Research › Search › Judgment

Andhra High Court · body

2002 DIGILAW 1280 (AP)

Madakam Kiranmai v. District Collector, Magistrate, Khammam

2002-11-01

L.NARASIMHA REDDY

body2002
L. NARASIMHA REDDY, J. ( 1 ) THE petitioner was issued a Social Status Certificate on 4-6-1996 by the Mandal Revenue Officer, Palavancha, khammam district, the 3rd respondent herein, certifying that she belongs to Schedule Tribes community. On the strength of the same, she was selected for admission into m. B. B. S. , course in the year 1998. At the time of admission, the Certificate was to be 2002 (6) FR-F-38 signed afresh by the Mandal Revenue officer. Accordingly the petitioner is stated to have approached the 3rd respondent on 3-8-1998. It is alleged that instead of signing it, the 3rd respondent seized the same. Aggrieved by that action, the petitioner filed wp No. 24 784 of 1998. Pursuant to the interim order passed therein, the Certificate was restored to the petitioner and the writ petition was accordingly closed, through order dated 5-10-1998. ( 2 ) THE petitioner was issued a show- cause notice dated 9-12-1998 by the 1st respondent directing her to show-cause as to why the Social Status Certificate issued to her by the 3rd respondent shall not be cancelled. On receiving the same, the petitioner submitted a detailed explanation dated 23-12-1998. Thereafter, the mother of the petitioner is said to have been issued a questionnaire on 16-1-1999 and the same was replied on 7-2-1999. Certain affidavits were also said to have been enclosed. ( 3 ) IN accordance with the provisions of the Andhra Pradesh (SC, ST and BCs) regulation of issue of Community certificates Act, 1993 (for short the Act ) and the Rules of 1997 issued there-under (for short the Rules ), the matter was placed before the District Level Scrutiny Committee (for short the Committee ) for verification. Several witnesses were examined and cross examined. A further enquiry was got undertaken through the Director of TCR and tl Tribal Welfare Department, Hyderabad, the 2nd respondent herein. On the basis of the material placed before it, the Committee appears to have resolved to recommend for cancellation of the Social Status Certificate issued to the petitioner by the 3rd respondent. Ultimately, the 1st respondent issued a final show cause notice dated 3-10-2002. The same is challenged in this writ petition. On the basis of the material placed before it, the Committee appears to have resolved to recommend for cancellation of the Social Status Certificate issued to the petitioner by the 3rd respondent. Ultimately, the 1st respondent issued a final show cause notice dated 3-10-2002. The same is challenged in this writ petition. ( 4 ) IT is the case of the petitioner that before the Committee, several witnesses were examined and even before certain persons were examined before the committee in support of her claim, the proceedings were abruptly stopped. It is alleged that, on the basis of an enquiry said to have been conducted by the 2nd respondent, behind the back of the petitioner, the Committee has made its recommendations and the final show cause notice is issued based thereon. The petitioner apprehends that whatever be her explanation, the 1st respondent would pass orders against her and the same would result in cancellation of her admission to the m. B. B. S. course. ( 5 ) THE matter came up for admission on 25-10-2002. Having regard to the importance of the matter, the learned government Pleader for Social Welfare expressed his readiness to proceed with the matter on the basis of instructions secured by him. The matter was heard extensively and the learned Counsel for the petitioner as well as the learned Government Pleader for Social Welfare addressed their exhaustive arguments, touching on alf aspects. ( 6 ) SRI Nuty Rama Mohana Rao, learned Counsel for the petitioner, submits that though what is impugned in the writ petition is a show cause notice, having regard to the illegality from which it suffers, this Court can certainly interfere, by issuing a writ of mandamus and declaring the same as illegal and unconstitutional. His main plank of argument is that the show- cause notice is violative of the principles of natural justice, in that, the enquiry, which was proceeding before the Committee, was abruptly stopped denying an opportunity to the petitioner to put forward her case before the Committee. He placed reliance upon several judgments of the Hon ble Supreme court in support of his contention that wherever situation warrants, this Court can undertake judicial review of show cause notices also. He placed reliance upon several judgments of the Hon ble Supreme court in support of his contention that wherever situation warrants, this Court can undertake judicial review of show cause notices also. ( 7 ) SRI Noushad Ali, learned government Pleader for Social Welfare, on the other hand, submits that the proceedings are initiated under the Act and the Rules, which are almost self-contained. According to him, every step as contemplated under the Act as well as the Rules has been followed. He denied the allegation of the petitioner that the enquiry before the committee was stopped abruptly. He finally states that even if any omission can be said to have been taken place during the course of enquiry, the petitioner can point out the same in her explanation to the show cause notice and there is no reason to believe that the 2nd respondent would not take the same into account. ( 8 ) FROM the facts narrated above, it is evident that the writ petition is filed against the show cause notice. The learned Counsel for the petitioner was not oblivious of the limitations of judicial review of administrative actions, which are in the form of show cause notices. He made an attempt to sustain the maintainability of the writ petition, against a show cause notice, by stating that the show cause notice was violative of principles of natural justice. According to him, the enquiry which was in progress before the committee was given up in the mid-stream and on the basis of a report said to have been submitted by the 3rd respondent after an enquiry, conducted behind the back of the petitioner, the Committee has passed its resolution and thereby the show cause notice is issued. Before any discussion is undertaken into the merits or otherwise of the factual aspects, it needs to be seen as to how far, in the given circumstances, the writ petition can be maintained. ( 9 ) CONSTITUTIONAL Courts maintain utmost restraint when show cause notices are assailed before them. While refusal to entertain such writ petitions is rule, interference is an exception. The basis for such restraint is that wherever an administrative or quasi-judicial authority is vested with the power to decide a matter, it has to be allowed to carry on its functions. While refusal to entertain such writ petitions is rule, interference is an exception. The basis for such restraint is that wherever an administrative or quasi-judicial authority is vested with the power to decide a matter, it has to be allowed to carry on its functions. In a way, law concedes them the power to decide correctly or otherwise; as long as the decision making process is within the framework of law. It is only when it renders decision, which adversely affects the rights of a citizen, in particular, or citizens in general, that an occasion would arise to review the action. Even this review would be of the decision making process and not the decision itself. Show cause notices are always a step preceding the ultimate decision. In that view of the matter, the challenge to the same is considered to be premature. Law reports, Indian as well as Foreign, are replete with precedents on this aspect. ( 10 ) INSTANCES of interference at the stage of show cause notices are few, but certain. For example, where the show- cause notice was issued by an authority not having the jurisdiction, the writ petition is held to be maintainable (Kochunni v. State of Madras, AIR 1959 SC 725 ). Another instance is where show-cause notice directs the individual to do or forbear from doing something contrary to law (Commissioner of Police v. Gordhandas, AIR 1952 SC 16 . There are instances of show cause notice being set aside in the matter of imposition of tax; where constitutionality of imposition of tax is in challenge (Bengal Immunity company v. State of Bihar, AIR 1955 SC 661 ). ( 11 ) THE test, therefore, is to see whether the show cause notice is without jurisdiction or it requires the petitioner to do something, contrary to law. It is not the case of the petitioner that the show- cause notice is without jurisdiction, either as regards the subject matter or the authority who issued it. It is provided for under the act as well as the Rules, it was preceded by enquiries as contemplated under the same. The defect, if any, during the course of the enquiry, cannot render the show cause notice, as the one without Jurisdiction. It requires the petitioner to submit explanation as to why the Social Status Certificate should not be cancelled, as provided under the Act and the Rules. The defect, if any, during the course of the enquiry, cannot render the show cause notice, as the one without Jurisdiction. It requires the petitioner to submit explanation as to why the Social Status Certificate should not be cancelled, as provided under the Act and the Rules. It cannot be said that it required the petitioner to do something contrary to law. ( 12 ) THE learned Counsel for the petitioner placed reliance upon the judgment of the Supreme Court in NMCS and W v. Ahmedabad Municipality, AIR 1967 SC 1801 . That case related to imposition of tax. The contention therein was that the procedure prescribed in Rule 9 (b) was not followed before the assessee was served with a notice. In that judgment, the Supreme court recorded a definite finding that the municipality did not observe the law and failed to follow the procedure prescribed for imposition of the tax. The same is evident from Para 13, which is to the following effect:". . . . WE must hold that the municipality did not observe the law and failed in the duty to determine the ratable value of each building and land comprised in each of the textile factories in terms of Rule 9 (b) of the rules under the Bombay Provincial municipal Corporation Act, 1949, so far as the assessment book for the year 1966-67 is concerned. "it was in that context that the notice was set aside. Further, notices determining taxes stand on a different footing, as evident from the judgment of the Supreme Court in bengal Immunity case (supra ). ( 13 ) THE learned Counsel for the petitioner also placed reliance upon the judgment of the Supreme Court in Union of India v. Brij Fertilizers, 1993 (3) SCC 564 . In that case, the High Court interfered with a show-cause notice on recording a finding that there was no material, which constituted the basis for issuance of show- cause notice. The judgment of the High court was affirmed with the following observation:". . . . True, the High Court should normally not interfere at the stage of show cause notice. In that case, the High Court interfered with a show-cause notice on recording a finding that there was no material, which constituted the basis for issuance of show- cause notice. The judgment of the High court was affirmed with the following observation:". . . . True, the High Court should normally not interfere at the stage of show cause notice. But where, from the facts it is apparent that there was no material available with the department to doubt the statement on behalf of the respondents and their own officers at every point of time had issued the certificate the correctness of which could not be disputed or doubted except by raising unfounded suspicion or drawing on imagination it would be failing to exercise jurisdiction if the Court does not discharge its constitutional obligation. "in this case, it is not even alleged that the 1st respondent did not have any material before he issued the show-cause notice. ( 14 ) IN reply to the contentions of the learned Counsel for the petitioner that the petitioner was. not given an opportunity to examine the witnesses on her behalf, the learned Government Pleader had invited the attention of this Court, to a Para of the impugned show cause notice, which reads as under:"the reply furnished by the mother of Kum. Kiranmal could not reveal any valid reason to consider her claim. As requested by Smt. Katnala, the witnesses in this case were summoned and examined by the District Level scrutiny Committee and recorded their evidences vide references eight, nine, ten and eleven cited and recorded the depositions thereon. "from a reading of this Para, it prima facie appears that the mother of the petitioner has named certain witnesses and they were examined. The complaint, if at all, can be as regards witnesses, over and above those who have already been examined. It cannot be said that the petitioner was not afforded an opportunity at all. Even to record a finding on this allegation, verification of the facts, such as whether there was any application filed on behalf of the petitioner to examine any other witnesses, relevance of their evidence, the decision taken thereon by the Committee, etc. , is needed. It is not as if the petitioner is without any remedy, even if there exist any lapses during the course of the enquiry. , is needed. It is not as if the petitioner is without any remedy, even if there exist any lapses during the course of the enquiry. It is always open to her to invite the attention of the 1st respondent to such lapses. In fact, the very purpose of issuance of show cause notice is to enable the affected party to point out the lapses during the course of enquiry as well as to buttress their contentions in support of their claim. That being the situation, it cannot be said that the petitioner had made out a case for interference with the impugned show cause notice. ( 15 ) THE learned Counsel for the petitioner has invited the attention of this court to the various provisions of the Act and the Rules, to point out that the procedure prescribed there under was not followed in its letter and spirit. This Court does not prefer to go into those aspects, lest any observation or finding as regards the compliance or otherwise with such provisions, may affect the further proceedings. ( 16 ) THE apprehension of the petitioner that in the event of the 1st respondent passing an order of cancellation of her Social status Certificate, she will be left with no remedy and her admission will be cancelled, cannot be said to be well founded. The Act has provided for not only a statutory appeal, but also has conferred upon the appellate authority the power to pass interim orders. There is no reason to believe that the 1st respondent would not discharge his function properly or, for that matter, the appellate authority would not exercise its powers, in the event of an appeal being filed. ( 17 ) THE writ petition is accordingly dismissed, at the admission stage, It is, however, made clear that it shall be open to the petitioner to point out the lapses, if any, that have taken place during course of enquiry, while submitting her explanation. ( 18 ) IT is stated that the petitioner was required to submit her explanation within 15 days from the date of receipt of the show cause notice and the time so prescribed has since lapsed. Since the writ petition was pending in this Court, the petitioner is given 10 days time from today to submit her explanation. ( 18 ) IT is stated that the petitioner was required to submit her explanation within 15 days from the date of receipt of the show cause notice and the time so prescribed has since lapsed. Since the writ petition was pending in this Court, the petitioner is given 10 days time from today to submit her explanation. If the explanation is submitted within 15 days from today, the same shall be entertained as having been submitted in time and considered on merits, in accordance with law.