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Madhya Pradesh High Court · body

2019 DIGILAW 766 (MP)

GYAN SINGH v. STATE OF M. P.

2019-11-05

G.S.AHLUWALIA

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ORDER/JUDGMENT – Shri C. P. Singh, counsel for the petitioner. Shri P. S. Raghuwanshi, Government Advocate for the respondents/State. This petition under Article 226 of the Constitution of India has been filed seeking following reliefs : – “i) The impugned order dated 15-1-2019 annexure-P-1 may kindly be quashed as the same is against the interest of petitioner and overriding the legal provisions of Adhiniyam 2018; ii) The Government kindly be permanently prevented not to interfere in the Samman Nidhi or honour money which the petitioner was receiving, in the future without compliance of principles of natural justice and legal procedure as contemplated under the Adhiniyam 2018; iii) The petitioner may be allowed to receive Samman Nidhi or honour money continuously till their existence which has given by the enactment. iv) The physical verification of the petitioner has been completed despite this release of due Samman Nidhi with arrears has not been made to the petitioner; v) Any other relief which this Hon’ble Court deem fit in the facts and circumstances of the case may kindly be granted to the petitioner.” 2. The necessary facts for the disposal of the present petition, in short, are that on 26-3-2012 the petitioner filed an application for grant of honour money under the provisions of Lok Nayak Jai Prakash Narayan (MISA/DIR Rajnaitik Ya Samajik Karno Se Nirudh Vyakti) Samman Nidhi Niyam, 2008 (in short “the Rules 2008”) claiming that he remained in Central Jail, Gwalior, from 24th January, 1976 to 3rd March, 1976 in the capacity of DIR prisoner, however, the petitioner is not in possession of the detention certificate/record and no certificate granted by the Jail Superintendent, Central Jail, Gwalior, is available with the petitioner. However, the petitioner submitted an application along with affidavit of two persons, namely Devi Singh Suryawanshi and Suryabhan Singh Jadaun, who claimed that they had remained in detention during emergency period from July, 1775 and 13th March, 1977 and the petitioner was also detained along with them. It appears that on the basis of the application/affidavit as of the petitioner as well as affidavits of two beneficiaries of the honour money, the office of the Accountant General (A and E) II MP Gwalior issued pension payment order on 14-9-2012 directing for payment of Rs. 10,000/- per month w.e.f. 17-8-2012. It appears that on the basis of the application/affidavit as of the petitioner as well as affidavits of two beneficiaries of the honour money, the office of the Accountant General (A and E) II MP Gwalior issued pension payment order on 14-9-2012 directing for payment of Rs. 10,000/- per month w.e.f. 17-8-2012. It appears that the petitioner was receiving the honour money without any interruption, however, by order dated 15-1-2019, Annexure P/1, the General Administration Department, withheld the honour money by passing the following order : – 3. At this stage, it is submitted by Shri Singh that in fact the earlier counsel who had filed the petition has not annexed the correct order and has filed a wrong order dated 15-1-2019 and has wrongly prayed for quashment of the said order, but in fact correct order is order dated 29-12-2018. Although Shri Singh has accepted the brief on behalf of the petitioner, but he did not choose to file an application for amendment of the writ petition by filing and challenging the said order. However, in the interest of justice, the order dated 29-12-2018 is taken on record as provided by Shri Singh. The order dated 29-12-2018 reads as under : – 4. It is submitted by the counsel for the petitioner that since the honour money is being paid to the petitioner by virtue of the Rules, 2008, therefore, the respondents by issuing an executive order cannot withheld or withdraw the honour money which has been sanctioned in favour of the petitioner. It is further submitted that since the honour money has been sanctioned in favour of the petitioner, therefore, it has to be presumed that petitioner had remained in detention during the emergency period and thus the same cannot be withheld unless and until it is found that petitioner was wrongly granted honour money. It is further submitted that the Rules 2008 were amended in the year 2012 and a provision was inserted that in case if the record of jail, police, police Station and District Magistrate with regard to the detention during the emergency period is not available, then affidavit given by those two detenues who had remained in jail, can be accepted and the applicant/aspirant can be granted honour money. It is further submitted that in the year 2016 the Rules, 2008 were further amended and detenues were called as Loktrantra Senani. It is further submitted that in the year 2016 the Rules, 2008 were further amended and detenues were called as Loktrantra Senani. In the year 2017, the Rules, 2008 were further amended and the amount of honour money was revised. It is further submitted that certain executive instructions have been issued for giving felicitations to Loktantra Senani. However, it is also conceded by the counsel for the petitioner that Madhya Pradesh Loktantra Senani Samman Adhiniyam, 2018 has been promulgated and it received the assent of Governor on 9th August, 2018 and it came into existence with effect from the date of its publication in the M. P. Gazette. It is further submitted that it is well established principle of law that any statutory provision cannot be superseded/overruled by issuing any executive instructions, and therefore, the executive instructions dated 29-12-2018 are bad in law and are liable to be quashed on the said ground. 5. It is further submitted that a Coordinate Bench of this Court in case of Krishna Gandhi vs. State of M. P. and others, reported in 2018(4) M.P.L.J. 405 has held that executive instructions cannot amend or supersede statutory rules or add something therein and orders cannot be issued in contravention of statutory rules for reason that an administrative instruction is not a statutory rule nor does it have any force of law, and therefore, this Court is bound by the proposition of law laid down by the Coordinate Bench of this Court in case of Krishna Gandhi and by placing reliance on the decision of the Supreme Court in case of Sub-Inspector Rooplal and another vs. Lt. Governor through Chief Secretary, Delhi and others, reported in (2000) 1 SCC 644 submitted that a subordinate Court is bound by the precedent of the superior Court, and a Bench in a Court is bound by the precedent of a Coordinate Bench and thus it is submitted that judgment passed by the Coordinate Bench in case of Krishna Gandhi is binding on this Court. It is further submitted by the counsel for the petitioner that the decision to grant honour money was taken by Government of a different political party which has been withdrawn by Government of another political party and the decisions of outgoing Government should not be withdrawn in a casual manner. It is further submitted by the counsel for the petitioner that the decision to grant honour money was taken by Government of a different political party which has been withdrawn by Government of another political party and the decisions of outgoing Government should not be withdrawn in a casual manner. To buttress his contention, counsel for the petitioner has relied upon the judgment of the Supreme Court in case of State of Haryana vs. State of Punjab and another, reported in (2002) 2 SCC 507 . 6. Heard learned counsel for the petitioner. 7. At the very beginning of the hearing of the case, this Court had expressed that since the circular dated 29-12-2018 is not a part of the writ petition and the said circular has been passed by the respondents pointing out the need of verification of entitlement of each of the beneficiaries, therefore, instead of giving any judgment on merits, this Court is inclined to direct the respondents to complete the verification proceedings within a period of three months, however, the said suggestion given by this Court was not accepted by the counsel for the petitioner and he insisted that order dated 29-12-2018 is bad, therefore, it should be quashed and the respondents cannot verify the entitlement of the beneficiaries because such order is contrary to the statutory provisions and it is well established principle of law that executive instructions cannot override the statutory provisions. Under these circumstances, this Court is left with no other option, but to decide the entitlement of the petitioner at this stage only. 8. In the year 2008, Rules, 2008 were framed and Rules 4, 6 and 7 read as under : – From the plain reading of Rules 4 and 6, it is clear that only those persons were entitled for grant of honour money who had produced the certificates from the Superintendent of Jail or the Superintendent of Police. However, these rules were later on amended and by amendment No. F 2-1-2008-1-13 dated 4th January, 2012, the following provisions were inserted : – However, the counsel for the petitioner could not point out any amendment by which the provisions of Rule 6 of the Rules, 2008 were repealed or modified. However, these rules were later on amended and by amendment No. F 2-1-2008-1-13 dated 4th January, 2012, the following provisions were inserted : – However, the counsel for the petitioner could not point out any amendment by which the provisions of Rule 6 of the Rules, 2008 were repealed or modified. Thus, after 2012 any person who fulfills the qualification as provided under Rule 4, 4.1 and 4.2 of Rules, 2008 was entitled for receiving the honour money provided his case was scrutinized by the District Level Committee and an order is passed by the District Magistrate. In the writ petition, there is no document or any averment to the effect that the affidavit/application filed by the petitioner was ever scrutinized by the District Level Scrutiny Committee or any order was passed by the District Magistrate. Earlier counsel for the petitioner had submitted that after the application along with the affidavit is submitted, then it was the duty of the Treasury Officer to suo motu sanction pension. However, after going through the Rules, 2008 it was fairly conceded by the counsel for the petitioner that pension cannot be sanctioned unless and until an order is passed by the District Magistrate on the basis of recommendation of District Level Scrutiny Committee. In the writ petition, no such recommendation of the District Level Scrutiny Committee or the order of the District Magistrate has been placed on record. Only the pension payment order issued by the office of Accountant General (A and E) II MP Gwalior, has been placed on record, in which also there is no reference to the recommendation made by the district level scrutiny committee or the order passed by the District Magistrate. However, in the letter dated 23-10-2012 there is a reference of order dated 26-12-2011 issued by the District Magistrate, Gwalior, therefore, it appears that some order was passed by the District Magistrate for payment of pension but since the order dated 26-12-2011 issued by the District Magistrate, Gwalior, has not been placed on record, therefore, it is not known that whether the said order was passed on the recommendations of District Level Scrutiny Committee. However, the petitioner has filed affidavits of two persons who claimed that they had remained in detention along with the petitioner and they are being paid the pension, but, neither in the affidavit nor in any document filed along with the writ petition there is any reference to the certificate of detention issued by the competent authority. Thus, it appears that prima facie petitioner has failed to provide adequate documents to establish that he was rightly awarded the pension and further verification is not required. 9. The next contention of the petitioner is that since the respondents by issuing an executive order cannot amend the statutory provisions, therefore, the letter dated 29-12-2018 is bad in law and thus it is liable to be ignored and the honour money is liable to be restored with immediate effect. 10. Considered the submissions made by the counsel for the petitioner. 11. This Court is of the considered opinion that abovesaid submission is misconceived for the following reason : – The Madhya Pradesh Loktantra Senani Samman Adhiniyam, 2018 (in short “the Adhiniyam of 2018”) has been promulgated and came into existence from the date of its publication in the M. P. Gazette and it received the assent of Governor on 9th August, 2018. Section 9 of the Adhiniyam of 2018 reads as under : – “9. (1) The order of sanction of honour money under this Act may be withheld or cancelled on the following grounds : – (a) participation in any crime of moral turpitude and in anti-national activity; (b) punishment in any offence; (c) receiving the honour money despite any ineligibility under the Act; (2) On the basis of grounds mentioned in sub-section (1) or any relevant complaint or representation or suo motu information received, the Committee after giving reasonable opportunity of hearing may enquire the case of concerned person whose hounur money has been sanctioned. After recommendation of the Committee, the right to cancel order of sanction shall vest with the District Magistrate. The concerned person aggrieved by this order may submit his representation that may be disposed as per provisions of section 8. (3) If any person who received honour money or facilities on the basis of false documents shall be recoverable as arrears of land revenue. 12. The concerned person aggrieved by this order may submit his representation that may be disposed as per provisions of section 8. (3) If any person who received honour money or facilities on the basis of false documents shall be recoverable as arrears of land revenue. 12. Thus, it is clear that the order of sanction of honour money may be withheld or cancelled on the grounds mentioned in section 9(1) of the Adhiniyam of 2018. If the respondents by issuing the letter dated 29-12-2018 have withheld the honour money, then it cannot be said that said executive instruction is de hors the statutory provisions of law or it amounts to amending or superseding any statutory provisions. The respondents are well within their rights to withhold the payment of honour money on the ground that the said honour money was received on submitting the false information and false affidavit or the beneficiary has received the honour money despite ineligibility under the Act, therefore, this Court is of the considered opinion that order dated 29-12-2018 is without the jurisdiction of the respondents and under the provisions of section 9 of the Adhiniyam of 2018 the respondents are well within their jurisdiction to withhold the honour money payable to the beneficiaries. Thus, contention of counsel for the petitioner that respondents by issuing an executive order cannot supersede the provisions of law is misconceived, and therefore, it is rejected. 13. So far as judgment passed by the Coordinate Bench of this Court relied upon by the counsel for the petitioner is concerned, in view of the fact that respondents are well within their rights to withhold the honour money, therefore, it is held that the proposition of law laid down by the Coordinate Bench of this Court in the case of Krishna Gandhi (supra) is not applicable to the facts of the case because by issuing the order dated 29-12-2018 the respondents have neither modified nor superseded or supplemented any statutory provision. Similarly, the judgment in the case of Sub-Inspector Rooplal and another (supra) does not require any further consideration. 14. Similarly, the judgment in the case of Sub-Inspector Rooplal and another (supra) does not require any further consideration. 14. The next contention of counsel for the petitioner that although the respondents may be empowered to withheld or withdraw the honour money in exercise of power under section 9 of the Adhiniyam of 2018, but the same cannot be done unless and until any complaint is made or any representation is made, therefore, issuance of general order dated 29-12-2018 is bad in law and in excess of the powers conferred on the respondents. 15. Considered the submissions made by the counsel for the petitioner. 16. Section 9(2) provides that the power under section 9(1) can be exercised not only on any relevant complaint or representation but can also be exercised “suo motu”. If the order dated 29-12-2018 is tested on the anvil of the provisions under section 9(2) of the Adhiniyam of 2018, then it is clear that the respondents had disclosed the information, and therefore, the respondents have taken suo motu decision to verify each and every case of the beneficiary because it is specifically mentioned in order dated 29-12-2018 that certain reports from the office of Accountant General have been received and in order to make the provisions of Adhiniyam of 2018 more transparent, therefore, it is necessary to physically verify the entitlement of each Loktantra Senani. Thus, the source of information has been disclosed in order dated 29-12-2018 and therefore if order dated 29-12-2018 is passed under the provisions of section 9(2) of the Adhiniyam, 2018, then it is held that it is not beyond the jurisdiction of the respondents, but power has been exercised within the four corners of the Act. 17. It is next contended by counsel for the petitioner that Rules, 2008 were promulgated by the Government of a different ruling party and now the Government of another ruling party is in power, therefore, the decision to make payment of honour money has been withdrawn and such action cannot be allowed to be taken and for that purpose he has relied upon the judgment of the Supreme Court in case of State of Haryana (supra). In that case, the Supreme Court has held as under : – “16.........The decisions taken at the Governmental level should not be so easily nullified by a change of Government and by some other political party assuming power, particularly when such a decision affects some other State and the interest of the nation as a whole. It cannot be disputed that so far as the policy is concerned, a political party assuming power is entitled to engraft the political philosophy behind the party, since that must be held to be the will of the people. But in the matter of governance of a State or in the matter of execution of a decision taken by a previous Government, on the basis of a consensus arrived at, which does not involve any political philosophy, the succeeding Government must be held duty bound to continue and carry on the unfinished job rather than putting a stop to the same.” 18. When a specific question was put to Shri Singh that whether any pleading with regard to vulnerability of order dated 29-12-2018 only on the basis of change of Government has been taken or not, then it is submitted by Shri Singh that it is a pure question of law which does not require any pleading and same can be considered even in absence of pleading. 19. In the considered opinion of this Court, the submission made by the counsel for the petitioner is misconceived and is liable to be rejected. If a person is of the view that decision has been changed merely because the Government of another political party had taken the said decision, then it is necessarily a disputed question of fact and amounts to attributing mala fide or arbitrariness to the authority who had taken the decision to withhold the payment of honour money which was taken by the earlier Government, therefore, unless and until the foundation is laid down by the petitioner, this Court cannot look into the verbal submissions which have been made by the petitioner. Further more, even if this contention is considered, still this Court is of the considered opinion that the submission made by the petitioner is misconceived. It is submitted by Shri Singh that election of State Legislative Assembly took place in the November, 2018 and thereafter the Government of another political party came into power. Further more, even if this contention is considered, still this Court is of the considered opinion that the submission made by the petitioner is misconceived. It is submitted by Shri Singh that election of State Legislative Assembly took place in the November, 2018 and thereafter the Government of another political party came into power. The submission made by the counsel for the petitioner also appears to be factually incorrect. If the submission made by the petitioner is considered in the light of the fact that Adhiniyam, 2018 came into force from the date of its publication in the M. P. Gazette and it received the assent of the Governor on 9th August, 2018, then it is clear that the Adhiniyam, 2018 was promulgated by the earlier Government and not by the present Government. Section 9 is part of Adhiniyam of 2018 provides for withholding or cancelling the honour money. Thus, it is clear that allegation of withholding of honour money merely because change in the Government is completely misconceived. By section 12 of Adhiniyam of 2018 the Rules, 2008 have been repealed. 20. No other arguments is advanced by the counsel for the petitioner. 21. Under these circumstances, this Court is of the considered opinion that the order dated 29-12-2018 passed by the GAD, Bhopal, as well as order dated 15-1-2019 passed by the GAD, Bhopal, are not beyond their jurisdiction and they are within the powers conferred under section 9 of the Adhiniyam of 2018, therefore, the same cannot be quashed. Since the honour money of the petitioner has been withheld and the respondents have decided to verify the entitlement of each and every beneficiary and in absence of complete document to show that petitioner was eligible for the honour money, this Court is of the considered opinion that if the respondents have decided to restore the honour money only after the physical verification of each and every beneficiary, then same cannot held to be arbitrary or bad in law. 22. Accordingly, it is held that after due verification, if the respondents come to a conclusion that the petitioner has wrongly received the honour money, then in view of section 9(3) of Adhiniyam, 2018, the petitioner shall be liable to refund the honour money already received by him. Accordingly, this petition fails and is dismissed.