Raj Kumari Kharbanda vs The State of Himachal Pradesh etc.

Chet Ram Thakur, J.—These are six petitions, which raise a common point for decision. In C.M.P. (M) 20/73, the facts are that Shri H.L. Kharbanda had taken the premises in question on lease from the Raja of Nabha. It appears that on the merger of Nabha State in PEPSU the property became the State property. Shri H.L. Kharbanda continued to be in occupation of the building. Thereafter the property passed on to the erstwhile State of Punjab and after the re-organisation of the State of Punjab the property came to be owned by the then Union territory of Himachal Pradesh, now the State of Himachal Pradesh.

Shri H.L. Kharbanda died somewhere in 1971. It is alleged that the present Petitioner had been paying rent to the Estate Officer and the Estate Officer had been accepting the same. Therefore, according to the Petitioner he had attorned the Petitioner as a tenant in the premises by acceptance of the rent. The Respondents, it is alleged, initiated eviction proceedings under the provisions of the Himachal Pradesh Public Premises and Land (Eviction and Rent Recovery) Act, 1971 (hereinafter called the Act). The Petitioner raised several objections before the Estate Officer (Respondent No. 2), who took cognizance of the proceedings as a Collector under the Act. One of the objections was that he had no jurisdiction to try the case against her. However, Respondent No. 2 framed a preliminary issue on the point of jurisdiction. The Collector, i.e. Respondent No. 2 decided the issue of jurisdiction against the Petitioner. The point giving rise to the issue of jurisdiction was that Respondent No. 2 could not be a judge in the cause because the Petitioner wanted to examine him as a witness in the case.

In other cases, there is no dispute that the Petitioners were first inducted as tenants and they had been paying rent but later on proceedings under the Act for their eviction were also taken and they also raised the same point of jurisdiction contending that they wanted to examine Shri P.N. Nehru as a witness in the case and, therefore, he had no jurisdiction to try the case. Therefore, the point that arises for consideration is whether a person who is a witness can be a judge in the cause.

Learned Counsel for the Petitioner has contended that Shri P.N. Nehru was a material witness in the case and that it had been admitted by Shri Chauhan, who had appeared as a witness on behalf of the department that Shri Nehru issued notices of eviction to the Petitioners and he had also been accepting rent from the Petitioners including Smt. Raj Kumari in C.M.P. (M) 20/73. Shri Nehru had also issued receipts to all the Petitioners. But, according to them, their status had been changed from that of tenants to that of licencees by showing the rent received by him as licence fee and, therefore, they say that Shri Nehru was a material witness whom they wanted to examine as to under what authority he had issued these receipts of rent as licence fee and also to show that they had been in occupation of the buildings and that he had been accepting the rent. Therefore, they say that Shri Nehru could not sit as a judge in the cause. Reliance is placed by the learned Counsel on a number of authorities.

The first authority is Manak Lal Vs. Dr. Prem Chand, where the Appellant was an Advocate practising at Sojat in Rajasthan. A complaint was filed against him u/s 13 of the Legal Practitioners Act by Respondent No. 1 alleging that he was guilty of professional misconduct and requested that suitable action be taken against him. The complaint was sent for enquiry to the Tribunal nominated by the Chief Justice of the High Court of Rajasthan u/s 10(2) of the Bar Councils Act. The Tribunal held the Appellant guilty of professional misconduct in having got a false stay order written by the Clerk by improper means and thereby he managed to take illegal and undue advantage for his client and he, therefore, deserved to be punished for the same. The report was submitted to the High Court which ordered the removal of the Appellant from practice. The Appellant challenged that order. It was contended on behalf of the Appellant that the Tribunal appointed by the Chief Justice of the High Court of Rajasthan to enquire into the alleged misconduct of the Appellant was improperly constituted and all proceedings taken before the Tribunal including the report to the High Court were all invalid. The Tribunal consisted of three members with Shri Chhangani as its Chairman. It was a common ground that Shri Chhangani had filed his vakalatnama on behalf of Respondent No. 1 in proceedings u/s 145 of the Code of Criminal Procedure on 23rd August, 1952, in which case the Appellant was also a counsel for the opposite party before the lower courts. It was contended on behalf of the Appellant that since Shri Chhangani had appeared in criminal proceedings in question for the opponent he was disqualified for acting as member of the Tribunal and this disqualification introduces a fatal infirmity in the constitution of the Tribunal itself. This contention was upheld and it was laid down:

It is well settled that every member of a tribunal that is called upon to try issues in judicial or quasi-judicial proceedings must be able to act judicially; and it is of the essence of judicial decisions and judicial administration that judges should be able to act impartially, objectively and without any bias. In such cases the test is not whether in fact a bias has affected the judgment; the test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of the tribunal might have operated against him in the final decision of the tribunal. It is in this sense that it is often said that justice must not only be done but must also appear to be done.

Reference was also made in this authority to Frame United Breweries Co. v. Bath Justices (1926) App. Cas 586 (A) wherein it had been held:

This rule has been asserted, not only in the case of Courts of Justice and other judicial tribunals, but in the case of authorities which, though in no sense to be called Courts have to act as judges of the rights of others.

It has further been held by their Lordships of the Supreme Court:

Pecuniary interest however small it may.be in a subject-matter of the proceedings, would wholly disqualify a member from acting as a judge. But where pecuniary interest is not attributed but instead a bias is suggested, it often becomes necessary to consider whether there is a reasonable ground for assuming the possibility of a bias and whether it is likely to produced in the minds of the litigant or the public at large a reasonable doubt about the fairness of the administration of justice. "The principle", says Halsbury, nemo debt esse judex in causa propria sua precludes a justice, who is interested in the subject-matter of a dispute, from acting as a justice therein.

Further, it has been observed:

This principle applies not only to the Justices as mentioned by Halsbury but to all tribunals and bodies which are given jurisdiction to determine judicially the rights of the parties.

The second authority is Srikant Upadhya and Anr. v. Union of India and Ors. AIR 1963 Patna 38. This authority is not applicable because it says that where the members of a departmental enquiry committee, appointed to enquire into the allegations of misconduct against certain railway employees of loco-shed in connection with the stoppage of work on a particular day after the arrest of some employees who were caught by the railway police while they were engaged in removing brass bearings from the railways wagons, were senior railway officers of wide experience, mere participation of one of the members in the earlier fact-finding enquiry committee, concerned generally with the incident culminating in the strike by the loco-staff, will not legally disqualify him to sit on the departmental enquiry against the Petitioners, especially when there is neither allegations nor any proof, that he was actuated by personal malice or bias against them.

The third authority is State of U.P. v. Mohammad Nooh AIR 1958 S.C. 86, wherein it was held that wherein a departmental "trial" against a police constable, before a Deputy Superintendent of Police, to contradict the testimony of a prosecution witness, the Deputy Superintendent of Police who conducted the enquiry, himself gave a testimony, there is a grievous violation of natural justice. The act of Presiding Officer in having his own testimony recorded in the case indubitably evidences a state of mind which clearly discloses considerable bias against the constable. It is shocking to the notions of judicial propriety and fair play.

In so far as The High Court, The High Court, Calcutta Vs. Amal Kumar Roy, is concerned the same has got no relevancy to the point under consideration.

On the contrary the learned Advocate General contends that the principle that no witness can be a judge nor a judge a witness in a cause does not apply to the facts of the present cases. According to him, whosoever acts judicially has inherent power to prevent the abuse of process of the Court. He has also contended that merely because the Petitioners had raised an objection that they wanted to produce Shri Nehru as a witness is not sufficient to hold that Shri Nehru should not proceed with the case because, according to him, Shri Nehru was not a material witness. Even though he had been receiving rents he had no authority to create tenancy in favour of any of the Petitioners because under Article 299 of the Constitution no person, unless he was empowered in that behalf to enter into a contract on behalf of the President or the Governor, can bind the Government and muchless Shri Nehru could create tenancy on behalf of the Government in the absence of any authority given to him in that behalf. He has also referred to some authorities to show that no contract or agreement can be entered into on behalf of the President or the Governor by any person unless he is empowered in that behalf. There can be no dispute that no contract or agreement can be entered into by any person not authorised in that behalf so as to bind the Government and any such contract entered into by an unauthorised person cannot operate as an estoppel against the Government.

In so far as the other point is concerned that the Court has got inherent power to prevent the abuse of process of the Court it may be observed that nowhere does the record show that the objection of the Petitioners has been regarded by Respondent No. 2 as an abuse of the judicial process.

The further point is that merely because the Petitioners have raised this objection that they wanted to produce Shri Nehru as their witness in the cases is not sufficient to hold that Shri Nehru cannot proceed with the cases unless the Petitioners proved that Shri Nehru was a material witness for the purposes of the cases. In my opinion, this submission is also not correct. It is for the Petitioners to decide as to how Shri Nehru is material witness. The court cannot enter into the mental process of the Petitioners as to what they actually want Shri Nehru to depose. However, what I have been able to find out from the record is that they want to produce Shri Nehru to state as to whether he had the authority to receive the rents or to create any tenancy on behalf of Respondent No. 1 and further by what authority he had converted the status of the Petitioners from tenants to licencees. It of course cannot be disputed that Shri Nehru cannot create any tenancy in the Government premises unless he is specially authorised in that behalf as envisaged under Article 299 of the Constitution. But to elicit all these matters it is necessary for the Petitioners to examine Shri Nehru as to how he exercised authority and it is on that account I find that Shri Nehru is a material witness.

Learned Advocate General has invoked the ''doctrine of necessity''. Further he has argued that on the analogy of Section 556 of the Code of Criminal Procedure the Estate Officer, viz., Shri Nehru could try the cause. The ''doctrine of necessity'' does not apply in the present case inasmuch as there is the Collector of the District, who can take cognizance of the case and proceed with the matter because u/s 2(A) of the Act, Collector means the Collector of the District and includes any other officer appointed by the State Government for performing the functions under this Act. Therefore, the Deputy Commissioner, who is the Collector can take cognizance of the proceedings and there is no question of invoking any ''doctrine of necessity''. It can be invoked only in case there is no other Collector excepting Respondent No. 2. He is a Collector, who is specially appointed by the State Government for performing the functions of the Collector under this Act whereas there is the Collector of the District who is also authorised to take proceedings under the Act. Section 556 of the Code of Criminal Procedure says that no Judge or Magistrate shall, except with the permission of the court to which an appeal lies from his court, try or commit for trial any case in which he is a party, or personally interested, and no Judge or Magistrate shall hear an appeal from any judgment or order passed or made by himself. There is an explanation added to this section which says that a Judge or Magistrate shall not be deemed to be a party or personally interested, within the meaning of this section, by reason only that he is a Municipal Commissioner or otherwise concerned therein in a public capacity, or by reason only that he has viewed the place in which an offence is alleged to have been committed, or any other place in which any other transaction material to the case is alleged to have occurred, and made an inquiry in connection with the case. This is a special provision made in the Act. It does not say that if the Magistrate has in any way acted in the case which he is going to try then also he cannot be said to be a party or person interested within the meaning of that section. This section disqualifies a judge when he has got any interest in the case. Therefore, the learned Advocate General cannot draw any support from this section.

He has also tried to draw support from Rameshwar Bhartia Vs. The State of Assam, But this authority does not assist him because in that case the Magistrate who had held the trial had granted sanction for prosecution and, it was held that sanction for prosecution does not stand on the same footing as a direction for prosecution. In both cases of sanction and direction, an application of the mind is necessary, but there is this essential difference that in the one case there is a legal impediment to the prosecution if there be no sanction, and in the other case, there is a positive order that the prosecution should be launched. For a sanction, all that is necessary for one to be satisfied about is the existence of a prima facie case. In the case of a direction a furter element that the accused deserves to be prosecuted is involved. The fulfilment of a technical requirement imposed by a statute may not, in many cases, amount to a mental satisfaction of the truth of the facts placed before the officer. Whether sanction should be granted or not may conceivably depend upon considerations extraneous to the merits of the case. But where a prosecution is directed, it means that the authority who gives the direction is satisfied, in his own mind that the case must be initiated. Sanction is in the nature of a permission, while a direction is in the nature of a command.

It had also been argued by the learned Counsel for the Petitioners on the basis of Section 116 of the Transfer of Property Act that after the termination of the period of tenancy the Petitioners had been holding over and on acceptance of the rent by the Respondent thereafter a fresh tenancy had been created. This is a point which is to be decided on merits but presently we are concerned only with the question whether Shri Nehru is a material witness and whether he should be a Judge in the cause or not.

There is nothing to show that Respondent No. 2 who is trying the cases is in any way interested, but the thing is that the Petitioners contend that they want to produce and examine Shri Nehru as their own witness in the case. The circumstances that they have disclosed show that Shri Nehru is a material witness in the case. Therefore, in these circumstances, I am of the view that Respondent No. 2, i.e. the Estate Officer should not proceed with the trial of the case.

In the light of the above, the petitions deserve to be accepted and which I accordingly do. However I leave the parties to bear their own costs.

R.S. Pathak, C.J.

I agree.