State of Andhra Now Andhra Pradesh vs Tavvineni Gangappa and another

Mohammed Ahmed Ansari, J.—This Letters Patent appeal is against the judgment of Umamaheswaram, J., vacating a writ of certiorari the order of the Government of Andhra Pradesh in Memorandum 98745-F-52/3 dated 18-3-1953.

The petition for the aforesaid writ allege that ever since 1949 the petitioner has been Sivayijama occupation of Ac. 11/81 of assess waste land in Manila village, Anantapur District, bearing S. No. 40/2-B; that he applied the revenue authorities for the assignment the said land; that the Tahsildar of Anantpur granted patta of the land to the second respondent, whereupon the petitioner preferred an appeal to the Revenue Divisional Officer Anantapur, who cancelled the patta in favour of the second respondent, but refused to assign the land on patta to the petitioner that an appeal against the order was filed before the Collector, who ordered assignment in favour of the second respondent; that a revision against the order was filed before the Board of Revenue, which was accepted; assignment in favour of the second respondent was cancelled and assignment of the land to the petitioner was ordered; that the Board further directed the Tahsildar to issue ''D'' Form in the petitioner''s name and the assignment fee was paid on September 5, 1952. The petition further states that on the second respondent having moved the Government the order of March 18, 1953, was passed, which says that the Government were not convinced about the bona fides of the second respondent, and it further without any notice to the petitioner, set aside the order of the Board of Revenue, observing about the petitioner being old and not being likely (sic) engage himself in direct cultivation. On the aforesaid facts, the petitioner asks for the writ to vacate the Government''s order.

The learned Judge has held that three questions have arisen for decision in the case: the first being whether the Government is entitled to set aside the order of the Board of Revenue the next whether the order of the Government was vitiated by omission to issue notice to the petitioner; and the third whether the order of the Government was purely administrative and not liable to be quashed under Art. 226 of the Constitution. His decision on the first question after considering the various paragraphs of the Darkhast Rules is hat the Government is not authorised to interfere with the orders passed by the Board of Revenue. He then held that the third question should be dealt first, because the second question would arise for consideration only if he jurisdiction, in whose exercise the impugned order was passed by the Government be found not to be administrative, but quasi-judicial. The decision of the learned Judge on the third question is that the several paragraphs of the Rules abundantly make it clear that the owners exercised by the several officers are either judicial or quasi-judicial, and that the Revenue authorities assigning the Government (sic)nds under the Darkhast Rules, exercise powers similar to the transport authorities granting permission under the Motor Vehicles Act. Having answered the questions in the above form, the learned Judge has consequently found that the Government had erred in not, (sic)ving notice to the petitioner, the order was (sic)ad, and should be quashed under Art. 226 of the Constitution.

The first ground pressed before us for lowing the appeal is that the party aggrieved by the order of the Government has an adequate and equally efficacious remedy by way suit and the writ petition should not have been allowed in the circumstances. In support of this argument the learned Government leader relies on the Secretary of State for India in Council v. Kasturi Reddy, ILR 26 Mad 263 (A), wherein it was held that Civil Courts have jurisdiction to determine whether a grant of land allege to have been made by an officer on behalf of the Crown is binding on the Crown and the mere fact that the alleged grant purports to have been made under the Darkhast Rules does not affect that jurisdiction. The aforesaid case has also been referred to by the learned Judge but for the different proposition of the exercise of the powers under the Rules not being subject to control other than those specifically provided by the Rules. It is true that the Courts are reluctant to interfere by certiorari, where an alternative remedy exists. But it is equally true that the existence of such a remedy does not oust the jurisdiction of the Court to issue the writ in appropriate cases. It is a matter of discretion whether any particular case is fit for granting the relief or relegating the party to his ordinary remedy of suit. It follows that where a learned Judge in exercise of his discretion issues a writ under Art. 226, the decision should not be interfered with unless the appellate Court is clearly satisfied about the exercise of discretion being erroneous or improper. In this connection we need refer to Deputy Commercial Tax Officer, Triplicane Division, Mount Road, Madras and Another Vs. Cosmopolitan Club, . In the case the Cosmopolitan Club, Madras, had been charged with tax under S. 3 of the Madras General Sales Tax Act, and the Secretary of the Club wrote to the Government requesting exemption of sales of refreshments by the Club to its members from liability to pay the tax. The Government negatived the request, whereupon the Club filed two petitions in the High Court asking for writs of mandamus and certiorari. Mack, J., who heard the petitions held that supply of refreshments by the Club to its members did not constitute a sale within the meaning of the Act, and accordingly he allowed the writ of mandamus. Because mandamus was allowed, he dismissed the application for a writ of certiorari. In the Letters Patent appeal Balakrishna Aiyar, J., observed at p. 1149:

''The correct position appears to be this: where there is an alternative remedy and that remedy is adequate, this Court will ordinarily be very reluctant to interfere by the issue of a writ. The existence of such a remedy does not however deprive this Court of its jurisdiction to act. The existence of an adequate alternative remedy would be a strong dissuading factor; nevertheless if after taking into account all the relevant circumstances this Court reaches the conclusion that the case is an appropriate one in which the writ should go it has got authority to issue the writ.

Later the learned Judge says:

Finally, there is the fact that the discretion which inheres in this Court has been exercised in a particular manner by the learned Judge from whose decision this appeal has been preferred; and, before we interfere in such a matter we would have to be clearly satisfied that the exercise of the discretion was clearly erroneous or improper.

Therefore, the important issue arising in this Letters Patent appeal is whether the decisions of our learned brother, Umamaheswaram, J., on the three questions referred to earlier in the judgment are incorrect so as to vitiate the exercise of his discretion in the case.

We would deal with the last question first, which is by far the most important issue in the appeal. It has been urged before the learned Judge and the argument has been repeated before us that the lands having vested in the Government, the Rules framed for granting such lands must necessarily be of administrative nature, and orders passed in exercise of the powers thus conferred cannot be quasi-judicial. There is, however, the case of Wilson v. Esquimalt and Nanaimo Ry. Co., (1922) 1 AC 202: AIR 1921 PC 234 (C), that where the Lieutenant-Governor of a Province has authority by a statute to issue grants upon ''reasonable proof'' of certain facts, his function is judicial, but he is not bound to follow the rules regulating proceedings in a Court of justice, and if there is before Him some proof of the necessary facts, it is within his discretion to determine that there is ''reasonable proof''. Mr. Justice Duff delivering the judgment of the Privy Council observes at pp. 211 and 212 (of AC): (at p. 288 of AIR):

The statute of 1904 no doubt requires that before the authority to issue a Crown grant under S. 3 is acted upon the Lieutenant Governor in Council Shall decide the question whether or not there is ''reasonable proof'' of ''improvement'' or ''occupation'' and of intention to reside; and their Lordships consider that the function of the Lieutenant-Governor in Council in deciding upon such questions is judicial in the sense that he must; to adapt the language of Lord Moulton

''preserve a judicial temper'' and perform his duties ''conscientiously with a proper feeling of responsibility'' in view of the fact that a decision in favour of the applicant must result in the transfer to the Applicant of property to which, but for the statute and but for the production of the necessary proof, the respondent company (or its successors-in-title) would have possessed an unassailable right; and it may be assumed for the purposes of this appeal that a grant issued 1n consequence of a decision arrived at through proceedings wanting in these characteristics would be impeachable by the respondent company (or its successors), as issued without authority or in abuse of the authority which the statute creates.

The distinction between the judicial and administrative functions has also been drawn by May, C.J., in Regina v. Dublin Corporation, (1878) 2 LR Ir 371 at p. 376 (D):

In this connection the term ''judicial'' does not necessarily mean acts of a Judge or legal tribunal sitting for the determination of matters of law, but for the purposes of the question a judicial act seems to be an act done by competent authority upon consideration of facts and circumstances and imposing liability or affecting the rights of others.

Lord Justice Slesser in King v. London County Council, 1931-2 KB 215 at p. 243 (E), separates the four conditions and lays down that wherever any body of persons having legal authority to determine questions affecting rights of subjects and having the duty to act judicially act in excess of their legal authority, a writ of certiorari may issue. The test according to Kania, C. J., in Province of Bombay Vs. Kusaldas S. Advani and Others, is that when the law under which the Cour is making a decision itself requires a judicial approach, the decision will be quasi-judicial and Patanjali Sastri, J., agreed with him. Das, J. observes at p. 506 (of SCJ): (at p. 260 of AIR):

In other words, while the presence of two parties besides the deciding authority, prima facie in the absence of any other factor, imposes upon the authority the duty to act judicially the absence of two such parties is not decisive in taking the act of the authority out of the category of quasi-judipial act, if the authority is nevertheless required by statute to act judicially.

Therefore, it becomes necessary to as certain whether the several Darkhast Rules require of the officers when deciding the applications to preserve a judicial temper. Paragraph 4 and 5 deal with the form of the application for assessed lands and to whom they should be made. Paragraph 6 requires reports by the village officers on the applications and prescribes the procedure to be followed by sue officers when reporting. Paragraph 9 say that if there be only one applicant the land should be granted to him on his complying with certain conditions, and where there is more than one application, the Tahsildar should decide which of them is entitled to preference Paragraph 10 particularly requires decision between residents of revenue village on principles of equity, and continues to provide:

A preferential claim shall be recognise in the case of a person who has occupied the land under Sivayijama and has expended a material amount of labour or money in clearing the land of weeds, scrub or prickly-pear otherwise fitting it for cultivation or improving it and also in the case of a person w(sic) holds trees on the land under the tree-tax system or who has been using the water of a w(sic) in the land for cultivation. Such a person should, if there is no other objection, be give the option of taking it subject to the conditions of a ryotwari grant.

The procedure for hearing appeals in para particularly mentions that no order should reversed without giving notice of the appeal to the respondent. The power of revision conferred by para. 18 on the Collector and the Board of Revenue. Under the aforesaid pa(sic) the Collector within three years of the original or appellate decision, if satisfied about a material irregularity of procedure in it about the decision being grossly inequitable passed under a mistake of fact or owing fraud or misrepresentation, may set aside the (sic)decrsion if it be by an officer subordinate to him. The Revenue Board has similar powers over decisions of officers subordinate to it. Therefore the form in which the applications (sic)re to be made, the requirement of observing principles of equity in making decisions, the hierarchy of several officers who are to hear the appeals and finally the exercise of the revising lowers in the circumstances already mentioned, clearly indicate that officers in the words of Lord Moulton in Local Govt. Board v. Arldge, 1915 AC 120 at p. 150 (G), are to perform their duties ''conscientiously with a proper feeling of responsibility'' and the decisions (sic) exercise of powers under the Rules are judical. That grant of lands to persons on satisfaction of certain conditions amount to discharge of judicial function, can hardly be doubted in view of 1922-1 AC 202: (AIR 1921 C 234) (C), and the decision of our learned brother, Umamaheswaram, J., on the third question is, therefore, correct.

The next question with which we will (sic)ow deal, is whether the action of the Government in the case is without jurisdiction. Admittedly, the Rules do not expressly provide revisory powers for the Government, and the case of ILR 26 Mad 268 (A), expressly decides at a grant in absence of circumstances vitiating contract made under the Rules, is neither subject to any other control, nor can be annulled even by the Governor in Council. The aforesaid authority, therefore, excludes any residuary power in the Government for revising decisions on account of its being the last owner of the land. Moreover, the observation in the Full Bench in Nagarathnammal v. Ibrahim Saheb, 68 Mad LW 206: AIR 1955 Mad 5 (FB) (H) is decisively against such power Balakrishna Aiyar, J., at p. 216 (of Mad V): (at p. 312 of AIR) observes:

But even with reference to matters not governed by statutory provisions or (sic)es but governed only by the standing orders the Board of Revenue, the passage we have (sic)tracted above is liable to be misunderstood (sic) are unable to subscribe to the view that (sic)ere a rule already exists and provides for (sic)y specific matter, still when an individual (sic)e comes up before the Board, it is open to the Board, notwithstanding the existence of that rule, to decide that case in any manner it thinks fit, even in contravention of the exists(sic) rule. In other words, the Board cannot (sic)ore the existing rule by treating the order (sic)de in that particular case as an amendment the rule. That the Government or the Board (sic) the power to amend the rule should make difference; both are bound to dispose of the matters that come up before them in accordance with the rules at the time in force on subject

......what we have said about Board also applies to the Government.

It cannot be said that because the case ore the Full Bench was concerning statutory (sic)es, the observation is obiter, which should be followed. The insistence on following the existing rules is based on preserving the difference between legislative and judicial functions. It is also based on avoiding the charges of arbitrariness. There are, therefore cogent reasons behind the observation, on which also the insistence on following statutory rules is based. It follows that because the Rules vest no revisory jurisdiction the impugned order has been passed arbitrarily and without jurisdiction. Therefore, the judgment of our learned brother, Umamaheswaram, J., on the first question is correct. The decision of the learned Judge on the second question is equally correct. Once the function of the tribunal is found to be judicial under the Rules, it follows that they must observe the principle of audi alteram partem, i.e., nobody shall be condemned unheard. We find particular application of the principle in para. 9 of the Rules where notice is required in deciding question of preference. Similarly para. 17 requires notice to respondent in reversing orders in appeal. Finally Lord Selborne''s opinion in Spackman v. Plumstead Board of Works, (1865) 10 AC 229 (I) may be referred to:

No doubt, in the absence of special provisions as to how the person who is to decide is to proceed, the law will imply no more than that the substantial requirements of justice shall not be violated. He is not a Judge in the proper sense of the word; but he must give the parties an opportunity of being heard before him and stating their case and their view.

No such opportunity was afforded to the writ-petitioner before the Government passed the impugned order and the order is consequently vitiated by the failure. The result is that the three conclusions of the learned Judge in the writ application are correct, and the appeal must be dismissed with costs of the 1st respondent, which is fixed at Rs. 100.