Mahant Govind Puri v. State of U. P — 1991 DIGILAW 545 (ALL)

JUDGMENT S.K. Dhaon, J. - The petitioner, who claims himself to be the Chief Priest and Mahant of a shrine 'Kamleshwar', on 7th March, 1989, approached this Court with this petition with the prayer that the notice dated 18th August, 1988, issued by the District Magistrate (Investigation Officer) calling upon the petitioner to show cause as to why the gross annual income as shown in Annexure I, II and III of the said communication should not be considered to be final for the purposes of being submitted to the Commissioner may be crashed. The further prayer was that a writ in the nature of mandamus may be issued commanding the Commissioner, Garhwal Division and the District Magistrate, Pauri Garhwal from interfering with the work of the petitioner as Mahant/Chief Priest of the said shrine. 2. The burden of the song in the writ petition was that in the purported exercise of power under Section 4 of the U. P. Hindu Public Religious Institutions (Prevention of Dissipation of Properties) Act, 1962 (hereinafter referred to as the Act) the State Government had not appointed any Commissioner and the Commissioner of the Garhwal Division could not act as a Commissioner under the Act without an appointment having been made under S. 4. Therefore, the Commissioner, Garhwal Division, acted without jurisdiction in appointing the District Magistrate as the Investigation Officer. Consequently, the entire proceedings fell through. 3. A counter-affidavit has been filed by Sri Ashwani Kumar Upreti, a Lipik in the Office of the Collector, Pauri Garhwal. The material averments in the said affidavit are these. The State Government had appointed the Commissioner of the Garhwal Division as the Commissioner. The reply given by the, petitioner to the aforesaid notice dated 18th August, 1988, was considered and thereafter on 11th October, 1988, a statement was submitted by the Investigation Officer/ District Magistrate as contemplated under Section 6(2) of the Act. Acting upon the statement, the Commissioner on 4th January, 1989, purported to pass an order 'under Section 8 whereby he directed the District Magistrate, Pauri Garhwal to take measures for the protection of the properties of the shrine and manage the same. 4. Acting upon the statement, the Commissioner on 4th January, 1989, purported to pass an order 'under Section 8 whereby he directed the District Magistrate, Pauri Garhwal to take measures for the protection of the properties of the shrine and manage the same. 4. Section 8 of the Act, inter alia, provides that a Commissioner shall in respect of any Hindu public religious institution within the area of the jurisdiction and in respect of which proceedings under Section 6 have been directed have the powers to take measures for the protection of property of or under the dominion of the institution including arrangement for the safe custody of jewels and other valuables thereof but not so as to deprive the trustees of the right of administration (Section 8(e)). The proviso to Section 8 is important and may be extracted : "Provided that before passing a final order under clause (d), (e) or (f), the Commissioner shall allow the person concerned a reasonable opportunity of being heard." Admittedly action has been taken by the Commissioner under Section 8(e). Admittedly the District Magistrate under the orders of the Commissioner took possession of the properties of the temple which included jewels, valuable Government securities etc. It is the respondents' case that these properties are in the custody of the District Magistrate. 5. From the averments made in the counter-affidavit it is clear that no opportunity much less a reasonable opportunity of being heard was given to the petitioner before the Commissioner passed the order under Section 8(e). The position is made still clear by categorical averments made in the rejoinder-affidavit that the Commissioner passed the order under Section 8 upon the receipt of the statement of the Investigation Officer under Section 6. This defect, in our opinion, is fatal as the mandate given by the Legislature in the proviso to Section 8 has been observed in its clear breach. The emphasis in the proviso is that prior hearing is to be given before passing an order. The crucial words in the proviso are "before" and "shall". The use of the axulliary verb "shall" in its context and setting manifests the legislative intent that it is imperative to afford an opportunity prior to the passing of an order. Again, the Legislature has purposely qualified "opportunity" with the preceding word "reasonable". The crucial words in the proviso are "before" and "shall". The use of the axulliary verb "shall" in its context and setting manifests the legislative intent that it is imperative to afford an opportunity prior to the passing of an order. Again, the Legislature has purposely qualified "opportunity" with the preceding word "reasonable". The avowed object appears to be that a trustee should be afforded a full and fair opportunity to rebut the conclusion of the Investigation Officer. 6. The observance of the procedure as indicated in the proviso to Section 8 is mandatory. It is trite law that if an action is to be taken or an order has to be passed in a certain manner, the non-observance of the procedure will render the act or the order void. 7. Realising that an order under S. 8(e) will have a serious consequence upon the rights of a trustee, the Legislature engrafted the -procedural safeguard in the proviso. Therefore, the non-observance of the procedure will result in a case of procedural ultra vires. Any attempt to dilute the rigor of the procedural provision should be eschewed thereby preventing procedural anarchy. 8. The rules of natural justice can operate only in areas not covered by any law validly made. They can supplement the law but cannot supplant it. In the proviso, the Legislature is emphatic that predecisional hearing is a must. A fortiori, a post decisional remedial hearing is completely ruled out. Therefore, we have no hesitation in rejecting the submission of Sri G. L. Tripathi, the Standing Counsel that the defect can be cured by directing the Commissioner to afford to the petitioner a post decisional remedial hearing. 9. Learned standing counsel drew our attention to Section 12 which, inter alia, provides that an appeal against an order passed by the Commissioner shall lie to the District Judge. He contends that the defect in the order of the Commissioner, in so far as it was passed without affording a prior hearing to the petitioner can be cured if the petitioner prefers an appeal and the appellate authority looks into his grievance. We will be repeating ourselves in emphasising that the proviso to Section 8 contains a statutory safeguard and therein the rule of predecisional hearing is incorporated. We will be repeating ourselves in emphasising that the proviso to Section 8 contains a statutory safeguard and therein the rule of predecisional hearing is incorporated. It is obvious that the right to prevent the passing of an order in the first instance is quite different from a right of appeal against that order. In its very nature and scope an original hearing differs substantially from an appeal. An appellant cannot as of right lead evidence. Further, a person, who comes before the appellate authority challenging an order passed to his prejudice, is not in the same position as the person against whom an order is sought to be passed in the first instance. 10. In Institute of Chartered Accountants of India v. L.K. Ratna, (1986) 4 SCC 537 : AIR 1987 SC 71 , in paragraph 17 the Supreme Court has quoted with approval a passage from Wade's "Administrative Law" which says : "If natural justice is violated at the first stage, the right of appeal is not so much a true right of appeal as a corrected initial hearing; instead of fair trial followed by appeal, the procedure is reduced to unfair trial followed by fair trial." Again, their Lordships quoted with approval the observations of Megrry, J. In Leary v. National Union of Vehicle Builders, (1971) Ch 34 at page 49: "If one accepts the contention that a defect of natural justice in the trial body can be cured by the presence of natural justice in the appellate body, this has the result of depriving the member of his right of appeal from the expelling body. If the rules and the law combine to give the member the right to a fair trial and the right of appeal, why should he be told that he ought to be satisfied with an unjust trial and a fair appeal? Even if the appeal is treated as a hearing de novo, the member is being stripped of his right to appeal to another body from the effective decision to expel him. I cannot think that the natural justice is satisfied by a process whereby an unfair trial, through not resulting in a valid expulsion, will nevertheless have the effect of depriving the member of his right of appeal when a valid decision to expel him is subsequently made. I cannot think that the natural justice is satisfied by a process whereby an unfair trial, through not resulting in a valid expulsion, will nevertheless have the effect of depriving the member of his right of appeal when a valid decision to expel him is subsequently made. Such a deprivation would be a powerful result to be achieved by what. in law is a mere nullity; and it is no mere triviality that might be justified on the ground that natural justice does not mean perfect justice. As a general rule, at all events, I hold that a failure of natural justice in the trial body cannot be cured by a sufficiency of natural justice in an appellate body." 11. Learned Standing Counsel next urged that this is not a fit case for interference as the petitioner has not exhausted the statutory remedy of appeal under Section 12. The short answer to this submission is that in view of the admitted position that no attempt was made to afford to the petitioner any opportunity of a hearing, much less a reasonable opportunity, as envisaged in the proviso to Section 8, the impugned order of the Commissioner should be treated to be a nullity and void. In such a situation, this petition cannot be thrown out as suggested by the Standing Counsel. 12. As already indicated, the petitioner was deprived of the valuable properties and the same are in the custody of the District Magistrate. These properties are liable to be returned to the petitioner the moment the order passed under Section 8 is quashed. 13. Learned Standing Counsel has urged that the properties may remain in the custody of the District Magistrate pending final decision of the Commissioner in proceedings under Section 8 if the impugned order has to be ultimately quashed. This is not a correct approach. Such a course will result in grave injustice to the petitioner. The District Magistrate shall return all the properties of which he had taken custody. If the Commissioner chooses to pass a fresh order under Section 8, he shall adjudicate upon the question that he has not been authorised under Section 4 of the Act to act as a Commissioner, that the Investigation Officer was appointed in this case in the year 1981 and he submitted a statement under Section 6 in August, 1988. If the Commissioner chooses to pass a fresh order under Section 8, he shall adjudicate upon the question that he has not been authorised under Section 4 of the Act to act as a Commissioner, that the Investigation Officer was appointed in this case in the year 1981 and he submitted a statement under Section 6 in August, 1988. The matter became stale and, therefore, no action should have been taken in response to the statement submitted by the District Magistrate. It goes without saying that the Commissioner shall pass a speaking order after affording an opportunity of an oral hearing to the petitioner and after giving him an opportunity of filing objections, if he so desires. 14. The petition succeeds and is allowed. The order dated 4th January, 1989, passed by the Commissioner in proceedings under Section 8 of the Act (Annexure 4 to the counter-affidavit of Ashwani Kumar Upretti) is quashed. The Commissioner and the District Magistrate shall act in accordance with the directions given above. The petitioner shall be entitled to his costs.