Madhya Pradesh High Court
Himmat Singh vs The State Of Madhya Pradesh on 27 August, 2020
Author: Vishal Mishra
Bench: Vishal Mishra
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HIGH COURT OF MADHYA PRADESH
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(HIMMAT SINGH AND OTHERS Vs THE STATE OF MADHYA PRADESH AND OTHERS)
Gwalior, Dated : 27.08.2020
Shri Chetan Kanoongo, learned counsel for the petitioners.
Shri Sankalp Sharma, learned Panel Lawyer for the State.
The present petition has been filed being aggrieved by the order
dated 03.02.2020 (Annexure P/8) passed by the Tahsildar, whereby he
has refused to mutate the names of the petitioners in the Revenue
Records on the ground that there are no instructions in the order passed
by the Sub Divisional Officer for mutation of the names of the
petitioners.
It is submitted that the petitioners are owners of the land bearing
survey no. 18 situated at Village Jagatpur, Tahsil Kolaras, District
Shivpuri. After a long litigation being fought with respect to the Bhumi
Swami Rights pertaining to the land in question on the ground that the
grandfather of the petitioners was Bhumi Swami of the land and he has
fought long litigation and got obtained the judgment and decree dated
11.08.2000 passed by the Court of I Additional District Judge, Shivpuri
with respect to the land in question. The aforesaid judgment and decree
passed by I Additional District Judge, was put to challenge before the
Hon'ble Supreme Court also and the same is attained is finality. It is
submitted that thereafter an application was filed for mutation of the
land by the petitioners.
It is submitted that the matter was initially adjudicated by the
SDO, Kolaras, District Shivpuri with respect to the mutation of the
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petitioners and an order has been passed on 25.10.2014 which was put
to challenge before the Additional Commissioner, Gwalior and vide
order dated 05.12.2018, the order passed by the SDO has been upheld.
It is submitted that thereafter an application for mutation was filed on
26.09.2019 which was rejected by the Tahsildar, Kolaras, District
Shivpuri stating that there are no specific directions to make mutation
in the order passed by the SDO. It is argued that a totally non-speaking
order has been passed by the Tahsildar on the application filed by the
petitioners. It is submitted that learned SDO has allowed the
application and the order passed by the SDO has been affirmed by the
Additional Commissioner, therefore, there was no requirement for a
specific direction being given for recording the names of the
petitioners in the Revenue Records, but despite of the same, the
application has been rejected arbitrarily. It is submitted that the
Revenue Authorities are required to pass a reasoned order while
declining for entertaining the application. He has relied upon the
judgment passed by this Court in the case of Smt Tara Bai Vs. Smt.
Shanti Bai and ors. passed in W.P. No. 7120/2015 wherein, this
Court has made an observation with respect to the fact that the
Revenue Authorities are required to pass a well reasoned order while
dealing with the application. It is submitted that although the remedy
of appeal is available to petitioners, but as the order itself is non-
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reasoned order, therefore, and with a stroke of pen, the application has
been turned down only on the ground that there are no directions by
the senior authority i.e. Sub Divisional Officer. He submits that the
learned Tahsildar may be directed to reconsider the application of the
petitioners and decide the same by passing a speaking order taking into
consideration all the judgments and decrees and relevant documents
which are accompanied with the application. He has prayed for
quashment of the impugned order.
Per contra, learned counsel for the State has opposed the prayer
made by the learned counsel for the petitioners and has argued that an
alternative and efficacious remedy of filing of an appeal is available to
the petitioners. Petitioners without availing the remedy under the
M.P.L.R.C, directly preferred the present petition before the Court
which is not maintainable. The petitioners may approach the learned
SDO against the order passed by the Tahsildar for redressal of his
grievances. He has prayed for dismissal of the writ petition.
Heard learned counsel for the parties and perused the documents.
It is seen from the record that the order passed by the Tahsildar
dated 03.02.2020 (Annexure P/8). It is clearly mentioned by the
Tahsildar as under :-
**03@ Jheku vuqfoHkkxh; vf/kdkjh dksykjl }kjk vius iz-dz-
54@2011&12@vihy eky vkns'k fnukad 25-10-2014 ds
voyksdu ls Li"V gS fd mDr vkns'k esa iz'uk/khu Hkwfe xzke
txriqj rglhy dksykjl ds losZ ua- 18@1 ,oa 18@2 dks
jktLo vfHkys[k esa vkosnd ds uke vey djus gsrq dksbZ Li"V
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funsZ'k ugha gSA**
The aforesaid order clearly reflects that the documents which are
being filed by the petitioners along with the application for mutation
have not been taken into consideration by the concerning Tahsildar. It
is a settled law by the Hon'ble Supreme Court in the case of Kranti
Associates Private Limited and Anr. Vs. Masood Ahmed Khan and
others, reported in (2010) 9 SCC 496 that even the quasi judicial
authority are required to pass a well reasoned order while entertaining
the applications. Even this Court in W.P. No. 7120/2015 order dated
21.09.2017 in the case of Smt. Tara Bai (Supra) has taken the
cognizance the view that the revenue authorities are passing a single
line orders not considering the arguments advanced by the parties or
pleaded by them in the applications and they are also not considering
the documents filed along with the applications.
In the aforesaid circumstances, this Court in W.P. No. 7120/2015
has held as under:-
"13- Reiterating the mandate of Hon'ble Apex Court while
discussing the importance of "Reason" by the Judicial, Quasi Judicial
and Administrative Authorities meandering through the realm of
Reason and its Importance in the decision making process, said
principles are again reproduced to make these Principles; a 'Reality
than a Ritual' by the decision making authorities. These principles are:-
"(a) In India the judicial trend has always been to
record reasons, even in administrative decisions, if
such decisions affect anyone prejudicially.
(b) A quasi-judicial authority must record reasons in
support of its conclusions.
(c) Insistence on recording of reasons is meant to
serve the wider principle of justice that justice must
not only be done it must also appear to be done as
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well.
(d) Recording of reasons also operates as a valid
restraint on any possible arbitrary exercise of
judicial and quasi-judicial or even administrative
power.
(e) Reasons reassure that discretion has been
exercised by the decision-maker on relevant grounds
and by disregarding extraneous considerations.
(f) Reasons have virtually become as indispensable a
component of a decision-making process as
observing principles of natural justice by judicial,
quasi-judicial and even by administrative bodies.
(g) Reasons facilitate the process of judicial review
by superior courts.
(h) The ongoing judicial trend in all countries
committed to rule of law and constitutional
governance is in favour of reasoned decisions based
on relevant facts. This is virtually the lifeblood of
judicial decision-making justifying the principle that
reason is the soul of justice.
(i) Judicial or even quasi-judicial opinions
these days can be as different as the judges and
authorities who deliver them. All these decisions
serve one common purpose which is to demonstrate
by reason that the relevant factors have been
objectively considered. This is important for
sustaining the litigants' faith in the justice delivery
system.
(j) Insistence on reason is a requirement for both
judicial accountability and transparency.
(k) If a judge or a quasi-judicial authority is not
candid enough about his/her decision-making
process then it is impossible to know whether the
person deciding is faithful to the doctrine of
precedent or to principles of incrementalism.
(l) Reasons in support of decisions must be cogent,
clear and succinct. A pretence of reasons or
"rubber-stamp reasons" is not to be equated with a
valid decision-making process.
(m) It cannot be doubted that transparency is the
sine qua non of restraint on abuse of judicial
powers. Transparency in decision-making not only
makes the judges and decisionmakers less prone to
errors but also makes them subject to broader
scrutiny.
(n) Since the requirement to record reasons
emanates from the broad doctrine of fairness in
decision-making, the said requirement is now
virtually a component of human rights and was
considered part of Strasbourg Jurisprudence.
(o) In all common law jurisdictions judgments play a
vital role in setting up precedents for the future.
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Therefore, for development of law, requirement of
giving reasons for the decision is of the essence and
is virtually a part of "due process".
14- Repeation of said principles are to bring home the point
that reasons are heartbeats of conclusion. Where any authority acting as
quasi judicial authority or as administrative authority, must record
reason for arriving to a conclusion so that it facilitates the process of
judicial review by superior Court or authority. It reduces the
subjectivity and promote objectivity and omits arbitrariness. The
concept adopted by the administrative authority while deciding the case
of an employee under administrative authority or case of a citizen
while functioning as quasi-judicial authority needs to be decided by
Reason. It is seen repeatedly by this Court that administrative
authorities have coined a phrase (in common parlance) while deciding
the case of a litigant, employee or citizen by quoting "izdj.k iw.kZ
fopkjksijkar vekU; fd;k tkrk gS ". This is an antithesis to the 'Rule of Law'
and mandate of Hon'ble Apex Court which repeatedly guided and
asserted for giving 'Reasons' in the judicial,
quasijudicial/administrative orders. What discussion or conclusion was
in the mind of decision maker is reflected through Reasons and
therefore, administrative authorities which at times perform
quasijudicial functions also; must record Reasons rather than
concealing their thoughtful considerations/whims and fencies under the
veil of phrase "izdj.k iw.kZ fopkjksijkar vekU; fd;k tkrk gS " (case is rejected
after due consideration). This is against the fair play and transparency,
which has been declared as a part of principle of natural justice
{See:Dev Dutt Vs. Union of India and others, (2008) 8 SCC 725}.
Similarly the doctrine (natural justice) is now termed as synonym of
fairness in the concept of justice and stands as the most accepted
methodology of a governmental action and soul of the natural justice is
fair play in action. Thus, natural justice has an expanding content and
not stagnant concept.
15- Originally there were said to be only two principles of
natural justice: (1) the rule against bias and (2) the right to be heard
(audi alteram partem). However, subsequently, as noted in A.K.
Kraipak and Ors. Vs. Union of India & Ors (1969) 2 SCC 262 and K.l.
Shephard and others Vs. Union of India and others (1987) 4 SCC
431, some more rule came to be added to the rules of natural justice,
e.g. the requirement to give reasons vide S.N. Mukherjee Vs. Union
of India, (1990) 4 SCC 594. In Mrs. Maneka Gandhi Vs. Union of
India and another, (1978) 1 SCC 248 (vida paras 56 to 61) it was
held that natural justice is part of Article 14 of the Constitution.
16- The Hon'ble Apex Court in historic decision, A.K. Kraipak
and Ors. (supra) has pointed out that the concept of quasijudicial power
has been undergoing radical change and such 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 quasijudicial power one has to look to the
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nature of the power conferred, the person or persons on whom it is
conferred, the framework of the law conferring that power, the
consequences ensuing from the exercise of that power and the manner
in which that power is expected to be exercised. Later on, in other
celebrated judgment of Mrs. Maneka Gandhi (supra) and Mohinder
Singh Gill and another Vs. Chief Election Commissioner, New
Delhi and others, (1978) 1 SCC 405 has expanded and explained the
scope of natural justice. Therefore, administrative authorities are duty
bound to assign reasons while deciding the case either functioning as
quasi-judicial authority or as administrative authority.
17- Here in the present case, perusal of impugned order reflects
three omissions on the part of Presiding Officer; one is she appears to
be ignorant about the provisions of Civil Procedure Code, 1908
(hereinafter referred as CPC) which she referred in the order. She
missed the chance to understand that CPC includes Sections, Orders
and Rules. By referring 14/2, she escaped the legal provision that it was
in respect of Order XIV Rule 2 of CPC, therefore, administrative/quasi
judicial authorities must abreast with basic knowledge of statutes in
which they are dealing with. For that, appropriate acclimatization
session or refresher course of such administrative/quasi judicial
authorities can be conceptualized and implemented so that true import
of spirit of natural justice and significance of Reasons may be
inculcated in their decision making process.
18- Another omission reflected from the impugned order is
ignorance of Presiding Officer about passing of earlier Court order;
which (Court order) categorically mandates the Presiding Officer to
proceed with the case by affording opportunity of hearing to the parties
and to pass a reasoned order. This omission may be attributable to the
Presiding Officer and/or to the ministerial staff also which is entrusted
with the responsibility of keeping the record updated and make
available to the Presiding Officer for ready reference.
19- Another omission occurred in the impugned order (which is
the subject matter of discussion itself) is that no Reason has been
assigned in passing the said order, specially in election petition in
which democratic rights of citizenry are intrinsically involved and
therefore, it virtually frustrates the very spirit of Constitutional
Amendment by which Article 243 has been amended and local bodies
have been given sufficient democratic and electoral authorities.
20- From the pleadings made and submissions advanced by
learned counsel for the parties, it appears that respondent No.10 was
the same authority who passed the order dated 01-07- 2015 and when the matter was challenged in writ petition No.4567/2015 and matter went into remand for fresh adjudication, even then, the second time also, impugned order has been passed by the same authority in same manner. At the time of first order (dated 21-07-2015), respondent No.10 might not be aware of sanctity of Reasons while performing quasi-judicial functions, but when the matter was remanded back by this Court, respondent No.10 must have been enlightened by the 8 HIGH COURT OF MADHYA PRADESH WP-12154-2020 (HIMMAT SINGH AND OTHERS Vs THE STATE OF MADHYA PRADESH AND OTHERS) direction of this Court as contained in the order dated 21-07-2015 passed in writ petition No.4567/2015. Thereafter repeating the same mistake, not only displays arbitrariness but also reflects casualness, negligence and/or defiance and has trappings of disobedience of the order dated 21-07-2015.
21- Directions given by this Court are to be complied with by the authorities especially when the order of this Court attains finality. Here, the authority (respondent No.10) had to comply the order but as referred above committed the same mistake. What would have weighed in the mind of respondent No.10 or what circumstances persuaded her, were not explained in the return filed by her. She only elaborated the reasons (subsequently in return) for passing the impugned order but elaboration of reasons in the reply to writ petition cannot make good the infirmity from which the impugned order suffers. The Hon'ble Apex Court in the matter of Mohinder Singh Gill (supra) has used beautiful expression to sum up while saying:
"The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Commissioner of Police, Bombay Vs. Gordhandas Bhanji, AIR 1952 SC 16. Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.
Orders are not like old wine becoming better as they grow older."
22- Therefore, this Court also seeks effective intervention of administrative head of the department i.e. Princip l Secretary (Revenue or General Administrative Department as the case may be) to reach to the truth and weed out chaff from the grains. Principal Secretary is advised to give directions for preliminary enquiry to competent authority of respondent No.10 about casualness/negligence of respondent No.10 while performing duty as quasi-judicial authority and lapses of her ministerial staff, if any. In the said preliminary enquiry proper opportunity of hearing be provided to respondent No.10 (Ms. Trapti Shrivastava) who was working as SDO, Kurwai District Vidisha at the relevant point of time when the impugned order dated 23-09- 9 HIGH COURT OF MADHYA PRADESH WP-12154-2020 (HIMMAT SINGH AND OTHERS Vs THE STATE OF MADHYA PRADESH AND OTHERS) 2015 has been passed in the election petition as well as to all other erring persons. After conducting the preliminary enquiry if the case is found to be appropriate one for proceeding for departmental enquiry then the same shall be proceeded with the procedure in accordance with law and if the case involves bonafide lapse then they may be exonerated. It is made clear that the opinion expressed about the lapse of respondent No.10 and her ministerial staff is found prima facie, on the basis of record in hand, therefore, authorities have to arrive to the conclusion about their alleged lapses only through procedure as per law. Anxiety of this Court is not for punishment but for sending a reminder to the authorities and their staff functioning as public servants to match democratic aspirations of public at large.
23- At this stage, this Court also takes opportunity to seek effective intervention of administrative head of the State i.e. Chief Secretary with expectation that suitable orders/suggestions /directions would be issued to the administrative/quasi judicial authorities who are functioning under the aegis of Chief Secretary and his other departmental functionaries, Principal Secretaries etc. who are involved in decision making process to incorporate Reasons as part of their decision making process, instead of deciding the cases in a slipshod manner and/or by making written and mechanical endorsement "iw.kZ fopkjksijkar vekU; fd;k tkrk gS".
24- This would have laudable purpose because it will promote clarity in governance and recipient of the order would be in a position to challenge the same before higher authorities on basis of reasons assigned in the order. This endeavour of Administrative Machinery would drastically reduce pendency of the cases before this Court (including Civil/Criminal Courts) because large number of cases are pending before the Courts due to non assignment of Reasons while deciding the cases of citizenry in general and/or employees of State in particular and after keeping pending for years together cases are ultimately remanded back to the authorities for fresh adjudication on merits. If reasons are assigned then fate of the case would be known to the employee/litigant/aggrieved person while challenging the order or accepting the said order as fate accomplii. Other suggestions issued in preceding paragraphs must also be thoughtfully considered. Steel frame of this State (Madhya Pradesh) must recollect in hindsight about the glorious past it possessed when it had efficient and effective administrator like Mr. R.P. Naronha and Mr. K.F. Rustamji.
25- Time has come when 'Rule of Law' must be treated as one of the essential components of infrastructure (like Roads, Water, Electricity and Communication), so that development of other components of infrastructure may not be sacrificed at the altar of mis- governance. A sincere thought and endeavour in this direction is need of the hour."
Taking into consideration overall facts and circumstances of the 10 HIGH COURT OF MADHYA PRADESH WP-12154-2020 (HIMMAT SINGH AND OTHERS Vs THE STATE OF MADHYA PRADESH AND OTHERS) case, this Court deems it appropriate to entertain the writ petition despite of the fact that the petitioners are having alternative and efficacious remedy for a simple reason that no reasons are assigned by the concerning Tahsildar while rejecting the application for mutation filed by the petitioners. The Hon'ble Supreme Court in the case of Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and ors. reported in (1998) 8 SCC 1 has held as under:-
"15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a Writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order of proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case- law on the point put to cut down this circle of forensic Whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field."
In the aforesaid facts and circumstances of the case, the order passed by the Tahsildar (Annexure P/8) is hereby quashed and the matter is relegated back to the Tahsildar, Kolaras, District Shivpuri for reconsideration of the application filed by the petitioners for mutation and it is expected of the Tahsildar that he will take into consideration of all relevant documents filed by the petitioners along with an application for mutation and pass a well reasoned order and if the 11 HIGH COURT OF MADHYA PRADESH WP-12154-2020 (HIMMAT SINGH AND OTHERS Vs THE STATE OF MADHYA PRADESH AND OTHERS) petitioners are found entitle for mutation, then their names may be mutated in the Revenue Records or else, well reasoned order be passed showing the reasons of rejection of the application. Let the aforesaid exercise be completed within a period of three months from the date receipt of certified copy of this order.
Let a copy of this order be communicated to Tahsildar, Kolaras, District Shivpuri for necessary compliance.
With the aforesaid observations, the petition stands disposed off.
Certified copy as per rules.
(Vishal Mishra)
LJ*/- Judge
LOKENDRA
JAIN
2020.08.28
10:42:21
-07'00'