Himachal Pradesh High Court
M/S Banjara Camps And Retreats Private vs Shiv Lal And Another on 18 September, 2018
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.247 of 2018.
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Judgment reserved on: 12.09.2018.
Date of decision: 18th September, 2018.
M/s Banjara Camps and Retreats Private
Limited .....Petitioner.
Versus
Shiv Lal and another .....Respondents.
Coram r
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Yes Whether approved for reporting?1 For the Petitioner : Mr. Satyen Vaidya, Senior Advocate with Mr. Vivek Sharma, Advocate.
For the Respondents: Mr. P.P. Chauhan, Advocate, for respondent No.1.
Mr.Sudhir Bhatnagar, Additional Advocate General with Mr.Bhupinder Thakur, Deputy Advocate General, for respondent No.2.
Tarlok Singh Chauhan, Judge.
What is the nature of authority exercised by the Deputy Commissioner under Section 5 of the Himachal Pradesh Transfer of land (Regulation) Act, 1968, (for short 'the Act')? Is it administrative or quasi-judicial? Is he bound to comply with the principles of 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 18/09/2018 23:02:19 :::HCHP 2 natural justice? If yes, then to what extent? Do the provisions of the Indian Evidence Act, 1872 (hereinafter referred to as the 'Evidence .
Act') apply to the proceedings conducted by him? Whether under all circumstances in such proceedings, a party could have a right to adduce evidence or cross-examine a person/witness. All these issues require consideration of this Court.
2. However, before answering these questions, certain minimal facts need to be noticed.
3. to Respondent No.1 belongs to the scheduled tribe and is a resident of village Batseri, Tehsil Sangla, District Kinnaur, where he initially in the year 1998 allowed the petitioner to utilize his land comprised in Khata Khatauni No. 54/155, Khasra Nos. 1193, 1194, 1195, 1198, 1205 and 1219, measuring 0-61-00 hectares.
Respondent No.1 thereafter obtained permission as required under Section 3 of the Act. On 01.01.2006, the Principal Secretary (Tribal Development) to the Government of Himachal Pradesh recommended the transfer of the aforesaid land in favour of the petitioner. In the meanwhile, respondent No.1 on 21.08.2006 executed an agreement with the petitioner to utilize the land in question for 12 years. However, this agreement was superseded and supplemented by another agreement dated 08.09.2006 and this time the lease was executed for a period of 5 ::: Downloaded on - 18/09/2018 23:02:19 :::HCHP 3 years. On 03.09.2010, respondent No.1 executed another lease agreement with the petitioner, however, this agreement according .
to the petitioner only pertained to the built-up structure and not the land and the same was permissible under the Act. On 21.09.2013, respondent No.1 got issued a legal notice to the petitioner calling upon it to stop further illegal and unauthorized construction allegedly being carried on by the petitioner and hand over peaceful and vacant possession of the land comprised in Khata Khatauni No. 50min/149, Khasra Nos. 1194 and 1198, kitas 2, measuring 00-52-64 hectares. This notice was duly replied by the petitioner wherein it was claimed that the construction being raised by it was lawful and was being raised with the consent of respondent No.1. On 22.01.2014, respondent No.1 filed an application under Section 5 of the Act before the Deputy Commissioner, Kinnaur, who summoned the petitioner and thereafter commenced the proceedings on 11.02.2014. The application filed by respondent No.1 was allowed by the Deputy Commissioner vide order dated 27.03.2017. The appeal filed by the petitioner against the said order before the Divisional Commissioner also came to be dismissed on 04.01.2018, constraining the petitioner to file the instant petition on the grounds that the order passed by the Divisional Commissioner on 04.01.2018( for short 'impugned order') is the result of wrongful and ::: Downloaded on - 18/09/2018 23:02:19 :::HCHP 4 illegal exercise of jurisdiction vested in him under law. The Divisional Commissioner could not have a matter on merits of the .
case which jurisdiction under law was vested in the Deputy Commissioner. Apart from that the impugned order suffers from grave illegality as the Divisional Commissioner has ignored the fact that the Deputy Commissioner had never conducted proceedings in accordance with law inasmuch as there was complete deviation from principles of natural justice and minimum judicial procedure which rendered the order passed by the Deputy Commissioner totally illegal and against all norms of law and justice. It is further averred that the Divisional Commissioner ignored the fact that despite framing of an issue by the Deputy Commissioner, no evidence was sought from the parties and in absence of the opportunity to the parties to prove their cases, the order passed by the Divisional Commissioner could not have been sustained. Lastly, it is averred that the impugned order being wrong, illegal, arbitrary and is against the settled position of law and has been passed by the Divisional Commissioner in complete ignorance of the provisions of Sections 52, 54 and 55 of the Easements Act which clearly attract to the facts and circumstances of the case.
4. I have heard the learned counsel for the parties and have also gone through the records of the case.
::: Downloaded on - 18/09/2018 23:02:19 :::HCHP 55. At the outset, certain provisions of the Act and Rules need to be noticed. These provisions would infact be determinative while .
answering most of the questions as posed.
6. However, before adverting to the provisions, it needs to be noticed why the Act has been enacted. The object and purpose of the Act are as follows:-
"An Act to regulate the transfer of land in the State of Himachal Pradesh in the interest of persons belonging to the Scheduled Tribes and matters connected therein."
7. The Act is very short and, therefore, reproduced in its entirety:-
"The Himachal Pradesh Transfer of Land (Regulation) Act, 1968 (Act No.15 of 1969)1 [Received the assent of the President of India on the 15 th May, 1969, and was published in R.H.P., dated the 28th June, 1969 at pages 526-528] Amended, repealed or otherwise affected by,-
(i) A.O. 1973, published in R.H.P. Extra, dated the 20 th January, 1973 at pages 91-112.
An Act to regulate the transfer of land in the 2[State of Himachal Pradesh] in the interest of persons belonging to the Scheduled Tribes and for matters connected therewith.
Be it enacted by the Legislative Assembly of Himachal Pradesh in the Nineteenth Year of the Republic of India as follows:-
::: Downloaded on - 18/09/2018 23:02:19 :::HCHP 61. Short title, extent and commencement.-(1) This Act may be called the Himachal Pradesh Transfer of Land (Regulation) Act, 1968.
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(2) It extends to such area 3 of the 2[State of Himachal Pradesh] as from time to time, be notified in the Official Gazette.
(3) It shall come into force at once.
2. Definitions.- In this Act, unless the context otherwise requires,-
(a) "Commissioner" means the Commissioner appointed under the Land Revenue Act in force in Himachal Pradesh;
(b) "Co-operative Land Mortgage Bank" means a Co-operative Land Mortgage Bank registered as such under the Punjab Co-operative Land Mortgage Banks Act, 1957 (26 of 1957) as in force in the 2[State of Himachal Pradesh];
(c) 4["Co-operative Society" means a co-operative Society registered as such under the Himachal Pradesh Co-operative Societies Act, 1968];
(d) "Deputy Commissioner" in relation to any district, means the Deputy Commissioner of the district;
(e)"Financial Commissioner" means the Financial Commissioner of Himachal Pradesh;
(f) "Land" means a portion of the earth's surface, whether or not under water, and includes all things attached to, or permanently fastened to anything attached to such portion but does not include minerals, natural gas, petroleum, timber, tress, growing crops and grass;
(g) "Prescribed" means prescribed by rules made under this Act;
(h) "Scheduled Tribes" shall have the same meaning as assigned to it in clause (25) of Article 366 of the Constitution;
(i) 1["State Government" means the Government of Himachal Pradesh].
::: Downloaded on - 18/09/2018 23:02:19 :::HCHP 73. Regulation of transfer of land.- (1) No person belonging to any Scheduled Tribe shall transfer his interest in any land by way of sale, mortgage, lease, gift or otherwise to any person not belonging to such tribe except with the previous .
permission in writing of the Deputy Commissioner:
Provided that nothing in this sub-section shall apply to any transfer-
(a) by way of lease of a building on rent;
(b) by way of mortgage, for securing loan, to any Co-operative Land Mortgage Bank or to any Co-operative Society, all or a majority of the members of which are persons belonging to any Scheduled Tribe;
(c) by acquisition by the State Government under the Land Acquisition Act, 1894. (1 of 1894).
(2) Every transfer of interest in land made in contravention of the provisions of sub-section (1) shall be void.
4. Application for permission for transfer of land.- (1) Any person belonging to any Scheduled Tribe who desires to make a transfer of his interest in any land to a person not belonging to such tribe, may make an application to the Deputy Commissioner for the grant of permission for such transfer.
(2) Every application under sub-section (1) shall be made in the prescribed form and shall contain the prescribed particulars and shall be accompanied by such fees as may be prescribed.
(3) On receipt of any such application for the grant of permission, the Deputy Commissioner may, after making such inquiry as he thinks fit, by order, either grant or refuse permission to transfer the land:
Provided that where permission is refused, the Deputy Commissioner shall record in writing the reasons for such refusal.
(4) Before granting or refusing permission under this section, the Deputy Commissioner shall have regard to the following matters, namely:-::: Downloaded on - 18/09/2018 23:02:19 :::HCHP 8
(a) the financial position of the applicant;
(b) the age and physical condition of the applicant;
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(c) the purpose for which the transfer is proposed to be made; and
(d) such other relevant matters as the Deputy Commissioner may think fit in the circumstances of the case.
"5. Ejectment.-(1) If, as a result of transfer of any land in contravention of the provisions of section 3, any person, other than a person belonging to any Scheduled Tribe, is found to be in possession of that land, the Deputy Commissioner or any other officer authorised in writing by the State Government in this behalf, may, without prejudice to the provisions of section 9 serve a notice upon such person requiring him to vacate the land within ninety days from the date of service of the notice and to remove any building, fence or any other structure which may have been raised on such land:
Provided that if there are any crops actually growing on the land at the time of such requisition, such person shall be entitled to retain possession of the land until such crops are harvested.
(2) Every person to whom a requisition is made under sub-
section(1) shall be bound to comply with such requisition."
6. Appeal .- (1) Any person aggrieved by an order made under section 4 or section 5 may, within thirty days from the date of communication of the order, prefer an appeal to the Commissioner:
Provided that if there be no Commissioner such appeal shall lie to the Financial Commissioner:
Provided further that the Commissioner, or as the case may be, the Financial Commissioner, may entertain the appeal after the expiry of the said period of thirty days if he is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.
(2) On receipt of an appeal under sub-section (1), the Commissioner or the Financial Commissioner, as the case may be, shall after giving the appellant an opportunity of being heard, dispose of the appeal as expeditiously as possible.::: Downloaded on - 18/09/2018 23:02:19 :::HCHP 9
7. Finality of orders.- The order made in appeal by the Commissioner or the Financial Commissioner, as the case may be, under section 6 and, subject only to such order, the order .
made by the Deputy Commissioner under section 4 or section 5, shall be final.
1[8. (1) Right, title or interest held by persons belonging to Scheduled Tribes in land not to be attached.- No right, title or interest held by a person belonging to a Scheduled Tribe in any land shall be liable to be attached or sold in execution of any decree or order in favour of any person not belonging to a Scheduled Tribe of any court except when the amount due under such decree or order is due to the State Government or to any Co-operative Land Mortgage Bank or Co-operative Society.] 2 [(2) Notwithstanding anything to the contrary contained in the Code of Civil Procedure or any other law for the time being in force, any court, vested with the appellate or revisional jurisdiction, may, either on its own motion or on an application moved to it by any person belonging to a Scheduled Tribe, set aside any sale of his property in execution of a decree in favour of a person not belonging to a Scheduled Tribe.] Explanation.-For the removal of doubts, it is hereby declared that the court shall not refuse to take cognizance of an application, or refuse to exercise the power conferred upon it, under this sub-section, simply for the reason that the applicant or the person to whom the property in question belonged failed to raise the objection to that extent before the court which either passed the decree or passed any order in execution proceedings thereof.
[8-A. Amendment of the Limitation Act, 1963, in its application to proceedings under Section 8.-In the Limitation Act, 1963, in its application to the proceedings under section 8, in the Schedule after the words 'Twelve years' occurring in the second column against article 65, the words, brackets and figure 'but thirty years in case of immovable property belonging to a member of Scheduled Tribe specified in relation to the State of Himachal Pradesh in the Constitution (Scheduled Tribes) Order, 1950 shall be inserted.]
9. Penalty.- If any person contravenes or attempts to contravene or abets the contravention of any of the provisions ::: Downloaded on - 18/09/2018 23:02:19 :::HCHP 10 of Section 3 or section 5, he shall be punishable with fine which may extend to two hundred rupees and, in the case of a continuing contravention, with an additional fine which may extend to fifty rupees for every day during which such .
contravention continues after conviction for the first such contravention.
10. Power to make rules. - (1) The State Government may make rules for the purpose of carrying out the provisions of this Act.
(2) Without prejudice to the generality of the foregoing power, such rules may provide for -
(a) the form of application for the grant of permission under section 4, the particulars it may contain, the fees which should accompany it and the manner of depositing such fees; and
(b) any other matter which has to be, or may be, prescribed under this Act."
8. Under Section 10, the Government in exercise of powers conferred under Section 10 of the Act, have framed Rules known as the Himachal Pradesh Transfer of Land (Regulation) Rules, 1969 and the same are reproduced hereinunder in entirety:-
"THE HIMACHAL PRADESH TRANSFER OF LAND (REGULATION) RULES, 1969.
Arrangement of Rules Rules
1. Short title and commencement.
2. Definitions.
3. Application form and fees
4. Mode of enquiry.
5. Order of the Deputy Commissioner.
Form ::: Downloaded on - 18/09/2018 23:02:19 :::HCHP 11 WELFARE DEPARTMENT Simla-2, the 6TH December, 1969.
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No.22-1/69-Wel.Sectt. - In exercise of the powers conferred by sections 4 and 10 of the Himachal Pradesh Transfer of Land (Regulation) Act, 1968, the Lieutenant Governor, Himachal Pradesh is pleased to make the following Rules:-
1. Title and Commencement. - (a) These rules may be called the Himachal Pradesh Transfer of Land (Regulation) Rules, 1969.
(b) These shall come into force at once.
2. Definition. - In these rules unless there is anything repugnant in the subject or context. -
(a) "Act" means the Himachal Pradesh Transfer of Land (Regulation) Act, 1968 (15 of 1969):
(b) All words and expressions used in these rules and not defined herein shall have the same meaning as are respectively assigned to them in the Act.
3. Application form and fees. - (a) A member of scheduled tribe who intends to transfer his interest in any land to a person not belonging to such tribe may make an application to the Deputy Commissioner in Form I (Attached to these Rules) for the grant of permission for such transfer.
(b) The rate of application fee will be rupee one for each application in the form of court fee stamp to be affixed on the application submitted by an applicant under Section 4(1) of the Act.
4. Mode of enquiry. - (a) The Deputy Commissioner shall make or cause to make an enquiry on the receipt of application on the following lines:-
::: Downloaded on - 18/09/2018 23:02:19 :::HCHP 12(i) The Enquiry Officer should satisfy himself that the object of transfer stated by the applicant is the true object and that all other information given in the .
application is correct.
(ii) Has the officer advised the applicant to apply for a loan from the Government or any Co-operative Land Mortgage Bank, or to any Co-operative Society of the kind mentioned in clause 3(b) of the Act.
(iii) The officer should report whether the applicant agrees to take a loan from the Government and if so, whether transfer would still be necessary? If he disagrees to take such loan, reasons should be mentioned.
(iv) Is the applicant has been inducted by any body to sell the land?
(v) Is the officer satisfied that the permission if granted would be in the best interest of the applicant.
5. Orders of the Deputy Commissioner 1[(a) After the enquiry has been made, the Enquiry Officer who shall not be below the rank of the Sub-Divisional Magistrate or Revenue Assistant, shall return the application to the Deputy Commissioner alongwith his recommendations.]
(b) On receipt of the application with the recommendations of the Enquiry Officer, the Deputy Commissioner shall pass orders, thereby granting or refuse permission to transfer of land and inform the applicant in writing."
9. Having dealt with the statutory provisions, I, now proceed to examine the law on the relevant questions. However, before doing so, it may be observed that the task of this Court in answering ::: Downloaded on - 18/09/2018 23:02:19 :::HCHP 13 these questions has become relatively easy in view of the binding decision of this Court (Hon'ble Mr. Justice Sanjay Karol, J, now ACJ) in .
Municipal Corporation, Shimla through its Commissioner versus Savitri Devi, The Indian Law Reports, Himachal Series, 2015 (5) Vol.45, 1143 wherein the question arose as to the nature of authority exercised by the Commissioner under the provisions of Section 253 of the Himachal Pradesh Municipal Corporation Act, 1994 and it is for this precise reason that all these questions would be answered not only after drawing assistance but quoting in extenso the observations made therein.
(i) Does the Commissioner function as a Court or as the Tribunal?
10. In order to answer this question, it is necessary to understand the distinction between quasi-judicial and administrative functions. An administrative function is called quasi-judicial when there is an obligation to adopt the judicial approach and to comply with the basic requirements of justice. Where there is no such obligation, the decision is purely administrative. The quasi-judicial act implies that the act is not wholly judicial, it describes only a duty cast on the executive body or authority to conform to norms of judicial procedure in performing some acts in exercise of its executive power. Here, it shall be apposite to refer to a decision of the Hon'ble Supreme Court in Km. Neelima Misra versus Dr. ::: Downloaded on - 18/09/2018 23:02:19 :::HCHP 14 Harinder Kaur Paintal and others, AIR 1990 SC 1402, wherein it was held as under:-
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"19.We find it difficult to accept the reasoning underlying the aforesaid view. Before we consider the correctness of the proposition laid down by the High Court we must, at the expense of some space, analyse the distinctions between quasi-judicial and administrative functions. An administrative function is called quasi-judicial when there is an obligation to adopt the judicial approach and to comply with the basic requirements of justice. Where there is no such obligation. the decision is called 'purely administrative' and there is no third category. This is what was meant by Lord Reid in Ridge v. Baldwin, [1963] 2 All E.R. 66, 75-76:
"In cases of the kind with which I have been dealing the Board of Works ..... was dealing with a single isolated case. It was not deciding, like a judge in a law suit, what were the rights of the persons before it. But it was deciding how he should be treated-something analogous to a judge's duty in imposing a penalty ...... " "So it was easy to say that such a body is performing a quasi-judicial task in considering and deciding such a matter and to require it to observe the essentials of all proceedings of a judicial character the principles of natural justice. Sometimes the functions of a minister or department may also be of that character and then the rules of natural justice can apply in much the same way ...... "
20.Subba Rao, J., as he then was, speaking for this Court in G. Nageshwara Rao v. Andhra Pradesh State Transport Corporation, [1959] 1 SCR 319 : (AIR 1959 SC 308) put it on a different emphasis (at 353) (of SCR):(at p. 326 of AIR):
"The concept of a quasi-judicial act implies that the act is not wholly judicial, it describes only a duty cast on the executive body or authority to conform to norms of ::: Downloaded on - 18/09/2018 23:02:19 :::HCHP 15 judicial procedure in performing some acts in exercise of its executive power ...... "
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21. Prof. Wade says "A judicial decision is made according to law. An administrative decision is made according to administrative policy. A quasi-judicial function is an administrative function which the law requires to be exercised in some respects as if it were judicial. A quasi- judicial decision is, therefore, an administrative decision which is subject to some measure of judicial procedure, such as the principles of natural justice." (Administrative Law by H.W.R. Wade 6th Ed. p. 46-47).
22. An administrative order which involves civil consequences must be made consistently with the rule expressed in the Latin Maxim audi alteram partem. It means that the decision maker should afford to any party to a dispute an opportunity to present his case. A large number of authorities are on this point and we will not travel over the field of authorities. What is now not in dispute is that the person concerned must be informed of the case against him and the evidence support thereof and must be given a fair opportunity to meet the case before an adverse decision is taken. Ridge v. Baldwin, (supra) and state of Orissa v. Dr. Binapani Dei & Ors., [1967] 2 SCR
625."
11. In Savitri Devi's case (supra), one of the questions framed was - Does the Commissioner function as a Court or a Tribunal and it was observed as under:-
"20.In Virindar Kumar Satyawadi vs. State of Punjab, AIR 1956 SC 153 (Three Judges), the Court has made broad distinction between a Court and a quasi judicial Tribunal.::: Downloaded on - 18/09/2018 23:02:19 :::HCHP 16
21.The Court in Thakur Jugal Kishore Sinha Vs. Sitamarhi Central Coop. Bank Ltd., AIR 1967 SC 1494 .
(Two Judges), has upheld the following test for determining as to whether the authority constituted under a particular Act is exercising judicial or quasi judicial powers as a Court or not:
"(i) the dispute [which is to be decided by him] must be in the nature of a civil suit;
(ii) the procedure for determination of such a dispute must be a judicial procedure; and
(iii) the decision must be a binding one."
2. Relying upon Associated Cement Companies Ltd. vs. P.N. Sharma & anr., AIR 1965 SC 1595 (Five Judges), the Court in Union of India vs. R.Gandhi, President, Madras Bar Association, (2010) 11 SCC 1 (Five Judges), held that:-
"The term 'Courts' refers to places where justice is administered or refers to Judges who exercise judicial functions. Courts are established by the state for administration of justice that is for exercise of the judicial power of the state to maintain and uphold the rights, to punish wrongs and to adjudicate upon disputes. Tribunals on the other hand are special alternative institutional mechanisms, usually brought into existence by or under a statute to decide disputes arising with reference to that particular statute, or to determine controversies arising out of any administrative law." ... ...
... ... "...Though both Courts and Tribunals exercise judicial power and discharge similar functions, there are certain well-recognised differences between courts and Tribunals. They are:
(i) Courts are established by the State and are entrusted with the State's inherent judicial power for administration of justice in general. Tribunals are established under a statute to adjudicate upon disputes ::: Downloaded on - 18/09/2018 23:02:19 :::HCHP 17 arising under the said statute, or disputes of a specified nature. Therefore, all courts are Tribunals. But all Tribunals are not courts.
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(ii) Courts are exclusively manned by Judges. Tribunals can have a Judge as the sole member, or can have a combination of a Judicial Member and a Technical Member who is an 'expert' in the field to which Tribunal relates. Some highly specialized fact finding Tribunals may have only Technical Members, but they are rare and are exceptions."
12. Bearing in mind the aforesaid exposition of law as rightly held by a Co-ordinate Bench of this Court, it cannot be said that the Deputy Commissioner is functioning as a Court as there is no dispute of a civil nature before him, even the procedure for determination of such dispute is not strictly a judicial procedure and the decision so rendered is otherwise not final and is subject to appeal under Section 6 of the Act.
13. In addition to above, the Rules only provide for mode of inquiry, however, the same only relates to matters covered under Section 4 of the Act i.e. 'Application for permission for transfer of land' and not to Section 5 i.e. 'Ejectment'.
(ii) Are the provisions of the Evidence Act applicable to the proceedings conducted by the Commissioner?
14. While answering a similar question in Savitri Devi's case (supra), it was observed as under:-
"24.The word "Court" defined under the Indian Evidence Act includes Judges, Magistrates and all persons except ::: Downloaded on - 18/09/2018 23:02:19 :::HCHP 18 Arbitrators, legally authorized to take Evidence. A person can be cross-examined (under Chapter X) only if he is called as a witness and examined.
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25. Evidence Act has no application to inquiries conducted by the Tribunal even though they may be judicial in character has been so held by the Constitution Bench in Union of India Versus T.R. Varma, AIR 1957 SC 882 (Five Judges).
26. Also inquiry held by an Administrative Tribunal is not governed by the strict and technical rules of the Evidence Act. [The State of Orissa and another Versus Murlidhar Jena, AIR 1963 SC 404 (Five Judges)].
27. In Maharashtra State Board of Secondary and Higher Secondary Education Versus K.S. Gandhi and others, (1991) 2 SCC 716 (Two Judges), the Court held that strict rules of the Evidence Act, and the standard of proof envisaged therein do not apply to departmental proceedings or domestic tribunal. It is open to the authorities to receive and place on record all necessary, relevant, cogent and acceptable material facts though not proved strictly in conformity with the Evidence Act. The material must be germane and relevant to the facts in issue. Therefore, when an inference of proof that a fact in dispute has been held established, there must be some material facts or circumstances on record from which such an inference could be drawn. The standard of proof is not proof beyond reasonable doubt "but" the preponderance of probabilities tending to draw an inference that the fact must be more probable. Standard of proof cannot be put in a strait-jacket formula. No mathematical formula could be laid on degree of proof. The probative value could be gauged from facts and circumstances in a given case. The standard of proof is same both in civil cases and domestic enquiries. Similar view was ::: Downloaded on - 18/09/2018 23:02:19 :::HCHP 19 taken in State of Haryana and another vs. Rattan Singh, (1977) 2 SCC 491 (Three Judges).
28.Even while dealing with the provisions of the Industrial .
Disputes Act, the Court in Essen Deinki Vs. Rajiv Kumar, (2002) 8 SCC 400 (Two Judges) has held that the provisions of the Evidence Act per se are not applicable in an Industrial adjudication. But however general principles would be applicable and it would be imperative upon the Industrial Tribunal to ensure that principles of natural justice are complied with. The view stands reiterated in Manager, Reserve Bank of India, Bangalore vs. S. Mani and others, (2005) 5 SCC 100 (Three Judges)."
15. On the basis of the aforesaid exposition of law, this Court has no difficulty in holding that the office of the Commissioner does not fall within the definition of the Court because neither the provisions of the Code of Civil Procedure nor the Evidence Act are made applicable to the proceedings before the Commissioner, as is evident from the Act and Rules already reproduced in totality (supra). Hence, it is only the material placed by the parties, based on the principles of preponderance of probabilities, which is required to be considered and appreciated by the Deputy Commissioner while adjudicating an application under Section 5 of the Act.
(iii) Does the Deputy Commissioner exercise administrative or judicial or quasi-judicial?
::: Downloaded on - 18/09/2018 23:02:19 :::HCHP 2016. It cannot be disputed that whether or not an administrative body or authority functions as purely administrative .
one or in a quasi-judicial capacity, has to be determined in each case on an examination of the relevant statues and rules framed thereunder. In Savitri Devi's case (supra), while answering a similar question, as to whether the Commissioner exercises administrative or judicial or quasi-judicial function, it was observed as under:-
"32.Whether an Administrative Tribunal has a duty to act judicially or not, and whether Secretary Incharge of transport department was discharging functions as such, came up for consideration before the Constitution Bench in Gullapalli Nageswara Rao & others vs. Andhra Pradesh, State Road Transport Corporation & another, AIR 1959 SC 308 (Five Judges). The Court was dealing with a case where the Motor Vehicles Act, 1939, imposed a duty upon the Tribunal to decide as to whether certain persons were to be excluded from the routes upon which the vehicles were to be plied under the provisions of the Motor Vehicles Act and the Rules framed thereunder. The Court held that if the authority is called upon to decide the rights of the contesting parties, a duty is cast upon the Tribunal to act judicially.
33. In A. K. Kraipak & others vs. Union of India & others, (1969) 2 SCC 262 (Five Judges), the Court held that dividing line between an administrative power and quasi-judicial power, which is quite thin, 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 ::: Downloaded on - 18/09/2018 23:02:19 :::HCHP 21 power conferred, the person or persons on whom it is conferred, the framework of the law conferring that power, the consequences resulting from the exercise of that power .
and the manner in which that power is expected to be exercised.
34. In Smt. Saraswati Devi & others vs. State of Uttar Pradesh & others, (1980) 4 SCC 738 (Five Judges) the Constitution Bench again had an opportunity of dealing with the scope of the powers to be exercised by the State Government under the provisions of the Motor Vehicles Act, 1939. Sections 68-C and 68-D empowered the State Government to modify the scheme, affecting rights of a private party. The Act provided opportunity of hearing to the parties, particularly whose rights were likely to be affected. The Court reiterated the principles laid down in Gullapalli (Supra).
35. Lately in State of Maharashtra & others vs. Saeed Sohail Sheikh & others, (2012) 13 SCC 192 (Two Judges), Court was called upon to decide as to whether the nature of the power exercised in transferring the undertrial from one to another prison was ministerial or judicial/quasi judicial in nature. While referring to its earlier decisions rendered in Province of Bombay vs. Khushaldas S. Advani, AIR 1950 SC 222; R. vs. Dublin Corpn. (1978 2 LR Ir 371; Frome United Breweries Co.
Ltd. vs. Bath JJ, 1926 AC 586: 1926 All ER Rep 576 (HL); State of Orissa vs. Binapani Dei, AIR 1967 SC 1269; A. K. Kraipak (supra); Mohinder Singh Gill vs. Chief Election Commissioner, (1978) 1 SCC 405, Hon'ble Mr. Justice T. S. Thakur, J., speaking for the Bench, held that:
"27. Prof. De Smith in his book on 'Judicial Review' (Thomson Sweet & Maxwell, 6th Edn. 2007) refers to the meaning given by Courts to the terms 'judicial', 'quasi- judicial', 'administrative', 'legislative' and 'ministerial' for administrative law purposes and found them to be inconsistent. According to the author 'ministerial' as a ::: Downloaded on - 18/09/2018 23:02:20 :::HCHP 22 technical legal term has no single fixed meaning. It may describe any duty the discharge whereof requires no element of discretion or independent judgment. It may often be used more narrowly to describe the issue of a formal .
instruction, in consequence of a prior determination which may or may not be of a judicial character. Execution of any such instructions by an inferior officer sometimes called ministerial officer may also be treated as a ministerial function. It is sometimes loosely used to describe an act that is neither judicial nor legislative. In that sense the term is used interchangeably with 'executive' or 'administrative'. The tests which, according to Prof. De Smith delineate 'judicial functions', could be varied some of which may lead to the conclusion that certain functions discharged by the Courts are not judicial such as award of costs, award of sentence to prisoners, removal of trustees and arbitrators, grant of divorce to petitioners who are themselves guilty of adultery etc. We need not delve deep into all these aspects in the present case. We say so because pronouncements of this Court have over the past decades made a distinction between quasi-judicial function on the one hand and administrative or ministerial duties on the other which distinctions give a clear enough indication and insight into what constitutes ministerial function in contra- distinction to what would amount to judicial or quasi-judicial function."
... .... ...
"34. Recently this Court in Jamal Uddin Ahmad v. Abu Saleh Najmuddin (2003) 4 SCC 257 dealt with the nature of distinction between judicial or ministerial functions in the following words: (SCC p. 270, para 14) "14. The judicial function entrusted to a Judge is inalienable and differs from an administrative or ministerial function which can be delegated or performance whereof may be secured through authorization.
'The judicial function consists in the interpretation of the law and its application by rule or discretion to the facts of particular cases. This involves the ascertainment of facts in dispute according to the law of evidence. The organs which the State sets up to exercise the judicial function are called courts of law or courts of justice.
Administration consists of the operations, whatever their intrinsic nature may be, which are performed by administrators; and administrators are all State officials who are neither legislators nor judges.' ::: Downloaded on - 18/09/2018 23:02:20 :::HCHP 23 (See Constitutional and Administrative Law, Phillips and Jackson, 6th Edn., p. 13.) P. Ramanatha Aiyar's Law Lexicon defines judicial function as the doing of something in the nature of or in the course of an .
action in court. (p. 1015) The distinction between "judicial" and "ministerial acts" is:
If a Judge dealing with a particular matter has to exercise his discretion in arriving at a decision, he is acting judicially; if on the other hand, he is merely required to do a particular act and is precluded from entering into the merits of the matter, he is said to be acting ministerially. (pp. 1013-14).
Judicial function is exercised under legal authority to decide on the disputes, after hearing the parties, maybe after making an enquiry, and the decision affects the rights and obligations of the parties. There is a duty to act judicially. The Judge may r construe the law and apply it to a particular state of facts presented for the determination of the controversy. A ministerial act, on the other hand, may be defined to be one which a person performs in a given state of facts, in a prescribed manner, in obedience to the mandate of a legal authority, without regard to, or the exercise of, his own judgment upon the propriety of the act done. (Law Lexicon, ibid., p. 1234). In ministerial duty nothing is left to discretion; it is a simple, definite duty.""
[Emphasis supplied]
36. In Godrej & Boyce Manufacturing Company Ltd. & another vs. State of Maharashtra & others, (2014) 3 SCC 430 (Three Judges), Hon'ble Mr. Justice Madan B. Lokur, J., speaking for the Bench, has also observed that the first rule of interpretation being that words in a statute must be interpreted literally. However at the same time, if the context in which a word is used and the provisions of a statute inexorably suggests a subtext other than literal, then the context becomes important.
37. In B.A. Linga Reddy & others vs. Karnataka State Transport Authority & othrs, (2015) 4 SCC 515 (Two Judges), ::: Downloaded on - 18/09/2018 23:02:20 :::HCHP 24 Hon'ble Mr. Justice Arun Mishra, J. speaking for the Bench reiterated the principle that the power exercised by the authority in modifying the scheme under the Motor Vehicles .
Act is quasi judicial in nature mandating the authority to assign reasons and pass a speaking order. This alone would exclude arbitrariness in an action.
38. Ex-proprietary legislation, which deprives a person of his right of property, has to be strictly construed."
17. Applying the aforesaid principles to the instant case, it can conveniently be held that the Deputy Commissioner while adjudicating the claim is required to apply his mind and arrive a positive finding affecting rights of the parties. Such rights of the parties can be adversely affected with the exercise of such powers and any adverse order may entail civil consequences. Hence, the power exercised by the Commissioner can be said to be quasi-
judicial and not administrative or ministerial.
(iv). Principles of natural justice, its facets and obligation of the Deputy Commissioner to comply with the same.
18. While, answering the similar question in Savitri Devi's case (supra), it was observed as under:-
42. In Nagendra Nath Bora (supra) the court observed that:-
"17. ... ... this Court has laid down that the rules of natural justice vary with the varying constitution of statutory bodies and the rules prescribed by the Act under which they function; and the question whether or not any rules of natural justice had been contravened, should be decided not under any pre-conceived notions, but in the ::: Downloaded on - 18/09/2018 23:02:20 :::HCHP 25 light of the statutory rules and provisions. In the instant case, no such rules have been brought to our notice, which could be said to have been contravened by the Appellate Authority. Simply because it viewed a case in a particular .
light which may not be acceptable to another independent tribunal, is no ground for interference either under Art. 226 or Art.227 of the Constitution."
(Emphasis supplied)
43.The question of applicability of audi alteram partem in the proceedings before the Tribunal has been inviting attention of the Courts in India. The rule that a party to whose prejudice any order is intended to be passed is entitled to hearing applies to judicial Tribunals and Bodies or persons invested with the authority to adjudicate upon the matters involving civil consequences. [Gullapalli (Supra)]. It is one of the fundamental rules of our Constitutional set up that every citizen is protected against the exercise of arbitrary authority by the State or its officers. Duty to act judicially would, therefore, arise from the very nature of the functions intended to be performed. If there is power to decide and determine the prejudice of a person, duty to act judicially is implicit in the exercise of such power. This is the basic concept of rule of law.
44. While construing the meaning of expression "hearing and objections", under the provisions of Section 68-D of the Motor Vehicles Act, 1939, even where evidence could be produced and adduced, the Constitution Bench in Malik Ram vs. State of Rajasthan & others, AIR 1961 SC 1575 (Five Judges), held as under:
"7. We may however point out that the production of evidence (documentary or oral) does not mean that the parties can produce any amount of evidence they like and prolong the proceedings inordinately and the State Government when giving the hearing would be powerless to check this. We need only point out that though evidence may have to be taken under S. 68-D (2) it does not follow ::: Downloaded on - 18/09/2018 23:02:20 :::HCHP 26 that the evidence would be necessary in every case. It will therefore be for the State Government, or as in this case the officer concerned, to decide in case any party desires to lead evidence whether firstly the evidence is necessary .
and relevant to the inquiry before it. If it considers that evidence is necessary, it will give a reasonable opportunity to the party desiring to produce evidence to give evidence relevant to the enquiry and within reason and it would have all the powers of controlling the giving and the recording of evidence that any court has, Subject therefore to this overriding power of the State Government or the officer giving the hearing, the parties are entitled to give evidence either documentary or oral during a hearing under S. 68- D(2)."
[Emphasis supplied]
45. In Union of India & another vs. P. K. Roy & others, AIR 1968 SC 850 (Five Judges), the Constitution Bench held that the extent and application of doctrine of natural justice cannot be imprisoned within the strait-jacket of a rigid formula. Application of the doctrine is dependent upon the nature of jurisdiction conferred on the administrative authority; the character of the rights of the persons affected;
the scheme and policy of the statute and other relevant circumstances disclosed in the particular case.
46. In A. K. Kraipak (Supra), the Court observed that rules of natural justice operate in areas not covered by any law validly made, that is, they do not supplant the law of the land but supplement it. They are not embodied rules and their aim is to secure justice or to prevent miscarriage of justice. It further held that:-
"The concept of natural justice has undergone a great deal of change in recent years. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the Tribunal or the body of persons appointed for that purpose. Whenever a complaint is made before a Court that some principle of natural justice had been contravened, the Court has to decide whether the observance of that rule was necessary for a just decision ::: Downloaded on - 18/09/2018 23:02:20 :::HCHP 27 on the facts of that case. The rule that enquiries must be held in good faith and without bias, and not arbitrarily or unreasonably, is now included among the principles of natural justice."
.
[Emphasis supplied]
47. In the Government of Mysore & others vs. J. V. Bhat & others, (1975) 1 SCC 110 (Three Judges), the Court further held that the nature of hearing, would vary according to the nature of functions, and what is a just and fair, is required to be exercised in the context of rights affected.
48. In The Government of Mysore (Supra), the Court has held as under:-
"5. The audi alteram partem rule was held to be applicable by implication, to a case of deprivation of a right in property in Daud Ahmed vs. District Magistrate Allahabad & others, (1972) 1 SCC 655, where this Court held (SCC para 12):
"It is the nature of the power and the circumstances and conditions under which it is exercised that will occasion the invocation of the principle of natural justice. Deprivation of property affects rights of a person. If under the Requisition Act the petitioner was to be deprived of the occupation of the premises the District Magistrate had to hold an enquiry in order to arrive at an opinion that there existed alternative accommodation for the petitioner or the District Magistrate was to provide alternative accommodation." "
49. A Constitution Bench has laid down in Krishna Swami vs. Union of India, (1992) 4 SCC 605 (Five Judges) that if a statutory or public authority/functionary does not record reasons, its decision would be rendered arbitrary, unfair, unjust and violative of Articles 14 and 21 of the Constitution. Reasons are links between the material, the foundation for their erection and the actual conclusions, demonstrative of the mind of the maker, activated and actuated with the ::: Downloaded on - 18/09/2018 23:02:20 :::HCHP 28 rational nexus and synthesis with the facts considered and the conclusions reached.
.
50. Significantly in Cantonment Board & another vs. Mohanlal & another, (1996) 2 SCC 23 (Two Judges), the Court was of the view that where the party admitted having breached the provisions of law qua the action sought to be rectified, there was no question of applicability of provisions of principles of natural justice.
51.While dealing with a case where the assessee himself had tampered and pilfered with the electricity connection, the Court in M. P. Electricity Board, Jabalpur & others vs. Harsh Wood Products & another, (1996) 4 SCC 522 (Two Judges) held non issuance of prior statutory notice for disconnecting the electricity supply by the authority not to be violative of Articles 20(1) & 14 of the Constitution of India or the principles of natural justice.
52.As to what is the meaning of the word 'natural justice", came up for consideration in Canara Bank vs. V. K. Awasthy, (2005) 6 SCC 321 (Two Judges), wherein disciplinary action taken against the employee was subject matter of challenge and the Court held that it is not easy to determine the term principle of natural justice as it would contextually depend upon given fact situation. The Court held that natural justice is another name for common-sense justice. Rules of natural justice are not codified canons. But they are principles ingrained into the conscience of man. Natural justice is the administration of justice in a common-sense liberal way. Justice is based substantially on natural ideals and human values. It is the substance of justice which has to determine its form. The court further held that the principles of natural ::: Downloaded on - 18/09/2018 23:02:20 :::HCHP 29 justice are those rules which have been laid down by the courts as being the minimum protection of the rights of the individual against arbitrary procedure that may be adopted .
by a judicial, quasi-judicial and administrative authority while making an order affecting those rights. The intent being to prevent the authority from doing injustice. It observed that the concept of natural justice having undergone a great deal of change, such rules are not embodied, for they may be implied from the nature of duty to be performed under a statute.
53.What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the facts and circumstances of each case, the framework of the statute under which the enquiry is held. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. The expression "civil consequences" encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life.
54. What is "fair hearing" stands deliberated in Natwar Singh vs. Director of Enforcement and another, (2010) 13 SCC 255 (Two Judges) in the following terms:
"30. The right to fair hearing is a guaranteed right. Every person before an Authority exercising the adjudicatory powers has a right to know the evidence to be used against him. This principle is firmly established and recognized by this Court in Dhakeswari Cotton Mills Ltd. Vs. Commissioner of Income Tax, West Bengal, AIR 1955 SC 65: (1955) 1 SCR
941. However, disclosure not necessarily involves supply of the material. A person may be allowed to inspect the file and take notes. Whatever mode is used, the fundamental principle remains that nothing should be used against the ::: Downloaded on - 18/09/2018 23:02:20 :::HCHP 30 person which has not brought to his notice. If relevant material is not disclosed to a party, there is prima facie unfairness irrespective of whether the material in question arose before, during or after the hearing. The law is fairly .
well settled if prejudicial allegations are to be made against a person, he must be given particulars of that before hearing so that he can prepare his defence. However, there are various exceptions to this general rule where disclosure of evidential material might inflict serious harm on the person directly concerned or other persons or where disclosure would be breach of confidence or might be injurious to the public interest because it would involve the revelation of official secrets, inhibit frankness of comment and the detection of crime, might make it impossible to obtain certain clauses of essential information at all in the future [See R vs. Secretary of State for Home Department, ex. p. H- (1995) QB 43: (1994) 3 WLR 1110: (1995) 1 All ER 479 (CA)].
31. The concept of fairness may require the Adjudicating Authority to furnish copies of those documents upon which reliance has been placed by him to issue show cause notice requiring the noticee to explain as to why an inquiry under Section 16 of the Act should not be initiated. To this extent, the principles of natural justice and concept of fairness are required to be read into rule 4(1) of the Rules. Fair procedure and the principles of natural justice are in built into the Rules. A noticee is always entitled to satisfy the Adjudicating Authority that those very documents upon which reliance has been placed do not make out even a prima facie case requiring any further inquiry."
(Emphasis supplied)
55. In Automotive Tyre Manufactures Association vs. Designated Authority & others, (2011) 2 SCC 258 (Two Judges) the Court held that:-
"80. It is thus, well settled that unless a statutory provision, either specifically or by necessary implication excludes the application of principles of natural justice, because in that event the Court would not ignore the legislative mandate, the requirement of giving reasonable opportunity of being heard before an order is made, is generally read into the provisions of a statute, particularly when the order has adverse civil consequences which obviously cover infraction of property, personal rights and material deprivations for the party affected. The principle holds good irrespective of whether the power conferred on a statutory body or Tribunal is administrative or quasi-::: Downloaded on - 18/09/2018 23:02:20 :::HCHP 31
judicial. It is equally trite that the concept of natural justice can neither be put in a strait-jacket nor is it a general rule of universal application.
.
81. Undoubtedly, there can be exceptions to the said doctrine. As stated above, the question whether the principle has to be applied or not is to be considered bearing in mind the express language and the basic scheme of the provision conferring the power; the nature of the power conferred and the purpose for which the power is conferred and the final effect of the exercise of that power. It is only upon a consideration of these matters that the question of application of the said principle can be properly determined. (See: Union of India vs. Col. J.N. Sinha & Anr. (1970) 2 SCC 458.)"
[Emphasis supplied]
56. Further in Ashwin S. Mehta & another vs. Union of India & others, (2012) 1 SCC 83 (Two Judges) Court observed that the underlying principle of natural justice, evolved under the common law, is to check arbitrary exercise of power by any authority, irrespective of whether the power which is conferred on a statutory body or tribunal is administrative or quasi-judicial. The Court elaborated that discretion when applies to a court of justice means discretion guided by law.
It must not be arbitrary, vague and fanciful, but legal and regular.
57. In A. S. Motors Pvt. Ltd. vs. Union of India & others, (2013) 10 SCC 114 (Two Judges) the Court had an occasion to deal with a case where on account of certain violations noticed by the National Highway Authority of India, right of a licensee to collect toll fee, on the basis of certain reports, stood forfeited. The court reiterated the principle that rules of natural justice are not embodied rules. The question whether requirements of natural justice stood met by the procedure adopted would, to a great extent, be dependent upon the facts and circumstances of the case in point, the constitution of the Tribunal and its governing rules. The ::: Downloaded on - 18/09/2018 23:02:20 :::HCHP 32 court reiterated the principles laid down in Keshav Mills Co. Ltd. vs. Union of India, (1973) 1 SCC 380 (Three Judges) that the concept of natural justice could not be put into a strait-
.
jacket. Hence it would be futile to look for definitions or standards of natural justice from various judicial pronouncements and then try to apply them to the facts of any given case. Primarily, what is essential, in all cases, is that the person concerned should have had reasonable opportunity of presenting his case and that the authority should have acted fairly, impartially and reasonably. Grievance with regard to correctness of the report resulting into forfeiture of right was turned down keeping in view earlier litigation and absence of any act of malafide, bias or prejudice on the part of the officers dealing with the issue. Eventually Hon'ble Mr. Justice T. S. Thakur, J, speaking for the Bench, observed that:-
"8. Rules of natural justice, it is by now fairly well settled, are not rigid, immutable or embodied rules that may be capable of being put in straitjacket nor have the same been so evolved as to apply universally to all kind of domestic tribunals and enquiries. What the Courts in essence look for in every case where violation of the principles of natural justice is alleged is whether the affected party was given reasonable opportunity to present its case and whether the administrative authority had acted fairly, impartially and reasonably. The doctrine of audi alteram partem is thus aimed at striking at arbitrariness and want of fair play. Judicial pronouncements on the subject have, therefore, recognised that the demands of natural justice may be different in different situations depending upon not only the facts and circumstances of each case but also on the powers and composition of the Tribunal and the rules and regulations under which it functions. A Court examining a complaint based on violation of rules of natural justice is entitled to see whether the aggrieved party had indeed suffered any prejudice on account of such violation. To that extent there has been a shift from the earlier thought that even a technical infringement of the rules is sufficient to vitiate the action. Judicial pronouncements on the subject are a legion. We may refer to only some of the decisions on the subject which should in our opinion suffice."::: Downloaded on - 18/09/2018 23:02:20 :::HCHP 33
58. It be only observed that recently in Union of India & others vs. Sanjay Jethi & another, (2013) 16 SCC 116 (Two .
Judges), Hon'ble Mr. Justice Dipak Misra, J., speaking for the Bench, observed that:-
"51.The principle that can be culled out from the number of authorities fundamentally is that the question of bias would arise depending on the facts and circumstances of the case. It cannot be an imaginary one or come into existence by an individual's perception based on figment of imagination. While dealing with the plea of bias advanced by the delinquent officer or an accused a Court or tribunal is required to adopt a rational approach keeping in view the basic concept of legitimacy of interdiction in such matters, for the challenge of bias, when sustained, makes the whole proceeding or order a nullity, the same being coram non- judice. One has to keep oneself alive to the relevant aspects while accepting the plea of bias. It is to be kept in mind that what is relevant is actually the reasonableness of the apprehension in this regard in the mind of such a party or an impression would go that the decision is dented and affected by bias. To adjudge the attractability of plea of bias a tribunal or a Court is required to adopt a deliberative and logical thinking based on the acceptable touchstone and parameters for testing such a plea and not to be guided or moved by emotions or for that matter by one's individual perception or misguided intuition."
19. In addition to the above, I may also note that whether an act is administrative or quasi-judicial that per se does not repel the application of the principles of natural justice, as was held by the Hon'ble Supreme Court in Manohar s/o Manikrao Anchule versus State of Maharashtra and another, (2012) 13 SCC 14, wherein it was held as under:-
"18. In the case of A.K. Kraipak & Ors. v. Union of India & Ors. [(1969) 2 SCC 262], the Court held as under : (SCC pp.271-73, paras 17 & 20) ::: Downloaded on - 18/09/2018 23:02:20 :::HCHP 34 "17. ... It is not necessary to examine those decisions as there is a great deal of fresh thinking on the subject. The horizon of natural justice is constantly expanding...
.
20.The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it.... The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules namely: (1) no one shall be a judge in his own case (Nemo debet esse judex propria causa) and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem).
Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice. Till very recently it was the opinion of the courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of natural justice. The validity of that limitation is now questioned. If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries. Often times it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi- judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi- judicial enquiry. As observed by this Court in Suresh Koshy George v. University of Kerala the rules of natural justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a court that some principle of natural justice had been contravened the court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case.
19. In the case of Kranti Associates (P) Ltd. & Ors. v. Masood Ahmed Khan & Ors. [(2010) 9 SCC 496], the Court dealt with ::: Downloaded on - 18/09/2018 23:02:20 :::HCHP 35 the question of demarcation between the administrative orders and quasi-judicial orders and the requirement of adherence to natural justice. The Court held as under : (SCC .
pp. 510-12, para 47).
"47. Summarising the above discussion, this Court holds:
(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 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.::: Downloaded on - 18/09/2018 23:02:20 :::HCHP 36
(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 decision- makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor.)
(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. See Ruiz Torija v. Spain EHRR, at 562 para 29 and Anya v. University of Oxford, wherein the Court referred to Article 6 of the European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decisions".
(o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of 'due process'."
20. The Court has also taken the view that even if cancellation of the poll were an administrative act that per se does not repel the application of the principles of natural justice. The Court further said that:
"53.....classification of functions as judicial or administrative is a stultifying shibboleth discarded in India as in England. Today, in our jurisprudence, the advances made by the natural justice far exceed old frontiers and if judicial creativity blights penumbral areas, it is also for improving the quality of Government in injecting fair play into its wheels."::: Downloaded on - 18/09/2018 23:02:20 :::HCHP 37
Reference in this regard can be made to Mohinder Singh Gill v. Chief Election Commissioner [(1978) 1 SCC 405],( SCC pp.
.
435-36, para 53).
21. Referring to the requirement of adherence to principles of natural justice in adjudicatory process, this Court in the case of Namit Sharma v. Union of India [2012 (8) SCALE 593], held as under: (SCC p. 799, para 99) "99. It is not only appropriate but is a solemn duty of every adjudicatory body, including the tribunals, to state the reasons in support of its decisions. Reasoning is the soul of a judgment and embodies one of the three pillars on which the very foundation of natural justice jurisprudence rests. It is informative to the claimant of the basis for rejection of his claim, as well as provides the grounds for challenging the order before the higher authority/constitutional court. The reasons, therefore, enable the authorities, before whom an order is challenged, to test the veracity and correctness of the impugned order. In the present times, since the fine line of distinction between the functioning of the administrative and quasi-judicial bodies is gradually becoming faint, even the administrative bodies are required to pass reasoned orders. In this regard, reference can be made to the judgments of this Court in the cases of Siemens Engineering & Manufacturing Co. of India Ltd. v. Union of India & Anr. [(1976) 2 SCC 981]; and Assistant Commissioner, Commrcial Tax Department Works Contract and Leasing, Kota v. Shukla & Brothers [(2010) 4 SCC 785]."
20. It is, thus, seen that the Deputy Commissioner is bound to comply with the principles of natural justice and, therefore, his actions must be reasonable, just, fair, impartial, reasoned, logical and honest. However, the extent of applicability of principles of natural justice would be dependent on the given facts and situation obtaining in each case.
::: Downloaded on - 18/09/2018 23:02:20 :::HCHP 3821. Bearing in mind the aforesaid principles, it would be noticed that as regards the order passed by the Deputy .
Commissioner, the same is totally unsustainable in the eyes of law as admittedly the same was passed without hearing the parties.
What is rather more shocking is that on 05.10.2016, he passed the following order:-
"Case called. Sh. Shiv Lal appellant with Ld. Counsel Mukesh Boris for appellant is present. Sh. D.C. Negi is present as Ld. Counsel for the respondent. The respondent be directed to vacate the said land from the area of appellant within a month. Detail order passed which is placed on the case file.
Copy of order be sent for the respondent through SHO, Sangla for compliance. Case file of this Court be consigned to the record room after due completion. Announced."
22. However, apparently no detailed order or judgment was ever passed by the Deputy Commissioner until 27.03.2017 whereby he allowed the application by passing somewhat a detailed order which apparently was passed without hearing the parties and, therefore, principles of audi alteram partem have been violated.
However, then the Courts have repeatedly remarked that the principles of natural justice are very flexible principles, they cannot be applied in any straitjacket formula. It all depends upon the kind of functions performed and to the extent to which a person is likely to be affected. For these two reasons, certain exceptions to the ::: Downloaded on - 18/09/2018 23:02:20 :::HCHP 39 aforesaid principles have been invoked under certain circumstances which have been duly noted and laid down by the Hon'ble Supreme .
Court in Dharampal Satyapal Limited versus Deputy Commissioner of Central Excise, Gauhati and others, (2015) 8 SCC 519 in the following terms:-
"42. So far so good. However, an important question posed by Mr. Sorabjee is as to whether it is open to the authority, which has to take a decision, to dispense with the requirement of the principles of natural justice on the ground that affording such an opportunity will not make any difference? To put it otherwise, can the administrative authority dispense with the requirement of issuing notice by itself deciding that no prejudice will be caused to the person against whom the action is contemplated? Answer has to be in the negative. It is not permissible for the authority to jump over the compliance of the principles of natural justice on the ground that even if hearing had been provided it would have served no useful purpose. The opportunity of hearing will serve the purpose or not has to be considered at a later stage and such things cannot be presumed by the authority. This was so held by the English Court way back in the year 1943 in General Medical Council v. Spackman 1943 AC 627. This Court also spoke in the same language in Board of High School and Intermediate Education, U.P. & Ors. v. Kumari Chittra Srivastava & Ors. (1970) 1 SCC 121, as is apparent from the following words:
(SCC p. 123, para 7).
"7. The learned counsel for the appellant, Mr. C.B. Agarwala, contends that the facts are not in dispute and it is further clear that no useful purpose would have been served if the Board had served a show cause notice on the petitioner. He ::: Downloaded on - 18/09/2018 23:02:20 :::HCHP 40 says that in view of these circumstances it was not necessary for the Board to have issued a show cause notice.
We are unable to accept this contention. Whether a duty arises in a particular case to issue a show cause notice .
before inflicting a penalty does not depend on the authority's satisfaction that the person to be penalised has no defence but on the nature of the order proposed to be passed."
43. In view of the aforesaid enunciation of law, Mr. Sorabjee may also be right in his submission that it was not open for the authority to dispense with the requirement of principles of natural justice on the presumption that no prejudice is going to be caused to the appellant since judgment in R.C. Tobacco(P) Ltd. v. Union of India (2005) 7 SCC 725 had closed all the windows for the appellant.
44.At the same time, it cannot be denied that as far as Courts are concerned, they are empowered to consider as to whether any purpose would be served in remanding the case keeping in mind whether any prejudice is caused to the person against whom the action is taken. This was so clarified in ECIL versus B. Karunakar (1993) 4 SCC 727 itself in the following words:
(SCC p. 758, para 31) "31. Hence, in all cases where the enquiry officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the Courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/ Tribunal and given the employee an opportunity to show how his or her case was prejudiced because of the non-
supply of the report. If after hearing the parties, the Court/Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/ Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as it regrettably being done at present. The courts should avoid resorting to short cuts. Since it is the Courts/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal ::: Downloaded on - 18/09/2018 23:02:20 :::HCHP 41 appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Court/Tribunal finds that the furnishing of the report would have made a .
difference to the result in the case that it should set aside the order of punishment."
23. Keeping in view the aforesaid principles in mind, even when this Court has found that there is an infraction of principles of natural justice, I still have to further address a question as to whether any purpose would be served in remitting the case to the authority to take fresh decision after hearing the appellant.
However, would it not be a mere ritual of hearing, particularly, when the appeal by the appellate authority, i.e. the Divisional Commissioner, has already been decided. Similar, issue was considered in Dharampal's case (supra) wherein after observing as above, it was held as under:-
"45.Keeping in view the aforesaid principles in mind, even when we find that there is an infraction of principles of natural justice, we have to address a further question as to whether any purpose would be served in remitting the case to the authority to make fresh demand of amount recoverable, only after issuing notice to show cause to the appellant. In the facts of the present case, we find that such an exercise would be totally futile having regard to the law laid down by this Court in R.C. Tobacco (supra).
46.To recapitulate the events, the appellant was accorded certain benefits under Notification dated July 08, 1999. This Notification stands nullified by Section 154 of the Act of 2003, ::: Downloaded on - 18/09/2018 23:02:20 :::HCHP 42 which has been given retrospective effect. The legal consequence of the aforesaid statutory provision is that the amount with which the appellant was benefitted under the .
aforesaid Notification becomes refundable. Even after the notice is issued, the appellant cannot take any plea to retain the said amount on any ground whatsoever as it is bound by the dicta in R.C. Tobacco (supra). Likewise, even the officer who passed the order has no choice but to follow the dicta in R.C. Tobacco (supra). It is important to note that as far as quantification of the amount is concerned, it is not disputed at all. In such a situation, issuance of notice would be an empty formality and we are of the firm opinion that the case stands covered by 'useless formality theory'.
47. In Escorts Farms Ltd. (Previously known as M/s. Escorts Farms (Ramgarh) Ltd.) v. Commissioner, Kumaon Division, Nainital, U.P. & Ors., (2004) 4 SCC 281, this Court, while reiterating the position that rules of natural justice are to be followed for doing substantial justice, held that, at the same time, it would be of no use if it amounts to completing a mere ritual of hearing without possibility of any change in the decision of the case on merits. It was so explained in the following terms: (SCC pp. 309-10, para 64) "64. Right of hearing to a necessary party is a valuable right. Denial of such right is serious breach of statutory procedure prescribed and violation of rules of natural justice. In these appeals preferred by the holder of lands and some other transferees, we have found that the terms of government grant did not permit transfers of land without permission of the State as grantor. Remand of cases of a group of transferees who were not heard, would, therefore, be of no legal consequence, more so, when on this legal question all affected parties have got full opportunity of hearing before the High Court and in this appeal before this Court. Rules of natural justice are to be followed for doing substantial justice and not for completing a mere ritual of hearing without possibility of any change in the decision of the case on merits. In view of the legal position explained by us above, ::: Downloaded on - 18/09/2018 23:02:20 :::HCHP 43 we, therefore, refrain from remanding these cases in exercise of our discretionary powers under Article 136 of the Constitution of India."
48. Therefore, on the facts of this case, we are of the opinion .
that non- issuance of notice before sending communication dated June 23, 2003 has not resulted in any prejudice to the appellant and it may not be feasible to direct the respondents to take fresh action after issuing notice as that would be a mere formality."
24. Now, adverting to the order passed by the Divisional Commissioner, the only right which the petitioner could have claimed was a right of fair hearing as I have already held that the petitioner had no right to lead evidence as the same is otherwise not contemplated either under the Act or the Rules framed thereunder. It is evident from the order passed by the Divisional Commissioner that the same is a detailed and reasoned one and has been passed after affording proper opportunity of hearing to the petitioner.
25. Admittedly, the petitioner had entered into an agreement on 21.08.2006 whereby as per terms and conditions an advance of Rs.3,00,000/-was paid by it to respondent No.1 in lieu of the land given to it on lease for 12 years and actual rent of Rs.1,00,000/- was fixed which was required to be increased at the rate of 5% after every two years. This proposal was sent to the Tribal Development Department for according permission under the Act which was duly accorded. Even though, the Tribal Development Department did ::: Downloaded on - 18/09/2018 23:02:20 :::HCHP 44 accord the permission, however, instead of lease for 12 years, the same was approved only for 5 years with effect from 01.01.2006 .
subject to the condition that the minimum annual lease amount would be Rs. 50,000/- with an annual increase of 7.5% as annual lease amount of Rs.25,000/-, as is evident from the letter dated 24.01.2006 (Annexure P-1) which reads thus:-
"No.TD(F) 10-1/97-IV Government of Himachal Pradesh Tribal Development Department From r The Principal Secretary(TD) to the Government of Himachal Pradesh.
To The Divisional Commissioner, Shimla Division, Shimla-2.
Dated: Shimla-171002, 21, January, 2006.
Subject:- Land Transfer permission case under section 3(1) of the H.P. Transfer of Land (Regulation) Amendment Act, 2002.
Sir, I am directed to refer to your letter No.Div. Commr(SML) LR-
1(4)KNR/2001- 2855 dated 17 May, 2003 on the subject cited above and to say that the proposal of transfer of land in favour of Banjara Camp & Travels Delhi by Shri Shiv Lal S/O Shri Inder Singh, Village Batseri, Tehsil Sangla, Distt. Kinnaur is recommended for five years lease w.e.f. 1.01.2006 subject to the condition that the minimum annual lease amount is Rs.50,000/- with annual increase of 7.5% as the annual lease amount of Rs.25,000/- for an area of about 8 bighas is too meager which amounts to exploitation. All relevant papers as received from your office letter referred above are returned in original herewith for necessary action accordingly please.::: Downloaded on - 18/09/2018 23:02:20 :::HCHP 45
Yours faithfully, sd/-
Under Secretary(TD) to the .
Government of Himachal Pradesh.
Endst. No. As above. Dated: Shimla-171002, January, 2006.
Copy forwarded to Shri Shiv Lal, S/O Shri Inder Singh, Village Batseri, Tehsil Sangla, Distt. Kinnaur for information and necessary action please.
Under Secretary(TD) to the Government of Himachal Pradesh."
26. Consequent upon such permission, the lease which commenced on 01.01.2006 and was signed between the parties on 08.09.2006 automatically came to an end on 31.12.2010. Earlier to that on 03.09.2010, the parties entered into an another lease deed which was signed by respondent No.1 and petitioner, but the same only pertained to the built-up portion and its permission was for 23 years commencing from 01.10.2010 on yearly rent of Rs.2,00,000/-
for the first five years with increase of 25% for every three years and further increase at the rate of 15% after every three years. The other terms and conditions of the lease includes para-4.
27. Shri Satyen Vaidya, Senior Advocate, assisted by Shri Vivek Sharma, Advocate, for the petitioner would argue that this lease is, in fact, in continuation of the earlier lease and it is for this precise reason that the lease amount has not only been ::: Downloaded on - 18/09/2018 23:02:20 :::HCHP 46 substantially, but has been increased by doubling the amount from Rs.1,00,000/- to Rs.2,00,000/-.
.
28. However, I find no force in this submission for more than one reason. Firstly, there is not even a whisper in the lease deed executed on 01.10.2010 that this lease was in continuity of the earlier lease commencing from 01.01.2006 that was signed between the parties on 08.09.2006 having validity of five years. Secondly, the first lease which admittedly was to expire on 31.12.2010 was already in force and, therefore, there was no question of having executed the second lease. Thirdly, in absence of any permission for transfer of interest in land, the same would otherwise be void under sub-section (2) of Section 3 of the Act.
29. That apart, the earlier lease pertained to land comprised in Khata Khatauni No. 51/151 min, Khasra Nos. 1193, 1194, 1195, 1198, 1205 and 1219, kitas-6, measuring 0-61-00 hectares qua which no further agreement was entered into between the parties nor any permission obtained from the State Government, whereas, the subsequent agreement that was entered into between the parties on 03.09.2010, the same only pertains to five numbers of single storey structures/houses constructed over a piece of land in Khasra No.1194, as is clearly evident from a perusal of the lease deed itself. In addition to that, in absence of there being any ::: Downloaded on - 18/09/2018 23:02:20 :::HCHP 47 express permission from the State Government, the transfer of land in favour of the petitioner would automatically be void in terms of .
Section 3(2) of the Act which is once again reproduced and reads thus:-
"(2) Every transfer of interest in land made in contravention of the provisions of sub-section (1) shall be void."
30. In the given circumstances, the learned Divisional Commissioner was absolutely right in observing that the agreement dated 03.09.2010 was a separate (termed as parallel agreement in the order) and not in supersession to the agreement dated 08.09.2006 and this only remained confined to the built-up structure for which no permission was required under the Act.
31. Adverting to the plea of the petitioner that it is entitled to the protection under Sections 52, 54 and 55 of the Easement Acts to raise the plea of licensee, however, I find the same to be totally misplaced. Rather, the Divisional Commissioner is absolutely correct in observing that this plea is not open to the petitioner as it is not covered by any arrangement between the parties earlier since the lease agreement has already expired on 31.12.2010 and further there is no arrangement for allowing use of land partly or wholly by the petitioner between the parties. Even if that was so, the same ::: Downloaded on - 18/09/2018 23:02:20 :::HCHP 48 otherwise would be void in absence of any permission from the State Government as per sub-section (2) of Section 3 of the Act.
.
32. Sections 52, 54 and 55 of the Easements Act upon which much reliance has been placed by the learned counsel for the petitioner are reproduced hereinunder:-
"52. "Licence" defined.- .- Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a license.
54.Grant may be express or implied.- The grant of a license may be express or implied from the conduct of the grantor, and on agreement which purports to create an easement, but is ineffectual for that purpose, may operate to create a license.
55.Accessory licences annexed by law.- All licenses necessary for the enjoyment of any interest, or the exercise of any right, are implied in the constitution of such interest or right. Such licenses are called accessory licenses."
33. In addition thereto, what is more relevant for the purpose of adjudication of this lis is Section 53 which deals with the provisions as to who may grant licence and reads thus:-
"53. Who may grant licence.- A licence may be granted by any one in the circumstances and to the extent in and to which he may transfer his interest in the property affected by the licence."::: Downloaded on - 18/09/2018 23:02:20 :::HCHP 49
34. Admittedly, respondent No.1 has not expressly granted any licence in favour of the petitioner and the same otherwise .
cannot be handed over or implied from the conduct of respondent No.1. Even otherwise, it is settled law that the owner of the land, who is subject to certain restrictions in respect of the use of land imposed by statute in the interest of the public, or otherwise, cannot lawfully grant a licence to make any use of the land which is an use within restriction.
35. to It is more than settled that a statute is best interpreted when one knows why it was enacted. If statute is looked at, in the context of its enactment, with the glasses of the statute maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context.
(Refer: RBI versus Peerless General Finance & Investment Co.
Ltd., (1987) 1 SCC 424, para 33) and reiterated in Gaurav Aseem Avtej versus Uttar Pradesh State Sugar Corporation Limited and others, (2018) 6 SCC 518, wherein it was observed as under:-
"15. A statute is best interpreted when we know why it is enacted. If a statute is looked at, in the context of its enactment, with the glasses of the statute maker, provided by such context, its scheme, the sections, clauses, phrases and ::: Downloaded on - 18/09/2018 23:02:20 :::HCHP 50 words may take colour and appear different than when the statute is looked at without the glasses provided by the context. (Reserve Bank of India v. Peerless General Finance .
and Investment Co. Ltd. And Others (1987) 1 SCC 424 para
33). Reasons for the enactment of the 1971 Act are set out in the statement of objects and reasons. The serious problems created for the cane growers and labourers due to mismanagement of certain sugar mills led to a situation where the only solution was to acquire the said sugar mills with a view to renovate and rehabilitate the mills. The interpretation of the provisions of the 1971 Act should be made by keeping in mind the above background. The contention of the Appellant is that the land belonging to him was leased out to the sugar mill and the vesting is only of the leasehold interest in the land and that he continues to be the title holder. We are unable to agree. A detailed examination of the provisions of the Act would make it clear that the intention was to secure all assets which were being used for the purposes of the factory. (State of U.P. v. Lakshmi Sugar & Oil Mills Ltd., (2013) 10 SCC 509). The crucial words in Section 2 (h) (vi) are "held or occupied for purposes of that factory."
36. Reasons for enactment of the Act have already been set out (supra). Bearing in mind the aforesaid objects and reasons coupled with the factual legal position, it is difficult to hold that the petitioner after the expiry of the agreement on 31.12.2010 became a licensee expressly or impliedly. In addition to that, as already observed above, such arrangement would otherwise be contrary to the Act.
::: Downloaded on - 18/09/2018 23:02:20 :::HCHP 5137. In view of the aforesaid discussion, I find no merit in this petition and the same is accordingly dismissed, leaving the parties .
to bear their own costs. Pending application, if any, also stands disposed of.
38. However, before parting, it needs to be observed that the manner in which the decision has been rendered by the Deputy Commissioner is wholly subvertive to judicial decorum and propriety
39. to which forms the basis of judicial procedure.
This Court in CMPMO No. 259 of 2016, titled Balak Ram Sharma versus The Ex-Committee of Bhagal Land Loosers Transport Co-operative Society Darlaghat and others, decided on 17.05.2017, while dealing with the role of adjudicatory authority under the provisions of the H.P. Co-operative Societies Act, 1968, observed as under:-
"19. It will be naive to mention that deciding the question of right, title and interest even in matter relating to co-operative societies involve complicated question, but nonetheless such power has been vested with the authorities under the Act. It has, therefore, to be accepted that such officers/ authorities would be well equipped in law to factually adjudicate such question. Therefore, those entrusted or required to adjudicate such disputes should have studied law or at least trained in law. A litigant entering into the precincts of the Court should have the trust and confidence that the person who sit on the chair as an adjudicator/Judge is competent to appreciate and ::: Downloaded on - 18/09/2018 23:02:20 :::HCHP 52 understand matter having regard to his knowledge and capability and is adequately equipped to decide. For such litigants high sounding designation is not of much worth, and .
it is only his confidence and trust what matters. For often one comes across instances where orders patently show lack of rudimentary and fundamental knowledge of law. It has to be remembered that people who go before the authority, go there with feeling that they are going to get substantive and effective justice and they should not come back with the feeling that the adjudicating machinery prosecuted under the act is a mockery.
20. At this juncture, it shall be apt to refer to a Division Bench Judgment of Hon'ble High Court of Orissa in Raghunath Mukhi v. Chakrapani Mukhi (Dead) and after him Musa Bewa, 1992 (1) Orissa LR 191, wherein it was observed as under:-
[3] Under the scheme of the Act, the revisional authority being the highest forum in the hierarchy adjudicating questions of facts and law should be a substitute in reality and not theoretically. Law is respected and obeyed when the people have trust and faith in it. Law is made for the weal of the people. Hence, if the well being of the people is the object of the law, they should have trust not only in the contents of the law but also in its implementation by the agency entrusted therewith. If implementation is not commensurate with the object and purpose of the law, it fails to create confidence in the minds of the people and loses their trust. The result is disenchantment and chaos. It therefore behaves the implementing agency to implement the law not only in letter but also in spirit.
[4] This prologue is considered warranted having regard to our perception of the implementation of the scheme of the Consolidation Act by the Government.
[5] The consolidation authorities by the very nature of the jurisdiction vested in them are required to adjudicate civil right involving personal law and relating to immovable property and other civil rights. Even the questions that crop up and posed are of complicated nature. It, therefore, obligates the authorities to know the law before they assume and exercise jurisdiction to adjudicate in ::: Downloaded on - 18/09/2018 23:02:20 :::HCHP 53 accordance with law and for the litigants, an ignorant judge is a devil's representative putting on the mask of an adjudicator. It is no doubt true that ail adjudicators and Judges are not learned in law in all its branches. Law is a .
vast ocean. Study for a lifetime even would not be enough to make it. But those who are required to adjudicate civil rights including personal and properly rights should have studied law or are trained in law. It is a trite saying that justice must not only be done, but seem manifestly to have been done. Hence a person involved in a civil dispute before he enters the precincts of the Court should have the trust and confidence that the person who sits on the chair as an adjudicator. Judge is competent to appreciate and understand matters having regard to his knowledge and capability and is adequately equipped to decide. For him high sounding designation is not of much worth, his confidence and trust are what matters. When the people make laws through their representatives for their happiness and well-being, they intend that the authorities under the Act who are being made substitutes of the Presiding Officers in the Civil Courts and the High Court should also be competent by virtue of their ability to function truly as substitutes. Otherwise, it will be a fraud on the peoples' intention. Therefore, as we have said, the psychological factor in the mind of the litigant is more important than how a is lis decided by the adjudicating authority. A person ignorant and innocent of law cannot create that trust nor is he capable of adjudicating by hearing both the sides. It is the duty of the Judge to utilise his own insight into law even where the parties have tumbled or failed. For adjudicating the lis in accordance with law to the best of his Judgment is his responsibility and obligation. To decide to the best of his Judgment, he must be properly equipped in law to understand, appreciate and decide.
[6] Can one think of a highly eminent engineer or erudits Judge ignorant of human anatomy or surgery conducting operation on human body. It is unthinkable ; it is preposterous for someone not versed in surnery or anatomy of the body making an attempt. That is why specialities and super specialities abound. So also in the matter of administration of law, the person concerned should have the knowledge of law howsoever gathered- either by courses in college or otherwise or should be trained in law.
[7] To call upon an administrative officer howsoever eminent or competent he might be in his own field but who does not have the knowledge of law or is not trained in law or does not have the judicial aptitude and acumen, is akin to a Judge being called upon to conduct a surgical ::: Downloaded on - 18/09/2018 23:02:20 :::HCHP 54 operation. Hence it follows that as a Judge or an engineer cannot be appointed as a Professor of Surgery or even as a surgeon so too a person unversed in law; ignorant in law should not be entrusted with the responsibility of .
adjudicating questions of law for, that would amount to breach of trust that the people imposed on the implementing agency. They intended that competent and worthy persons capable of adjudicating civil rights involving questions of law-simple and complicated-should be appointed as adjudicators.
[8] So far as the Assistant Consolidation Officer is concerned, it is a different matter. Matters in which parties come to an amicable settlement are disposed of by him. But where the parties differ and are out for a fight, do not the people expect that the referee, the Judge, the adjudicator should be competent ? Now coming to the question of referee if a person does not know the rules of the game of football, can he be a competent referee ? Should such a 'person be appointed as a referee ? So also in matters of adjudication under the Consolidation Act.
[9] We are constrained to dilate at length because of our experience in the High Court day after day, month after month and year after year in regard to matters arising under the Consolidation Act. Very often we find persons adjudicating know not even the rudiments of the laws and procedures. To appreciate questions of law presented by both the parties, it is necessary to appreciate, comprehend and then adjudicate. Therefore, to appreciate and comprehend, the adjudicator should know the fundamentals, the rudiments of law or must have been trained in law or must to have been involved in adjudication of legal matters for a number of years so as to clothe him with competence. We do not want to generalize because some Officers in the lower rung as well as at the highest level have displayed a good comprehension of the law and its application, and have brought to bear a judicial mind on matters in dispute but, as we said, the chair does not confer competence. It is the competence of the parson that confers dignity and trust on the chair.
[10] From our experience we can boldly say that while appointing the Commissioner or the revisional authority, the implementing agency, i. e., the Government, has not always kept this in mind. Law was not framed for the purpose of statistics. It was framed for the object and purposes depicted in the objects and reasons and the Preamble to the Act.
[11] The law may be inter vires but if it is implemented in a manner inconsistent with the objects and purpose, action ::: Downloaded on - 18/09/2018 23:02:20 :::HCHP 55 could be challenged as ultra vires, as a fraudulent imposition. Hence appointment of an incompetent person to adjudicate legal matters can be challenged as ultra vires being contrary to the intendment.
.
[12] No doubt jurisdiction is vested in this Court under Arts.
226 and 227 of the Constitution to set right injustice, mistakes in proceeding before the consolidation authorities. But it should be borne in mind that such jurisdiction is discretionary and is not a matter of right and is otherwise also circumscribed. Besides the more important question is ; Why should not the people have faith in the adjudication by the consolidation authorities but have to rush to this Court with their grievances. Faith and faith alone in the adjudicator is the paramount consideration.
26. Conducting judicial business does require certain amount of acumen and judicial discipline, the order sheets have to be maintained and must be self speaking, the files have to be properly indexed and paged and it is only then that credence is lent to such adjudicatory process, which are lacking in the instant case.
27. Notably, it is respondent No. 3, who in another case titled Manoj Kumar vs. ARCS, Dharamshala had on 4.8.2015, passed the following order:-
"4.8.2015 Present: Ms. Ashima Sharma, Advocate, vice for Rahul Mahajan for respondents No. 2 to 4.
(2). Sh. Subhash Chand, Inspector for respondent No.
1. (3). Sh. Surinder Saklani, Counsel for the petitioner. I am satisfied with the orders passed by the Hon'ble High Court of H.P. while allowing the period spent in pursuing the writ petition and condoning the same. Hence application under Sec. 5 of the Limitation Act is allowed. The case will come up for hearing on the issue of maintainability/argument as 24.09.2015 at 3:00 P.M."
::: Downloaded on - 18/09/2018 23:02:20 :::HCHP 5629. In the case of Satya Pal Anand v. State of Madhya Pradesh and another, reported in (2014) 7 SCC 244, .
Hon'ble Supreme Court has held that the Registrars, Joint Registrars of the Co-operative Societies and other officials discharging quasi-judicial functions are supposed to be conscious of competing rights and decide issues justly, fairly and by legally sustainable orders. The State Government was directed to appoint suitable persons as Registrars, Joint Registrars, etc. commensurate with the functions exercised under scheme of State Cooperative Societies Act and it was observed as under:-
20. Having determined the question raised, we would like to emphasize the need for appointment of suitable persons not only as Registrar, Joint Registrar etc. but as Chairman and members of the tribunal as well. While discharging quasi-judicial functions Registrar, Joint Registrars etc. have to keep in mind that they have to be independent in their functioning. They are also expected to acquire necessary expertise to effectively deal with the disputes coming before them. They are supposed to be conscious of competing rights in order to decide the case justly and fairly and to pass the orders which are legally sustainable.
21. In this behalf, we would like to refer to judgment dated 3.9.2013 passed in the Review Petition (C) No.2309/2012 (Namit Sharma case). In that case, one unfortunate feature that was noted was that experience over the years has shown that the orders passed by Information Commissions have, at times, gone beyond the provisions of the Right to Information Act and that Information Commissions have not been able to harmonise the conflicting interests indicated in the preamble and other provisions of the Act. The reasons for this experience about the functioning of the Information Commissions could be either that the persons who do not answer the criteria mentioned in Sections 12(5) and 15(5) have been appointed as Chief Information Commissioner or that the persons appointed even when they answer the aforesaid criteria, they do not have the required mind to balance the interests indicated in the Act. It was therefore insisted that experienced suitable persons should be appointed who are able to perform their functions efficiently and effectively. In this behalf certain directions were given and one of the directions was that while making recommendation for ::: Downloaded on - 18/09/2018 23:02:20 :::HCHP 57 appointment of CIC and Information Commissioners the Selection Committee must mention against name of each candidate recommended the facts to indicate his eminence in public life ( which is the requirement of the provision of .
that Act), his knowledge and experience in the particular field and these facts must be accessible to the citizens as part of their right to information under that Act, after the appointment is made.
22. Taking clue from the aforesaid directions, and having gone through the similar dismal state of affairs expressed by the petitioner in the instant petition about the functioning of the cooperative societies, we direct that the State Government shall, keeping in mind the objective of the Act, the functions which the Registrar, Joint Registrar etc. are required to perform and commensurate with those, appointment of suitable persons shall be made. Likewise, having regard to the fact that the Chairman of the Tribunal is to be a judicial person, namely, Former Judge of the High Court or the District Judge, we are of the opinion that for appointment of the Chairman and the Members of the Tribunal, the respondent-State is duty bound to keep in mind and follow the mandate of the Constitution Bench judgment of this Court in R.Gandhi (supra). Thus, for appointment of the Chairman and Members of the Tribunal, the selection to these posts should preferably be made by the Public Service Commission in consultation with the High Court."
30. The aforesaid judgment along with host of other judgments was taken note of by a Co-ordinate Bench of this Court (Justice Rajiv Sharma,J.) in CMPMO No. 421 of 2014, titled Tara Chand & Ors. v. Virender Singh & Anr., 2015(149) All India Cases 823, decided on 19.3.2015 and it was observed as under:-
"13. This Court is of the considered view that the Assistant Collector or Collector, Commissioner and Financial Commissioner (Appeals), must have the requisite legal background to adjudicate the matters under the H.P. Land Revenue Act, 1953. They determine the valuable rights of the parties. The quasi judicial authorities are also required to take notice of the facts and thereafter to apply the law. The adjudication by the revenue authorities has certain trappings of the Court as well.
14. Their lordships of the Hon'ble Supreme Court in the case of Thakur Jugal Kishore Sinha vrs. The Sitamarhi Central Co-operative Bank Ltd. and ::: Downloaded on - 18/09/2018 23:02:20 :::HCHP 58 another, reported in AIR 1967 SC 1494, have held that the Assistant Registrar discharging functions of Registrar under S. 48 read with S. 6 (2) of Bihar and Orissa Co- operative Societies Act is a Court. Their lordships have held .
a under:
"11. It will be noted from the above that the jurisdiction of the ordinary civil and revenue courts of the land is ousted under s. 57 L4 Sup. Cl/67-12 of the Act in case of disputes which fell under S. 48. A Registrar exercising powers under S. 48 must therefore be held to discharge the duties which would otherwise have fallen on the ordinary civil and revenue courts of the land. The Registrar has not merely the trappings of a court but in many respects he is given the same powers as are given to ordinary civil courts of the land by the Code of Civil Procedure including the power to summon and; examine witnesses on oath, the power to order inspection of documents, to hear the parties after framing issues, to review his own ,order and even exercise the inherent r jurisdiction of courts mentioned in s. 151 of the Code of Civil Procedure. In such -a case, there is no difficulty in holding that in adjudicating upon a dispute referred under s. 48 of the Act, the Registrar is to all intents and purposes a court discharging the same functions and ,duties in the same manner as a court of law is expected to do.
20. It was sought to be argued that a reference of a dispute had to be filed before the Registrar and under sub-s. 2(b) of s. 48 the Registrar transferred it for disposal to the Assistant Registrar and therefore his position was the same as that of a nominee under the Bombay Co-operative Societies Act. We do not think that contention is sound merely because sub-s. (2) (c) of s. 48 authorises the Registrar to refer a dispute for disposal of an arbitrator or arbitrators. This procedure was however not adopted in this case and we need not pause to consider what would have been the effect if the matter had been so transferred. The Assistant Registrar had all the powers of a Registrar in this case as noted in the delegation and he was competent to dispose of it in the same manner as the Registrar would have done. It is interesting to note that under r. 68 sub-r. (10) of the Bihar and Orissa Cooperative Societies Rules, 1959 :
"In proceedings before the Registrar or arbitrator a party may be represented by a legal practitioner."
In conclusion, therefore, we must hold that the Assistant Registrar was functioning as a court in deciding the dispute between the bank and the appellant and Jagannath Jha."
::: Downloaded on - 18/09/2018 23:02:20 :::HCHP 5915. Their lordships of the Hon'ble Supreme Court in the case of Union of India vs. R. Gandhi President, Madras Bar Association & connected matter, reported in (2010) 11 SCC 1, have held that so far as technical .
members are concerned, mere experience in civil service, is not enough and to be technical members of tribunals, persons concerned should be persons with expertise in the area of law concerned or allied subjects and mere experience in civil service cannot be treated as technical expertise in the area of law concerned. Their lordships have further held that the rule of law can be meaningful only if there is an independent and impartial judiciary to render justice. An independent judiciary can exist only when persons with competence, ability and independence with impeccable character man the judicial institutions. Their lordships have held a under:
"106. We may summarize the position as follows:
(a) A legislature can enact a law transferring the jurisdiction exercised by courts in regard to any rspecified subject (other than those which are vested in courts by express provisions of the Constitution) to any tribunal.
(b) All courts are tribunals. Any tribunal to which any existing jurisdiction of courts is transferred should also be a Judicial Tribunal. This means that such Tribunal should have as members, persons of a rank, capacity and status as nearly as possible equal to the rank, status and capacity of the court which was till then dealing with such matters and the members of the Tribunal should have the independence and security of tenure associated with Judicial Tribunals.
(c) Whenever there is need for `Tribunals', there is no presumption that there should be technical members in the Tribunals. When any jurisdiction is shifted from courts to Tribunals, on the ground of pendency and delay in courts, and the jurisdiction so transferred does not involve any technical aspects requiring the assistance of experts, the Tribunals should normally have only judicial members. Only where the exercise of jurisdiction involves inquiry and decisions into technical or special aspects, where presence of technical members will be useful and necessary, Tribunals should have technical members. Indiscriminate appointment of technical members in all Tribunals will dilute and adversely affect the independence of the Judiciary.
(d) The Legislature can re-organize the jurisdictions of Judicial Tribunals. For example, it can provide that a specified category of cases tried by a higher court can be tried by a lower court or vice versa (A standard example is the variation of pecuniary limits of courts).::: Downloaded on - 18/09/2018 23:02:20 :::HCHP 60
Similarly while constituting Tribunals, the Legislature can prescribe the qualifications/eligibility criteria. The same is however subject to Judicial Review. If the court in exercise of judicial review is of the view that such tribunalisation would adversely affect the independence .
of judiciary or the standards of judiciary, the court may interfere to preserve the independence and standards of judiciary. Such an exercise will be part of the checks and balances measures to maintain the separation of powers and to prevent any encroachment, intentional or unintentional, by either the legislature or by the executive.
108. The Legislature is presumed not to legislate contrary to rule of law and therefore know that where disputes are to be adjudicated by a Judicial Body other than Courts, its standards should approximately be the same as to what is expected of main stream Judiciary. Rule of law can be meaningful only if there is an independent and impartial judiciary to render justice. An independent judiciary can exist only when persons with competence, ability and independence with impeccable character man the judicial rinstitutions. When the legislature proposes to substitute a Tribunal in place of the High Court to exercise the jurisdiction which the High Court is exercising, it goes without saying that the standards expected from the Judicial Members of the Tribunal and standards applied for appointing such members, should be as nearly as possible as applicable to High Court Judges, which are apart from a basic degree in law, rich experience in the practice of law, independent outlook, integrity, character and good reputation. It is also implied that only men of standing who have special expertise in the field to which the Tribunal relates, will be eligible for appointment as Technical members."
16. In the case of State of Gujarat and another vrs. Gujarat Revenue Tribunal Bar Association and another, reported in (2012) 10 SCC 353 , their lordships of the Hon'ble Supreme Court have held that where there is a lis between the two contesting parties and a statutory authority is required to decide such dispute between them, such an authority may be called as a quasi-judicial authority i.e. a situation where, (a) a statutory authority is empowered under a statute to do any act; (b) the order of such authority would adversely affect the subject; and (c) although there is no lis or two contending parties, and the contest is between the authority and the subject; and (d) the statutory authority is required to act judicially under the statute, the decision of the such authority is a quasi-judicial decision. Their lordships have held as under:
"18. Tribunals have primarily be en constituted to deal with cases under special laws and to hence provide for specialised adjudication alongside the courts. Therefore, a particular Act/set of Rules will determine whether the functions of a particular Tribunal are akin ::: Downloaded on - 18/09/2018 23:02:20 :::HCHP 61 to those of the courts, which provide for the basic administration of justice. Where there is a lis between two contesting parties and a statutory authority is required to decide such dispute between them, such an authority may be called as a quasi-judicial .
authority, i.e., a situation where, (a) a statutory authority is empowered under a statute to do any act
(b) the order of such authority would adversely affect the subject and (c) although there is no lis or two contending parties, and the contest is between the authority and the subject and (d) the statutory authority is required to act judicially under the statute, the decision of the said authority is a quasi judicial decision. An authority may be described as a quasi-
judicial authority when it possesses certain attributes or trappings of a 'court', but not all. In case certain powers under C.P.C. or Cr.P.C. have been conferred upon an authority, but it has not been entrusted with the judicial powers of the State, it cannot be held to be a court.
21. The present case is also required to be examined in the context of Article 227 of the Constitution of India, with specific reference to the 42nd Constitutional Amendment Act 1976, where the expression 'court' stood by itself, and not in juxtaposition with the other expression used therein, namely, 'Tribunal'. The power of the High Court of judicial superintendence over the Tribunals, under the amended Article 227 stood obliterated. By way of the amendment in the sub-article, the words, "and Tribunals" stood deleted and the words "subject to its appellate jurisdiction" have been substituted after the words, "all courts". In other words, this amendment purports to take away the High Court's power of superintendence over Tribunals. Moreover, the High Court's power has been restricted to have judicial superintendence only over judgments of inferior courts, i.e. judgments in cases where against the same, appeal or revision lies with the High Court. A question does arise as regards whether the expression 'courts' as it appears in the amended Article 227, is confined only to the regular civil or criminal courts that have been constituted under the hierarchy of courts and whether all Tribunals have in fact been excluded from the purview of the High Court's superintendence. Undoubtedly, all courts are Tribunals but all Tribunals are not courts.
22. The High Court's power of judicial superintendence, even under the amended provisions of Article 227 is applicable, provided that two conditions are fulfilled; firstly, such Tribunal, body or authority must perform judicial functions of rendering definitive judgments having finality, which bind the parties in respect of their rights, in the exercise of the sovereign judicial power transferred to it by the State, and secondly such Tribunal, body or authority should be the subject to the High Court's appellate or revisional jurisdiction.
::: Downloaded on - 18/09/2018 23:02:20 :::HCHP 6223. In S.P. Sampath Kumar v. Union of India, AIR 1987 SC 346, this Court held that, in the Central Administrative Tribunal (hereinafter referred to as the 'CAT'), the presence of a judicial member was in fact a requirement of fair procedure of law, and that the administrative Tribunal must be presided .
over in such a manner, so as to inspire confidence in the minds of the people, to the effect that it is highly competent and an expert body, with judicial approach and objectivity and, thus, this Court held that the persons who preside over the CAT, which is intended to supplant the High Court must have adequate legal training and experience. This Court further observed that it was desirable that a high- powered committee, headed by a sitting Judge of the Supreme Court who has been nominated by the Chief Justice of India to be its Chairman, should select the persons who preside over the CAT, to ensure the selection of proper and competent people to the office of trust and help to build up its reputation and accountability. The Tribunal should consist of one Judicial Member and one Administrative Member on any Bench.
24. In L. Chandra Kumar v. Union of India & Ors., AIR 1997 SC 1125, this Court held that the power of judicial review of the High Court under Article 226 of the Constitution of India, being a basic feature of the Constitution cannot be excluded. In this context, the Court held:
"88....It must not be forgotten that what is permissible to be supplanted by another equally effective and efficacious institutional mechanism is the High Courts and not the judicial review itself......." The Court further observed that the creation of this Tribunal is founded on the premise that, specialised bodies comprising of both, well trained administrative members and those with judicial experience, would by virtue of their specialised knowledge, be better equipped to dispense speedy and efficient justice. The contention that the said Tribunal should consist only of a judicial member was rejected, and it was held that such a direction would attack the primary grounds of the theory, pursuant to which such Tribunals were constituted.
25. In V.K. Majotra & Ors. v. Union of India & Ors., AIR 2003 SC 3909, this Court reversed the judgment of the Allahabad High Court wherein, direction had been issued that the Vice-Chairman of the CAT could be only a retired Judge of the High Court, i.e., a Judicial Member and that such a post could not be held by a Member of the Administrative Service, observing that such a direction had put at naught/obliterated from the statute book, certain provisions without striking them down.
26. A Constitution Bench of this Court in Statesman (Private) Ltd. v. H.R. Deb & Ors., AIR 1968 SC 1495, examined the provisions of Sections 7(3)(d) and g(1) of the ::: Downloaded on - 18/09/2018 23:02:20 :::HCHP 63 Industrial Disputes Act, 1947, which contain the expression 'judicial office', and held that a person holds 'judicial office' if he is performing judicial functions. The scheme of Chapters V and VI of the Constitution deal with judicial office and judicial service. Judicial service means a separation of the judiciary .
from the executive in public services. The functions of the labour court are of great public importance and are quasi- judicial in nature, therefore, a man having experience of the civil side of the law is more suitable to preside over it, as compared to a person working on the criminal side. Persons employed performing multifarious duties and, in addition, performing some judicial functions, may not truly fulfil the requirement of the statute. Judicial office thus means, a fixed position for the performance of duties, which are primarily judicial in nature.
27. In Kumar Padma Prasad v. Union of India & Ors., (1992) 2 SCC 428, this Court held that the expression, `judicial office' in the generic sense, may include a wide variety of offices which are connected with the administration of justice in one way or another. The holder of a judicial office under Article 217(2)(a), means a person who exercises only judicial functions, determines cases inter- se parties and renders decisions in purely judicial capacity. He must belong to the judicial services disciplined to hold the dignity, integrity and independence of the judiciary. The Court held that `judicial office' means a subsisting office with a substantive position, which has an existence independence from its holder.
........
33. During the course of arguments before the High Court, learned Additional Advocate General had conceded that the judgments and orders passed by the Tribunal can be challenged under Article 227 of the Constitution. Thus, it has been conceded before the High Court that the High Court has supervisory control over the Tribunal, to the extent that it can revise and correct the judgments and orders passed by it. In such a fact-situation, the consultation/concurrence of the High Court, in the matter of making the appointment of the President of the Tribunal is required.
34. The object of consultation is to render the consultation meaningful to serve the intended purpose. It requires the meeting of minds between the parties involved in the process of consultation on the basis of material facts and points, to evolve a correct or at least satisfactory solution. If the power can be exercised only after consultation, consultation must be conscious, effective, meaningful and purposeful. It means that the party must disclose all the facts to other party for due deliberation. The consultee must express his opinion after full consideration of the matter upon the relevant facts and quintessence."
::: Downloaded on - 18/09/2018 23:02:20 :::HCHP 6431. The very object of Constitution of adjudicatory authorities under the Act in the scheme of administrative justice was to provide an additional and .
speedy forum of adjudication. It is, therefore, of utmost importance to ensure that these authorities work in a proper, effective and efficacious manner while exercising their powers to hear and dispose of quasi-judicial matters, which require some basic knowledge of law. While making decisions, such authorities must not lack judicious approach.
32. The adjudicatory authorities under the Act make decisions about fundamental issues, which affect the rights of the parties and are treated as final unless challenged. It is, therefore, very critical that these authorities make fair decisions and must possess some basic knowledge of law as they have a sacrosanct duty to administer justice.
33.The adjudicatory authorities are conferred with the discretion to adjudicate upon quasi-judicial matters and such discretion is governed by the maxim "discretio est discerner per lagan quid sit justum"
(discretion consists in knowing what is just in law). Discretion in general is the discernment of what is right and proper. It denotes knowledge and prudence that discernment which enables a person to judge critically of what is correct and proper, united with caution, to discern between falsity and truth, between shadow and substance, between equity and colourable glosses and pretences and not to do according to will and private affections or ill-will. It has to be done ::: Downloaded on - 18/09/2018 23:02:20 :::HCHP 65 according to rules of reasons and justice, not according to private opinion. It has to be done according to law and not humour. It is not be arbitrary, vague and .
fanciful but legal and regular.
34.Understandably, the State could come up with a defence that it does not have the requisite number of officers who are well equipped in the field of law or have legal training and legal acumen, however, that by itself cannot be an excuse for playing havoc with the valuable rights of the litigants.
35. Incidentally, this Court was faced with somewhat identical situation in Cr.MMO No. 277 of 2016, titled Pankaj Mahajan vs. State of Himachal Pradesh, decided on 26.4.2017, regarding the implementation of the Food Safety and Standards Act, 2006, wherein also the authorities were totally ill-equipped and lacked of basic knowledge of the provisions of the Act, constraining this Court to direct the authorities responsible for the enforcement of the Act to undergo training at the H.P. Judicial Academy.
36.As the position in the instant case is no better or different, therefore, the Secretary, Cooperative Societies to the State is directed to take up the issue of training with the Director, H.P. Judicial Academy and thereafter draw up a calendar for imparting regular training to the officers vested with the adjudicatory powers and authority under the Act. Let, a copy of this order be supplied to the Secretary, Cooperative Societies for the State and to the Director, H.P. Judicial Academy, for compliance.
::: Downloaded on - 18/09/2018 23:02:20 :::HCHP 6637. It is established that respondent No. 3 is not alone in the band-wagon amongst the authorities conferred with the adjudicatory powers who has exhibited lack of judicial .
approach and necessary expertise to effectively deal with the dispute coming before him and at the same time has been totally unconscious of the competing rights in order to decide the case justly and fairly and to pass the order which are legally sustainable. Therefore, in the given circumstances, it will neither be fair or even prudent to accede to the request of the petitioner to restrain respondent No. 3 from discharging quasi-judicial function. At the same time, the Secretary (Cooperative Societies) as also the Registrar of Cooperative Societies have to ensure that the judgment rendered by the Hon'ble Supreme Court in Satya Pal Anand case (supra), is complied with in its letter as also spirit."
40. It is on account of repeated misdemeanours of the executive in exercise of its quasi-judicial functions that the Courts have understandably expressed intolerance in the investiture of essential judicial functions in the executive. More so, when they tend to erode the rights of a citizen conferred under the Constitution or the laws.
41. In the significant orders of the Hon'ble Supreme Court in Ram Prasad Narayan Sahi and another versus The State of Bihar and others, AIR 1953 SC 215, it was held that "political party's desire cannot override the working of the legal system."
Other decisions where statutory provisions invading areas of quasi-
judicial and judicial process have been struck down are P. ::: Downloaded on - 18/09/2018 23:02:20 :::HCHP 67 Sambamurthy and others etc. etc. versus State of Andhra Pradesh and another, AIR 1987 SC 663 and B.B.Rajwanshi .
versus State of U.P. and others, AIR 1988 SC 1089.
42. Needless to say, when the statute under which an adjudicatory power is exercised by an untrained agency like the executive wing and when experience has shown a reckless way of handling such adjudicatory process and when it is demonstrated that such adjudications have adverse impact of an enormous proportion, the Court necessarily has to declare these acts as arbitrary and invalid.
43. At this stage, one may notice a recent judgment of the learned Division Bench of this Court in CWP No.981 of 2018, titled as, Mohan Mehta versus State of H.P. and others, decided on 10.08.2018, whereby while dealing with a matter under the Cooperative Societies Act, this Court has passed strictures against Capt. R.S. Rathore, Additional Registrar (Administration), Cooperative Societies, H.P. and the relevant observations read thus:-
"Without going into the question as to whether the Authority had jurisdiction to pass the impugned order dated 27 th 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-::: Downloaded on - 18/09/2018 23:02:21 :::HCHP 68
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.
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."
44. This Court would only hope and trust that the State Government would conduct regular training for its Officers, especially, those who are handling adjudicatory process, so that the blunder as committed by the Deputy Commissioner is not repeated in future. It has to be remembered that the decisions by untrained ::: Downloaded on - 18/09/2018 23:02:21 :::HCHP 69 adjudicators only add to the un-necessary pressure upon the Courts and consequently clog its dockets.
.
(Tarlok Singh Chauhan), 18 September, 2018.
th Judge.
(krt)
r to
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