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1998 DIGILAW 668 (RAJ)

Toda Ram v. State of Rajasthan

1998-05-13

B.S.CHAUHAN

body1998
Honble CHAUHAN, J.–The instant writ petition has been filed for quashing the impugned order dated 30.3.1996 (Annexure 1) passed by the Executive Engineer and the appellate order dated 29.9.96 (Annexure 2) passed by the Superintending Engineer, Hanumangarh Junction on the ground that the statutory authorities have passed the orders without any application of mind and on the ins- tructions of the respondent No. 4, the Honble Minister for Irrigation. (2). The facts and circumstances giving rise to this case are that respondents No. 5 to 9 filed an application before the respondent No. 3 for transfer of their land. On the said application, no notice was served upon petitioners and the impugned order dated 30.3.96, contained in Annexure 1 to the petition, was passed. Being ag- grieved and dissatisfied, an appeal was preferred by petitioners before respondent No. 2, which had, also, been dismissed vide impugned judgment and order dated 24.9.96, contained in Annexure 2 to this petition. Hence this petition. (3). Mr. Kharlia, learned counsel for the petitioners submitted that it was a case under the provisions of Section 20 of the Rajasthan Irrigation and Drainage Act, 1954 (hereinafter referred as ``the Act) and the Rajasthan Irrigation and Drainage Rules, 1955 (hereinafter referred as ``the Rules) and the impugned order could not have been passed by the respondent No. 3 without issuing any show cause notice to the petitioners. His allegation is that it is evident from the impugned order itself that the said order had been passed on the instructions of the respon- dent No. 4, the then Honble Minister for Irrigation. This Court heard the matter on 10.10.96 and insisted that if allegations of malafide are urged against the Honble Minister for Irrigation then he had to be impleaded by name. Petitioners impleaded the Honble Minister for Irrigation by name and inspite of service, he has chosen not to enter appearance. However, Mr. B.N. Calla, learned counsel for the respondents No. 5 to 9 submitted that in view of the judgment of this Court in Jernail Singh & Ors. vs. State of Rajasthan Ors. (1), this Court should not interfere in the matter requiring specialised knowledge about the functioning of irregation system as the impugned orders had been passed by the experts in the subject. Similar view had been taken by this Court in Laxman & Ors. vs. State of Rajasthan & Ors. vs. State of Rajasthan Ors. (1), this Court should not interfere in the matter requiring specialised knowledge about the functioning of irregation system as the impugned orders had been passed by the experts in the subject. Similar view had been taken by this Court in Laxman & Ors. vs. State of Rajasthan & Ors. (2), and, thus, he submits that this case does not warrant any interference by this Court. Similar view had been taken earlier by this Court in Sheetal vs. State of Rajasthan & Ors. (3). (4). There can be no dispute regarding the proposition put forward by Mr. Calla as the Constitution Bench of the Honble Supreme Court has laid down the same proposition of law in University of Mysore vs. Govind Rao & Anr. (4), The Chancellor & Anr. vs. Dr. Bijayanandan Kar (5); and Central Areca Nut & Cocoa Marketing and Processing Cooperative Society vs. State of Karnataka & Ors. (6). However, the said proposition is not applicable here for the reason that the allegations of malafide had been alleged against the respondent No. 4 and it is submitted by Mr. Kharlia that the order has been passed at the behest of the Honble Minister for Irrigation. Impugned order, contained in Annexure 1, gives an impressions that the said order had been passed at the behest of the Honble Minister and even the appellate Court has not dealt- with the grievances raised by the present petitioners on that ground. (5). Mr. Kharlia has submitted that every statutory body is supposed to apply its mind and take a decision according to the facts and circumstances and the superior authority, however higher it may be, cannot dictate the terms to a statutory Authority. In order to fortify his submissions, Mr. Kharlia has placed reliance on the judgment of the Supreme Court in Anirudhsinhji Karan Sinhji Jadeja & Anr. vs. State of Gujarat & Ors. (7). The Apex Court has taken the similar view in State of Uttar Pradesh & Ors. vs. Ram Naresh Lal (8); and Central Inland Water Transport Corporation Ltd. vs. Brojonath Gangula & Anr. (9). (6). Kharlia has placed reliance on the judgment of the Supreme Court in Anirudhsinhji Karan Sinhji Jadeja & Anr. vs. State of Gujarat & Ors. (7). The Apex Court has taken the similar view in State of Uttar Pradesh & Ors. vs. Ram Naresh Lal (8); and Central Inland Water Transport Corporation Ltd. vs. Brojonath Gangula & Anr. (9). (6). Moreover, the higher authorities are refrained from issuing any direction to the statutory authorities as when a statute creates an authority, it is duty of the statutory authority to decide the case according to the merit of the case by applying its mind and it should not be influenced by any other authority as no other authority has power to decide the matter. In Purtabpur Company Ltd. vs. Cane Commissioner of Bihar (10), the Apex Court observed as under :- ``The powers exercisable by the Cane Commissioner under Clause 6(1) is statutory power. He alone could have exercised that power. While exercising that power, he cannot obligate his responsibilities in favour of any one; not even in favour of the State Government or the Chief Minister. It was not proper for the Chief Minister to have interfered with the functions of the Cane Commissioner......The Executive officers, entrusted with statutory discretion, may, in some cases, be obliged to take into account consideration of public policy and in some context the policy of a Minister or the Government as the whole when it is relevant factor in weighing the policy but this will not absolve them from the duty to exercise the personal judgment in individual case unless explicit statutory provisions have been made for them to be given binding instructions by a superior. (7). In Board of High School and Intermediate Education, Uttar Pradesh, Alla- habad vs. Ghan Shyam Das Utpal (11), the Honble Supreme Court has held that where the statute in question is silent as to the manner in which the power should be exercised by the Authority acting under it, the exercise of power will depend on the expressed provisions of the statute read alongwith the nature of the rights affected, the manner of disposal provided, the objective criteria, if any, to be adopted, the effect of the decision on the persons affected and other indesia up-held by the statute. Similar view has been taken by the Honble Supreme Court in Smt. Maneka Gandhi vs. Union of India & Anr. (12); Chandrika Jha vs. State of Bihar & Ors. (13); and Mansukhlal Vithaldas Chauhan vs. State of Gujarat (14). (8). There is another aspect of the matter. Even if a higher authority requests the statutory authority to do something, it would be deemed to have issued a command (Vide Chintapalli Agency Taluk Arrace Sales Cooperative Society vs. Secretary (Food and Agriculture), Government of Andhra Pradesh & Anr. (15); and R.C. Sood vs. State of Rajasthan & Ors. (16). (9). Mr. B.N. Calla has submitted that it is not clear from the orders passed by the competent authorities under the statute that the orders have been passed at the behest of the Honble Minister and, therefore, the allegations of malafide, made against the respondent No. 4, are untenable and unfounded. It is settled proposition of law that justice should not only be done but it should be seem to have been done and the Executive Engineer, in its order, has made a reference to the letters of the Honble Minister several times and a copy of the order has been sent to the Honble Minister. Even if the Executive Engineer was not influenced by the letter of the Honble Minister, it gives an impression that the Executive Engineer has been influenced to some extent by the said letters while passing the impugned order. Moreover, it is admitted fact that while passing the said order, no opportunity of hearing was given to the petitioners and hence if the Executive Engineer has applied its mind, the order has definitely been passed in flagrant violation of the principles of natural justice. Therefore, it is desirable that the matter be reconsidered de novo. (10). Thus, in view of the above, the impugned orders dated 30.3.96 and Annexure 2 dated 26.9.96 are quashed and the Executive Engineer, the respondent No. 3, is directed to decide the matter de novo after giving an opportunity of hearing to all the concerned parties within a period of eight weeks from the date of filing a certified copy of this order, which the petitioners undertake to file within two weeks from today. (11). With these observations, the petition stands disposed of finally. The parties shall bear their own costs.