9911796707
TMI Blog1952 (9) TMI 41X X X X Extracts X X X X X X X X Extracts X X X X ..... dhupur Estate by virtue of the said notification on the 8th December 1951. Since then, the Estate has been under the management of the Court of Wards. The petitioner has accordingly come forward with this application dated the 5th March 1952, challenging the validity of the action of the State Government in declaring him a disqualified proprietor and in ousting him from the possession of the Estate. The validity of the declaration is challenged on various grounds, both legal and factual, which may be summarised as follows: (1) Section 10(f), Orissa Court of Wards Act infringes some of the fundamental rights guaranteed by the Constitution and is hence ultra vires. (2) The declaration is not in consonance with the essentials of the procedure prescribed by the Courts of Wards Act and is hence illegal. (3) The facts found on which the declaration is supposed to have been based are not sufficient in law to enable the State Government to exercise its power under Section 16 taken with Section 10 (f) (iv) of the Act and hence the declaration is invalid. (4) In any case, in view of the facts and circumstances of the case, it was a gross and mala fide abuse of statutory power for ulterior p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmed if all the terms of the agreements have been given effect to." Consequential thereupon, a joint enquiry was held by Shri K.M. Patnaik, Sub-divisional Officer, Jaipur, and Shri G.N. Mohanty, Wards Deputy Collector, Cuttack. Purporting to be based on this enquiry, the Collector of Cuttack, issued a notice to the petitioner dated 7-12-1950, under Section 14, Sub-section (1), Orissa Court of Wards Act, specifying, by way of charges, the various alleged irregularities in the administration of his estate and calling upon him to show cause by 15-12-1950, why it shall not be reported to the Court of Wards, under Section 13, Court of Wards Act, that it is expedient, in the public interests, that his properties should be managed by the Court and that he should be deemed to be disqualified for the management of his properties under Section 10 (f) (iv) of the Court of Wards Act. The enquiry contemplated by this notice was held by the Collector, after which he submitted his report dated 24-2-1951. He states in the report as follows: "In the circumstances mentioned above, I am definitely of opinion that there are no grounds for taking the Madhupur Estate under management of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 9877 R A-17/50. Copy forwarded to the Collector, Cuttack, for information and necessary action. Sd/- S.S. Patra, Deputy Secretary to Government. Memo No. 676/Con. Cuttack District Office, Dated Camp Jenapur, the 8th December 1951. Copy forwarded to Sri Brundaban Chandra Dhir Narendra Proprietor, Madhupur Estate for information. He is requested to make over charge of his Estate with all other moveable and Immovable properties immediately. Sd/- M. N. Guha, Collector, Cuttack. 8-12-51." It is in the light of the sequence of these undisputed events that the petitioner raises the contentions which have been summarised at the outset as grounds for challenging the validity of the declaration by the State Government and of the consequential deprivation of his possession. 3. On behalf of the petitioner, a lengthy affidavit mentioning various matters including the facts stated above, has been filed. On behalf of the State Government, a counter-affidavit has been filed by Shri V. Ramanathan, Member, Board of Revenue (Court of Wards) and Additional Secretary to Government in the Revenue Department, attempting to traverse the allegations in the petitioner's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g over of the petitioner's Estate by the Court of Wards, was brought about by the trickery adopted by one Shri N.C. Patnaik and one Shri B. Mohanti, with the sympathy of the then Collector of Cuttack, Shri P.C. Mohanty in order to bring about the appointment of the said Shri N. C, Patnaik, as the Manager of the Estate under the Court of Wards, when it is to be taken over by the Court. It is further suggested that one of the two persons viz., Shri G.N. Mohanty, who made the preliminary ex parte departmental enquiry in December, 1950, about the affairs of the petitioner's Estate and who made an adverse report on the basis of which the formal enquiry was started was a relation of the said Shri N.C. Patnaik implying thereby that the conclusions in the report were manipulated in his interest. The affidavit contains various details in an attempt to show that there was nothing seriously wrong in the petitioner's management of the Estate and that such irregularities which did exist, were not only in fact remedied, but that the petitioner also made repeated attempts to secure a competent Government Officer to be his Manager, and that for one alleged reason or other, the Governme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication of the petitioner. This letter purports to have been addressed to one Khetra and subscribed by a person under the designation 'brother' without any name. The petitioner no doubt states in his petition in para. 11 thereof that this was a copy of a letter addressed by one Shri B. Mohanty, one of his retained lawyers. The original letter is not filed and it does not appear how this letter or the copy thereof marked annexure 'A' has come into the possession of the petitioner. Neither the alleged writer of the letter nor the addressee thereof has filed an affidavit swearing to the contents of the said letter. In these circumstances, I am not prepared to act upon the said annexure 'A'. If that goes out, there is really no material even to indicate the likelihood of the alleged scheme of the subordinate officers in the interest of the said Shri N.C. Patnaik. That portion of the case may, therefore, be ruled out from any further consideration. 5. As regards the various meticulous details, alleged on the side of the petitioner about his attempts to obtain a competent Manager & the traversal thereof in the counter-affidavit filed by Shri V. Ramanathan and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the district of Sambalpur, the Central Provinces Court of Wards Act of 1899 was in force. To the rest of the Province, the Bengal Court of Wards Act of 1879 was applicable. All these three Acts were repealed by Section 2, Orissa Court of Wards Act, 1947, and a single Act applicable to entire Orissa was enacted being Orissa Act 26 of 1947. It may be mentioned at this stage that some of its main provisions followed verbatim the Madras Court of Wards Act, 1902. Section 10 of the Orissa Act enumerates the categories of proprietors who should be deemed to be disqualified for the management of the property. The word "proprietor" is defined as follows: " 'Proprietor' means a person who owns or has a life interest in land either solely or as a co-sharer," that is, a person who owns land and a person who has a life interest in land, are both to be considered as proprietors, whether such owning or having life interest is either solely or as a co-sharer. Section 10 specifies six classes of proprietors who shall be deemed to be disqualified for the management of their property. Four of these categories are common to the Orissa Act and the Madras Act and indeed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Court of Wards may declare the proprietor to be disqualified under Clauses (b), (d), (e) or (f) of Section 10 and order the Court of Wards to assume superintendence of his estate. By Section 18, however, the State Government is enjoined not to declare a proprietor to be disqualified under Clauses (d), (e) or (f) of Section 10, unless satisfied that it is expedient in the public interest and it is also prescribed that a statement to that effect should be inserted in the declaration. 9. At this stage it is well to recapitulate the well-known principles with reference to which the exercise of a discretionary power vested by the statute in an administrative authority is open to be canvassed by the Courts. To start with, it may be taken as axiomatic that when power is conferred on somebody or authority by a Statute, the validity of the exercise of the power depends on its being strictly within the limits of the statute. As stated by Lord Justice J. Turner in --'Tinkler v. The Board of Works for the Wansworth District', (1858) 2 De G & J 261 at p. 274 (A), although it may not be obligatory upon persons who have obtained an Act of Parliament empowering them to do something to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orted in --' Ratanlal Gupta v. Dist. Magistrate, Ganjam', to 58 (F). 10. The above principles are summarised in Halsbury's Laws of England, 2nd Edition, Vol. 31, paragraph 701 at page 535, which states as follows: "The exercise of a discretion imposed by statute upon bodies or persons for particular purposes is not a merely ministerial act, and, if in the exercise of their discretion they act erroneously, they cannot be held responsible except upon proof of mala fides or indirect motive, or of some improper conduct materially affecting such exercise. The Court will not interfere with the discretion or revise the opinion of an administrative body, if there is anything on which that body can reasonably have come to its conclusion." Again, in the same volume at p. 533, paragraph 697 it is stated as follows: "Statutory powers must be exercised bona fide, reasonably, and without negligence." No doubt, these cases refer only to the exercise of power vested in the local authorities or statutory corporations and the like. But they are general and are applicable to the exercise of power by any statutory authority. See also -- 'The King v. Nat Bell Li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns in recent statutes, the statute by its very terms indicates that the existence of the basic facts which give the power is left to the subjective satisfaction of the authority concerned and not to the judicial determination thereof by the said authority. In such a case, unless there is material on which the factum or the bona fides of that subjective satisfaction can be challenged, the Court is not in a position to canvass the existence of the basic facts which give rise to the statutory power. See -- 'Liversidge v. Anderson', (1942) A C 206 (L) and -- 'Nakkuda v. Jayaratna', 54 C WN 883 (PC) (M). I have felt called upon to restate these well-known legal principles since they arise for direct application in this case on the facts thereof. One important provision of the Orissa Court of Wards Act, 1947, has to be noticed in this connection viz., Section 52, Sub-section (1) which is as follows: "No declaration made by the Provincial Government under Section 16 or Section 20, and no act done by the Provincial Government or by the Court in exercise of any discretionary power conferred by this Act shall be called into question in any civil Court." We are he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts. But even so, the Courts can judicially determine whether the material on which that decision is based is relevant and whether with reference to that material a fair and reasonable conclusion could have been reached. The prohibition of the kind enacted in Sub-section (1) of Section 52 may at best mean that the Courts cannot constitute themselves into an appellate or revisional authority and sit in judgment over the decision of the Government as to the existence of the objective facts required to clothe the government with the power to make a declaration. 11. Apart, however, from the larger question that may arise with reference to the interpretation of Section 52, Sub-section (1), as regards the ordinary Courts of the country, there can be no doubt at all that so far as the High Court is concerned, it is not controlled by the limitations imposed by Section 52 (1) of the Act in the exercise of its powers under Article 226 of the Constitution. See -- 'Assistant Collector of Customs v. Soorajmull Nagarmull' (N). It is also well settled that the power of a superior Court to issue a writ in an appropriate case is not taken away by a proviso in statute, which directs that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cising its limited function of seeing the existence of relevant material and the possibility of a lair and reasonable conclusion with reference to such relevant materials. I may also state in this connection that on behalf of the Government, it was not stated to us that the materials upon which the Government has come to its conclusion before issuing the declaration were privileged either under Section 123 or Section 124 of the Evidence Act which prima facie apply not to party before the Court, but only to a witness summoned to produce documents before the Court. 12. The challenge to the validity of the action of the Government in this case has to be considered with reference to the provisions of the Orissa Court of Wards Act set out above and the principle on which the validity of the exercise of such statutory power is open to examination in this Court. Having regard to the various provisions of the Act, it is quite clear that before the State Government can declare a proprietor to be disqualified under Section 10 (f) (iv), as they have done in this case, it is necessary that there should be found against the person to be declared disqualified, 'persistent failure' to di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut communal lands in village Andhei Guda. (d) A large number of mutation petition were pending for years together without any action. (e) The Proprietor's office was in a chaotic condition." 14. Out of the three matters on which these conclusions are said to be based, only the report of the Collector and the recommendation of the Court of Wards are before us but not the alleged materials on which the report of the Collector is based. It is also not clear at all what those materials are. The report of the Collector which is annexure 'G' to the affidavit filed on behalf of the State Government shows the following viz., that he (Collector) held the enquiry on the 17th and 18th of November, 1950. He also caused an enquiry to be made by Shri K.M. Patnaik Sub-divisional Officer, Jajpur and Shri C.N. Mohanty, Wards Deputy Collector, jointly from 30-11-1950 to 2-12-1950. That report has been filed before us as enclosure "E-1'. Quite clearly that enquiry was before the formal notice under Section 14(1) of the Act was issued to the proprietor and was an ex parte enquiry and there is nothing to show that the enquiry between 30-11-1950 and 2-12-1950, by the two o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 51 by the Collector with the assistance of Shri B. C. Bandopadhya and Shri K. M. Patnaik, have been put on the record in this case before us on behalf of the State Government. It does not even appear whether all of them have been sent up to the Court of Wards and the Government. All that appears from, the Collector's report and his forwarding letter is that the report of inspection of the Estate records made by the Sub-divisional Officer on the 20th and 21st February, 1951, was sent as enclosures but that was not placed before us. All the material, therefore, now available to us for the purpose of judging the limited question whether the materials before them were relevant and were legally sufficient, the Government could, reasonably come to the conclusion which Shri V. Ramanathan in para. 11 of his affidavit says they did, are merely the report of the Collector dated 24-2-1951 and the prior ex parte report of the two officers, Shri B.N. Mohanty and Shri K.M. Patnaik, dated 3-12-1950, which forms the basis of the charges against the petitioner on which the enquiry was started. It is extremely doubtful whether even this prior report was sent to the Court of Wards and the Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t by the tenant. Now in this case, there is nothing to show that the tenants demanded receipts and yet the landlord refused to give or evaded giving the receipts. What all appears is that in respect of bhag-tenants, the receipts were not in fact being granted until about a year ago, and it is stated that this has been the practice with most of the landlords. But there is no indication in the report of any demand for receipts by the tenants and the failure of the landlord to comply with such demand. If there were any other material before the Government which showed the failure to comply with the demand in this behalf, that material has not been made available to us. In any case, it is difficult to see how the charge of persistent failure to issue receipts could reasonably be taken to have been substantiated in the face of the definite statement of the Collector in his report that the failure to issue receipts in case of bhag-tenants was the common practice of all landlords and also that this proprietor was regularly granting such receipts since last year. There is nothing to show that the Government had any other material with reference to which they could ignore the statements of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charge (d), is that a large number of mutation petitions were pending for years together without any action. This is the subject-matter of charge No. 7 in the notice issued to the petitioner by the Collector: "3899 mutation cases relating to the year 1939-40 and later were found pending in your office on 2-2-1950. Changes effected since the Revision Settlement have not been shown correctly. Information concerning bhag-tenants of particular lands of Mouzas are not readily available in your office." The Collector's report as regards this charge states as follows: "As regards mutation cases, it has to be observed that the progress of disposal has been slow and over 3000 such cases are pending. Even then, the present Superintendent did all he could to set the office on a better footing and over 600 cases have been disposed of. The proprietor has also begun taking some interest in his office. In some cases it is found, that he has checked office papers and passed orders. The pity is that he had not evinced such interest sufficiently earlier and did not exert more control over his officials earlier. He is being served with an order about it." 19. The next ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Out of the charges, the only one that may be said to have been made out, if at all, is that relating to collection of petition-fee. Whether the collection of a petition-fee amounts to illegal exaction is a question that must depend on the evidence relating to the purpose for which that fee was being collected. All that appears from the Collector's report is that the fee was, in fact, being collected from some of the tenants but not invariably from all the tenants. The petitioner has filed before us what purports to be a copy of the explanation submitted by him to the Collector with reference to the charges framed against him and no objection has been taken to it before us. Paragraph 6 of his explanation states as follows: "That the petition-fee of annas four is being paid by the tenants for office charges, papers, stationery, etc., and is never demanded from anybody on any occasion. Applications are received irrespective of any such payment. As a matter of fact the paltry amount paid by tenants is hardly sufficient to cover the expenses incurred by the Estate in the course of disposing of the application for which it is paid. This was the practice during the time of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tain other facts mentioned in the office note. But no such material has been placed before us, not even the report contemplated by Section 15. The statement of Shri V. Ramanathan by itself, is erroneous in law inasmuch as under Section 10, Sub-section (f), it is not mere mismanagement that entitles the Government to take over an Estate, but mismanagement, the cause of which is persistent failure to discharge the duties imposed on the proprietor by law. It is one of the extraordinary features of Shri Ramanathan's affidavit that while he states in para. 11 that the Government came to the conclusion that certain charges were proved against the proprietor and he also states in para. 25 of his affidavit that the Government were satisfied on the recommendations of the Court of Wards that the petitioner is incapable of management of his estate, his affidavit does not disclose that the former is connected with the latter as cause and effect. Both the recommendation of Shri Ramanathan as the Court of Wards, as well as his affidavit now filed before us can leave only one impression, viz., that very probably he did not realise that under the statutes it was not sufficient that both the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble is apprehended at the present moment." It is inexplicable in the face of the above extract, how Shri Ramanathan considered that the Collector's report shows that the tenants were "gained over" by the proprietor. If he thought that the statement of the Collector that the "proprietor" made up "matters with the petitioners" amounts to a statement that the "tenants were gained over", one can only observe that it is an extremely unfair way of understanding that statement in view of the later categorical statement that it was an amicable settlement. One should have expected that in an affidavit filed before this Court, a person of Shri V. Ramanathan's position would not have hazarded such an assertion. If, however, apart from this Collector's report, there was any other material which showed that the tenants were gained over and were, in fact, gained over, that material has not been placed before us. 23. This extraordinary assumption that the tenants were gained over and that as a result thereof, the Collector's enquiry must have been handicapped--an assumption as already stated for which no material is made available to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Shri Ramanathan's affidavit could be based, the Government should have appreciated that the Court could not be expected to accept a mere assertion of the existence of material relevant for the conclusion, without the production of the same. If in such a situation, the material has not been placed before the Court, there is every reason for thinking that the material, if produced, was not likely to substantiate or even be relevant basis for the alleged conclusions of the Government. When in the course of arguments, this aspect of the case was specifically put to the Advocate-General, all that he could state was that the Government were not prepared to offer to place the alleged material before the Court, but that he would ask them to produce the material, if the Court directed its production. The Court is not inquisitive to pry into the files of the Government, if they do not choose to produce them of their own accord nor is the Court precluded from discharging its limited function on such application when the 'prima facie' appearances are clearly against the view asserted by the Government. The Court is bound to come to its own conclusion on the material placed befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Wards. The petitioner in para. 24 of his affidavit also alleges as follows: "The petitioner has come to learn that in the month of October on the eve of electioneering campaign of the general elections in his Estate, the Collector. Shri Mohanty in the face of the orders of the Revenue Minister, presumably on the self-same materials sent up, on his own initiative behind the back and without making any further enquiry of any kind to the knowledge of the petitioner and without giving the petitioner any opportunity to explain things that appeared against his management, a report maligning the administration, upon which the entire matter was put up before the Board of Revenue in November 1951, and Shri V. Ramanathan, Member of the Board, recommended in the following words, etc." The reply to these allegations of Shri V. Ramanathan in his affidavit in para. 22 is as follows: "The assumption of the petitioner that Shri P. C. Mohanty submitted a further report maligning administration of the Madhupur Estate is purely imaginary as no such report was sent by Shri P. C. Mohanty." In view of this categorical denial, the petitioner's allegations in this beha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ported by certain correspondence which passed between the Collector and the petitioner subsequent to February 1951. It is relevant in this connection to notice two letters filed on behalf of the petitioner as enclosures to his petition. One is dated 31-3-1951, by the Collector, Shri M.N. Guha, to the petitioner which is as follows: " Cuttack District Office, Dated Cuttack, the 31st March, 1951. D. O. No. 1784/(Wards) Dear Sir, It has come to my notice that since 1946 there has been looseness in the maintenance of records in your office and over 3000 mutation cases are pending. I would ask you to devote your personal attention to your office and to see that it is placed on an efficient footing and that the mutation cases are disposed of without delay. It was further noticed that in several cases your Estate has recovered Re. 0-4-0 upon each petition received from tenants thereby contravening Section 84, O. T. Act. Such practice must cease forthwith and it will be judicious if the money already realised as petition fee be refunded to the payers. Sri Nimai Charan Patnaik, retired Inspector of Registration Office, Orissa, Cuttack, has since resigned Superintendentsh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se refer to your D. O. to me dated 26-3-51 and to my predecessor's D. O. No. 1784 (Wards) dated 31-3-51 in which necessary instruction had been issued to you to-set right some irregularities in the administration of the Madhupur Estate noticed by my predecessor in course of enquiries held in 1950. I should hope that you have profited by those instructions, and that you have in the meanwhile taken personal interest to effect necessary improvements in the administration of your estate. You have, however, sent no report about what steps you took and how matters stand at present and your reply is long overdue. I am also much concerned to know how you are running the Estate at present in the absence of a Manager because it is learnt that Sri Nimei Charan Das resigned his post on 1st March 1951 and it does not appear that you have made any appointment in his place. Sri Pitamber Bal could not possibly be spared for appointment as your manager in response to your request then because he had been awfully busy with rehabilitation affairs. Please let me know what you propose to do about appointment of a Manager. I should like to inspect your office in the near future to see for myself ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted out in the letter of Shri M.N. Guha dated 31-3-1951, and that a further inspection will be made to satisfy the authorities that those irregularities were removed. The likelihood of such inspection was reiterated in the second letter of the Collector. Admittedly no such inspection was made. Shri Ramanathan in his affidavit in para 20 relating to these matters states as follows: "That the Collector did not hold any further inspection or inquiry as his previous report was pending before the Government for final decision." This again appears to be rather a curious assertion. It is not suggested in Shri Ramanathan's affidavit that the Collectors who sent these two letters were not aware that the matter was still pending before the Government for final decision. If they were so aware, it is obvious that they must have deliberately or otherwise created a false impression in the mind of the petitioner by the letter that they sent, which is very unlikely. In the circumstances taking all the above facts together, and having regard to the fact that the delay remains unexplained except for a bare assertion that the matter was under careful consideration all the time, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y itself reasonably about the existence of the basic facts which vest the Government with the power to make the declaration and without a responsible realisation of the correlation required between the two basic facts. It follows accordingly that the power must be held to have been exercised arbitrarily and in that sense it is an abuse of power and is hence void. 26. In view of this conclusion, it is unnecessary to come to any final conclusion on various other points of fact and law raised in this casein the course of the arguments on either side. But since they have been elaborately canvassed, shall very briefly indicate my views thereon. The only other question of fact raised in the affidavits & in the arguments and which I have not so far dealt with, is the imputation of positive mala fide motive to the Government in disqualifying the petitioner for the purpose of elections then imminent. To substantiate this, two facts have been brought to our notice: (1) It appears from a notification in the Orissa Gazette dated 23-11-1951 that for the election to the Orissa Legislative Assembly from Dharmasala Constituency, which is said to comprise the petitioner's estate Shri Motilal P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se for one reason or other, the entire material which may have been before the Government is not before us. The existence of some material other than that which was available to us for consideration cannot altogether be ruled out though for the purpose of determining the validity of the declaration, we can take no notice of what is not produced. If there was material (which for some reason or other may not have been disclosed) that called for action by the concerned Minister or other authority in public interests, the fact that it may have synchronized with the elections would not be enough to establish positive mala fides. In a system of elections where the Government-in-power continues in office during the elections, no Minister can abdicate his function, if the public exigencies demand it, merely for fear of being misunderstood. If in this case, we have been obliged to pronounce the Governmental action to be invalid, it is because we are left to judge about it only on the limited material placed before us. 27. The main question that has been raised with reference to the construction of the relevant provisions of the Orissa Court of Wards Act is that once the Collector has repor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r contemplated under Section 13, can only be a report intimating the opinion that the proprietor is to be declared disqualified, and that a report of the Collector like the one which has come up in this case, viz., a report to the effect that no disqualification should be declared is not one that need be sent up at all to the Government. I was, therefore, inclined to think that in such a contingency, the Government having no report to take into consideration cannot come to its own conclusion and take action, On a further consideration, however, I do not think that impression of mine about the meaning of Section 13 is correct. To understand Section 13 correctly, it must be appreciated that the inquiry contemplated under the section is not necessarily the same as the one under Section 14 of the Act. What is contemplated under Section 13 is "such inquiry as the Collector deems necessary." But that which is contemplated under Section 14 is a specific inquiry with a prescribed procedure, viz., giving notice and affording reasonable opportunity to be heard and to adduce evidence. In fact, under Section 13, a Collector may have reason to believe, without making any formal inqui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y an obligation to report the case of the Provincial Government with its recommendation. While no doubt the word "recommendation" may be susceptible of the meaning that it is the expression of the view in favour of a declaration of disqualification, in the context of the preceding sections. I am inclined to think that its meaning cannot be so confined. If I am correct in the view that the Collector's report even if it may be against the declaration of disqualification, has to be submitted to the Court of Wards, the recommendation of the Court may well be in agreement with it or against it. The word "recommendation" is equally susceptible of meaning a definite expression of the opinion of the Court of Wards on the report as to the course of action--whatever it may be--which it desire's the Govt. to adopt. I see therefore no reason to construe the word "recommendation" in Sections 15 and 16 of the Orissa Court of Wards Act as necessarily confined to the expression of the view by the Court of Wards in favour of the declaration of disqualification being made by the Government, Consistently with the very wide powers vested in the Government, under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our of the declaration of disqualification, and a recommendation to the same effect of the Court of Wards which on its face discloses clear and relevant findings which can legitimately be the basis of the governmental declaration, any Court would have hesitated to draw a presumption against the Government from mere non-production of other material. It is to be remembered that the presumption arising out of non-production of the material is one that is discretionary for the Court to draw or not to draw, having regard to all the circumstances of a particular case. In the circumstances of the present case, therefore, I would use the fact of the Collector having clearly expressed the opinion in favour of the petitioner-proprietor & the defective and perfunctory recommendation of the Court of Wards not as materials which by themselves are sufficient in law to negative the power of the Government to make the declaration under Section 16, but as circumstances which taken with non-production of other relevant material, if any, are sufficient to show the action of the Government to be arbitrary, as I have already held. 29. Learned counsel for the petitioner has raised a further point that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity to make a written representation to the very authority who had to decide the matter, and that what was in issue was his right to claim a personal hearing. It appears to me however that in that case the fact that there was a written representation to the very authority concerned, was due to the circumstance that the relevant statute provided for an appeal to that particular authority. But where, as in this case, there is no independent proceeding by way of an appeal to the authority who has to decide the matter, I do not think there is anything contrary to the principles of natural justice in holding that the procedure actually adopted under Section 14 of the Act is sufficient for the purpose for all the stages contemplated by the Act under Sections 13, 14, 15 and 16 of the Act. As is pointed out in the case in '(1915) A C 120 at p. 133 (S)', "The Minister is expected to obtain his materials vicariously through his officials, and he has discharged his duty if he sees that they obtain these materials for him properly. To try to extend his duty beyond this and to insist that he should do everything personally would be to impair his efficiency." I am inclined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Board under Section 5 of the Court of Wards Act (sic). Even, apart from that, there can be no doubt that under Sub-section (2) of Section 4, it was competent for the State Government to assign the business of the Court of Wards to the Board by a notification. It is very likely, as remarked by my learned brother, that such a notification must have been issued. This question, not having been raised at all on the affidavits and depending as it does on the fact whether or not such a notification was issued, cannot now be allowed to be canvassed. 31. The only other substantial point of law that has been raised is that the provisions of the Orissa Court of Wards Act at least as regards Sub-section (f) of Section 10 thereof is a serious infringement of Article 19(1)(f) and Article 31 of the Constitution. I do not think that any question arises here of the applicability of Article 31, Sub-article (2), because, there is no acquisition or taking possession of any property for public purposes so as to give rise to a claim for compensation. What the Court of Wards Act does is to deprive the proprietor temporarily of his management of the property for the professed purpose of benefiting the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n order passed in bona fide exercise of the powers vested in the State Government by Act 26 or 1947. It is also urged that the order is ultra vires inasmuch as it violates. Article 19 of the Constitution. The petitioner therefore prays for relief under Article 226 of the Constitution by way of writ in the nature of Mandamus, directing the State Government to withdraw the impugned Notification dated 7-12-1951. 34. It is necessary to state a few facts which led to the issue of the impugned Notification by the State Government. The allegations made by the petitioner are that in the year 1946 he was persuaded by the High Command of the Provincial Congress Party to withdraw his candidature for a seat in the State Assembly from the constituency of Dharamsala; and that thereafter the Congress candidate who was returned, in combination with some other persons, started a campaign with a view to foment trouble among the tenants in his Estate in order to make the petitioner unpopular; and that about the middle of the year 1950 the prospect of a General Election was in sight and Mr. Moti lal Pandit was encouraged by the official Congress Party to nurse the Dharamsala constituency which compri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the Official Congress Party in power became strained. It was in the background of these facts that the Notification of the State Government, dated 7-12-1951, was sprung upon the petitioner as a surprise, just on the eve of the elections, with a view to cripple him in his activities in his election campaign against the Congress candidate. The petitioner complains that there was no good ground to justify the action of the State Government in ordering his Estate to be, taken over by the Court of Wards and that the order was prompted by political motives and not made in bona fide exercise of the powers conferred on them by the Court of Wards Act. 35. On the side of the opposite parties. Sri V. Ramanathan, Member of the Board of Revenue (in charge of the Court of Wards) has filed an affidavit. That affidavit says that in or about September, 1948 a large number of applications were received by Government from tenants of Madhupur Estate, complaining about mismanagement of the Estate, exaction of petition fee of four annas, eviction from lands and settlement of gochar lands. The then Chief Minister visited the Estate and an eight-point programme of settlement between the landlord and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uent paragraphs, it is stated that Government took over the Estate for better management and in the interests of the public, as they were satisfied on the recommendation of the Court of Wards that the petitioner was incapable of managing the Estate, and that it was expedient in the public interest that the Court of Wards should take it over. The facts stated in the affidavit are affirmed to be true according to the information based on official records. 36. Some documents have been filed by the parties as enclosures to their affidavits and have been read as evidence. The petitioner has filed a copy of the notice under Section 14(1) of the Act, dated 6-12-1950, served on him, and of the written statement that he filed before the Collector on receipt of the notice. In addition he has filed copies of D.O. letter No. 1784 (Wards) dated 31-3-1951 addressed to him by the Collector Sri M.N. Guha and of another D. O. letter No. 3345 dated 8-6-1951 addressed to him by Sri P. C. Mohanty (Mr. Guha's successor). He has also filed a copy of his reply letter dated 30-6-1951 to the Collector. On their side the opposite parties have filed a copy of the office noting dated 2-12-1948; by Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duced to writing. But the statements are neither placed on the record, nor is any reference made to them in the affidavit filed on behalf of the opposite parties. The averment in the affidavit of Sri Ramanathan that "the Government considered the report of the Collector and the materials on which it was based" has not, therefore, been substantiated. 38. During the hearing the petitioner filed a certified copy of the recommendation made by Sri Ramanathan on 1-12-1951 which, is in the following terms: "When an Estate's management is bad it is the duty of the Government that we should take it over. My recommendation would, therefore, be that the Estate be taken over under the Court of Wards." This recommendation does not show that the report of the Collector or the materials upon which that report was based, were either placed before the Court of Wards or considered by Mr. Ramanathan before he sent up his remarkably laconic recommendation to Government. In the absence of a clear disclosure of materials, said to have been considered by the Government, I am constrained to hold that no such material was either placed before the Government or considered by it. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overnment. 41. The Orissa Court of Wards Act 1947 (Act 26 of 1947) is a consolidating and amending Act and it repealed three Provincial Acts which were then in force in different areas of the State, viz., the Bengal Court of Wards Act (Act 9 of 1879) which was in force in the area in which the Madhupur Estate is situated; the Central Provinces Court of Wards Act (Act 24 of 1891) and the Madras Court of Wards Act (Act 1 of 1902). The Court of Wards has been in existence for over a century and its functions have undergone changes from time to time. A cursory study of its origin and subsequent growth would show that the Court of Wards was established primarily to ensure the collection of Government Revenue, rather than to protect the minor proprietors. The provisions of the Decennial Settlement gave rise to the necessity for the management by Government of the estates of minors and other persons disqualified from managing their property. This system was inaugurated on 20-8-1790 when the East India Company constituted the Board of Revenue a Court of Wards with powers of superintending the conduct and regularising the accounts of managers of estates of land-holders disqualified from ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to be disqualified under Section 10, he shall submit a report to the Court setting forth all the circumstances of the case: Provided that nothing in this section shall be construed as affecting the power of the Court or the Provincial Government to call for a report on any case, if deemed necessary." Section 14 lays down that "the Collector shall give notice to such proprietor and afford him a reasonable opportunity to be heard and to adduce evidence." Section 15 says that the Court shall consider the Collector's report and shall report the case to the Provincial Government with its recommendation. The Provincial Government may, on receipt of the Court's recommendation, declare the proprietor to be disqualified under Section 10. Section 18 provides that the Provincial government shall not declare any proprietor to be disqualified under Clauses (d), (e) and (f) unless it is "satisfied" that it is "expedient in the public interest" that his property should be managed by the Court and a statement to this effect shall be inserted in the declaration made by the Provincial Government under Section 16. The order, directing the Court to take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d necessary". The absence of a provision in the Orissa Act, corresponding to Section 28 of the Bengal Act is, in my opinion, both significant and suggestive. Under the Bengal Act which had applied to the Estate in question, the Court or the Local Government could declare a proprietor disqualified without a report from the Collector. That power has been taken away, and under the present Act the Provincial Government can only call for a report from the Collector if deemed necessary, and they have no independent power to take action without calling for such a report from the Collector. 43. It is necessary to consider the statutory rules. Under Section 70 of the Bengal Act the Court has the power to make rules for the better fulfilment of the purpose of the Act, and such rules are printed in the Bihar and Orissa Wards Manual, 1927, published by the Orissa Government. These are now in force and are deemed to have been made under the Orissa Court of Wards Act, 1947, under Sub-section (2) of Section thereof. Rule 81 says that in the case of a proprietor falling under categories (a) to (d) of Section 6 (corresponding to Section 10 of the Orissa Act) ordinarily no recommendation will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rily to see that the security of revenue is not imperilled and that there is no campaign by the tenants or others against the proprietor incapacitating him from the due management of the Estate. Section 13 is, therefore, imperative in language and says that the Collector must make an enquiry so as to satisfy himself that he has reason to believe that a proprietor in his district should be declared 'disqualified'. His report should "set forth all the circumstances of the case" which, I should think, means not only the condition of the Estate but also the desirability of taking over its management. It may be that, although the management of an estate is bad, public policy may still require that the proprietor should not be divested of his rights. It may well be that the Collector himself may not be able to undertake the management of an estate, however bad its present management may be. These, and similar circumstances will have to be taken into consideration by the Collector before he can make up his mind to report the case to the Court. The Court again in its turn "shall consider the Collector's report and shall report the case to the Provincial Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er with the proprietor or his tenants, or with the affairs of the district. In a matter of this kind, it is not the community at large represented by the Minister, nor a few tenants of the proprietor, that are competent to decide whether the proprietor is guilty of a "persistent failure" to carry out his duties. Nor can I find any justification for assuming or apprehending that the Collector may have failed in his duty, or that he may not have been honest in the discharge of his duties. There may, of course, be cases where the Collector may have failed in his duty, and I am not insensible to the weight of that argument but if that be the case the Court, to whom the Collector is required to refer the matter is vested with the power to "modify, revise or reverse" the order of the Collector. In the exercise of that power the Court is at liberty to point out the Collector's error, if any, and to direct him to make further enquiries it need be, or may appoint another Officer to enquire and make a fresh report. That is so because the Collector is not absolute, nor free from legal control. He may abuse his power, but so may a power in whomsoever vested; he may mis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer is conferred on the Court. If I am right so far in my interpretation, I think there was no case to be recommended by the Court and a reference back to the Collector was the only course that the Court could resort to. The recommendation made by the Court in this case just complies with the language of Section 15 and does not disclose whether the Court considered the report of the Collector and the ground, if any upon which it came to a conclusion contrary to that arrived at by the Collector. It seems to me therefore and I speak with sincere respect that the discretion vested in the Court has been most erroneously exercised in this case. I have no doubt in my mind that the Court did not apply its mind at all either to the report of the Collector or the materials collected by that Officer, or to the written statement of the petitioner in which he pointed out that most of the complaints made against him were either fanciful or non-existent and that they had been prompted by corrupt motives. 47. Section 18 provides yet another safeguard against undue harassment of a proprietor. It says that the State Government should be 'satisfied' that it is in the public interest that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ested for a specific purpose is used for a different purpose the person using it is treated as a wrong-doer from the first-per Lord Lindley in -- '(1805) AC 426 at p. 429' (C). In such a case it is the Government and not the petitioner who should show that the powers vested in them have been exercised reasonably and within the limits defined by the Act. It is well settled that a public body invested with a statutory power must take care not to exceed or abuse its powers. It must keep within the limits of the authority committed to it; it must act in good faith and must act reasonably; the last proposition is involved in the second, if not in the first. It is, of course, upon the petitioner to make out a case of bad faith and it is on him to show that the Government deprived him of his estate under colour and pretence of protecting it in the public interest. They would be acting mala fide if they took it over for a purpose not authorised by law. But equally it is the duty of Government while exercising statutory powers conferred upon it, for the benefit of the public, to have some-regard for the interests of those who may suffer for the good of the community. In this case, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fined as "land included under one entry in any of the registers of revenue-paying lands." The Orissa Court of Wards Act does not give any definition of the word "estate" though the Bengal Act which it repealed, contained the definition. It merely defines a proprietor as a person who owns or has a life-interest in land either solely or as a co-sharer. The proprietor on whom certain duties are imposed by the Orissa Tenancy Act is a person "owning an estate" and not "any person who owns or has a life-interest in land". This definition, as I have already pointed out in the earlier part of this judgment, was borrowed from the Madras Act, and it is well known that proprietary estates in that State are impartible and inalienable, except for a few which are both partible and alienable. It was therefore appropriate to define the word "proprietor" as a "person owning a life-interest" in the Madras Act as all, or nearly all, landholders in that State own only life-interest the estates being inalienable. But that cannot be said of the temporarily-settled estates of Cuttack district or even the permanently settled estates; all of them ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. This Act prohibits a 'landlord' as defined in the Orissa Tenancy Act, from alienating communal lands. I cannot see how a proprietor can be held guilty of contravention of the provisions of this Act unless he be also a 'landlord' as defined in the Orissa Tenancy Act. The Orissa Tenancy Act penalises 'landlord' refusing to pass receipts and does not refer to a proprietor. There is no indication either in the notification or in the recommendation of the Court of Wards that these matters were taken into consideration before applying the Court of Wards Act to the present case. I am not disposed to give the Act a wider application than its language strictly warrants as it could not have been the intention of the Legislature to vest such extraordinary powers on the Executive Government, so as to bring in anybody's property under the management of the Court of Wards. The rules embodied in the Manual speak throughout of the "proprietors of estates as defined in the Bengal Court of Wards Act, and would not apply if the extended meaning were to be given to "proprietor" as defined in the Orissa Act. The result of the adoption of the definition of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person to be incompetent to manage it it must consider whether there exist materials to warrant such declaration". In -- 'R. v. Manchester Legal Aid Committee', (1925) 1 All E R 480 (Y) a certificate granted under the Legal Aid Regulations to a trustee in bankruptcy was quashed as being invalid as it overlooked that a trustee vis-a-vis his opponent is personally liable for costs like any other litigant. Similar instance of an error of law committed by a statutory tribunal is reported in -- '(1952) 1 All E R 122' (H). The Government should therefore satisfy the Court that the Act applies to the estate of the petitioner and that it, exercised its power judicially, if not judiciously. I may here quote the observations of Lord Lorebourn L. C. in --'(1911) A C 179' (R): "Comparatively recent statutes have extended, even if they have not originated, the practice of imposing upon a Department or Officers of State the duty of deciding or determining questions of various kinds. In the present instance, as in many others, what comes for determination is sometimes a matter to be settled by discretion involving no law. It will, I suppose, usually be of an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o take over the management on a hypothetical assumption by saying "when an estate's management is bad it is the duty of the Government that we should take it over". The badness or goodness of the management of an estate is a matter of opinion, and is certainly not covered by the language of Section 10, Clause (f), Sub-clause (iv). The Court of Wards is a statutory body created by the Legislature exercising a judicial function and is not a subordinate Department of the Executive. Mr. Ramanathan appears to have been labouring under a misconception of the Board's function, and the confusion arising from this misconception is no less confounded when he points out that "it is the duty of Government that 'we' should take it over". The use of the word "we" makes me think that the Court forgot its function as a judicial tribunal and regarded itself as a Department of the Executive. The Board did not even consider whether the petitioner could be properly described as a proprietor and whether the Act would apply to his Estate. Even the affidavit laboriously drawn up by the opposite parties does not disclose that the attention of the State Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Board and the Collector or with the petitioner; in fact there is such an economy of material that I am unable to hold that there was any activity on the part of Board concerning the question of taking over the Estate during this period. In such circumstances the averment about "careful examination" of the matter either by the Board of Revenue or by the State Government does not appeal to me. The petitioner's contention that the Government notification dated 7-12-1951, issued six days after the Board had sent its recommendation, was sprung as a surprise on him in view of the ensuing elections and that the Board had merely sent up a formal recommendation on 1-12-1951 to facilitate Government action, cannot be rejected as baseless. 53. The question is whether in these circumstances it can be said that the State Government were genuinely "satisfied" that the proprietor of Madhupur Estate was incapable of managing or unfitted to manage his Estate. What were the materials placed before the State Government to satisfy it that it was "expedient in the public interest" that the proprietor should be deprived of the management of his Estate? The recommen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elf did not file his nomination although his father had for a long time been representing the constituency, or having filed it withdrew later and Sri Pandit was then declared as one among the duly nominated candidates. The petitioner further alleges that he was asked actively to canvass for the congress candidate which he declined to do. It was necessary to impress upon his tenants that the petitioner was powerless, that he had lost all influence among his people and that they must look to the candidate set up by the party in power. To do that it was necessary to deprive the petitioner of the management of his estate and to reduce him to a figure-head in the eyes of the tenants in his constituency. I am fully conscious that allegations of this kind can easily be made but are difficult to prove. Nonetheless, having regard to the proximity or events and the secretive way in which the Court of Wards proceeded in this matter, without any regard to the statutory provisions or to the Collector's report, I cannot help feeling that it exposed itself to the comment that its action was not bona fide. The non-compliance with the procedure prescribed by the Act and the Rules, the long del ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court of Wards and that the entire Board as a body should act while so functioning. The argument is based upon the language of Section 5, Court of Wards Act which reads as follows: "The Revenue Commissioner shall be the Court of Wards for the areas to which this Act extends". The Board of Revenue Act, 1951 (Act 23 of 1951) provides in Section 3 as follows: "All references in any enactment or in any notification, order, scheme, rule, form, or by-law, issued, made, or prescribed under any enactment to-- (a) the Revenue Commissioner, as specified in the Government of India (Constitution of Orissa) Order, 1936; or (b) the Board of Revenue of the Provinces of Orissa and Madras and other authorities whose functions were assigned to the Revenue Commissioner, Orissa, by Notification of the Government of Orissa, No. 22, dated 1-4-1936; (c) ..... (d) ..... shall be construed as references to the Board as constituted by or under this Act." If I have understood the contention of learned counsel aright, it amounts to saying that wherever a reference is made in any enactment to the Revenue Commissioner, it should be read as a reference to the Board as cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation must have been made. It may be that the Court of Wards would have produced the declaration if such an objection had been taken earlier. "Business" certainly includes duties and functions, and one of the duties of the Board as defined in Section 4 of Act 23 of 1951 is the superintendence and control of all zamindars or proprietors of revenue-paying or revenue-free lands. I am therefore disposed to think that a single Member of the Board is competent to function as the Court of Wards in accordance with Section 5, Board of Revenue Act, and that tine recommendation made by Mr. Ramanathan cannot be challenged on that ground. 57. A point that was faintly argued was that the Court of Wards Act, 1947, is repugnant to the provisions of Sub-clause (f) of Clause (1) of Article 19 of the Constitution. Deprivation of a person's right to manage, his property, under the Court of Wards Act, 1947, constitutes, it is argued, an encroachment on a citizen's right to "hold" property as laid down in that Article and that 'any' restriction of the kind imposed by the Court of Wards is an unreasonable restriction. But this appears to me to be too sweeping a conten ..... X X X X Extracts X X X X X X X X Extracts X X X X
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