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2001 DIGILAW 770 (PAT)

Mahesh Prasad Chaudhary v. State Of Bihar

2001-08-22

S.K.KATRIAR

body2001
Judgment 1. Heard Mr. Keshava Srivastava, learned Senior counsel for the petitioner, and Mr. A. K. Choudhary, learned G.P. 8, for the respondents. 2. The petitioner was given settlement of the Pokhar in the premises of the Government Basic School, Shree Rampur, Hayaghat Block, district Darbhanga, from 1.7.97 till 30.6.2000, which was further extended for a period of one year which ended on 30.6.2001. The petitioner submits before this Court that an account of various circumstances beyond his control, fishing could not be done fully during the aforesaid four years causing loss to the petitioner. It was for that reason that the petitioner fell in arrears with respect to the government dues. In his application before the authorities for grant of appropriate relief, he requested for permission to do one-time fishing during the current rainy season so that the petitioner may be able to clear the entire arrears of the Government. The petitioner further states in the writ petition that he has already given fish seeds in the pond in question and fishes have grown up and, therefore, if one-time fishing is allowed to him, the problems of the petitioner would be over and arrears of the State Government will also be wiped off. 3. The matter was taken up earlier on 6.8.2001 and the respondents were called upon to consider the request of the petitioner on the administrative side and also to file a counter affidavit which has been filed. Mr. A.K. Choudhary, learned G.P. 8, has placed various paragraphs of this counter affidavit to state that the petitioner has been a chronic defaulter and, therefore, it is not possible for the respondent authorities to grant any remission, nor is it possible to permit him onetime fishing during the current rainy season, nor is it possible to grant him lease for a further period of one year i.e. from July 2001 to June 2002. Learned Government Pleader further invites my attention to paragraph-7 (b) of the counter affidavit which reads as follows : "As per agreement the writ petitioner has to deposit Rs. 45,050.00 before execution of the agreement but after bid dated 04.09.1997 the writ petitioner deposited only 40,051.00 on 09.09.97 and he has to deposit Rs. Learned Government Pleader further invites my attention to paragraph-7 (b) of the counter affidavit which reads as follows : "As per agreement the writ petitioner has to deposit Rs. 45,050.00 before execution of the agreement but after bid dated 04.09.1997 the writ petitioner deposited only 40,051.00 on 09.09.97 and he has to deposit Rs. 5,000.00 more before the agreement but he delayed in depositing the said amount and even there it appears that the respondent No. 4, the Head Master in collusion with the writ petitioner executed the agreement on 20.11.1997 and thereafter on 08.12.97, the writ petitioner deposited Rs. 15,000/- and as such, the writ petitioner violated the first condition and deposited the 50% of the amount in two installments, i.e. on 09.09.97 and 08.12.97, while the agreement was executed on 20.11.97." (emphasis mine) 4. Having considered the rival submissions, I do not think it possible to accede to the submissions advanced on behalf of the petitioner. Law is well settled by judgments of high authority that administrative decisions are normally immune from judicial reviewability, which admits of a few exceptions and are indicated in the classic judgment of the court of appeal reported in 1947 (2) All E.L.R. 680 (Associated Provincial Picture Houses V/s. Wednesday Corporation). The following portion of the judgment illumines the position : "The contention of the authority, in my opinion, is based on a misconception of the effect of the Act in granting this discretionary power to local authorities. The courts must always remember, first, that the act deals, not with a judicial act, but with an executive act; secondly, that the conditions which, under the exercise of that executive act, may be imposed are in terms but within the discretion of the local authority without limitations; and thirdly, that the statutes provides no appeal from the decision of the local authority. What, then, is the power of the courts? The courts can only interfere with an act of an executive authority if it be shown that the authority have contravened the law. It is for those who assert that the local authority have contravened the law to establish that proposition. On the face of it, a condition of this kind is perfectly lawful. The courts can only interfere with an act of an executive authority if it be shown that the authority have contravened the law. It is for those who assert that the local authority have contravened the law to establish that proposition. On the face of it, a condition of this kind is perfectly lawful. It is not to be assumed prima facie that responsible bodies like local authorities will exceed their powers, and the court, whenever it is alleged that the local authority have contravened the law, must not substitute itself for the local authority. It is only concerned with seeing whether or not the proposition is made good. When an executive discretion is entrusted by Parliament to a local authority, what purports to be an exercise of that discretion can only be challenged in the courts in a very limited class of case. It must always be remembered that the court is not a court of appeal. The law recognises certain principles on which the discretion must be exercised, but within the four corners of those principles the discretion is an absolute one and cannot be questioned in any court of law. What, then, are those principles? They are perfectly well understood. The exercise of such a discretion must be a real exercise of the discretion. If, in the statute conferring the discretion, there is to be found, expressly or by implication, matters to which the authority exercising the discretion ought to have regard, then, in exercising the discretion, they must have regard to those matters. Conversely, if the nature of the subject-matter and the general interpretation of the Act make it clear that certain matters would not be germane to the matter in question, they must disregard those matters. Expressions have been used in cases where the powers of local authorities came to be considered relating to the sort of thing that may give rise to interference by the court. Bad faith, dishonestythose, of course, stand by themselvesunreasonableness, attention given to extraneous circumstances, disregard of public policy, and things like that have all been referred to as being matters which are relevant for consideration. In the present case we have heard a great deal about the meaning of the word "unreasonable." It is true the discretion must be exercised reasonably. What does that mean? In the present case we have heard a great deal about the meaning of the word "unreasonable." It is true the discretion must be exercised reasonably. What does that mean? Lawyers faimiliar with the phraseology commonly used in relation to the exercise of statutory discretions often use the word "unreasonable" in a rather comprehensive sense. It is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to the matter that he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting "unreasonably". Similarly, you may have something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington, L J., I think it was, gave the example of the red-haired teacher, dismissed because she had red hair. That is unreasonable in one sense. In other sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith. In fact, all these things largely fall under one head." The aforesaid judgment has become classical in legal literature and has come to be known as Wednesday reasonableness. The same has been cited with approval by the Supreme Court times without number, one of the iatest case being the judgment reported in (1994) 6 SCC 651 (Tata Cellular V/s. Union of India). 5 It is thus manifest that the question in the present case whether or not the petitioner is entitled to remission, the question whether or not he fell into arrears for circumstances beyond his control, the question whether or not he is entitled to one-time fishing during the current rainy season, or whether or not he may be given further extension in view of the factual position that he has continuously been in arrears and other relevant circumstances, are essentially administrative functions with which this Court would normally decline to interfere. It is no part of the duty of this court and no part of the writ jurisdiction to administer. It is no part of the duty of this court and no part of the writ jurisdiction to administer. The same are functions of the administrator and this court in exercise of extraordinary prerogative writ jurisdiction shall interfere with administrative matters only when a clear case is made out under one or the other recognised exceptions. I must at this stage add that one more factor has to be added to the aforesaid exceptions in India, namely, whether or not the order complained of is arbitrary and is violative of the constitutional provisions. It is manifest on the face of it that the petitioners case is not covered by any one of the recognised exceptions indicated in the aforesaid judgment of the Court of Appeal or the constitutional provisions. 6. There is no more aspect of the matter. Law is well settled that the extraordinary prerogative writ jurisdiction is never exercised in favour of defaulters or law-breakers. It is manfiest on the face of it that the petitioner has been a chronic defaulter. I, therefore, decline to exercise the writ jurisdiction in favour of the petitioner. 7. The writ application is accordingly dismissed.