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2018 DIGILAW 2482 (ALL)

Bhurkura Math v. State Of U. P. Thru Secy.

2018-12-06

PRADEEP KUMAR SINGH BAGHEL, PRAKASH PADIA

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JUDGMENT : 1. The petitioner claims to be Mahant of a Math. He has instituted this writ petition aggrieved by an order of the Additional District Magistrate (Finance and Revenue), Ghazipur dated 17.10.2012 whereby he has called upon the parties to appear before him and file their documents in support of their case. 2. Briefly stated the facts are; the petitioner claims that Bhurkura Math was established by erstwhile Zamindar in 1600 century. The Math is involved in social activities in District Ghazipur and a Degree College as well as Sanskrit Pathshala has been established by the Math in the year 1933. The Mahant of the Math being an ex-officio President is managing the affairs of the College. It appears that some dispute arose with regard to the election of the Committee of Management of the Degree College. In the year 2011 it is also stated that the Math has established an Intermediate College which is recognized by the U.P. Board of High School and Intermediate Education and another Degree College has been stated to be established in the year 1969 in the name of Mahant Ram Aasre Das Post Graduate College, Ghazipur which is affiliated to Poorvanchal University, Jaunpur. The earlier Mahant Ram Aasre expired on 14.5.2008. It is stated that he had executed a registered will dated 26.2.2005 in favour of Mahant Shatrughan Das. Pursuant to the said registered will the mutations were made in the revenue record after deciding the objections by the appropriate authority. 3. It is stated that consequently the name of the petitioner was mutated in the revenue record. A copy of the Khatauni of the relevant year is on the record as annexure-9 to the writ petition. The said order was subjected to challenge before the Board of Revenue which allowed the revision of the opposite party. Thereafter, the order was challenged in the High Court and it is stated that this Court has allowed the writ petition and set side the order of the Board of Revenue. Consequently, the matter was again decided by the Board of Revenue after the remand. It has been decided against the petitioner. In the meantime, the fourth respondent has filed Civil Suit No. 123 of 2009. 4. Consequently, the matter was again decided by the Board of Revenue after the remand. It has been decided against the petitioner. In the meantime, the fourth respondent has filed Civil Suit No. 123 of 2009. 4. From the order of the Additional District Magistrate, Ghazipur dated 17.10.2012 it is evident that he has issued notice dated 17.10.2012 wherein it is mentioned that he has received a complaint which has been forwarded by the office of Hon'ble Chief Minister regarding the disputed property. It is also mentioned that the petitioner has fabricated a will and in collusion with the Nayab Tehsildar he is trying to grab the property of Math. 5. From the facts mentioned above it is evident that the matter is pending before the Civil Court hence the respondent no. 3 was not justified to take cognizance of the letter of office of Hon'ble Chief Minister and called upon the parties to adjudicate the matter when admittedly the matter is subjudice and administrative officer has no jurisdiction to decide the title dispute between the parties unless some power is conferred upon him by the Statute. No such power has been brought to our notice by the parties which confers the power upon an administrative officer to decide the title dispute between the parties. 6. It is a well settled law that if an order is passed on the dictation of the higher authority, the order becomes invalid on the ground of external dictation of the higher authority. The Supreme Court in the case of Tarlochan Dev Sharma v. State of Punjab and others, (2001) 6 SCC 260 has observed as under : “16. In the system of Indian Democratic Governance as contemplated by the Constitution, senior officers occupying key positions such as Secretaries are not supposed to mortgage there own discretion, volition and decision-making authority and be prepared to give way or being pushed back or pressed ahead at the behest of politicians for carrying out commands having no sanctity in law. The Conduct Rules of Central Government Services command the civil servants to maintain at all times absolute integrity and devotion to duty and do nothing which is unbecoming of a Government servant. The Conduct Rules of Central Government Services command the civil servants to maintain at all times absolute integrity and devotion to duty and do nothing which is unbecoming of a Government servant. 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. ...” 7. The said judgment has been followed by the Supreme Court in the case of Dipak Babaria and another v. State of Gujarat and others, (2014) 3 SCC 502 has considered this issue. Relevant part of the judgment reads as under: “69. Besides, the present case is clearly a case of dictation by the State Government to the Collector. As observed by Wade and Forsyth in the 10th Edn. of Administrative Law:- “if the Minister’s intervention is in fact the effective cause, and if the power to act belongs to a body which ought to act independently, the action taken is invalid on the ground of external dictation as well as on the obvious grounds of bad faith or abuse of power.” The observations by the learned authors to the same effect in the 7th Edn. were relied upon by a Bench of three Judges of this Court in Anirudhsinhji Karansinhji Jadega v. State of Gujarat, [ 1995 (5) SCC 302 ]. In that matter the appellant was produced before the Executive Magistrate, Gondal, on the allegation that certain weapons were recovered from him. The provisions of TADA had been invoked. The appellant’s application for bail was rejected. A specific point was taken that the DSP had not given prior approval and the invocation of TADA was non est. The DSP, instead of granting prior approval, made a report to the Additional Chief Secretary, and asked for permission to proceed under TADA. The Court in para 13, 14, 15 has held this to be a clear case of “dictation”, and has referred to Wade and Forsyth on Surrender Abdications and Dictation.” 8. This Court in the case of Madan Kumar and others v. District Magistrate, Auraiya and others, 2013 (10) ADJ 606 had occasion to deal with similar issue. The Court has quoted with approval Professor De Smith and Professor Wade in following terms: “21. This Court in the case of Madan Kumar and others v. District Magistrate, Auraiya and others, 2013 (10) ADJ 606 had occasion to deal with similar issue. The Court has quoted with approval Professor De Smith and Professor Wade in following terms: “21. Professor De Smith, in his Principles of Judicial Review 1999 Edition, page 240 has aptly said : "an authority entrusted with a discretion must not, in the purported exercise of its discretion, act under the dictation of another body or person. In at least two Commonwealth cases, licensing bodies were found to have taken decision on the instructions of the heads of Government who were prompted by extraneous motives. But, as less colourful cases illustrate, it is enough to show that a decision which ought to have been based on the exercise of independent judgment was dictated by those not entrusted with the power to decide, although it remains a question of fact whether the repository of discretion abdicated it in the face of external pressure." Professor Wade in his Administrative Law, 7th Edition has dealt with "Surrender, Abdication, Dictation" and "Power in the wrong hands" in the following words:- "Closely akin to delegation, and scarcely distinguishable from it in some cases, is any arrangement by which a power conferred upon one authority is in substance exercised by another. The proper authority may share its power with someone else, or may allow someone else to dictate to it by declining to act without their consent or by submitting to their wishes or instructions. The effect then is that the discretion conferred by Parliament is exercised, at least in part, by the wrong authority, and the resulting decision is ultra vires and void. So strict are the Courts in applying this principle that they condemn some administrative arrangements which must seem quite natural and proper to those who make them.... Ministers and their departments have several times fallen foul of the same rule, no doubt equally to their surprise....” 22. This paragraph of Professor Wade has been applied by the Supreme Court in the case of Anirudhsinhji Karansinhji Jadeja v. State of Gujarat, (1995) 5 SCC 302 .” 9. Ministers and their departments have several times fallen foul of the same rule, no doubt equally to their surprise....” 22. This paragraph of Professor Wade has been applied by the Supreme Court in the case of Anirudhsinhji Karansinhji Jadeja v. State of Gujarat, (1995) 5 SCC 302 .” 9. Broad principle that emerges is that if a power conferred upon an authority is not exercised by him independently within the framework of the Statute/ law and the decision is taken by him under the “dictation” of a superior authority or a Minister, it shows that he has abdicated his power. 10. Yet there is another aspect of the matter which cannot be lost sight. From the material on record we find that contention of learned counsel for the petitioner that the action of the respondents suffers from legal malice also. “Malice in law” or “Legal Malice” can vitiate a decision if it established that something has been done without lawful excuse. In such cases it need not to be proved, where the malice is alleged against the State that there was some personal ill-will on the part of the State. If the action of the State shows that there is a conscious violation of law to cause some prejudice to a citizen or rights. Such an order for an unauthorized purpose constitutes malice in law. In the case of Kranti Associates Private Limited and another v. Masood Ahmed Khan and others, (2010) 9 SCC 496 the Supreme Court has considered the legal malice in the following terms: “25. In Maneka Gandhi v. Union of India, (1978) 1 SCC 248 : AIR 1978 SC 597 , which is a decision of great jurisprudential significance in our constitutional law, Beg, C.J. in a concurring but different opinion held that an order impounding a passport is a quasi-judicial decision (SCCp. 311, para 34 : AIR p. 612, para 34). The learned Chief Justice also held, when an administrative action involving any deprivation of or restriction on fundamental rights is taken, the authorities must see that justice is not only done but manifestly appears to be done as well. This principle would obviously demand disclosure of reasons for the decision.” 11. Similar view has been taken by the Supreme Court in the case of Punjab State Electricity Board Ltd. v. Zora Singh and others, (2005) 6 SCC 776 and Union of India through Govt. This principle would obviously demand disclosure of reasons for the decision.” 11. Similar view has been taken by the Supreme Court in the case of Punjab State Electricity Board Ltd. v. Zora Singh and others, (2005) 6 SCC 776 and Union of India through Govt. of Pondicherry and another v. V. Ramakrishnan and others, (2005) 8 SCC 394 . 12. Accordingly, we find that the impugned order dated 17.10.2012 passed by the Additional District Magistrate at the diktat of the office of the Chief Minister, stands vitiated for the reasons and it is accordingly quashed. The parties are left open to take recourse to such remedy which is available to them under the law. 13. Learned counsel for the respondents has made a prayer that the direction may be issued to the Civil Judge to decide the suit within a time-frame. Having due regard to the facts of the case, we hope and trust the learned Civil Judge will decide the matter expeditiously and shall not give unnecessary adjournment to the parties. 14. The writ petition stands allowed accordingly. No order as to costs.