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Akhtar Ahmed Vs. State of Andhra Pradesh, Hyderabad and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. No. 701 of 1962
Judge
Reported inAIR1964AP244
ActsWakf Act, 1954 - Sections 18(1)
AppellantAkhtar Ahmed
RespondentState of Andhra Pradesh, Hyderabad and ors.
Appellant AdvocateG. Venkatarama Sastry, Adv.
Respondent Advocate3rd Government Pleader, ;Jaleel Ahmed and ;Mir Akbar Ali Nasim, Advs.
DispositionPetition allowed
Excerpt:
.....and the government is said to have been satisfied that the said conduct was prejudicial to the interests of the wakfs. but the case on hand is not one like that. i do not see any reasonable, relevant, much less direct correspondence, between the cause stated and the conclusion drawn, mis aspect of the matter seems to make the determination arbitrary and unreasonable if not devoid of good faith. and what precisely are the facts on which the allegation of discourtesy is founded? it amounted to arbitrary action and it had not show sufficient good faith, if an order can be characterised as highly unreasonable and arbitrary, law will also inter bad faith against, the authority which passed it this is because all these elements are so closely inter-refated that it is well-high impossible..........was prejudicial to the interests of the wakfs. therefore, he was removed from membership of the wakfs board. now, in the discourteous conduct with which the petitioner was charged could not at all have reasonably led to the determination that it was prejudicial to the interest of the wants, in other words, if there was no relevant, reasonable and intelligible nexus between the ground alleged and the conclusion reached, it cannot be said that the consideration alleged to have been made by the government was a reasonable and valid consideration or that the determination was a fair and bona fide determination. it might not be easy to predicate in every case that the reason stated could not at all have led to the particular conclusion claimed to have been reached. in a given case there.....
Judgment:
ORDER

Gopalakrishnan Nair, J

1. The petitioner asks for a Writ of certiorari to quash the order dated 10-7-1962 passed by the First respondent-Government removing film from membership or the Andhra Pradesh wakf Board. The main ground on which this petition is based is that the first respondent which passed the Impugned order under Section 18(1)(b) of theMuslim wakfs Act, acted unreasonably, arbitration are Without bona fides. The petitioner was a member of the Wakf Board which was constituted by G. O. Ms. No. 457, Home , (Endowment IV) dated 4-3-1961, THIS board consisted of 11 members. They elected one of them, Sri Latiff, as chairman.

2. At a meeting of the Board held on 29-3-1962 it was resolved that the budget prepared by the finance Committee should be brought up for consideration of the Board along with the review thereof by the Accounts under. On 19-4-1962, however, the Chairman caused it to He informed to the members of the Board including the petitioner that he proposed to invite the members of the finance Committee also to be present at the meeting at which the Board was to consider the budget and the report of The Accounts Officer. When the Chairman's proposal was circulated to the petitioner, he noted on it to the following effect;

'I fail to understand why the Chairman insists on making the decisions of the Board ineffective.'

The Chairman took umbrage at this and promptly called upon the petitioner to withdraw the remarks. This, the petitioner did not do. It appears that the Chairman took me matter to the Government. On 5-6-1962, the Deputy Secretary in the Home Department caused a notice to be served on the petitioner asking him to submit his explanation regarding his discourteous conduct towards the chairmen and also calling upon him to show cause why action should not be taken against him under section 18 of me Wakfs Act. The petitioner desired to refer to some recurs of the Board before submitting his explanation. This was permitted. On 26-6-1962, the petitioner submitted his explanation to the Government, and on 10-7-1962 the impugned order was passed removing him from membership of the Board. This order is assailed by the petitioner as one passed without jurisdiction illegally and arbitrarily. According to him, this is not a valid order in the eye of law.

3. The respondents resist this petition on the ground that the removal of the petitioner from membership of the Board was proper and justified on He facts and circumstances of the case. The Assistant Secretary, Home Department, in his counter-affidavit, has set out in elaborate detail several matters of administration of the Board, particularly certain financial aspects, in an attempt to make out that the petitioner's removal was proper. He has also alleged that the act of discourtesy on the part of we petitioner towards the elected Chairman of the Board was considered by the Government to be prejudicial to the interests of the Wakfs within the meaning of Section 18 (1)(b) or the Wakfs Act. He has further staled that the impugned order was based on the subjective satisfaction of the Government and is therefore not amenable to Judicial review, me 2nd respondent who is the Secretary of the Board and the third respondent who was appointed in the place of the petitioner have taken a stand more or less similar to mat of the 1st respondent.

4. Before proceeding further, it is necessary to set out the relevant portion of section 18 of the wakfs act. It reads:

18 (1). 'The State Government may, by nomination in the Official Gazette, remove the Chairman of the Board or any member thereof if he -- --

(a) ..........

(b) refuses to act or is incapable of acting or acts in a manner which the State Government, after hearing any explanation that he may offer, considers to be prejudicial to the interests of the wakfs'.

The petitioner in the present case was asked to furnish his explanation regarding the alleged discourteous conduct of his towards the Board's Chairman. The Government passed the impugned order alter the receipt of the petitioners explanation. The stand of the Government is that they had observed all the requirements of Section 18(1)(b) of the Act before they passed the order removing the petitioner from membership of the Board and that therefore it is not open to the petitioner to attack that order. The learned counsel for the petitioner, on the other hand, has urged that in order to make an order valid in law or even to give it a legal existence, it must be passed not arbitrarily and capriciously but nonestly and reasonably. In the instant case, the gravamen of the petitioner's complaint is that the order passed by the Government was extremely arbitrary and unreasonable and therefore devoid of bona fides. Such an order, according to him, has no existence in the eye of law. I think this contention is well founded.

5. It an authority is empowered under a statute to make a particular determination, even if it be a subjective determination, it has to reach it fairly and honestly and not arbitrarily or capriciously. it will not avail it merely to say that the particular statute empowered it to pass me particular order as a matter of subjective satisfaction, me order will be good only if it is the result of a satisfaction reached bona fide, a satisfaction which an average person endowed with ordinary sense of reason could possibly nave arrived at on a consideration of the relevant facts which are claimed to form the basis of the satisfaction, and not a satisfaction so-called which in reality stood rooted in arbitrariness, bias or caprice. The position seems to be unexceptionable in law. I may refer in this connection to a decision of the Court of Appeal in Picture Houses v. Wednesbury Corpn., (1947) 2 KB 680, which sets out certain relevant principles. At page 682 Lord Greene, says:--

'When an executive discretion is entrusted by a parliament to a local authority, what purports to be an exercise of that discretion can only be challenged In the courts in a very limited class of case. It must always be remembered that the Court is not a court of appeal. The law recognises certain principles on which the discretion must be exercised, but within the four corners of those principles the discretion is an absolute One and cannot be questioned in any Court of law.

What, then, are those principles? They are perretly well understood. The exercise of such a discretion must be a real exercise of the discretion, if, in the statute cornering the discretion, there is to be found, expressly or by implication, matters to which the authority exercising me discretion ought to have regard, then, m exercising the discretion, they must have regard to those matters, conversely, if the nature of the subject-matter and the general interpretation of the Act make it clear that certain matters would not be germane to the matter in question, may must disregard those matters. Expressions have been used in cases where the powers of local authorities earns to be considered relating to the sort of thing that may give rise to interference by the court. Bad faith, dishonesty -- --those, of course, stand By themselves -- unreasoname ness, attention given to extraneous circumstances, disregard of public policy, and things like that have all been referred to as being matters which are relevant for consideration, in the present case we have heard a great deal about the meaning of the word 'unreasonable'. It is true the discretion must be exercised reasonably. What does that mean? Lawyers familiar with the phraseology commonly used in relation to the exercise of statutory discretion often usethe word 'unreasonable' In a rather comprehensive sense, It is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to the matter that he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting 'unreasonably'. Similarly, you may have something so absurd may no sensible person could ever dream that it lay within the powers of the authority warrington, L. J., I think it was, gave the example of the red haired teacher, dismisses, because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith. In fact, all these things largely fall under one head.'

Turning to the relevant provisions of Section 18(1) (b) in the context of the present case, three main requisites need to be satisfied before an order removing a member or the Board can validly be passed, First, the member must have done some allegedly prejudicial act, second, his explanation in respect of it must be heard and third, me Government before passing the order of removal must be satisfied, as an honest and reasonable person, that the act or conduct in respect of which the explanation was heard was prejudicial to the interests of the wants, if any one of these requirements Is not satisfied, I think the order of removal under Section 18 (1) (b) cannot be upheld.

6. In the present case, the petitioner was proceeded against for having behaved in a discourteous manner towards the Chairman of the Board. The alleged discourtesy consisted in the petitioner having noted to the effect that he failed to understand why the Chairman insists on the making of the decisions of the Board ineffective, the explanation called for by the Government was specifically in respect of this conduct of the petitioner and the Government is said to have been satisfied that the said conduct was prejudicial to the interests of the wakfs. Therefore, he was removed from membership of the wakfs Board. Now, In the discourteous conduct with which the petitioner was charged could not at all have reasonably led to the determination that it was prejudicial to the Interest of the Wants, in other words, if there was no relevant, reasonable and intelligible nexus between the ground alleged and the conclusion reached, it cannot be said that the consideration alleged to have been made by the Government was a reasonable and valid consideration or that the determination was a fair and bona fide determination. It might not be easy to predicate In every case that the reason stated could not at all have led to the particular conclusion claimed to have been reached. In a given case there coma be scope for honest and reasonable difference of opinion. But the case on hand is not one like that. I find it extremely difficult to say that because on a particular occasion a member of the wakfs Board happened to have in a rather discourteous manner towards the Chairman of the Board anything prejudicial to the interests of the Wakfs has taken place. I do not see any reasonable, relevant, much less direct correspondence, between the cause stated and the conclusion drawn, mis aspect of the matter seems to make the determination arbitrary and unreasonable if not devoid of good faith. It is perhaps the realisation of this infirmity that led the 1st respondent to file a very long and elaborate affidavit which reflects the utmost strain in an attempt to establish that the petitioner deserved to be removed from the membership of tha Board as his alleged doings were prejudicialto the Interests of the Wakfs. But in seeking to make this out the affidavit travelled far beyond the relevant facts and dwelt upon unnecessary and extraneous material with which the present proceedings cannot legitimately be concerned. I say this because none of the additional matters referred to in the affidavit was put to the petitioner for his explanation. As I already stated, the one and only matter which was alleged against mm and which was asked to be explained ay him was the making or certain remarks in writing by him which was construed as constituting discourtesy to the Chairman of the Board. Therefore, the many other matters with which the affidavit of the Assistant Secretary, Home Department seems to shroud the central point in controversy, have to be eschewed from consideration. For this reason it is also unnecessary to deal with the petitioner's reply affidavit which has traversed the allegations in the respondent's counter-affidavit.

7. If the alleged discourtesy of the petitioner towards the Chairman cannot by any permissible process of reasoning be said to be prejudicial to the interests of me Wakfs, it cannot be otherwise merely because we Trust respondent says so. And what precisely are the facts on which the allegation of discourtesy is founded? The Board passed a resolution to consider at its next meeting the draft budget of the Finance Committee along with the report of the Accounts Officer. The Chairman, however, considered it desirable to invite the members of we Finance Committee to participate in the discussions or the Board at its next meeting which was to be called in pursuance of the aforesaid resolution of the Board. The members of the Finance Committee were not apparently members of the Board. The Chairman's proposal to invite them to the Board's next meeting was therefore in modification of the Board's previous resolution, only the Board could have modified its resolution. It would perhaps have been open to the Chairman to call a meeting of the Board and get its concurrence to the modification he desired. He could perhaps have also secured the concurrence or the members of the Board by circulating an amendment to the Board's previous resolution. All this would have been acceptable procedure. But what the Chairman actuality did was just to inform the members of the board that he proposed to invite the members of the Finance committee to the Board's next meeting. This was not, strictly speaking, a correct procedure. It was in this context that the petitioner wrote the remarks adverted to already which were considered to be discourteous to the chairman. A member of the Board cannot be denied the right to oppose any move or proposal by the Chairman to adopt a course of action not approved by the Board, A member is also entitled to express his view on any matter placed before him. I do not think the petitioner exceeded this right, considering the circumstances of this case. The quarrel, if at all, could only have been that he expressed his disapproval in somewhat carping language, the Chairman who appears to have been too touchy gave It exaggerated Importance. The petitioner who was perhaps a little too squeamish about procedural regularities and too conscious of the rights of the Board and Its members considered himself to be in the right. The whole affair, viewed in its proper perspective, was only a passing incident In me day-to-day administration of the Board. It did not in any way endanger or prejudice the interests of the wakfs; It did not call for or justify the drastic action of removal of a member of the Board by resorting to section 18 or the Act. The decision that this rather small moment was prejudicial to the interests of the wakfs was highly unreasonable; it amounted to arbitrary action and it had not show sufficient good faith, If an order can be characterised as highly unreasonable and arbitrary, law will also inter bad faith against, the authority which passed It tHIS is because all these elements are so closely inter-refated that it is Well-high impossible to draw distinct dividing lines between them. One virtually merges into the other and an of them together belong to the same category.

8. The learned Government Pleader has Drawn my attention to the decision of the Supreme Court in Radheshyam v. State of Madhya pradesh, AIR 1959 SC 10/. That decision, however, does not seem to be of assistance to mm. It is stated there at more than one place that unless an order is passed honestly and bona fide it cannot be up-held. It also indicates that the order must not be arbitrary and capricious which tantamounts to saying it must not be so palpably unreasonable. If an order is subject to any of the aforesaid infirmities, it will be no answer for the authority to say that the order was passed, as a matter of its subjective satisfaction. In this connection it is well to recall the observations of Lord Greene, M.R., in (1947) 2 KB 680 cited supra, regarding the dismissal of a teacher because she is red haired. Merely because aStatute gives power to an administrative authority to arrive at a subjective determination, it does not at all mean that any order, however patently unreasonable and arbitrary it be, can be passed by it under cover of mat statute it passes such an order, it arrogates to itself a power and a jurisdiction which the statute did not Intend to confer on it.

9. Section 18(1) (b) does not comer on the Government an absolute authority. It is limited ay the important requirement that the act or conduct with which a member is charged must be capable of being held to be prejudicial to the interests of the Wants. If this is not satisfied I do not think an order passed under Section 18(1) (b) can be held to be valid in the eye of law or regarded as one passed with jurisdiction this is the position in the instant case.

10. I therefore feel called upon to quash the impugnedorder as asked for the petitioner. The petitioner wm getcosts of the first respondent. Counsel's fee Rs. 100/-.


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