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1995 DIGILAW 188 (GAU)

Jogen Chandra Borah v. State of Assam

1995-08-18

A.K.PATNAIK

body1995
In this application under Article 226 of the Constitution of India, the petitioner has prayed for a writ of Mandamus quashing the WT message dated 4.9.94 of the Govt of Assam to the Sub Divisional Welfare Officer, Kaliabor Sub Division, intimating him that the notification dated 28.7.94 re-constituting the Scheduled Castes Development Board for Kaliabor Sub Division under the Chairmanship of the petitioner is cancelled and the earlier Sub Divisional Welfare Board for Scheduled Castes constituted by the notification dated 29.8.91 under the Chairmanship of the respondent No.4 will remain in force. 2. The facts very briefly are that by a notification dated 29.8.91, the Governor of Assam was pleased to constitute different Sub Divisional Welfare Boards for Scheduled Castes with official and non-official members including the Sub Divisional Welfare Board for Scheduled Castes for Kaliabor Sub Division with respondent No.4 as its Chairman. On 22.7.94, the Minister-in-charge, WPT & BC, Government of Assam sent a note to the Commissioner and Secretary, WPT & BC, Government of Assam to reconstitute the Sub Divisional Welfare Board for Scheduled Castes, Kaliabor Sub Division with the petitioner as Chairman and 16 other persons named by him in the said note as member of the said Board. Pursuant to the said note sent by the Minister-in-charge, WPT & BC, Government of Assam, a notification dated 28.7.94 was issued whereunder the Government of Assam was pleased to reconstitute the Sub Divisional Welfare Board for Scheduled Castes, Kaliabor Sub Division (for short the 'Board') with the petitioner as Chairman and 16 other persons as official and non-official members of the said Board but within a few days thereafter the impugned WT message dated 4.8.94 was sent by the Government of Assam to the Sub Divisional Welfare Officer, Kaliabor Sub Division, cancelling the said notification dated 28.7.94. Aggrieved, by the said WT message dated 4.8.94, the petitioner has moved this Court for appropriate relief. 3. When the writ petition was moved on 17.8.94, this Court issued Rule and directed as an interim measure that status quo as on date shall be maintained. Aggrieved, by the said WT message dated 4.8.94, the petitioner has moved this Court for appropriate relief. 3. When the writ petition was moved on 17.8.94, this Court issued Rule and directed as an interim measure that status quo as on date shall be maintained. Thereafter, on 11.11.94, Mr, BP Borah, learned counsel for the petitioner, submitted before this Court that despite the said status quo order the petitioner was not allowed to function as Chairman of the Board and the Court passed orders requesting Ms.K.Yadav, GA, Assam, to obtain instruction and directing that in case any meeting of the aforesaid Board is held the meantime the petitioner shall function as Chairman. On 16.11.94, however, Ms. K. Yadav, GA, Assam, wanted further one week time for obtaining instruction and the Court while allowing such time directed that until further orders, the petitioner shall be allowed to act as Chairman of the Board. Thereafter, the respondent No.4 filed Misc Case No. 1487 of 1994 on 12.12.94 praying for vacating/modification/alteration of the aforesaid interim orders dated 11.11.94 and 16.11.94. The said misc case as well as the Civil Rule were heard together. 4. At the hearing, Mr.BP Borah, learned counsel for the petitioner submitted that normally a Sub Divisional Welfare Board for Scheduled Castes is constituted for a period of about three years for promoting the educational and economic interests of Scheduled Castes as provided in Article 46 of the Constitution and hence when the notification dated 28.7.94 was issued by the Government reconstituting the Board with the petitioner as its Chairman, the petitioner had a legitimate expectation that the Board would continue for some period, if not for three years, but the said legitimate expectation of the petitioner has been belied by the impunged WT message dated 4.8.94 cancelling the notification dated 28.7.94 within a few days. Mr.Borah placed reliance on the recent decision of the Supreme Court in the case of Madras City Wine Merchants Association vs. State of Tamilnadu, (1994) 5 SCC 509 , to contend that a legitimate expectation has arisen in die petitioner that he would continue for three years as Chairman of the Board and that he would be treated fairly by the Government and would not be removed within a few days. Mr.Bora further submitted that although the reconstitution of the Board with the petitioner as Chairman was an administrative and not a quashi judicial order, it has been held in the case of Raja Mahapatra vs. Board of Secondary Education, AIR 1988 Orissa 65, that after the Kraipak's case (AIR 1970 SC150), the distinction between judicial act and an administrative act has withered away and an administrative order which involves civil consequences has to be made consistently with the rules of natural justice. But in the present case, before the impunged WT message was issued cancelling the notification dated 28.7.94 reconstituting the Board with petitioner as its Chairman, the petitioner was neither given a show cause nor heard, and therefore, principles of natural justice were violated. He also relied on the decision of this Court in the case of Anchar Ali vs. State of Assam, AIR 1989 Gauhati 12, and in particular, para 31 thereof in which it has been held that where an order is likely to prejudicially affect a persons have to be recorded by the authority so that it can assist a Court of law in case a challenge is made to the said order to know if the order had been passed on relevant and germane consideration! or is grounded on irrelevant or extraneous considerations. According to Mr.Borah since no reasons were indicated by the Government for cancelling the notification dated 28.7.94 reconstituting the Board with the petitioner as Chairman immediately soon after it was issued, this is a fit case where this Court in exercise of its power of judicial review should quash the impunged WT message dated 4.8.94 as arbitrary, capricious, whimsical and violative of Article 14 of the Constitution. He also relied on the judgments of the Apex Court in the cases of Dwarkanath vs. IT Officer, AIR 1966 SC 81 ; Controller & Auditor General vs. KS Jaganathan, AIR 1987 SC 537 ; Shri Anadi Mukta Sadguru SNVC Trust vs. VS Rudani, AIR 1989 SC 1064 and Shrilekha Vidyarthi vs. State of UP, AIR 1989 SC 537. 5. He also relied on the judgments of the Apex Court in the cases of Dwarkanath vs. IT Officer, AIR 1966 SC 81 ; Controller & Auditor General vs. KS Jaganathan, AIR 1987 SC 537 ; Shri Anadi Mukta Sadguru SNVC Trust vs. VS Rudani, AIR 1989 SC 1064 and Shrilekha Vidyarthi vs. State of UP, AIR 1989 SC 537. 5. Mr.SA Laskar, learned counsel for the respondent No.4, on the otherhand, submitted that the power to constitute and reconstitute Sub Divisional Welfare Boards for Scheduled Castes for different Sub Divisions in the State of Assam is part of the executive power of the Governor under Article 154 of the Constitution and that the petitioner has no locus standi to challenge the decision communicated by the WT message dated 4.8.94 taken by the Government in exercise of its said executive power. Accordingly, the writ petition filed by the petitioner is misconceived. He relies on the judgment of the learned Single Judge of this Court in Kamal Chandra vs. State of Assam, AIR 1981 Gauhati 4 and contended that the petitioner had no right to continue as Chairman of the Board and that his continuance in the Board was at the pleasure of the Governor and the Board should be dissolved by the Governor at any time at his pleasure. Mr.Laskar also cited a Division Bench judgment of this Court in the case of Satyeswar vs. State of Assam, AIR 1974 Gauhati 20, wherein the contention that principles of natural justice were to be followed before the Governor's pleasure was withdrawn in respect of a District Council was negatived by the Court. Mr.Laskar further argued that it was the policy of the Government not to disturb the existing Sub Divisional Welfare Boards for Scheduled Castes for different Sub Divisions and relied on the averments in paragraph 3 of the application for vacation/ modification/alteration of the interim order dated 11.11.94 and 16.11.94 filed by the respondent No.4 to the effect that no such Board within the State of Assam was reconstituted except the Board for the Kaliabor Sub Division but when good sense prevailed and the authority understood its mistake, the impunged WT message dated4.8.94 was issued cancelling the notification dated 28.7.94 under which the Board of Kaliabor Sub Division was reconstituted with the petitioner as Chairman. Mr. Mr. Laskar also vehemently argued that since the respondent No.4 was not made a respondent at the first instance when the writ petition was filed and interim order was obtained against him and was only subsequently impleaded as a respondent, the writ petition should not be entertained solely on the ground that the petitioner has not come to Court with clean hands and cited the decision dated 10.1.95 of the Division Bench of this Court in Writ Appeal No.426 of 1994 in the case of Smti Rashmimala Barua & others (1995 (1) GLJ189) in support of this argument. 6. On the aforesaid submission made by the learned counsel for the parties, the first question that has to be decided is as to whether the petitioner has locus standi to file the present writ petition challenging the impunged WT message dated 4.8.94. In the case of Venkateswar Rao vs. State of Andhra Pradesh, AIR 1966 SC 828 , on which reliance was placed by Mr.Borah, learned counsel for the petitioner, the Apex Court held : “We have, therefore, no hesitation to hold that the appellant had the right to maintain the application under Article 226 of the Constitution. This Court held in the decision cited supra that 'ordinarily' the petitioner who seeks to file an application under Article 226 of the Constitution should be one who has a personal or individual right in the subject matter of the petition. A personal right need not be in respect of a proprietary interest, it can also relate to an interest of a trustee. That apart, in exceptional cases as the expression 'ordinarily' indicates, a person who has been prejudicially affected by an act or omission of an authority can file a writ even though he has no proprietary or even fiduciary interest in the subject matter thereof. The appellant has certainly been prejudiced by the said order. That apart, in exceptional cases as the expression 'ordinarily' indicates, a person who has been prejudicially affected by an act or omission of an authority can file a writ even though he has no proprietary or even fiduciary interest in the subject matter thereof. The appellant has certainly been prejudiced by the said order. The petition under Article 226 of the Constitution at his instance is, therefore, maintainable.” Thus in the aforesaid decision, the Supreme Court took the view that though ordinarily the petitioner who seeks to file an application under Article 226 of the Constitution should be one who has a personal right in the subject matter of the petition, in exceptional cases a person who has been prejudicially affected by an act or omission of an authority can file a writ petition and held that since the appellant had been prejudiced by the impunged order, the petition under Article 226 of the Constitution at his instance was maintainable. The aforesaid decision of the Apex Court in the case of Venkateswar Rao vs. State of Andhra Pradesh (supra) was quoted by the Apex Court in the case of SP Gupta vs. President of India (supra) cited by Mr.Borah while deciding the question of locus standi of an Advocate to file a writ petition in a matter concerning the judiciary. Applying the aforesaid test of locus standi to the present case, the petitioner is not only a Scheduled Castes but was also made the Chairman of the Board for Scheduled Castes for the Kaliabor Sub Division by the notification dated 28.7.94. Thus, when the said notification dated 28.7.94 was sought to be cancelled by the impunged WT message dated 4.8.94, the petitioner was prejudicially affected and had locus standi to file the writ petition under Article 226 of the Constitution challenging the impunged WT message although he may not have any personal or individual right to continue as Chairman of the Board. 7. 7. In the case of Kamal Chandra vs. State of Assam, AIR 1981 Gauhati 4, cited by Mr.Laskar, learned counsel for the respondent No.4, the question of locus standi of the petitioner who had been appointed as Chairman of the Sub Divisional Tribal Development Board, Morigaon, by the Government of Assam to challenge the dissolution of the said Board, had not been raised, but it was held that the Sub Divisional Tribal Development Board was constituted at the pleasure of the Governor and could be dissolved at his pleasure and the notification constituting the said Board did not confer any right on him to continue as Chairman of the Board till expiry of the period mentioned in the notification constituting it. I respectfully agree with the aforesaid view expressed by Hansaria, J. in the case of Kamal Chandra vs. State of Assam (supra) that a Chairman of Sub Divisional Tribal Development Board or Sub Division Welfare Board for Scheduled Castes cannot claim any right to continue as Chairman inasmuch the appointment and continuance as Chairman of such Board is at the pleasure of the Governor and accordingly the Governor could in exercise of his executive powers cancel the constitution or reconstitution of a Board. Similarly, I am in agreement with the aforesaid decision of Hansaria, J. in the case of Kamal Chandra vs. State of Assam as well as the Division Bench decision of this Court in the case of Satyeswar vs. State of Assam, AIR 1974 Gauhati 20, that while dissolving the Board, which was constituted at the pleasure of the Governor, it was not necessary to observe the principles of natural justice and to issue a show cause notice to the Chairman or members of the Board or tO;hear them. Accordingly, it was not necessary for the Government to have followed the principles of natural justice and either to issue a show cause notice or grant a hearing to the petitioner before issue of impunged WT message dated 4.8.94 cancelling the notification dated 28.7.94 under which the Board was reconstituted with the petitioner as Chairman. 8. But that is not to say that the impunged WT message dated 4.8.94 cancelling the reconstitution of the Board cannot be challenged by the petitioner on the ground that it is arbitrary and violative of Article 14 of the Constitution. 8. But that is not to say that the impunged WT message dated 4.8.94 cancelling the reconstitution of the Board cannot be challenged by the petitioner on the ground that it is arbitrary and violative of Article 14 of the Constitution. The notification dated 28.7.94 reconstituting the Board, with the petitioner as Chairman was sought to be cancelled within a few days thereafter by the impunged WT message and no affidavit-in-opposition has been filed by the respondent Nos.l, 2 and 3 indicating the reason for such immediate cancellation and in the circumstances, the Court passed orders on 9.3.95 requesting Ms.K.Yadav, GA, Assam, to produce the records to show the circumstances in which the notification dated 28.7.94 and the impunged WT message dated 4.8.94 were issued. Pursuant to the said order of the Court, the records were produced by GA, Assam and on a persual of the said records, I find that on 25.7.94 a note was put up that the Minister-in-charge, WPT & BC desired to reconstitute Sub Division Welfare Board for Scheduled Castes, Kaliabor Sub Division with members as per list dated 22.7.94 signed by the Minister-in-charge, WPT & BC, Assam himself and thereafter, the notification dated 28.7.94 was issued reconstituting the Board with the petitioner as Chairman, but suddenly on 4.8.94, the Minister-in-charge, WPT & BC, sent another note to the Commissioner and Secretary to the Govt. of Assam, WPT & BC to treat the reconstitution of the Board with the petitioner as Chairman as cancelled and to continue the existing Board with the respondent No.4 witli immediate effect. In the records produced before me no reason, however, has been indicated for such sudden cancellation of the notification dated 28.7,94reconstituting the Board. In the leading case of Hochtief Gammon vs. State of Orissa, AIR 1975 SC 2226 , the Apex Court explained : “The executive have to reach-their decisions by taking into account relevant considerations. They should hot refuse to consider relevant matter nor should take into account: wholly irrelevant pr extraneous consideration. They should not misdirect themselves on a point of law. Only such a decision will be lawful. The Courts have power to see that the executive acts lawfully. It is no answer to the exercise of that power to say that the executive acted bonafide nor that they have bestowed painstaking consideration. They cannot avoid scrutiny by Courts by failing to give reasons. Only such a decision will be lawful. The Courts have power to see that the executive acts lawfully. It is no answer to the exercise of that power to say that the executive acted bonafide nor that they have bestowed painstaking consideration. They cannot avoid scrutiny by Courts by failing to give reasons. If they give reasons and they are not good reasons, the Court can direct them to reconsider the matter in the light of relevant matters, though the propriety, adequacy or satisfactory character of those reasons may not be open to judicial scrutiny. Even if the executive considers it inexpedient to exercise their powers they should state their reasons and there must be material to show that they have considered all the relevant facts.” The aforesaid decision is ah authority for the point that the executive in exercise of its power cannot avoid scrutiny by the Courts by failing to give reasons. Since no reasons have been given by the executive in the present case for cancelling the notification dated 28.7.94 reconstituting the Board with the petitioner as Chairman, I have no option but to come to the conclusion that the said cancellation by the impugned WT message dated 4.8.94 within few days after the notification dated 28.7.94 was not for any relevant consideration and was arbitrary and violative of Article 14 of the Constitution. 9. In the case of Kamal Chandra vs. State of Assam (supra) cited by Mr. Laskar, learned counsel for the respondent No.4, the respondent Nos. 1 and 2 in the said case had stated in their affidavit-in-opposition the reason for dissolving the Board which was that the Government considered that it will be more appropriate to have a Board consisting of representatives of shades of opinion serving interest of Scheduled Tribes irrespective of party affiliation and the Court held that the said reason was relevant and germane. But in the instant case, no affidavit-in-opposition has been filed by the respondent Nos.1 to 3 indicating such reason and no reason has also been indicated in the records produced before me for cancelling the notification dated 28.7.94 reconstituting the Board within a few days thereafter by the impunged WT message dated 4.8.94. But in the instant case, no affidavit-in-opposition has been filed by the respondent Nos.1 to 3 indicating such reason and no reason has also been indicated in the records produced before me for cancelling the notification dated 28.7.94 reconstituting the Board within a few days thereafter by the impunged WT message dated 4.8.94. Mr.Laskar, learned counsel for the respondent No.4, suggested that perhaps the reason was that the policy of the Government was not to disturb any of the existing Boards, but I find from the records produced before me that the Boards of other Sub Divisions have been reconstituted in the year 1994 and copies of notification have been annexed by the petitioner in his additional affidavit filed on 14:3.95 by which the Sub Divisional Welfare Boards for Scheduled Castes for Jorhat, Goalpara, Dhakuakhana, Rangia,Dhansiri, Bajali, North Lakhimpur and Morigaon Sub Divisions have also been reconstituted during the year, 1994. In the case of Smti Rashmimala Barua vs. Smti Deepali Devi & others, Writ Appeal No.426 of 1994, (1995(1) GLJ 189) the Division Bench of this Court in its judgment dated 10.1.95 came to a definite conclusion on the facts of that case that the appellant had filed a subsequent appeal against the same judgment of the learned Single Judge with a clear intention to ensure that the respondent who had lodged a caveat in the earlier appeal may not be present at the time of hearing of the subsequent appeal and oppose the prayer for stay and on the basis of the said finding of the fact held that the appellant had not come to the Court with clean hands and had abused the process of the Court. But in the present case it is not possible to infer such intention of the part of the petitioner in not making the respondent No.4 as party in the first instance and dismiss the writ petition on the ground that the petitioner has not come with clean hands particularly when the petitioner has impleaded the respondent No.4 and other members of the old Board at a later stage. 10. I am, therefore, of the opinion that the impunged WT message dated 4.8,94 is arbitrary and violative of Article 14 of the Constitution. 10. I am, therefore, of the opinion that the impunged WT message dated 4.8,94 is arbitrary and violative of Article 14 of the Constitution. This writ petition is accordingly allowed and the impunged WT message dated 4.8.94 issued by the Government of Assam cancelling the notification dated 28,7.94 reconstituting the Sub Divisional Welfare Board for Scheduled Castes for Kaliabor Sub Division with the petitioner as Chairmann is hereby quashed. But considering the facts and circumstances of the case, the parties shall bear their own costs.