it was made clear and open to State that an appropriate action can always be taken by the State Government, but only in accordance with procedure contemplated under law: It is, thereafter, that the order impugned dated 08.06.2017 in the writ petition has been passed. Translation of the impugned order (as provided by the ·.l'~' appellant) reads as follows:
"GOVENRMENT OF UTTRAKHAND Culture, Dharmasva / Pilgrimage Management & Religious Fair Section No. / VI/2017-166 (parya)/2002 Dehradun: Date 08 June, 2017 .
NOTIFICATION ;.L Against the Government's notification concerning 'J1 the dissolution of Shri Badrinath Shri Kedarnath Temple Committee, being Notifvication No. 121/VI/20 17-166 (Parya)/2002 dated 01 April, 2017, a writ was instituted before the Hon'ble High Court Nainital [Sic.] being Writ Petition N;o. 730 (MIS) of 2017-Diwakar Chamoli & Others v State. In the said writ, judgment has been passed by the Hon'ble High Court Nainital [Sic.] on 30 May, 2017, the main operative section of the same is as follow:
"13. It is possible that in a given case communication of the reasons may not be necessary, but when the matter is before the Court, the Court can always ask the State to reveal the reasons as to why they were not communicated to the persons concerned. In the present case, the reasons assigned are that the State Government had inducted members in violation of law. In case this was so, such member~ could have been removed or at least even if the Committee was to be dissolved, such reasons could have been easily stated in the impugned order itself.Withhoiding the reasons altogether from the petitioners is clearly in violation of the principles of natural justice and fair play.
14. Another argument of the Learned Advocate General is that even if the reasons have not been assigned 10 that will not cause any prejudice to the petitioners. This argument is not tenable. Onc·e it is made in the statute itself that the reasons have to be assigned before passing the order for dissolution of the Committee, it is not a question of whether any prejudice has been caused to the petitioners or not. Admittedly prejudice has been caused in law to the petitioners in as much as they are now not in a position to rebut or counter the grounds on which such dissolution has been made. This is clearly in violation of principles of natural justice and fair play.
15. In view of the above, the order impugned cannot be allowed to sustain. Writ Petition is allowed. Order dated 01.04.2017 is hereby quashed and set aside.
16. Having made the above determination, it is made clear that an appropriate action can always be taken by ".,7 the State Government, but only in accordance with law."
2. It has been specifically quoted in the j.l,ldgmentof the Hon'ble High Court dated 30 May, 2017 that action can be taken by the State Government as per rules, while quoting justification / reasons for the same. In light of this judgment of the Hon'ble High Court, after a balanced analysis of the matter at the Government level, it is the clear opinion of the Government that the following irregularities exist in the presently constituted Shri Badrinath Shri Kedarnath Temple Committee:
( 1) In the Shri Badrinath Shri Kedarnath Temple Committee, in the total necessl.lry members, 04 () panchayat members have not been nominated and furthermore, due to constitution of a new Vidhan Sabha, members of the old· Vidhan Sabha are no longer the members of the Temple Committee. Names of members area Iso yet to be directed from the new Vidhan Sabha. (2) Apart from the above, at present in apart from the names of 01 Chairperson, 01 Vice-Chairperson and 10 Members, names of 07 other members-by-Special Invitation have also been directed, which is contrary to the provisions of Section 5(1) Kha to 5(1) Chha of the Act ofl939 [Sic.] (3) As a result of the aforementioned circumstances, where on one hand it has not been possible to nominate the names of 07 members (04 from the district panchayat and 03 from the Vidhan Sabha), on the other hand the names of 07 Members-by-Special-Invitation have been nomiriatged, thus leading to a situation which is anomalous and contrary to law.
II
3. In light of the anomalies and situations contrary- I to-law as described in paragraph 2 above, permitting the continuance of the presently constituted Shir Badrinath Shri Kedamath Temple Committe'e; and further permitting the present committee to discharge the functions of the Temple Committee; would be contrary to the provisions of Shri BadrinathShri Kedarnath Temple Act, 1939 (United Provinces Act).
4. Therefore, in light of the aforementioned circumstances / reasons, in exercise of the powers under Section 11 (2-Kha) of the Shri Badrinath Shir Kedarnath .,. ~f Temple Act, 1939, the presently constituted Shir Badrinath Shri Kedarnath Temple Committee is hereby dissolved with immediate effect; and further in the interest of the efficient functioning of the Shri Badrinath Shri Kedarnath Temple Committee, until the constitution of the new Committee, Additional Secretary Dharmasva is hereby appointed as Administrator of Shir Badrinath Shri Kedarnath Temple Commmittee.
(Arvind Singh Hyaki) Secretary-in-Charge"
16. Mr. Kunwar Kartikey, learned counsel for the appellants ~.l would, after taking us through the order, submit that the learned :'f, ) Single Judge erred in interfering with the same. In fact, as regards the ... ;,/ absence of MLAs from the Committee as provided under Section 5 (1) (b), there is no dispute raised by Mr. V.B.S. Negi, learned Senior Counsel; he would admit that the term of the MLAs must be treated to have come to an end in February, 2017. Equally, there is no dispute raised by the respondent counsel that there were also vacancies in the Committee of members to be elected from the Zila Parishads. That seven members by special invitation were also appointed is not in dispute. Therefore,'the case ofthe appellants is that the learned Single Judge ought not to have interfered with the governmental decision to dissolve the Committee, which on the face of it was, not constituted in consonance to the requirement in law. He would also submit that the suggestions, which were made by the learned Single Judge, cannot detract from the power available to State to dissolve the Committee 12 Ulider Section 11(2-A) of the Act and the question, which is posed, is whether in a judicial review, there was scope for interfering with the dissolution of the Committee.
17. Mr. Kunwar Kartikey, learned counsel for the appellants would also submit that the Committee was' not notified in the manner as provided under Section 5(3) of the Act and this was also a ground for dissolution of the Committee. For ready reference Section 5 (3) has been extracted as above.
18. Per contra, Mr. V.B.S. Negi, learned counsel for the appellant, though he does not dispute the vacancies as far as MLAs under Section 5( I) (b) and also vacancies as regards the elected members of Zila Parishads, which stood unfilled, are concerned, he would submit in defense that the Committee has nothing to do with it and it is only for the Government to fill up the vacancies of the Committee. Mr. V.B.S. Negi would also submit that as far as the members, who were working as Special Invitees, are concerned, they are not the creation of the Committee, and actually, they were appointed by the Government itself.
19. Learned counsel for the appellants would also submit that for the first 9 months, in fact there was no Committee and there were only two persons which constituted the Committee. This apparently seems to be the reiteration of the stand taken in the counter affidavit (See Paragraph 9 of the counter affidavit). In the counter affidavit, it is, inter alia, stated that for about 8 to 9 months, two persons were working. It is further stated that everything particularly the manner in which the Committee was constituted which managed the affairs of the two shrines was abnormal and casual; inasmuch as, instead of President being appointed first, the Vice President was appointed earlier on 21.03.2016 and thereafter, after four months, President was appointed on 11.07.2016. The Vice President, in fact, for some time, was a one member Committee, who was all in all in helm of affairs of 13 two shrines under one member Committee for about 4 months and then after appointment of President, both of them became all in all in control of shrines without there being any validly constituted ( Committee. It y.'as thereafter that ten members were nominated on 29.11.2016 and on 20.12.2016; according to respondents' case in counter, in fact, till then for about 8-9 months, there was no Committee and even thereafter, no steps were taken by the Committee of Management or State to get the 4 elected members from the respective District Boards. The sufficiency of the reasons given by the Government cannot be challenged.
lFlINl!J)l!NG§:
20. As per records, it shows that earlier three MLAs were nominated on 11.02.2014 under Section 5{1)(b) of the Act. Their term of three years came to an end on 10.02.2017. The appellants have a case that 17 members were norriinated a few days before imposition of the Model Code of Conduct and against the mandate of provisions of Section 5{1) (g) of the Act. Under Section 5 of the Act, the constitution of the Committee is to be as follows:
(1) Three Members are to be elected from amongst the Hindu members of the Uttarakhand Assembly. :!.
(2) Four Members are to be elected from amongst the Zila Parishads of the districts mentioned. (3) The Government is to nominate ten members and the Vice Chairman.
(4) There has to be a President nominated by State from amongst the Members.
Thus, apart from the eleven members to be nominated by the Government, there must be seven members, who are elected, three from the Hindu MLAs and four from the Hindu members of Zila Parishads in question. From amongst the 18 members, a person is to be appointed by nomination by State as a President. Thus, there must be eighteen members. Section 5(3) of the Act, no doubt, provides for constitution of the Committee and it has to be notified in the Gazette. ( 21. According to Mr. V.B.S. Negi, this Committee is continuing one; the members are appointed and on expiry of their term, they come and go as per their respective term. There is no clear date provided as such on which as such the Committee in question, of which the petitioners are the members, was constituted. Though the appellants would contend that this is also one of the grounds for passing of the order dissolving the Committee, and he would submit that though it is not stated in the order impugned, a contention has been taken in the ground and, therefore, it should be allowed to pass muster, we notice that authority, who has passed the impugned order, is a statutory authority under an Act. It is settled law that the statutory authority, when its decision is challenged in a Court of law, cannot be permitted to supplement the order passed on grounds, which are not taken in the statutory decision on the strength of the Affidavit filed in the Court (Moltnfill1ldler §lllllgitn Gm vs. Cllnfief E~ectnoll1l Commissioner, (1978) II SCC <8(5). We are in agreement with the learned Single Judge in this regard.
22. We must first examine as to whether the Committee is to be blamed for the existing vacancies from amongst the MLAs and the elected members of the Zila Parishads. What Section 5 provides is that three MLAs elected from amongst the Hindu members and likewise one member each from the districts given thereunder, who are elected in similar way from the Zila Parishads, are to be the members of the. Committee. There is no dispute that in the Committee, of which the writ petitioners are the members, such members, as contemplated under Section 5 (I) (b), (c), (d), (e), and
(f), are not there.. According to the petitioners, this is not the fault of p! .. '~;- ..
i~ the Committee; it is for the Government to fill up those vacancies. ,.? .: ~.
The Committee is helpless, runs the argument.
23. Proceeding on the basis that if the Committee is helpless under Statute to supply members of the Committee, the question would, however, arise as to whether the Government was justified in resorting to dissolution of the Committee, or whether as it was for the Government to fill up the lacunae by appointing the requisite members under Section 5 (1) (b), (c), (d), (e), and (f) of the Act, it .••.••••1 ; , should have mandatorily filled up those vacancies. Equally, in this regard, it has to be noticed that the appointment of seven members, who were treated as the special invitees, they were appointed by the then Government. We have no hesitation in holding that such appointment of seven special invitees falls outside toe four walls of the Statute. They have no legal legs to stand on being contrary to Act. What the Government could do or ought to have done was to appoint ten members as its nominees under Section 5 (1) (g) (3). Apart from 10 members, whom the Government was competent to appoint, which it did, the Government has proceeded to go further and appoint seven members as special invitees. This act of the Government is unwarranted and illegal. No doubt, Mr. V.B.S. Negi, learned Senior Counsel for the writ petitioners does have a case that they have never participated in any meeting and offered to produce the minutes. We would think that this is besides the pOint that the appointments were ab initio, illegal, without any legal premise, but here also a question . may arise, whether the learned Single Judge was correct in taking the view that the Government can always stop them.
24. Removal and suspension of a member of the Committee; inter alia, is strictly governed by Section·l 0 of the Act. The grounds for removal and suspension of President, Vice President or the members are stipulated therein. The ground that the member was 16 illegally elected / nominated into the Committee is not a ground mentioned in the said statutory provision contained under Section 10 of the Act providing for their removal or suspension. Election / . nomination of the erstwhile constituent members. of the Committee was, apparently" done by the Government by issuing a Notification. It is not an issue any more that the power to nominate would always be inclusive of the .power to destroy. Assuming that they had no power or proceeding on the basis that the Government was without power to nominate the seven members, who were treated as special invitees, it could be argued that their removal could also be attained by issuing another Notification. Any challenge to the said Notification on the ground that there is no power to issue Notification removing them could certainly be met with the argument that the Court would not interfere with a decision, if the result of interference by the Court with the decision of a public authority, which though is illegal, as such Court cannot permit an illegality to perpetuate which though is illegal, but if set aside would result in revival of another illegal order. The Hon'ble Apex Court in the case of MalhialrllljlllClhiillll~lIlmall!li §alr!llmJ !'lath S!hlaill(lIeo Vs. Sta~e of Bihalr allldlo~lhi<elrs reported in (11999) f,l SCC Hi, has held as under :-
"38. For what has been stated above we hold that the order of the learned Member of Board of Revenue directing action to be taken for refund of the excess compensation was valid and proper though he had no jurisdiction to pas the order. In the event it is set aside it would amount to reviving an invalid order of payment of excess compensation to the appellant.
25. The Hon'ble Apex Court, yet again, in another judgment in the case of Moh<!. Swalleh ami otinelrSVs. IlJIlllrdi Add!. l!Jiistlrid JJuJl(llge, MeelrQlltamI!alllotllBelr reported in AJRC 1193'7 (2) 5113, has held as under :-
17"7. It was contended before the High Court that no appeal lays from the decision of the Prescribed Authority to the District Judge. The High Court accepted this contention. The High Court finally held that though the appeal did not lie before the District Judge, but as the order of the Prescribed Authority was invalid it was rightly set aside by the District Judge. On that ground the High Court declined to interfere with the order of the learned District Judge. It is true that there has been some technical breach because if there is no appeal maintainable before the learned District Judge, in the appeal before the learned District Judge, the same could not be set aside. But the High Court was· e~ercising its jurisdiction under Article 226 of the Constitution. The High Court had come to the conclusion that the order of the Prescribed Authority was invalid and improper. The High Court itself could have set it aside. Therefore, in the facts and circumstances of the case justice has been done though, as mentioned hereinbefore, technically the appellant had a point that the order of the District Judge was illegal and improper. If we reiterate the order of the High Court as it is setting aside the order of the Prescribed Authority in exercise of the jurisdiction under Article 226 of the Constitution then no exception can be taken. As mentioned hereinbefore, justice had been donr;:
and as the improper order of the Prescribed Authority has beeh set aside, no objection can be taken."
Since the appointment of seven special invitees was ab initio illegal, their removal would easily be achieved, should the Government have decided to do so.
III
26. But rather the Government, by the impugned action under challenge in writ petition, instead, has decided to resort to the power under Section II (2-A) of the Act to dissolve the Committee and to reconstitute the Committee itself and in the meantime, appointing the officer, which it is legally entitled to under Section Il(2-A) of the Act instead of having any recourse against individual member provided under Section 10 of the Act. On scrutiny of ·L.... Section 11(2-A) and its comparative reading with the impugned order, ~'.,;;J ,'";"..l it is the case of the appellants that the State was well within its power ·:~r to dissolve the Committee which was necessary 'in the interest of the Temple' and 'for its efficient management', and has rightly proceeded to appoint an officer under Section 11(3) for performing the duties and functions of the Committee; this happens to be as an arrangement for the period provided under the Act. The question is, whether in judicial review proceeding, once the Government has set out the reasons, the Court should interfere? We have noted the reasoning of the learned Single Judge and the grounds of appeal, that it may carry to us. Section 11(2-A) of the Act is a result of an amendment added by V.P. Act No. VIII of 1964. The supreme considerations and in fact the only considerations to invoke the said provision are interest of the Temple and the efficiency of the administration of the temple. If these criteria have been addressed and there are materials to show that the functioning <?fthe Committee derogates from the interest of the temple or betrays inefficiency, then we would think that it may not be open to a Court to take the view that being an extreme step, resort could be made to other less harsh steps to achieve the purpose of the Statute. Judicial review is not concerned with the actual merits of the decision or the impact or gravity of decision. Judicial review is concerned with the decision making process, and enforcement of law as postulated by the Statute.
1927. Mr. V.B.S. Negi, learned Senior Counsel for the writ petitioners pointed out that the writ petitioners were entitled to be heard. It is contended that at least some little hearing should have been extended before the impugned decision was taken. We are afraid that this argument will not lie with the writ petitioners having regard to the fact that under the Act it does not create an unhindered right to the members of Committee to constitute the Committee and also because the act where it contemplates removal or suspension of members, it does not statutorily contemplate providing of an opportunity of hearing before taking the action under Section II (2- A), the Statute had rightly not contemplated an opportunity to members, because by invocation of Section 11(2-A), it does not infringe any civil or statutory right of the members, in particular in the I instant case when the powers exercised was to meet the spirit and J 1 intentions for interest of temple and for its efficient management. 1 Furthermore in the instant case it is of dissolution of Committee under Section 11(2-A) of the Act, unlike as already referred under Section 10(2), where it contemplates an opportunity of hearing to a member would be available to an individual member and that too for an action taken invoking Section IO(1) which is not the case at hand. Here is a case of dissolution of Committee under Section II (2-A). Also, in the earlier round of litigation, though action was taken under Section 11(2-A) of the Act and it was put to challenge by the writ petitioners on the ground, inter alia, that the right of hearing was denied and this Court did not, apparently, find favour with the said contention, but the only ground, on which the earlier order was interfered with was that there was a duty to give reasons and as it is not sufficient that reasons exist. In this case, reasons have been given. The question would only be, whether they are relevant having regard to the oi:>jectof the Statute? The object of the Statue in tum is only that dissolution of Committee is permissible if the interest of the temple requires the same. Equally, if it is found that the administration of the Committee was being done in any inefficient way,. the decision cannot be overturned.
28. It is necessary to understand the Scheme of Section II of the Act. Section II (I) deals with the power of a different nature from Section II(2-A). The said power contemplates persistent default in the performance of duty by the members of the Committee. Power under Section II (I) can also be invoked if it is found that the Committee is not competent to perform its duties or persistently makes default. Equally, power is available under Section 11(1), if the Committee exceeds its power or abuses its powers. The Government, in such cases, may, after due inquiry, dissolve and supersede the t~t:.
!.....
I
t~!
Committee. Running as a golden thread through various parts of
t:l.-:· J
Section II (I) of the Act, one can discern either fault with the . ~-="~1 "'M:f''' members of the Committee such as when there is persistent default in performing the duties, or where the limits of their power are exceeded or still worse, if the powers are abused. Incompetence on the part of the members of the Committee, even if there is no deliberate fault on their part, would equally justifY the Government in dissolving or superseding the Committee and constitution of another Committee. Thus, powers available to the State under Section 10 of removal or suspending members, power of State to dissolve Committee on the ground available under Section 11 (I) and dissolution provided under "
Section II (2-A) are independent to each other. We would even hold that powers under Section II (2-A) under which the impugned order has been passed is a much wider power with State. That is why, the provision under Section II (2-A) could be examined without "prejudice" to powers under Section II (I) of the Act. Only rider is the satisfaction of the State.
29. It is by Section 9 of the D.P. Act No. 8 of 1964 that Section II (2-A) of the Act was inserted. When the amendment was 21 made, as aforesaid, we must assume that the legislature was aware of its power under Section 11(1) of the Act. Going by the Heydon's principle, what was the need and object in clothing the Government with further power under Section 11(2-A) of the Act? What was the evil, which the legislature intended to eradicate with the conferment of additional power under Section I I(2-A). Apparently, aimed protection from incompetence, to persistent default in performing duties, to abusing powers, to exceeding its power already existed. That is the reason why the law had already clothed the Government to get rid of the Committee and to constitute another. Therefore, to give a harmonious interpretation to various parts of Section II (I), and also .,1 to give meaning to Section I I(2-A) of the Act, it is necessary that we must interpret Section 11(2-A), as meaning that the power therein is available to State in respect of matters other than what is provided in Sub Section (I) of Section II of the Act. That is why the legislature felt the need to add Section I I(2-A) to enable the State to widen its powers under Section 11(1) to deal with any other situations other than that provided under Section II (I). This is the reason why legislature has utilized wider connotations like "interest of temple"
and "efficient management" to widen the amplitude of Section II (I). The invocation of power under Section 11(1) brings in its train not only the grave consequences for the Committee as such in that it stands dissolved •.but it is also attended with the element of stigma, which would attach to the members having regard to various elements like incompetence, persistent default in performing duties, abuse of powers or acting in excess power. That is why, the legislature clearly provided for a due inquiry, which would necessarily attract aspects relating to natural justice. But the power under Section 11(2-A), on the other hand, is premised only on the Government arriving at the satisfaction that it is necessary in the interest of,the temple and its efficient management. The power under Section 11(2-A) in one sense is of a different kind and in that sense wider than under Section 11(1).
30. It could be argued that there is so.me overlapping between Sub Section (1) and Sub-Section (2-A) of Section 11 of the Act. Section 11 contemplates power to dissolve, if the Committee is found incompetent to perform the duties imposed on it. Sub-Section (2-A) also speaks about. efficient management. It could, therefore, be said that if it is found that the manag;ement is inefficient, it also means that it is also incompetent. Second question, which would arise, is whether the words "interest of temple and its efficient management"
are to be satisfied compositely or whether the power is available in two mutually exclusive situations. To put it differently, could it be said that the interest of temple by itself is a ground for the Government to invoke the power under Section 11(2-A) of the Act. Equally, does not inefficient management open the doors for the Government to step in or. would it be a better interpretation of the intention of the legislature that the words "interest of temple and its efficient management" are to be read as one whole requirement and ", what is required is that in both the situations independently interest of temple and efficient management, the government's intervention becomes necessary? Furthermore, more particularly, whether the facts of this case would make out a case of interest of temple and its efficient management?
31. In this case, it appears that the Vice President was nominated initially on 21.03.2016. It is subsequently followed by the nomination of the President on 11.07.2016. Still later, ten members were nominated by the Government on 29.11 .2016 and on 20.12.2016. Strangely, by the same order, three members came to be nominated as special invitees. Further, four persons were again nominated by the State Government as special invitees. Three MLAs who were there they ceased to be MLA on the constitution of a new 23 Assembly w,e,f. 17,02,2017, Four members r.emained to gain their presence in the Committee from amongst the Zila Parishads as .,' contemplated under Section 5( 1)(c), It is, no doubt, true that under Sub-Section (3) of Section 5, the State Government has power to notify the constitution of a Committee in the Official Gazette at any time after the President and not less than eight members of the Committee have been elected or nominated, The law provides that such Committee so constituted will be deemed to be a duly constituted Committee, It is not clear before us, whether the constitution of the Committee took place in terms of the proviso to Section 5(3) of the Act, 32, It is necessary to notice that Section 10 of the Act provides for power with the Government to remove / suspend the President, Vice President and other members of the Committee, Exercise of this power is conditioned by the persons concerned having .',.... incurred any of the disqualifications, which are mentioned therein under Section 10(1) of the Act It is quite clear that the power of removal is premised on the member having been appointed in a lawful way. The title to his inclusion as member in the Committee is assumed. Whereas the consequences of exercise of power under Section II, on the other hand, are certainly much graver, insofar as, the successful exercise of the power under Section II is not merely qua a particular member, who has incurred disqualification, as under
Section 10 but it affects the entire Committee. The Committee as a whole ceases to exist when it is dissolved or superseded under Section II (I) of the Act In Section II (2~A) of the Act, the power is given to the State to dissolve the Committee on the grounds mentioned therein which are wider and independent to powers under Section II (I) of the Act As distinct from Sub-Section II (I), the word "supersede" is not included in Section 11(2-A) of the Act. In the facts of this case, we need not be detained by the distinction between the words "dissolve"24
and, "supersede"; for all practical purposes, the result is the same, namely, that there is a premature demise of the Committee as a whole. Dissolution of Committee provided under Section 11(2-A) is a prerogative pqwer of the State on its exclusive satisfaction, whereas "suspension" is the power vested with State on the conditions contemplated under Section 11(1). But still it could be said that Section 11(2-A) contemplates wider power with the State than under Section 11(1).
33. We may also notice, incidentally, that Rules have been framed in the year 1967 called the Uttar Pradesh Sri Badrinath and Sri Kedarnath Temples Rules 1967. They provide for the manner of holding elections. Election is contemplated under Section~(l )(b), (c),
(d), (e) and (£) of the Act. Rule 7 of the said Rules contemplates that on receipt of the requisition from the State Government, the Returning
-~ Officer is to proceed to prepare the list of voters for the election of the members. Therefore, it is the Government's responsibility which had to set the ball rolling for the purpose of election of the Committee when there were vacancies within the meaning of Section S(I) (b), (c),
(d), (e), (£). Quite clearly, the Government was fully aware that there were vacancies from amongst the categories under Sections 5( I) (b),
(c), (d), (e) and (£). In this regard, the members of the Committee as such were quite helpless. and they could not be expected to do anything in law, except to provide information or may be -send reminders.
34. Referring to compliance of the directives given by learned Single Judge in the earlier phase of litigation by judgment dated 30.05.2017, had only observed that dissolution of Committee under Section II (2-A) by State could be only after recording satisfaction. Learned Single Judge observed in the order under challenge before: it in Writ Petition No. 730 of 2017,· State has not revealed any satisfaction and allowed Writ Petition. On scrutiny of 25 impugned order dated 08.06.2017, impugned in Writ Petition No. 1424 of 2017, State has assigned reasons relating to violation in configuration of Committee under Section 5 of the Act. We, thus, conclude that the State has assigned reasons for dissolving the Committee.
35. Therefore, as far as the ground in the impugned order, namely, the vacancies amongst the MLAs and the elected representatives from the Zila Parishads not being filled-up is concerned, it is quite clear that since under the Act and the rules, it was for the Government to do the needful as the vacancies in the case of MLAs arose in the month of February, 2017 just immediately before the elections were held, it may not be possible tOJegard this exclusively as a ground for dissolving the Committee, as held by the ri learned Single Judge, it is for the Government to fill up those vacancies by way of election, as contemplated under Section 11 (2-A) 1 ~./ ..
' of the Act. Equally, we would say this about the members of the Zila Parishads. Instead of supplying the vacancies for which it alone had the power under the Act, if it resorted to Section 11(2-A), we would I think that the arriving at the satisfaction was vitiated as it amounts to taking into consideration irrelevant aspects as it would amount to a person taking advantage of its own wrong.
36. Learned counsel for the appellant / State had also submitted that by the impugned order under Section 11 (2-A), it is only the Committee which has been dissolved and there is no infringement of any statutory right of the petitioners who are its I members. In support of his argument, he places reliance in the case of UnROllB of ][milRlIl lIliUJI otllnell"§ V§. !HIll 1lI«J!u§tlll III lI))e1yeDo!!pummt I COIl"!!pOll"lIltROIll 1lI1l1(J! otllnell"§ reported in (n993) 3 §OC 41'91'91 and bunch of cases decided by Hon'ble Apex Court. He places reliance in para 28, 33,34 and 35, which read as under :-
26"28. Time is a three-fold present: the present as we experience' it,' the past as a present memory and future as a present expectation. For legal purposes, the expectation can not be the same as anticipation. It is different from a wish, a desire or a hope nor it amount to a claim or demand on the ground of a right. However earnest and sincere a wish, a desire or a hope may be and however confidently one may look to them to be fulfilled, they by themselves can not amount to an assertable expectation and a mere disappointment does not attract legal consequences. A pious hope even leading to a moral obligation can not amount to a legitimate expectation. The legitimacy of an expectation can be inferred only if it is founded on the sanction of law or custom or an established procedure followed in regular and natural sequence. Again it is distinguishable from a genuine expectation. Such expectation should be justifiably legitimate and protectable. Every such legitimate expectation does not by itself fructify into a right and therefore it does not amount to a right in the conventional sense.
33. On examination of some of these important decisions it is generally agreed that .legitimate expectation gives the applicant sufficient locus standi for judicial review and that the doctrine of legitimate expectation is to be confined mostly to right of a fair hearing before a decision which results in negativing a promise or withdrawing an undertaking is taken. The doctrine does not give scope to claim relief straightaway from the administrative authorities as no crystalised right as such is involved. The protection of such legitimate expectation does not require the .fulfillment of the expectation where an overriding public interest requires otherwise. In other words where a person's legitimate expectation is not fuJfilled by taking a particuJar decision then decision-maker should justify the denial of such expectation by showing some overriding public interest. Therefore even if substantive protection of such expectation is contemplated that does not grant an absolute right to a particular person. It simply ensures the circumstances in which that expectation may be denied or restricted. A case of legitimate expectation would arise when a body by representation pr by past practice aroused expectation which it would be within its powers to fulfill. The protection is limited to that extent and a judicial review can be within those limits. But as discussed above a person who bases his claim on the doctrine of legitimate expectation, in the first instance, must satisfy that there is a foundation and thus has locus standi to make such a claim. In considering the same several factors which give rise to such legitimate expectation must be present. The decision taken by the authority milst be .found to be 27 arbitrary, unreasonable and not taken in public interest. If it is a question of policy, even by way of change of old policy, the courts can not interfere with a decision. In a given case whether there are such facts and circumstances giving rise to a legitimate expectation, it would primarily be a question of fact. If these tests are satisfied and if the court is satisfied that a case of legitimate expectation is made out then the next question would be whether failure to give an opportunity of hearing before the decision affecting such legitimate expectation is taken, has resulted in failure of justice and whether on that ground the decision should be quashed. If that be so then what should be the relief is again a matter which depends on several factors.
34. We find in Attorney General for New South Wales case that the entire case law on the doctrine of legitimate expectation has been considered. We also find that on an elaborate and erudite discussion it is held that ·the courts' jurisdiction to interfere is very much limited and much less in granting any relief in a claim based purely on the ground of 'legitimate expectation'. In Public Law and Politics edited by Carol Harlow, we find an article by Gabriele Ganz in which the learned author after examining the views expressed in the cases "'"
::•..1 decided by eminent judges to whom we have referred to above, conduded thus:
"The confusion and uncertainty at the heart of the :) ..
concept stems from its origin. It has grown from two separate roots, natural justice or fairness and estoppel, ) but the stems have become entwined to such an extent that it is impossible to disentangle them. This makes it 1\ very difficult to predict how the hybrid. will develop in future. This could be regarded as giving the concept a healthy flexibility, for the intention behind it is benign; it has been fashioned' to protect the individual against administrative action which is against his interest. On the other hand, the uncertainty of the concept has led to conflicting decisions and conflicting interpretations in the same decision."
However, it is generally accepted and also dear that legitimate expectation being less than right operate in the field of public and not private law and that to some extent such legitimate expectation ought to be protected though not guaranteed.
2835. Legitimate expectations may come in various forms and owe their existence to different kind of circumstances and it is not possible to give an exhaustive list in the context of vast and fast expansion of the governmental activities. They shift and change so fast that the start of our list would be obsolete before we reached the middle. By arid large they arise in cases of promotions which are in normal course expected, though not guaranteed by way of a statutory right, in cases of contracts, distribution of largess by the Government and in somewhat similar situations. For instance in cases of discretionary grant of licenses, permits or the like, carries with it reasonable expectation, though not a legal right to renewal or non- revocation, but to summarily disappoint that expectation may be seen as unfair without the expectant person being heard. But there again the court has to see whether it was done as a policy or in the public interest either by way ofG.O., rule or by way of a legislation. If that be so, a decision denying a legitimate expectation based on such grounds does not qualify for interference unless in a given case, the decision or action taken amounts to an abuse of power. therefore the limitation is extremely confined and if the according of natural justice does not condition the exercise of the power, the concept of legitimate expectation can have no role to play and the court mast not usurp the discretion of the public authority which is empowered to take the decisions under law and the court is expected to apply an objective standard which leaves to thc deciding authority the full range of choice which the legislature is presumed to have intended. Even in a case where the decision is left entirely to the discretion of the deciding authority without any such legal bounds and if the decision is taken fairly and
- objectively, the court will not interfere on the ground of ,0.' , ~, ~I procedural fairness to a person whose interest based on legitimate expectation might be affected. For instance if an authority who has full discretion to grant a licence prefers an existing licence holder to a new applicant, the decision can not be interfered with on the ground of legitimate expectation entertained by the new applicant applying the principles of natural justice. It can therefore be seen that legitimate expectation can at the most be one of the grounds which may give rise to judiCial review but the granting of relief is very much limited. It would thus appear that there are stronger reasons as to why the legitimate expectation should not be substantively protected than the reasons as to why it should be protected. In other words such a legal obligation exists whenever the case supporting the same in terms of legal principles of different sorts, is stronger than the case against it. As observed in Attorney General for' New South Wales' case:
29"To strike down the exercise of administrative power solely on the ground of avoiding the disappointment of the legitimate expectations of an individual would be to set the courts adrift on a featureless sea of pragmatism. Moreover, the notion of a legitimate expectation (falling short of a legal right) is too nebulous to form a basis for invalidating the exercise of a power when its exercise otherwise accords with law." If a denial of legitimate expectation in a given case amounts to denial of right guaranteed or is arbitrary, discriminatory, unfair or biased, gross abuse of power of violation of principles of natural justice, the same can be questioned on the well-known grounds attracting Article 14 but a claim based on mere legitimate expectation without anything more can not ipso facto give a right to invoke these principles. It can be one of the grounds to consider but the court must lift the veil and see whether the decision is violative of these principles warning interference. It depends very much .on the .facts and the recognised general principles of administrative law applicable to such facts and the concept of legitimate expectation which is the latest recruit to a long list of concepts fashioned by the courts for the review of administrative action, must be restricted to the general legal limitations applicable and binding the manner of the future exercise of administrative power in a particular case. It follows that the concept of legitimate expectation is "not the key which unlocks' the treasury of .J natural justice and it ought not to unlock the gates which shuts the court out of review on the merits," particularly when the element of speculation and uncertainty is inherent in that very concept. As cautioned in Attorney General for New South Wales case the courts should restrain themselves and restrict such claims duly to the legal limitations. It is a well-meant caution. Otherwise a resourceful litigant having vested interests in contracts, liences etc. can successfully indulge in getting welfare activities mandated by directive principles thwarted to further his own interests. The caution, particularly in the changing scenario, becomes all the more important."
37. In the light of the aforesaid judgment, we are of con~idered view that there is no right of the petitioners which has been infringed by the impugned order, rather what State has tried to attain is to constitute a Committee as per Section 5 of 1939 Act, hence, by the impugned action, there is no infringement of legitimate expectation of the petitioner. Hence, the scope of judicial review of the action jmpugned would not be permissible.
3038. ' In other words, the learned counsel for the appellants would submit that threeMLAs as required to constitute the committee as provided under Section 5 (I) (b) and foui' elected members of Zila Panchayat as provided under Section 5 (c) (d) (e) and (f) were not constituting the Committee despite the fact that the election of local body having concluded resulting into constitution of new local body, its members were required to constitute the Committee was to be supplied by the Government. The learned counsel while dealing with the issue regarding supplying of seven special invitees who were inducted in the Committee by nomination contends were wrongly made as their nomination was beyond the scope of the Act.
39. However, we cannot, at the same time, ignore the fact that the power to dissolve the Committee under Section 11 (2-A) is much wider than the power under Section II· (I). Apart from the overlapping, which we have already noticed, the power under Section 11 (2-A) must be understood as mutually exclusive to the power under Section 11 (1). Certain amount of latitude must, indeed, be ceded to the Government under Section 11 (2-A), provided, no doubt, that the elements of the provision, namely, satisfaction for governmental intervention to secure the interest of the temple and its efficient management is present. Even proceeding on the basis that it is the Government, which was to blame when it did not fill-up the vacancies arising amongst the categories of elected representatives of the legislature and also the members of Zila Panchayat, we cannot, at the same time, ignore the fact that the Committee was being managed when there were present so called special invitees, which were, no doubt, again nominated by the previous Government. In view of the same and having regard to the limited ·nature of judicial review, notwithstanding what we have noticed about what the Government in alternative could do in respect of special invitees, we. would think that 31 It will not militate against the power of the Government under Section 11 (2-A) to exercise the power therein.
40. During the course of argument, the learned counsel for the appellants had placed reliance in the case of 1Hl.lB. GlIlnndlllni, !ExcUse 1Ill!lldi Taxation Officer-cum-Assessing AutD1loll"ity Vs. MUs Gopi Natlh &. SOIlBS l!HlIdi others reported in 1992 SIUlJPIJPI~.(2) SCC 3112 which was dealing with the issue as to what would be the scope of High Court "
while exercising its powers under Articles 226 1 227 of the Constitution of India on judicial review of a decision. It has been laid down by the Hon'ble Apex Court that the judicial review is not directed against the decision itself but it is confined to the decision making process. The scope of judicial review cannot be widened enough "to extend the examination of the correctness and reasonableness of the decision of the matter but only ensures that the parties receives the fair treatment. Para ,;.... :
8 of the said judgment reads as under:-
"8. But here what was assailed was the correctness of findings as if before an appellate forum. Judicial review, it is trite, is not directed against the decision but is confined to the decision making process. Judicial review cannot extend to the examination of the correctness or reasonableness of a decision as a matter of fact. The purpose of judicial review is to ensure that the individual receives fair treatment and not to ensure that the authority after according fair treatment reaches, on a matter which it "
is authorized by law to decide, a conclusion which is correct in the eyes of the Court. Judicial review is not an appeal from a decision but a review of the matter in which the decision is made. It will be erroneous to think that the Court sits in judgment not only on the correctness of the decision making process but also on the correctness of the decision itself."
41. In view of the reasons as assigned above, the impugned judgment dated 05/09/2017, passed by the learned Single Judge in Writ Petition No. 1424 of 2017, Diwakar Chamoli \lnd another Vs. State of Uttarakhand and another cannot be sustained and is set aside and Appeal would stand allowed, as a result of which, Writ Petition preferred by respondent Nos. 1 and 2 would stand dismissed.
3242. The State Government is directed to comply with the provisions under Section 11 (3) of the Act and its proviso forthwith and take steps to constitute the Committee to achieve the object of the Act. However, there would be no order as to costs .
.-:: . ~/ (KMI. JJo§ep~, C. JJ.) 1l.07.2018 / Shiv .., ',' .J :t ' .. \ ../'