Bisheshwar Prasad Singh, J.
1. The petitioner herein has impugned the two notification both dated 17th May, 1995, whereby the Bihar State Hindu Regligious Trust Board as earlier constituted has been dissolved, and respondent No. 7 to 11 have been appointed as the members of the new Board, with respondent No. 7 as its President. They are Annexures-5 and 8 respectively.
2. The facts, in so far as they are relevant for the disposal of this writ petition, are not in dispute. The Bihar Hindu Religious Trust Board is a creature of the Bihar Hindu Religious Trusts Act, 1950 (hereinafter referred to as 'the Act') Under the Act, 1950 the Board with a President was envisaged as an elected body. The last such elected Board continued in office till functions of the Board were thereafter being carried on by Special Officers appointed by the State Government from time to time. This was challenged before this Court in a writ petition. This Court directed the State Government to reconstitute the Board within a specified period. Ultimately an Ordinance was promulgated, which was later enacted as an Amendment Act, being Act 21 of 1992, bringing about significant amendment to Section 8 of the Parent Act. By reason of the said amendment the constitution of the Board was changed from an elected to a nominated body with powers vested in the State Government to nominate both, the members and the President 'of the Board.
Ultimately, the State Government constituted the Board and nominated all seven members including the petitioner. The petitioner was further appointed the President of the Board by notification dated 30th December, 1992, published in-the Bihar Gazette on 4th January, 1994. In accordance with the provisions of the Act, the members of the Board were to continue in office for a term of five years with effect from the date of publication of their names in the official gazette. The petitioner, therefore, claims that the Board was to continue till 3rd January, 1993, and thereafter till the date of first meeting of the next succeeding Board.. The grievance of the petitioner is that though the Board was performing its functions and duties with full zeal and vigour, and had several achievements to its credit, there were certain inherent defects in the Act as also in the administrative set up, which created hinderances in the achievement of all the objectives within the desired period.
The Board consistently was in the grip of financial crisis, particularly on account of the enhancement of expenditure consequent upon the acceptance of the 5th Pay Revision Committee's recommendations. It is not necessary to refer to other averments in the writ petition which deal with various problems faced by the Board in its functioning. The petitioner refers to various events, and it his case that despite his sastisfactory performance as the President of the Board, respondent Nos. 3 to 6 herein were annoyed with the petitioner for political reasons and on account of the intraparty bickerings, the petitioner became a victim of political vendatta of these persons. We do not. consider it necessary to refer to various allegations made in this regard, but we may only notice the fact that respondent No. 3 happens to be the Chief Minister of the State, respondent No. 4 the Law Minister and respondent Nos. 5 and 6 are important political figures. The petitioner was surprised to find that all of a sudden the State Government issued the two impugned notifications. The first notification is contained in Memo No. 1341 dated 17th May, 1995, by which the Board has been dissolved on the ground that the Board had committed persistent defaults in performance of its duties, and abused its power. This notification has been annexed as Annexure-5. By the second notification of the same date bearing Memo No. 1342, consequential in nature, the Government has appointed a new Board consisting of five persons with respondent No. 7 as its President, which is Annexure-8.
3. It is not necessary at this stage to refer to the numerous ground on which these notifications have been challenged but we may only notice the three important grounds which have been pressed before us in support of the writ petition. It was firstly contended that the issuance of the notifications was a malafide exercise of statutory power by respondent Nos. 3 to 6, which includes the Chief Minister and the Law Minister. Secondly, it was contended that before dissolving the Board, the Board was not afforded an opportunity of explaining its case to the Government. Thirdly, it was submitted that the notification (Annexure-5) has been issued in breach of the statutory requirement of Section 80 of the Act, which requires the notification to state the reasons for the action taken by the Government.
4. The relevant part of the said notification translated from vernacula reads as follows:
Whereas in the opinion of the State Government, the present Bihar State Board of Religious Trust, which was constituted by Notification No. S.O.L dated 4th January, 1994, has committed persistent default and abused its powers in performance of duties imposed on it by and under the Bihar Hindu Religious Trust Act, 1950 (Bihar Act 11 of 1951).
And whereas the aforesaid Board has failed to comply with the provisions of Clauses (1) and (m) of Sub-section (2) of Section 28 of the said Act.
And whereas the Board has been guilty of committing continuous and grave financial irregularity.
And whereas there has been continuous decrease in the income and uprecendented increase in expenditure of the Board due to mismanagement by the aforesaid Board, on account of which the financial condition of the Board has become precarious.
And whereas the aforesaid Board has also even otherwise abused its powers, which have proved to be detrimental to proper administration of religious trusts in the State.
Now, therefore, the Government of Bihar in exercise of the powers conferred by Clause (a) of Sub-section (1) of Section 80 of the said Act is pleased to declare that the Board is guilty of default and has also abused its powers and therefore it is directed that the Board would stand dissolved from the date of this notification.
5. A counter-affidavit has been filed on behalf of respondent Nos. 1, 2, 3,
4 and 11 in which the plea taken up by the aforesaid respondents is that having regard to the provisions of the Act, there was no need to give notice to the Board and clearly there was no requirement of hearing the Board before an order superseding or dissolving the Board was passed. It is submitted that there in no such express provision in the Act. The application of the principles of natural justice are excluded, because the provisions of the Act bring about the clear intendment of the legislature to exclude the application of principles of natural justice. The only requirement of the law is that reason must be stated in the notification. It is further averred that a right of hearing is conferred only upon individual members of the Board in case any one or some of them are sought to be removed. Reference is made to Section 14 of the Act which provides for such opportunity being given to members of the Board who are sought to be removed. It is, therefore argued that there is conscious exclusion by the legislature of the application of the principles of natural justice while issuing a notification dissolving or superseding the Board. It is submitted that the State has bona fide exercised the power vested in it by law.
6. The counter-affidavit also avers facts in rebuttal of the assertions made in the writ petition on the merit of the order of supersession. In the counter-affidavit it is stated that the earlier Board with the petitioners as the President was constituted by notification dated 31st February 1993, and it was noticed that annual income of the Board stated decreasing from the year 1991-92 to 1993-94 which was indicative of mismanagement by the Board. Other
allegations made in the writ petition have also been denied, and it has been argued that the Board was to blame for the unfortunate situation created by it. So far as the Government was concerned it was not at fault. It is further denied that the action was the result of political vendatta of respondent Nos. 3 to 6. It has been urged that the annual report, which is required to be submitted each year, had not been submitted by the Board. It is not necessary to refer to other averments made in the writ petition and the counter-affidavit, because we do not consider it necessary to consider those matters.
7. Apart from the common counter-affidavit filed by some of the respondents, respondent Nos. 3 ands 4 have also filed separate counter-affidavits denying the allegations made against them. They have denied the fact that they have exercised power mala fide and on account of political considerations.
8. In the rejoinder filed on behalf of the petitioner the case in the writ petition has been reiterated, and it is not necessary to refer to the rejoinder any further.
9. We may only indicate that initially this writ petition was placed for hearing before a learned single Judge of this Court. It was brought to the notice of the learned Judge that the very provision of the Act, namely, Section 80 thereof, was considered by a Division Bench of this Court in Mahanth Sukhdeo Giri v. Kapildeo Singh 1969 B.L.J.R. 1058. It was held in that case that Section 80 of the Act did not require compliance with the principles of natural justice. However, a submission was urged before the learned Judge that in view of the judgment of the Supreme Court in S.L. Kappor v. Jagmohan : [1981]1SCR746 . the matter required reconsiderations. That is why this matter has been placed for hearing before a Division Bench.
10. In severa1 paragraphs following paragraph No. 20 of the writ petition, the petitioner has alleged that the action of the State Government is the result of political vendatta of respondent Nos. 3 to 6. Various matters have been referred to in the aforesaid paragraphs. It has been submitted that the petitioner had opposed the fielding of respondent No. 5 as Janta Dal candidate from Madhepur Parliamentary Constituency. However, the aforesaid respondent No. 5 was given the party ticket of Janta Dal and eventually was elected from Madhepur Parliamentary Constituency. Thereafter, they started working for his elimination from politics as also removal from the public office held by him. Respondent No. 4, the present Law Minister, took a leading role in the matter and was instrumental in bringing things against the petitioner and in putting pressure on the Chief Minister, respondent No. 3. The Chief Minister initially did not succumb to the pressure and there was a statement till March 1994, but thereafter in view of a report submitted by the petitioner in his capacity as member of the Legislative Assembly, and convener of the Sub-Committee, to enquire into the affairs of Bihar Sunni Wakf Board, some displeasure was caused to the Chief Minister, as also persons, who were associated with the affairs of the Wakf Board, including respondent No. 6, who was earlier a Minister in the Cabinet. Moreover, certain statements made by respondent No. 6, came to the notice of the Bihar Vidhan Sabha, and a privilege motion was admitted against him, and the matter was referred to the privilege committee for enquiry. The petitioner was summoned by respondent No. 3, the Chief Minister, as the Irrigation Guest House, in the month of May 1994, and was asked to withdraw the privilege proceeding against respondent No. 6. The petitioner informed the Chief Minister that he was completely helpless in the matter, as the proceeding was being conducted by the privilege committee of the Bihar Vidhan Sabha. It was on account of such events that the petitioner incurred the wrath of the Chief Minister and important political figures, and in retaliation and out of the vengeance the Hindu Religious Trust Board of which the petitioner was the President, was dissoloved.
11. Other similar allegations have been made in the writ petition and most of the matters referred to are matters relating to the political aspirations of the petitioner, and the attitude of other influential members of the party, who were opposed to him. On the basis of such facts it has been alleged that the action of the State. Government superseding the Board, was mala fide actuated by political vendatta.
12. In his separate counter-affidavit respondent No. 3 has denied to have acted on account of political vendatta. In fact, he has denied all the allegations made against him, and he has stated that the Government acted in accordance with law, and not on any extraneous consideration. Similarly, respondent No. 4 has also denied the allegations made against him. We have perused the averments in the writ petition and the denial by respondent Nos. 3 and 4, and we are satisfied that in view of the denial, the charge of mala fide cannot be sustained. There is no other cogent material on record to sustain the allegation of mala fide made against respondent Nos. 3 to 6. We are, therefore, satisfied that the plea based on mala fide must be rejected.
13. The next question that arises for consideration is whether the impugned notification (Annexure-5) is invalid, because the same has been issued without affording to the petitioner or the Board opportunity of being heard in the matter.
14. Section 80 of the Act is relevant and it provides as follows:
80. Power of the State Government to dissolve or supersede the Board.-(1) If in the opinion of the State Government, the Board persistently makes default in the performance of the duties imposed on it by or under this Act or exceeds or abuses its powers, the State Government may, by notification, specifying the reason for so doing, declare the Board to be in default or to have exceeded or abused its powers, as the case may be ; and
(a) that on date to be specified in the notification the officer of the members of the Board shall be deemed to be vacated and require a fresh election to be held on or before the said date, or
(b) directed that the Board shall be superseded for such period as may be specified in the notification.
(2) The members of the Board who vacate office by reason of a declaration made under Sub-section (1) shall not, unless the State Government otherwise direct, be deemed disqualified for re-elected or re-appointment.
Sections 28 to 39 of the Act enumerate the powers and duties of the Board. Form the aforesaid sections it appears that the general superintendence of all religious trusts in the State is vested in the Board. The Board is required to do all things, reasonable and necessary to ensure that such trusts are properly supervised and administered and the. income is duly appropriate and applied to the objects of such trusts and in accordance with the purposed for which such trusts were founded, or for which they exist, so far as the objects and purposes can be ascertained. The said power includes the power to prepare and settle its budget, to cause inspection to be made of the property and the office of any religious trust, to call for information, return and other documents from trustees etc, to remove a trustee from office etc., etc. The Board has power to institute an inquiry for proper administration of a religious trust. It is also vested with the power to appoint temporary trustees. It would thus be seen that so far as Bihar Hindu Religious Trusts Act is concerned, wide powers have been vested in the Board under the Statutory provisions. The members of the Board, therefore, shoulder a heavy responsibility sand obviously enjoy a status in society.
15. In the background of the provisions of the act, we shall consider the earlier decision of this Court in the case of M.S. Giri v. Sri K. Singh 1969 BLJR 1058. In that case it was not disputed that no explanation had been asked for, any no opportunity had been given to the members of the Board before an order superseding the Board was passed under Section 80 of the Act. The Court held that Section 80, as it stood, did not provide that any such notice should be given to the parties concerned, or that they should be afforded an opportunity of being heard. The Government, therefore in strict compliance with the section could issue the notification without giving any prior notice or giving an opportunity of being heard. The Government has to form an opinion on the basis of the materials which were available in respect of matters contemplated by Section 80 of the Act. Since there were materials, and the Government on those materials took action, the action of the Government could not be said to be without jurisdiction. From the decision it appears that the learned Judge took the view that in the absence of a provisions in the section, there was no duty cast upon the Government to issue a notice to the Board, and to afford it an opportunity of being heard. Since there was no such duty cast upon the Government, it could act on the basis of material available to it, and if the material justified the action taken, the action could not be impugned on the ground of violation of principles of natural justice. The Court noticed the decision of the Supreme Court in
Bairum Chemicals Ltd. and Anr. v. Company Law Board and Ors. : [1967]1SCR898 . and on the basis of that judgment held that the Government had only to form an opinion on the materials which were available in respect of matters contemplated by Section 80 of the Act. If such materials were there, the Government had the jurisdiction to pass an order. It is well known that Bairum Chemicals' case is an authority for the proposition that even in matters where an action is justified on the basis of the subjective satisfaction of the authority, if challenged, the authority has to establish the existence of the circumstances objectively, as also their relevance. It is open to the Court to scrutinise whether circumstances existed which justified the action, and that those circumstances were relevant to the exercise of power. In a nutshell, even though the action may be based on the subjective satisfaction of the authority, the circumstances on the basis of which such subjective satisfaction is reached must be objectively established, as also its relevance, sufficiency and adequacy being beyond the pale of judicial scrutiny. In our view, having regard to the development of the administrative law, in the last two and a half decades it would be difficult to uphold the contention that the power exercised by the State Government under Section 80 of the Act is a power exercisable on the subjective satisfaction of the Government, because having regard to the authorities we must hold that the character of the power exercisable by the Government under Section 80 of the Act is quasi judicial, resulting in civil consequences and, therefore, attracting the rule of audi alterm partem.
16. We shall, therefore, notice the development of the administrative law as it has taken place in the last three decades after the judgment in Ridge v. Bladwin 1964 AC 43 which will also demonstrate the growing relevance of the principles of natural justice in the field of administrative law. The increasing importance of natural justice in the field of administrative law has been noticed by Bhagwati, J. (as he then was) in Maneka Gandhi v. Union : [1978]2SCR621 . He observed that natural justice is a great humanising principle intented to invest law with fairness and to secure justice, and over the years it has grown into a widely pervasive rule affecting large areas of administrative action. The soul of natural justice is 'fair play in action' and that is why it has received widest recognition throughout the democratice world. It has been described as a distillase of due process of law and has the quintessence of the process of justice inspired by fair play in action. Bhagwati, J. referred to Wiseman's case and observed that the test adopted by the law Lords was whether the procedure followed was 'fair in all the circumstances', and 'fair play in action' required that opportunity should be given to the tax payer and to see and reply to the counter-statement of the Commissioners before reaching the conclusion that 'there is a prima facie case against him.' The enquiry must, therefore, always be: does fairness in action demand that an opportunity to be heard should be given to the person affected. The learned Judge then observed:
Now, if this be the test of applicability of the doctrine of natural justice, there can be no distinction between a quasi-judicial function and an administrative function for this purpose. The aim of both administrative inquiry as well as quasi-judicial inquiry is to arrive at a just decision and if a rule of natural justice is calculated to secure justice, or to put it negatively, to prevent miscarriage of justice, it is difficult to see why it should be applicable to quasi-judicial inquiry and not to administrative inquiry. It must logically apply to both. On what principle can distinction be made between own and the other? Can it be said that there
requirement of 'fair play in action' is any the less in an administrative enquiry than in a quasi judicial one? Some time an unjust decision in an administrative inquiry may have far more serious consequences than a decision in a quasi judicial inquiry and hence the rules of natural justice must apply equally in an administrative inquiry which entails civil consequences. There was, however, a time in the early stages of the development of the doctrine of natural justice when the view prevailed that the rules of natural justice have application only to a quasi-judicial proceeding as distinguished from as, administrative proceeding and the distinguishing feature of a quasi-judicial proceeding is that the authority concerned is required by the law under which it is functioning to act judicially.
17. It is well known that in the early stages of the development of the doctrine of natural justice the view prevalent was that the rules of natural justice had application to quasi-judicial proceeding as distinguished from administrative proceeding, and the distinguishing feature of quasi-judicial proceeding is that the authority concerned is required by law under which it is functioning to act judicially. However Ridge v. Baldwin (supra) reaffirmed that when an authority or body is given power by a statute to determine a question affecting the right of individuals, the very nature of the power implies a duty to act judicially requiring it to observe the rules of natural Justice, and that the duty to act judicially need not be separately imposed by the statute Ridge v. Baldwin (supra) became the matrix for the development of the administrative law in the decades to follow. In India the principle in Ridge v. Baldwin was first noticed and approved in Associated Cement Company Ltd v. P.N. Sharma 1962 (2) SCR 366 but the principle was fully enunciated in State of Orissa v. Dr. (Miss) Bina Pani Dei : (1967)IILLJ266SC . The Supreme Court observed:.The rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applies a like to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our constitutional set-up that every citizen is protected against exercise of arbitrary authority by the State or its officers. Duty to act judicially would, therefore, arise from the very nature of the function intended to be performed : it need not be shown to be super-added. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the essential of justice be ignored and an order to the prejudice of a person is made, the order is a nullity. That is a basic concept of the rule of law and importance thereof transcends the significance of a decision in any particular case.
Thereafter in A.K. Kraipak v. Union of India : [1970]1SCR457 it was held:
The dividing line between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated. For determining whether a power is an administrative power or quasi-judicial power one has to look to the nature of the power conferred, the person or persons on whom it is conferred, the framework of the law conferring that power, the consequences ensuing from the exercise of that power and the manner in which that power is expected to be exercised. In a welfare State like ours it is inevitable that the organ of the State under our Constitution is regulated and controlled by the rule of law. In a welfare State like ours it is inevitable that the jurisdiction of the administrative bodies is incresing at a rapid rate. The concept of rule of law would loose-its validity if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just manner. The requirement of acting judicially in essence is nothing but a requirement to act justly and fairly and not arbitrarily or capriciously. The procedures which are considered inherent in the exercise of a judicial power are merely those which facilitate if not ensure a just and fair decision. In recent years the concept of quasi-judicial power has been undergoing a radical change. What was considered as an administrative power some years back is now being considered as quasi-judicial power.
18. In Government of Mysore v. J.V. Bhat : [1975]2SCR407 a question arose as to whether the section itself as to be declared as invalid if it did not provide for a reasonable opportunity for the- affected parties to be heard. The Court noticed the several earlier decisions of the Supreme Court, and it was observed:
There are two possible approaches to this question. One is to hold that the provisions of the statute are themselves unconstitutional because they do not provide a reasonable opportunity for the effected parties to be heard, the other is to hold that as
they is nothing in the statutory provisions which debar the application of the principles of natural justice while the authorities exercise the statutory power under the Act, and as the principles of natural justice would apply unless the statutory provisions points to the contrary the statutory provisions themselves are not unconstitutional though the notifications issued under them may be struck down if the authorities concerned do hot observe the principles of natural justice while exercising their statutory powers. As there is presumption of constitutionality of statutes unless contrary is established it is the latter course that appears to us to be the proper approach.
In the Case of Union of India v. J.N. Sinha : (1970)IILLJ284SC it was observed:
Rules of natural justice are not embodied rules nor can they be elevated to the position of fundamental rights. As observed by this Court in Kraipak v. Union of India, : [1970]1SCR457 , 'the aim of rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only areas not covered by any law validly made. In. other words they do not supplant the law but supplement it.' It is true that if a statutory provision can be read consistently with the principles of natural justice, the Courts should do so because it must be presumed that the legislatures and the statutory authorities intend to act in accordance with the principles of natural justice. But, if on the other hand, a statutory provision either specifically or by necessary implication excludes the application of any or all the rules of principles of natural justice then the Court cannot ignore the mandate of the legislature or the statutory authority - and read into the concerned provision of the principles of natural justice. Whether the exercise of a power conferred should be made on accordance with any of the principles of natural justice or not depends upon the express words of the provision conferring the power the nature of the power conferred the purpose for which it is conferred and the effect of the exercise of that power.
Similarly in the case of Maneka Gandhi (supra) it was held:
Now, it is true that since the right to prior notice and opportunity of hearing arises only by implication from the duty to act fairly, or to use the words of Lord Morris of Borthy-Gest, from 'fair play in action it may equally be excluded where, having regard to the nature of the action to be taken, its object and purpose and the scheme of the relevant statutory provision, fairness in action does not demand its implication and even warrants its exclusion. There are certain well recognised exceptions to the audi alteram partem rule established by judicial decisions and they are summarised by S.A. De Smith in Judicial Review of Administrative Act, 2nd Edn. at pages 168 to 179. If we analyse these exceptions a little closely it will be apparent that they do not in any way militate against the principle which requires fair ply in administrative action. The word 'exception' is really a misnomer because in these exclusionary cases, the audi alterant partem rule is held inapplicable not by way of an exceptipn to 'fair play in action, but because nothing unfair can
be. inferred by not affording an opportunity to present or meet a case. The audi alieram partem rule is intended to inject justice into the law and it cannot be applied to defeat the ends of justice, or to make the law 'lifeless, absurd, stultifying, self-defenting or plainly contrary to the common sense of the situation. Since the life of the law in not logic but experience and-every legal proposition must, in the ultimate analysis, be tested on the touchstone of pragmatic realism, the audi alteram partem rule would, by the experimental
test," be excluded, if importing the right to be heard has the effect of paralysing the administrative process or the need for promptitude or the urgency of the situation so demands. But a the same time it must be remembered that this is a rule of vital importance in the field of administrative law and it must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands,. It is a wholesome rule designed to secure the rule of law and the court should no be too ready to eschew it in its application to a given case. True it is that in questions of this kind a fanatical or doctrinaire approach should be avoided but that does not mean that merely because the traditional methodology of a formalised hearing may have the effect of stultifying the exercise of the statutory power, the audi alteram partem should be wholly excluded. The court must make every effort to salvage this cardinal rule to the maximun extent permissible in a given case. It must not be forgotten that 'natura justice is pragmatically flexible and is amenable to capsulation under the compulsive pressure of circumstances.' The audi alteram partem rule is no cast in a right mould and judicial decisions establish that it may suffe situational modifications. The core of it must, however, remain, namely that the person affected must have a reasonable opportunity of being hear and the hearing must be a genuine-hearing and not an empty public relation, exercise.
It is needless to multiply the authorities, but we may. notice that the petitioner ha relied upon the decisions of the Supreme Court in Board of High School v.
Ghanshyam : AIR1962SC1110 ; Madan Gopal v. District Magistrate AIR 1972 SC 2956; S.N. Mukherjee v. Union of India AIR 1990 SC 1985 and Rash Lal Yadav v. State of Biha 1994 (2) PUR (SC). In Rash Lal Yadav (supra) after noticing the authorities on the subject Ahmadi, J. (as he then was) observed:
What emerges from the above discussion is that unless the law expressly or be necessary implication excludes the application of the rule of natural justice courts will read the said requirement in enactments that are silent and
ins (sic) on its application even in cases of administrative action having civ(sic) consequences.
19. We shall now consider the most important decision on which the petitioner have relied, namely, the decision of the Supreme. Court in S.L. Kdpoor v. Jagmohan and
Ors. : [1981]1SCR746 . The question which arises for consideration in the instan writ petition squarely arose for consideration in the instant writ petition squarely arose for consideration in the aforesaid case. In that case a question arose in connection with the supersession of the New Delhi Municipal Committee under the provisions of the Punjab Municipal Act, 1911, It was urged in that case as will that though Section 11 of the Punjab Municipal Act did not expressly provide for affording to the Committee and opportunity of being heard, such requirement ought to be read into the provision since there was nothing in the Act to exclude, either expressly or by implication, the application of the principles of natural justice. The Supreme Court after noticing Section 238 of the Act which justified supersession of the Committee on substantially the same grounds, as those mentioned in the Bihar Act, noticed that the old distinction between a Judicial act and an administrative act had withered away. After referring to the decision of the Supreme Court in (Miss) Bina Pani Dei, Kraipak and Mohinder Singh Gill, the Court referred to the decision of the Privy Council in
1967 (2) AC 377. It approved the principles laid down in that judgment, and ultimately concluded by holding:
Narrow as were the considerations applied by the Privy Council to determine whether the principle audi alleram partem applied or not, Alfred Thangarajah Durayappah v. W.J. Fernando (1967) 2 AC 337 appears to us to furnish a complete answer to the submission of the learned Attorney General that, as a matter of interpretation, ' Section 258 of the Punjab Municipal Act did not contemplate and did not require that an opportunity should be given to the Committee before an order of supersession was passed. We may notice here that the language of Section 238(1) of the Punjab Municipal Act is very nearly the same as the language of Section 277(1 of the Municipal Ordinance which was interpreted by the Privy Council in Alfred Thqngarajah Durayappah v. WJ, Fernando (1967) 2 AC 337. We have already referred to some of the relevant provisions of the Punjab Municipal Act to indicate some of the rights and duties of the Committee under that Act. A Committee as soon as it is constituted, at once, assumes a certain office and status, is endowed with certain rights and burdened with certain responsibilities all of a nature commanding respectful regard from the public. To be stripped of the office and status, to be deprived of the rights, to be removed from the responsibilities, in an uncermonious way as to suffer in public esteem, is certainly to visit the Committee with civil consequences. In our opinion the status and office and the rights and responsibilities to which we have referred and the expectation of the Committee to serve its full term of office would certainly create sufficient interest in the Municipal Committee and their loss, if superseded, would entail civil consequences so as to justify an insistence upon the observance of the principles of natural justice before an order of supersession is passed.
20. As we have observed earlier, the grounds on which the Committee could be superseded under the Punjab Municipal Act were substantially the same on which the Religious Board could be superseded under the Bihar Act, namely, incompetent to perform, or persistent default in the performance of the duties imposed upon it by or under the Act or any other Act; and exceeding or abusing its powers. Section 238 of the Punjab Municipal Act begins with the words 'should a committee be incompetent to perform'. On the other hand, Section 80 of the Bihar Act, with which we are concerned, begins with the words 'If in the opinion of the State the Board persistently makes default...' It was sought to be urged before us that having regard to the language used in the Bihar Act, it must be held that the power vested in the State Government under Section 10 of the Act was to be exercised on the basis of the subjective satisfaction of the Government, and it did not impose upon the State Government a duty to a act in a quasi-judicial manner. The argument is attractive, but devoid of force, because the same argument was noticed and rejected by the Supreme Court relying upon the decision of the Privy Council in Alfred v. Fernando. The Supreme Court approved the decision in that case and went to observe:
In Alfred Thangaraja Jurayappah v. W.J. Fernando (1967) 2 AC 337 the Municipal Council of Jaffna was dissolved and superseded by the Governor General on the ground that it appeared to him that the Council was not competent to perform the outies imposed upon it. The Mayor sought to question the dissolution and supersession of the Council in the Supreme Court of Ceylon, on the ground that there was a failure to observe the principles of natural justice. One of the questions which arose for consideration was whether, as a master of interpretation, natural justice was not excluded from action under Section 277 of the Municipal Ordinance under which provision the dissolution and supersession had been made. The argument was that words such as 'where it appears to...' or 'if it appears to the satisfaction of...'or 'if the...considers it expendient that...'or if the...is satisfied that...' stood by themselves without other words or circumstances or qualifications, a duty to act judicially was excluded and so, was natural justice. The argument was accepted by the Supreme Court of Ceylon but the Privy Council disagreed with the approach...
We are of the view that the mere use of the words 'if in the opinion of the State Government 'and similar expressions, are by themselves not determinative of the question as to whether the power is quasi judicial, or judicial, or purely administrative in nature to be exercised on subjective satisfaction. What is relevant is to consider whether the superession of the Board entails civil consequences so as to justify the insistence upon the observance of the principles of natural justice before an order of supersession is passed. In the instant case, we have referred to the powers exercisable by the Board. The powers of the Board are wide in relation to Hindu Religious Trusts throughout the State of Bihar. Superintendence and control of such trusts vests in the Board. It would, therefore, not be unreasonable to hold that a Board so constituted, assumes an office and status and is endowed with certain rights and burdened with certain responsibilities, all of a nature commanding respectful regard from the public. To be stripped of the office and status, to be debarred of the rights, to be removed from the responsibilities, in an unceremoinous way as to suffer in public esteem, is certainly to visit the Board with civil consequences. In the instant case the grounds disclosed in Annexure-5, the order superseding the Board, are serious, and counsel for the petitioner rightly submitted that the status and image of the persons removed would immensely. If they had to suffer the ignominy of such criticism, then they were entitled to an opportunity to defend themselves. It was, therefore, submitted that the supersession of the Board on the grounds mentioned in the notification do result in civil consequences and, therefore there was a duty to act in conformity with the principles of natural justice, the power exercised being quasi-judicial in character.
21. It was then submitted on behalf of, the State that there was no express provision in the Act calling upon the State to give notice to the Committee, Wherever such notice was considered necessary the legislature had taken care to indicate by express words. It was submitted that under Section 14 of the Act the State Government could remove from office the President or any member on the grounds specified therein, but the power was to be exercised subject to right of hearing and offering explanation conferred upon the member of President concerned. It was submitted, therefore, that incorporating such provision in Section 14 and not so incorporating such a provision in Section 80 led to the inference that the legislature rating such a provision in impliedly excluded the operation of the rule of audi alterm partem when action was contemplated under Section 80 of the Act. The Supreme Court considered this very submission in S.I. Kappor (Supra) and rejected it holding that it is not always a necessary inference that if opportunity is expressly provided in one provision, and not so provided in other, opportunity is to be considered as excluded from that other provision. The Court observed:
One of the submissions of the learned Attorney General was that the question was one of disqualification of art individual member, Section 16 of the Punjab Municipal Act expressly provided for an opportunity being given to the member concerned whereas Section 238(1) did not provide for such an opportunity and so, by necessary implication, ft must be considered that the principle audi alterant partem was excluded. We are unable to agree with the submission of the learned Attorney General. It is not always a necessary inference that if opportunity expressly provided in one provision and not so provided in another, opportunity is to be considered as excluded from that other provision. It may be a weighty consideration to be taken into account but the weightie consideration is whether the administrative action entails civil consequences.
22. We are, therefore, satisfied that the principles enunciated by the Supreme Court in S.L Kapur's case apply with full force to the case in hand. The power conferred by Section 80 is not to be exercised on the basis of the subjective satisfaction of the State Government. Having regard to the nature of the power exercised, and its consequence, it must be held that the power is quasi judicial in character. No doubt, there is no express provision that the rule of audi alterant partem will apply when the Government propose to initiate action under Section 80 of the Act, but there is nothing in the statue which forbids the State Government from complying with the rule. There is no provision from which one can infer that the legislature, if not expressly, at least impliedly, excluded the operation of the rule in an action under Section 80 of the Act. If the exercise of power is of quasi judicial nature, it must be inferred that the rule of audi alteram partem will apply. The legislature has, however, superadded in express terms a duty to act judically by providing that reasons shall be stated in making the order. It has been consistently held by Courts that where law requires an authority to act after complying with the principles of natural justice, or where it requires that the authority to record reasons for its action, the authority is required to act judically, and the exercise of power is quasi judicial in nature. In the instant case, applying the same test, we have no hesitation in holding that that the power exercised by the State Government under Section 80 of the Act is quasi judicial. We have, therefore, no hesitation holding that the failure to give notice to the Committee to show cause against the proposed action vitiated the notification issued by the State Government superseding the Municipality Counsel for the petitioner has drawn our notice to at least three decisions of the Supreme Court wherein even though the provision began with the words 'if in the opinion of the Government,' it was held that the exercise of power was quasi judicial in character and was not justified on the subjective satisfacation of the authority. Those decisions reported in
AIR 1972 SC 896 Daud v. District Magistrate; : [1973]2SCR610 Madan Gopal v. District Magistrate and : [1975]2SCR407 Govt. of Mysore
v. J.V. Bhat.
23. The other submission urged on behalf of the petitioner also has considerable force, namely, that the State Government has failed to record reasons in the notification issued by it superseding the Board. We have earlier noticed the words employed by the legislature in Section 80 of the Act. It provides that 'the State Government may, by notification, specifying the reason for so doing, declare the Board to be in default or to have exceeded or abused its powers...' it is, therefore, beyond doubt that the statute lasts a duty upon the State Government to specify the reasons in the notification itself that may be issued under Sub-section (1) of Section 80 of the Act. The stating of reasons in the notification is a statutory requirement. The law is well-settled that when the law requires reasons to be recorded in the order, affecting prejudicially the interests of any person, who can challenge the order in court, it ceases to be a mere administrative order and the vice of violation of the principles of natural justice on account of omission to communicate the reasons it not expiated. The requirement of recording reasons is a mandatory direction under the law, and non-communication thereof is not saved by saying that the reasons existed in the file, although not communicated. The recording of reasons and disclosure thereof is not a mere formality. The law is well-settled, and I may only refer to four authorities cited at the Bar by counsel for the petitioner, namely, : [1976]102ITR281(SC) Ajantha Industries v. Central Board of Direct Taxes; : (1961)IILLJ122SC , A.E. Industries Ltd. v. Its Workmen and : (1973)IILLJ504SC , Union of India v. M.L. Cappor.
24. The learned Additional Advocate General vehemently urged that the notification (Annexure-5) states the reasons for the action. He submitted that nothing more than that is required to be mentioned in the notification. Further details can always be furnished to the Court if the action is challenged. He submitted that there is no requirement that a detailed reasoning should be provided in the notification itself, in the same manner as judgments pronounced by courts. It is enough if broad reasons are indicated, the details whereof can be supplied if the action is challenged. The broad submission urged by the learned Additional Advocate General is unexceptional, but the question to be considered is whether in the instant case the notification gives any reason at all. In our view, no reason whatsoever has been disclosed in the notification. The notification merely reproduced the words of the section, that is to say, it reproduces the grounds of supersession. The grounds on the basis of which an action is taken, or the conclusions, are different from the reasons which lead to the aforesaid conclusion. The reasoning precedes the conclusion, and indicates the thought process of the authority passing the order. While it is true that the reasons may not be as detailed as in judgments of courts, it must give some idea to the Court, in case the order is challenged, as to the thinking process of the authority which had passed the order, so as to enable the Court to judge whether the action was in accordance with law or not. The mere fact that the notice also refers to non-compliance with Section 28 of the Act is no justification for urging that it discloses reasons. In our view, on a mere reading of the notification (Annexure-5) it must be held that no reasons whatsoever are disclosed. In fact, the entire notification does not even refer to a single fact pr transaction. All that is said is that on the grounds enumerated in the order the State Government has passed the order of supersession. The notification, therefore, is not in compliance with the statutory requirements of Section 80 (1) of the Act, which require the State Government to specify the reasons in the notification itself.
25. Mr. V.N. Sinha appearing on behalf of the Bihar Religious Trust Board submitted that in the case reported in : [1987]3SCR510 Security Guards Board, Bombay and Thane v. S. and P. Service Pvt. Ltd., the Supreme Court held that even if reasons were hot recorded, though there was a statutory requirement to do so, the order was not vitiated. In our view, the said submission has been urged on an erroneous impression that the Act in question in that case required the Government to state its reasons for rejecting the application for exemption. There was in fact no such provision in the Act, though there was a provision for recording of reasons when an exemption once granted was sought to be withdrawn. In the last part of paragraph No. 9 of the judgment the Court held that there was no necessity for the Government to state its reasons while disposing of the application for exemption, having regard to the facts of the cases. There was no provision in the Act which expressly provided for reasons being recorded while disposing of the application for exemption, because if that has been the case, the Supreme Court may have held otherwise.
26. He then referred to the judgment of this Court, reported in AIR 1982 Patna 1 Raghunath Pandey and Ors. v. The State of Bihar, It was submitted that this Court held that there was no need to give notice in that case under Sections 385 of the Municipal Act which vested in the Government the power to supersede Commissioners of the Municipality. In that case the Municipality was to be converted into a Municipal Corporation and in that context the Municipality had to be superseded with a view to provide for the appropriate machinery under the Municipal Corporation Act. The Court held that the requirement of Section 385 of the Municipal Act with regard to giving of notice etc. was not necessary because no stigma was involved against the Commissioners in the constitution of Corporation. The facts of the case are quite distinguishable, and the question of supersession of the Municipality in that case arose in altogether different situation. The need to supersede the Commissioners of the Municipality was to bring into operation the Bihar Municipal Corporation Act, and the supersession was not on the ground of misconduct or incdmpetency of the Commissioners.
27. Having considered all aspects of the matter, we hold that the power exercisable by the State Government under Section 80 of the Act is a power quasi judicial in nature. Though there is no express provision to comply with the rule of audi alterem partem, there is nothing to show that the legislature intended to impliedly exclude its operation. Having regard to the nature of the power exercised and its consequences, fairness in action demanded that the members of the Board or the Board as a whole, should have been given an opportunity of representing its case, particularly, haying regard to the gravity of the charges levelled against them and the consequences of an adverse finding against them. Though not expressly provided for, we are of the view that having regard to the nature of the power exercised and its consequences the Board was entitled to nqtice of the proposed action. Failure to give notice has resulted in breach of principles of natural justice and the notification stands vitiated on this ground. We are clearly of the view that the power vested under Section 80 of the Act is quasi judicial in nature and not an administrative power exercisable on the basis of subjective satisfaction. This is reinforced by the super added condition that the State Government must record reasons, which makes it clear that the power exercised by the State Government is of judicial character. We have also no hesitation in holding that the statute requires the State Government to specify the reasons for supersession in the notification issued for that purpose. The notification in the instant case does not specify the reasons and merely reproduces the words of the Section, or, in other words, the conclusions reached by the State Government. The impugned notification (Annexure-5) superseding the Board is, therefore, declared to be void. Consequently, (Annexure-8) constituting another Board in place of the superseded Board must also be held to be illegal. The notification (Annexures-5 and 8) are, therefore, quashed as being unconstitutional and void. Having regard to the facts of the case, were direct the parties to bear their own cost.
28. This order will, however, not prevent the State Government from passing a fresh order in accordance with law, and if such proceeding is initiated, the members of the Board must give their fullest cooperation, so that the Government is not compelled to proceed ex-parte.