Ganeshrao Kishanrao Deshmukh Vs. Devsingh Venkatasingh and ors. - Court Judgment

Vaidya, J.

1. This petition under Article 227 of the Constitution of India is directed against an order purporting to be of the Government of Maharashtra communicated to the petitioner's Advocate by an officer of the Government described as the Officer on Special Duty, Revenue and Forest Department in respect of an appeal filed by the petitioner before the Government of Maharashtra under Section 2 - A of the Hyderabad Abolition of Inams and Cash Grants Act, 1954. By the impugned letter dated February 3, 1967, the Officer on Special Duty informed the petitioner's Advocate that the appeal filed by the petitioner on July 20, 1964 was disposed of as per Government memorandum dated February 2, 1967 and a note accompanying thereto.

2. The Government memorandum dated February 2, 1967 is addressed to the Collector of Osmanabad with reference to the appeal filed by the petitioner and proceeds to decide the dispute between the petitioner and opponents Nos. 1 and 2 as to whether opponents Nos. 1 and 2 are Kabiz - e - kadims within the meaning of Section 2 (1) (e) of the Hyderabad Abolition of Inams and Cash Grants Act. The memorandum states :-

'Government has given careful consideration to the appeal petition and the arguments which had been advanced by the advocates of the parties in the course of the enquiry made into the appeal petition by the officer on special duty at the instance of Government. It has perused the written arguments of the parties. For the reasons recorded in the enclosed note, Government considers that the appellant has no case and that no modification of the Tahsildar's order is called for in so far as the land described as survey number 60 of the village Ashiya is concerned, and that in respect of survey No. 1 of Sankarlal it needs to be declared that on 20th July 1955 as also on 1st July 1960 Rukminibai widow of Ramsing was entitled to hold it as Kabiz - e- Kadim along with Kishansing Ptambersing and Umraosing and that the shares of the three holders in the lands were as under, etc. etc.'.

The memorandum is signed 'by order and in the name of the Governor of Maharashtra' by the Officer on Special Duty, Revenue and Forest Department.

3. The accompanying note is a lengthy note. It gives the checkered history of the litigation between the petitioner and opponents Nos. 1 and 2 since 1897 and the various proceedings before the High Court of Hyderabad and other authorities in the former Hyderabad State and the Revenue Tribunal and this Court. It summarizes the arguments of the Advocates for the parties, who appeared and argued personally and also gave written arguments. There is nothing in the note to indicate as to who prepared the note, but it is not disputed that this note was prepared by the Officer on Special Duty, who heard the Advocates for the parties and recorded the written arguments and other materials before him.

4. The said order memorandum and the note together are challenged in the above petition inter alia on the ground that the deciding authority under Section 2 - A of the Hyderabad Abolition of Inams and Cash Grants Act was the Minister, Revenue Department of the Government of Maharashtra and he had not heard the parties before deciding the matter; and further that the learning of the appeal by the Officer on Special Duty in the Revenue and Forest Department was incompetent because he was not the State Government, who alone could decide an appeal under Section 2 - A of the Hyderabad Abolition of Inams and Cash Grants Act.

5. As this contention must succeed, it is not necessary for disposal of this petition to set out any other ground or the history of the litigation, which unfortunately commenced in 1897 when Balabai, the predecessor - in - title of the petitioner died. It is enough only to point out that the dispute had once come to this High Court at the instance of opponents Nos. 1, 2 and another as petitioners; and on July 31, 1962 in that matter, which was Special Civil Application No. 1461 of 1961 Chainani, C. J., and K. K. Desai, J., modified an order of the Revenue Tribunal with the following observations :

'It is not disputed that the lands vested in Government after the Hyderabad Abolition of Inams and Cash Grants Act came into force. The case of the first and third petitioners is that they are entitled to the grant of the lands under Section 6, as they were Kabiz - e - Kadims. Mr. Gupte has invited our attention to the judgment of the Judge of the Paigah Committee delivered on 13-6-1347 Fasli in which there are some observations that the ancestors of the first and third petitioners were in possession of the lands even in the lifetime of Balabai. it is not known on what evidence these observations were made, Mr. Gandhi who appears for the opponent, does not admit that the family of the first and third petitioners was in possession of the lands before they were assumed under Government management. he has contended that even assuming that the petitioner's family was then in possession of the lands, their rights, if any, came to an end when the lands were taken charge of by Government and that as the petitioners subsequently took lease from Government they cannot now claim any rights against the opponent. He has contended that the petitioners cannot, therefore, claim to be Kabiz - e - kadim. The question whether the petitioners are kabiz - e - kadim and whether they are consequently entitled to the grant of lands as occupants is, therefore, as disputed question, which can only be decided after proper enquiry. Such an enquiry has been directed by the Revenue Tribunal. We are informed that the officer competent to hold this enquiry is the Deputy Collector. We direct that the Deputy Collector should hold a full and detailed enquiry in the matter. he should allow both the parties to lead evidence and thereafter dispose of the matter as expeditiously as may be possible without paying any regard to the status of any party.'

We are told that this Court had to direct the authorities not to have any regard to the status of any of the parties as there were some allegations with regard to the status of opponent No. 1 at that time. Thereafter the Deputy Collector sent it to the legally authorized officer to decide the question under Section 2- A viz. the Tahsildar, Taluka Ausa in District Osmanabad, who by his order dated May 5, 1964 decided the dispute in favour of opponents Nos. 1 and 2 holding that opponent No. 1 was the Kabiz - e - kadim of survey No. 60 of village Ashiya and opponent No. 2 was the Kabiz - e - kadim of survey No. 1 at Sankral. Feeling aggrieved by the said decision, the petitioner carried the appeal to the State Government under Section 2 - A of the Hyderabad Abolition of Inams and Cash Grants Act.

6. Now, it is not disputed that in connection with the said appeal, it was only the Officer on Special Duty who heard the arguments of Advocates for the parties on Nov. 23 and 24, 1965, in the course of what he has chosen to describe as 'an enquiry' in paragraph 6 of the note accompanying the memorandum, which is referred to above. Under Section 2 - A (1) if any question arises whether any person is a Kabiz - e - kadim, permanent tenant or tenant, the State Government shall decide the question. Where any question is decided by an officer so authorized by the State Government, any person aggrieved by such decision may file an appeal to the State Government under Section 2 - A (2). The Government has not produced any notification authorizing the Officer on Special Duty, Revenue and Forest Department to hear an appeal or to hold any 'inquiry'. There is also nothing in Section 2 - A (2) which enables the Government to authorise any such officer to hear the appeal against the decision of a Tahsildar, who admittedly was the officer authorized to decide the question within the meaning of Section 2 - A (1).

7. It is a fundamental principle of administration of justice in civilized societies where rule of law is respected that normally the person or authority, who has to decide a question affecting rights and liberties of persons, must give a reasonable and fair opportunity to the parties concerned of being heard by that authority. Ordinarily non should be condemned or prejudiced unheard. It is not disputed that under the rules of business framed under the Constitution of India, the 'State Government' means in practice the Minister in charge of the department concerned. There is nothing in the orders annexed to the petition to show that the Minister in charge of the Revenue Department at the relevant time, who was concerned with the matter for the time being, had anything to do with the appeal. Mr. Kotwal, the learned Assistant Government Pleader, however, produced before us for our perusal the file relating to the matter in the Sachivalaya at Bombay and pointed out that the then Minister for Revenue had signed below the signatures of the Officer on Special Duty on the various notes put up in the file including the final note deciding the appeal which was put up to him for his approval. It is true that the then Minister for Revenue Department signed on January 29, 1967 the proposal for communicating the order as in the Government memo kept for his approval; and it is only thereafter that it appears that the Officer on Special Duty wrote the impugned letter dated February 3, 1967 and forwarded the memorandum dated February 2, 1967. It is also true that the memorandum, as stated above, refers to the perusal of the written arguments addressed by the Advocates for the parties. But it is difficult for us to believe that the written arguments and the oral arguments of the Advocates addressed to the Officer on Special Duty on November 23 and 24 of 1965 could have had any influence on the mind of the deciding Minister who passed the final orders according to the file, on January 29, 1967.

8. The duty of the appellate authorities to apply the mind independently to the contentions of the parties, after giving a reasonable opportunity to the parties to be heard, has been emphasized by Courts in India in many decisions. For instance, in Tuljansa Janardhan Pawar v. The Commissioner of Income - tax, Bombay South, : [1950]18ITR648(Bom) Chagla, C.J. and Tendolkar. J., pointed out at p. 423.

'When an authority upon whom judicial functions are conferred has to decide or hear a case or an appeal, he can only do so provided he has heard all parties which are likely to be affected by the order which he is going to make. It is a fundamental principle of natural justice that no Judge or no person upon whom judicial powers are conferred can come to a judicial or a quasi - judicial decision without hearing all parties who are to be affected by his decision, and we must always assume that the Legislature who has knowledge of judicial principles and rules of natural justice impliedly, if not expressly, incorporate these rules whenever they confer judicial functions upon a person or an authority. If these rules of natural justice are to be excluded, then we must find in the statute an express provision to that effect.' This Court has decided in a number of matters arising from the decisions in similar circumstances under Section 2 - A of the Hyderabad Abolition of Inams and Cash Grants Act that the Minister deciding the appeal should give a hearing to the parties in these matters. In special civil applns. Nos. 1928 to 1932 of 1966 and 1415 of 1967 (Bom) decided by Abhyankar and Madon, JJ., it was observed :-

'We may also mention that it is not clear from the record as to which person actually disposed of the appeals. Under the law an appeal lies to the State Government; but the matter seems to have been dealt with and the arguments heard by an Officer on Special Duty. Whether that Officer on Special Duty had the powers to dispose of appeals or the matter had to be decided ultimately by the Minister or some other officer, is not clear from the record. If it so happens that the arguments were heard by one authority while the power to dispose of the appeal vested in some other authority, say the Minister, then the appellate order will also suffer from a serious defect. We are unable to find how the appeals were disposed of on the material placed before us'.

In another judgment in special civil applications Nos. 812 and 948 of 1966 (Bom) decided by Abhyankar and Madon, JJ., on November 8, 1968, they observed :

'It is said that the ultimate decision of the appeal is given by the Minister in charge. Thus, the authority deciding the appeal on behalf of the State Government is the Minister in charge. Further, according to the State, the arguments in support of the appeal are heard by the Special Officer, in this case Mr. Ranade. We are unable to understand how an authority empowered to decide the Appeal can decide the matter when the arguments in support of the order or challenging the order are heard by some other authority or person. To ensure proper disposal of any appeal the authority empowered to decide the matter must itself hear the rival contentions of the parties in respect of the matter required to be adjudicated. On this ground also, therefore, the order in appeal suffers from serious defects of procedure which cannot possibly be permitted'.

Again in special civil application No. 395 of 1965 (Bom), Tarkunde and Gokhale, JJ., observed on January 19, 1966 :-

'It appears that the appeal under Section 2 - A was heard by the Officer on Special Duty, and Section 2 - A provides that any question as to whether any person is a tenant or not shall be decided by the State Government or an Officer authorised by the Government .........................The question, therefore, when it arises, would have to be decided either by the Minister concerned or by the Secretary of the Revenue Department so as to comply with the requirements of Section 2 - A.'

9.It is a well established principle of law that the function of making a quasi - judicial decision like the one under Section 2 - A cannot be delegated to another person or authority in the absence of statutory provision authorizing such delegation. There is no provision in Section 2 - A which enabled the Officer on Special Duty in the present case to hold what he described as an 'enquiry'. The only authority competent to decide an appeal under Section 2 - A (2) is the State Government. The State Government could not delegate the power to the Officer on Special Duty.

10.It may be that in the absence of any statutory requirement the Minister was free to determine his own procedure reasonably. But that would not entitle him to delegate the power of hearing the parties to a subordinate Officer like the Officer on Special Duty in the Revenue and Forest Department. it is impossible to believe that the arguments, which admittedly were addressed to the Officer on Special Duty in November 1965, could have had any influence in the Minister, who actually decided the appeal in January 1967, as stated above. The fact that he has countersigned the notes put up by the Officer on Special Duty does not necessarily mean that he applied his mind independently to the facts and contentions as he is required to do in exercise of his power to decide the appeal under Section 2 - A. Merely signing below notes or agreeing to a note put up by a subordinate officer cannot be said to be proper or fair or reasonable way of deciding an appeal under Section 2- A. There is nothing in the orders annexed to the petition before us or in the file produced by Mr. Kotwal for our perusal to indicate that the Minister himself had actually applied his mind to the facts and contentions involved in the case.

11. In view of this position, the above petition was adjourned twice to enable the Government to file an affidavit in reply repelling the allegations of non - application of mind on the part of the deciding Minister made by the petitioner and to meet the contention of the petitioner that the Minister, who decided the matter, had no heard him. In spite of these adjournments, however, no affidavit in reply has been filed. It must be, therefore, presumed that the contention arised by the petitioner is correct. There is nothing before us to show that the Minister had personally applied his mind to the oral or written arguments of the parties or to the various contentions raised by the parties. Hearing of the parties by the Officer on Special Duty was not hearing by the Minister. Parties were, therefore, denied a reasonable opportunity of being heard by the Minister deciding the appeal. What has happened in this case attracts the following observations made by Vivian Bose, J., in Harla v. The State of Rajasthan, : [1952]1SCR110 :

'The thought that a decision reached in the secret recesses of a chamber to which the public have no access and to which even their accredited representatives have no access and of which they can normally know nothing, can nevertheless affect their lives, liberty and property by the mere passing of a Resolution without anything more is abhorrent to civilized man. It shocks his conscience.'

With respect, the above remarks made regarding a secret Government Resolution may, in the facts and circumstances of this case, be applied to the memorandum disposing of the appeal and the note appended thereto as there is nothing on the record to indicate the process by which the Minister decided the appeal.

12. Now, Section 2 - A confers large powers on the State Government and the officers authorized by the State government to decide (1) whether any land is an inam; (2) whether any inam is held with or without conditions of service; (3) whether any inam is a community service inam or watan; (4) whether a commutation settlement in respect of any watan has or has not been effected; (5) whether any land held as inam is or is not alienable without the permission of the competent authority; or (6) whether any person is a Kabiz - e - kadim, permanent tenant or tenant. These are all, more often that not complicated questions of facts as well as law. In the instant case, the facts are further complicated by the protracted and hotly contested litigation before the various authorities in the former Hyderabad State and in this State. The legality of the various orders passed in favour of the petitioner and against opponents Nos. 1 and 2 had to be considered very carefully by the deciding authority. We find nothing in the record before us to indicate that the Minister who was the deciding authority had applied his mind to any of these aspects of the case.

13. IN view of this conclusion, the order communicated by the Officer on Special Duty on February 3, 1967 and the memorandum dated February 2, 1967 referred to above must be quashed and the matter should be remitted to the Government for disposing of the appeal in accordance with the law and the observations made hereinabove. Rule absolute. No order as to costs.

14. Rule made absolute.