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2007 DIGILAW 178 (ALL)

BHOOP SINGH v. STATE OF UTTAR PRADESH

2007-01-22

B.S.CHAUHAN, DILIP GUPTA

body2007
JUDGMENT By the Court.—This writ petition has been filed for quashing the impugned order dated 23.5.2006 passed by the respondent No. 3 (Annexure-5) by which he has restored the fair price shop licence of respondent No. 4, in compliance of the order passed on the letter dated 5.4.2006 written by respondent No. 6 i.e. Sri Anand Pathak District President of Samajwadi party to the Chief Minister of U.P. Government Lucknow requesting him to reinstate fair price shop licence of respondent No. 4 and on the said letter, the Secretary to Chief Minister directed the District Magistrate Mahamaya Nagar to restore the fair price shop licence of respondent No. 4. 2. It is settled legal proposition that if the Statute confers a jurisdiction upon a particular authority, that authority alone has a competence to decide the matter. He cannot seek any instructions from the higher authority nor the higher authorities can lease out its wisdom, nor the matter can be adjudicated upon the directions of any higher authority. Such a settled legal proposition does not require any reference of judicial pronouncements. 3. It is settled proposition of law that when Statute confers power on a particular Authority or person to perform certain functions, it cannot be exercised by any other person. [Vide Karan Singhji Jadeja and another v. State of Gujarat and others, JT 1995 (6) SC 146; State of U.P. and others v. Ram Naresh Lal, AIR 1970 SC 1263 ; Central Inland Water Transport Corporation Ltd. v. Brojo Nath Ganguly and another, AIR 1986 SC 1571 ; Board of High School and Intermediate Education, U.P., Allahbad v. Ghanshyam Das Gupta, AIR 1962 SC 1110 ; Smt. Maneka Gandhi v. Union of India and another, AIR 1978 SC 597 and Chandrika Jha v. State of Bihar and others, AIR 1984 SC 322 ]. 4. In Purtabpur Company Ltd. v. Cane Commissioner of Bihar and others, AIR 1970 SC 1896 , the Hon’ble Supreme Court has 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. 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 the 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.” 5. Similarly, in Tarlochan Dev Sharma v. State of Punjab and others, (2001) 6 SCC 260 , the Hon’ble Supreme Court, after placing reliance upon a large number of its earlier judgment, observed as under : “In the system of Indian democratic governance, as contemplated by the “constitution, senior officers occupying good position as Secretaries, are not supposed to mortgage their own discretion, volition and decision-making authority and be prepared to give way or being pushed back or pressed ahead at the behest of the politicians for carrying out command having no sanctity in law....No Government servant shall in the performance of his official duties, or in the exercise of power conferred on him, act otherwise than in his best judgment except when he is acting under the direction of his official superior.” 6. In the instant case, as the order has been passed by the Sub-Divisional Magistrate only on the instructions of the Secretary to the Chief Minister of the State, the order impugned cannot be sustained in the eyes of law and it is liable to be set-aside. 7. In view of the above, petition succeeds and is allowed. Impugned order dated 23.5.2006 passed by the Sub-Divisional Magistrate, Mahamaya Nagar is hereby quashed. 8. We direct the Sub-Divisional Magistrate, District Mahamaya Nagar i.e. the Statutory Authority to hold an inquiry and conclude the same after giving opportunity of hearing to the respondent No. 4 in accordance with law. ———